"Gang expert's" testimony was erroneously admitted, but held to be harmless error

United States v. Garcia & Ramirez, 2015 WL 4232199 (7/14/2015) (KS): What are the odds that two young men sentenced to life plus many decades will get relief on appeal? Not good when the opinion starts out like this; “Garcia and Ramirez were convicted of conspiring with their criminal gang of violating the RICO statute.” That does not mean the panel did not find error. It did. It ruled that the government’s expert gang witness did not apply his “expertise” to the facts of the case and instead just repeated what the gang members had told him. His testimony was hearsay and arguably violated the Confrontation Clause. But the panel found the error harmless because numerous witness had also testified to the facts he was repeating. However, this is an opinion one might consider reading when trying to exclude the government’s law enforcement “experts.” It appears that the government uses these experts merely to regurgitate the statements of those they have interrogated. These statements then have an aura of infallibility and culpability when they come out of an “expert’s” mouth. This case and United States v. Mejia, 545 F.3d 179 (2d Cir.2008), which the court relied on here, can help you exclude such testimony. The panel also found the government did not violate Brady because the undisclosed evidence of a co-defendant’s 2 other prior meetings with agents was not material; (2) the government did not violate Napue, 360 U.S. 264, because the witness’s omission of these meetings was not intentional; (3) the challenge to the interstate-commerce jury instruction on the RICO charge failed because it is based on the false premise that there was no evidence that the RICO enterprise engaged in economic activity; (4) the challenge to the VICAR convictions failed because it is based on the same false premise.