Case 1:15-cr-00104-AWI-SKO Document 192 Filed 04/03/17 Page 1 of 16 1 PHILLIP A. TALBERT United States Attorney 2 MELANIE L. ALSWORTH DAWRENCE W. RICE, JR. 3 Assistant United States Attorneys 2500 Tulare Street, Suite 4401 4 Fresno, CA 93721 Telephone: (559) 497-4000 5 Facsimile: (559) 497-4099 6 Attorneys for Plaintiff 7 United States of America 8 IN THE UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, 12 Plaintiff, 13 14 CASE NO. 1:15-CR-00104 AWI GOVERNMENT’S TRIAL BRIEF v. KEITH FOSTER, RANDY FLOWERS, AND RICKY REYNOLDS, 15 Defendants. DATE: May 9, 2017 TIME: 8:30 a.m. COURT: Hon. Anthony W. Ishii 16 17 18 A. 19 The estimated length of the trial is two weeks. The government has subpoenaed approximately Status of Case 20 40 witnesses. Trial is by jury. The defendants are not in custody. 21 Keith Foster is charged in Count Eleven with Conspiracy to Distribute and Possess with Intent to 22 Distribute Heroin in violation of 21 U.S.C. §§ 846 and 841(a)(1). 23 Keith Foster and Ricky Reynolds are charged in Count Twelve with Conspiracy to Distribute and 24 Possess with Intent to Distribute Marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1). Ricky 25 Reynolds is charged in Counts Fourteen, Sixteen, and Eighteen with Distribution of Marijuana in 26 violation of 21 U.S.C. § 841(a)(1). Ricky Reynolds is charged in Count Twenty-Two with 27 Manufacturing Marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D). 28 Keith Foster and Randy Flowers are charged in Count One of the indictment with Conspiracy to Case 1:15-cr-00104-AWI-SKO Document 192 Filed 04/03/17 Page 2 of 16 1 Distribute and Possess with Intent to Distribute Oxycodone in violation of 21 U.S.C. §§ 846 and 2 841(a)(1). Keith Foster is charged in Counts Two, Four, Six and Eight with Distribution of Oxycodone 3 in violation of 21 U.S.C. § 841(a)(1). Randy Flowers is charged in Counts Three, Five, Seven and Nine 4 with Possession with Intent to Distribute Oxycodone in violation of 21 U.S.C. § 841(a)(1). And, Randy 5 Flowers is charged in Count Ten with Felon in Possession of Firearms in violation of 18 U.S.C. § 6 922(g)(1). 7 In addition, Keith Foster is charged in Count Twenty-Six, Randy Flowers is charged in Count 8 Twenty-Seven, and Ricky Reynolds is charged in Count Thirty with Illegal Use of a Communication 9 Facility in violation of 21 U.S.C. § 843(b). 10 A criminal forfeiture allegation under 18 U.S.C. § 924(d)(1), 21 U.S.C. § 853(a), and 28 U.S.C. 11 § 2461 is also alleged in the indictment as to each defendant. 12 13 B. Proposed Neutral Statement of Case The defendants, Keith Foster, Randy Flowers, and Ricky Reynolds, have been charged with 14 Conspiring to Distribute and Possess with Intent to Distribute Controlled Substances, Distributing and 15 16 Possessing with Intent to Distribute Controlled Substances, and Illegal Use of a Communication 17 Facility. In addition, defendant Randy Flowers has been charged with being a Felon in Possession of 18 Firearms. The charges against the defendants are contained in the indictment. The indictment simply 19 describes the charges the government has brought against the defendants. The indictment is not 20 evidence. The defendants have pled not guilty to the charges and are presumed innocent unless and until 21 the government proves the defendants guilty beyond a reasonable doubt. In addition, the defendants 22 have the right to remain silent and never have to prove innocence or to present any evidence. 23 24 C. Summary of Facts 25 26 Keith Foster was a Deputy Chief of Police in the Fresno Police Department. He resigned from 27 that position on April 3, 2015, one week after his arrest in this case. 28 TRIAL BRIEF 2 Case 1:15-cr-00104-AWI-SKO Document 192 Filed 04/03/17 Page 3 of 16 1 1. Heroin Conspiracy 2 3 4 Between December 23, 2014 and February 2, 2015, Keith Foster conspired with Rafael Guzman to obtain an ounce of heroin for Lashon Jones. On December 23, 2014, agents intercepted a call 5 between Keith Foster and Lashon Jones. Lashon Jones asked Keith Foster, “Are you going to talk to ‘ol 6 boy for me this morning.” Keith Foster responded, “As soon as he calls me, I’m going to tell him to 7 grab a piece and I’m going to call you and tell you where, where we’re going to meet.” 8 Keith Foster and Rafael Guzman talked on December 24, 2014. During this call, Keith Foster 9 asked Rafael Guzman if he remembered “what we talked about … uh, the black.” Keith Foster says he 10 11 knows someone who wants to get one. Rafael Guzman asks, “they want one of them,” and Keith Foster 12 says, “yeah, what’s the ticket?” Rafael Guzman says the price will be about “a rack for the best” and 13 “we’re talking about some China white though.” Keith Foster admonishes Rafael Guzman not to go into 14 so much detail on the phone. Subsequent telephone conversations occurred between Keith Foster and 15 Rafael Guzman during the month of January during which they discussed “their project,” ongoing 16 negotiations with Rafael Guzman’s source of supply, and needing a “pilot” to go pick up the heroin. 