In United States v. Hawkins, No. 17-11560 (Aug. 20, 2019) (Antoon (M.D. Fla.), Newsom, Tjoflat), the Court affirmed in part but vacated several drug convictions.
First, the Court upheld the denial of a motion to suppress wiretap evidence, rejecting the argument that the wiretap applications did not meet the "necessity" requirement of Title III. The accompanying affidavits described other investigative techniques already employed and that proved unsuccessful, and the good-faith exception applied in any event. The Court also upheld the denial of a motion to suppress evidence seized during a traffic stop because there was a probable cause of a traffic violation, namely changing lanes on the interstate without using a turn signal.
Second, the Court rejected the defendant's argument that the evidence at trial on a conspiracy count diverged from the allegations in the indictment, resulting in a constructive amendment or variance.
However, the Court agreed with the defendants that the lead case agent—the government's primary witness at trial—went beyond the bounds of permissible expert testimony by repeatedly providing speculative interpretive commentary about the meaning of phone calls and text messages and by giving his opinions about what was occurring during and in between those communications. Rather than interpreting drug codes or common practices, which an expert may do, he interpreted unambiguous language in conversations, mixed expert opinion with fact testimony, and synthesized the trial evidence for the jury, straying into speculation and unfettered, wholesale interpretation of the evidence. The Court concluded that this met all of the requirements of plain-error review, emphasizing that the agent was paraded to the jury as an expert, often went beyond mere lay opinion testimony, and at times played the role of both expert and lay witness, and that the agent was the government's main witness who testified for more than half of the trial.