17 Additionally, Keith Foster and Rafael Guzman were seen meeting on December 20, 2014 (Keith 18 19 Foster’s house); January 4, 2015 (Cedar/Nees); January 10, 2015 (Shaw/West); and January 14, 2015 20 (Ashlan/West). On February 2, 2015, Keith Foster talked to Lashon Jones, during which Lashon Jones 21 22 apologized for putting Keith Foster in a bad situation with “the Mexicans.” Lashon Jones told Keith 23 Foster that she was able to acquire “it” quickly and was “a cheaper hook up.” 24 2. 25 26 Marijuana Conspiracy Denny Foster is Keith Foster’s nephew. Between July 19, 2014 and March 26, 2015, Denny 27 28 Foster sold pound or smaller quantities of marijuana from his home in Fresno, California. Denny TRIAL BRIEF 3 Case 1:15-cr-00104-AWI-SKO Document 192 Filed 04/03/17 Page 4 of 16 1 Foster’s primary marijuana source of supply was Ricky Reynolds, who lives in Shasta Lake, California. 2 Denny Foster regularly traveled to the Shasta Lake area to purchase marijuana from Ricky Reynolds. 3 Surveillance and wire interceptions, established that Denny Foster traveled to the Shasta Lake area to 4 acquire marijuana from Ricky Reynolds on November 20, 2014; December 6, 2014; and, January 3, 5 6 2015. On November 25, 2014, a lengthy telephone call was intercepted between Denny Foster and 7 Ricky Reynolds in which they discussed the marijuana business and Denny Foster acquiring pounds of 8 marijuana from Ricky Reynolds. 9 10 11 On December 5, 2014, a call was intercepted between Denny Foster and Ricky Reynolds during which Denny Foster agreed to deposit money into Ricky Reynolds’ account so Ricky Reynolds would hold four pounds of marijuana for Denny Foster to pick up. While Denny Foster was in the Shasta Lake 12 13 14 area on December 6, 2014, he received a call from Keith Foster asking whether Denny Foster was “going to get some more units next week.” Denny Foster told Keith Foster he was there now. Keith 15 Foster said his “boy” wanted to get “one.” When Denny Foster told Keith Foster that he would need to 16 deposit money into Denny Foster’s bank account for it, Keith Foster responded, “I don’t like goin’ to 17 them banks.” Keith Foster said he’d tell his boy to “hook up” with Denny Foster in one week and get it 18 through Denny Foster. On December 9, 2014, Keith Foster talked to Denny Foster and said “his boy” 19 wants “4 units.” During this call, Keith Foster also asked Denny Foster for $200. 20 21 On January 4, 2015, a traffic stop was made by CHP in Merced County on a car that Denny 22 Foster was driving back to Fresno after picking up marijuana from Ricky Reynolds. Denny Foster 23 admitted to the CHP officer that he had marijuana in the trunk of the vehicle. Six pounds of marijuana 24 were found in a cooler in the trunk. 25 26 The female passenger in the car called Keith Foster when Denny Foster was arrested. Keith Foster told her that he “could have provided cover” for Denny Foster if he had known about the trip 27 ahead of time. Keith Foster said he would call his “narc guys.” 28 TRIAL BRIEF 4 Case 1:15-cr-00104-AWI-SKO Document 192 Filed 04/03/17 Page 5 of 16 1 On March 26, 2015, agents found approximately two hundred marijuana plants and packaged 2 marijuana during the execution of a search warrant at Ricky Reynolds’ home in Shasta Lake, California. 3 3. Oxycodone Conspiracy 4 Between May 23, 2014 and March 26, 2015, Keith Foster obtained prescriptions for oxycodone 5 6 (90-100 30mg pills per prescription), and on nine occasions called Randy Flowers after picking up the 7 prescription. On four occasions (December 23, 2014, January 27, 2015, February 26, 2015, and March 8 26, 2015), agents conducted surveillance and wire interceptions that show Keith Foster delivered 9 oxycodone pills to Randy Flowers. 10 Wire and electronic interceptions of Keith Foster’s telephone began on December 20, 2014. On 11 12 13 December 23, 2014, agents intercepted a call over Keith Foster’s telephone indicating that a prescription was available for pick up at Rite Aid. Agents set up surveillance at Rite Aid and saw Keith Foster’s 14 BMW in the drive-through. Keith Foster then called Randy Flowers and said “I got 100 of them things.” 15 Randy Flowers gave Keith Foster his address, and agents set up surveillance in the area. Agents saw 16 Keith Foster’s BMW leaving the area of Randy Flowers’ residence at approximately 5:52 p.m. 17 Prescriptions from Rite Aid seized during the investigation and the California DOJ Controlled 18 Substances Utilization and Review System computer database confirm that Keith Foster had a 19 20 prescription for 100 30mg oxycodone pills on December 23, 2014. On January 27, 2015, Keith Foster called Rite Aid and inquired about the availability of a 21 22 prescription. Keith Foster then called Randy Flowers, and they discussed meeting when Keith Foster 23 was off work. Agents saw Keith Foster walk from Rite Aid to his BMW. Keith Foster again called 24 Randy Flowers, who indicated he was home. Agents followed Keith Foster to Randy Flowers’ 25 residence. The California DOJ Controlled Substances Utilization and Review System computer 26 database confirms that Keith Foster had a prescription for 100 30mg oxycodone pills on January 27, 27 28 2015. TRIAL BRIEF 5 Case 1:15-cr-00104-AWI-SKO Document 192 Filed 04/03/17 Page 6 of 16 1 Keith Foster picked up a prescription for 100 30mg oxycodone pills from Rite Aid on February 2 25, 2015. Prescriptions from Rite Aid seized during the investigation and the California DOJ Controlled 3 Substances Utilization and Review System computer database confirm that Keith Foster had this 4 prescription. On the same date, Keith Foster called Randy Flowers to set up a meeting. They agreed to 5 6 meet on February 26th. At approximately 6:16 p.m., Keith Foster arrived at Randy Flowers’ residence 7 and parked outside the fence. Keith Foster called Randy Flowers, who said he was on his way home. 8 At approximately 6:24 p.m., Keith Foster followed a truck through the gate, and a Tahoe pulled in 9 behind Keith Foster. At 6:26 p.m., Keith Foster departed Randy Flowers’ residence, then called Randy 10 11 Flowers and said, “Hey Bulldog. You gave me 240 in 20s.” Randy Flowers responds, “. . . oh no.” Keith Foster returned to the residence, and drove away a short time later. 12 13 14 On March 25, 2015, Keith Foster picked up a prescription for 100 30mg oxycodone pills from Rite Aid. Prescriptions from Rite Aid seized during the investigation and the California DOJ Controlled 15 Substances Utilization and Review System computer database confirm that Keith Foster had this 16 prescription. Later that night, he contacted Randy Flowers, and they agreed to meet the next morning if 17 Randy Flowers was not called into work. On the morning of March 26, 2015, Keith Foster went to 18 Randy Flowers’ residence. As Keith Foster drove away from the residence, a traffic stop was 19 conducted. Keith Foster was taken into custody and his car was searched. $1,300 in cash and a Rite Aid 20 21 prescription bottle in his name containing two oxycodone pills were found in the glove box of his 22 vehicle. 23 Randy Flowers’ residence was searched, and agents located 98 oxycodone pills in a Rite Aid 24 bottle that did not have a label, more than $10,000 in cash, and four firearms. Randy Flowers has prior 25 felony convictions for possession of cocaine base for sale and felon in possession of a firearm. 26 At Keith Foster’s home, agents found an additional $9,000 in cash and empty oxycodone 27 prescription bottles in a safe. 28 TRIAL BRIEF 6 Case 1:15-cr-00104-AWI-SKO Document 192 Filed 04/03/17 Page 7 of 16 1 FBI SA Daniel S. Harkness, drove Keith Foster to the U.S. Courthouse in Fresno on March 27, 2 2015. While Keith Foster was in the car he spontaneously said “his family got him into this”, “he had 3 let his boys down and the community down”, one of the first things he was going to do is resign from 4 the Fresno City Police Department, he had let his children down, he had let Jerry Dyer down, he was 5 6 next in line to be the police chief, and he just wanted to talk with Jerry Dyer. 7 D. 8 Elements of Charges Defendants Keith Foster and Randy Flowers are charged in Count One of the indictment 9 with Conspiracy to Distribute and Possess with Intent to Distribute Oxycodone in violation of Sections 10 11 846 and 841(a)(1) of Title 21 of the United States Code. In order for the defendants to be found guilty 12 of that charge, the government must prove each of the following elements beyond a reasonable doubt: First, beginning on or about May 23, 2014 and ending on or about March 26, 2015, there was an 13 14 agreement between two or more persons to distribute and possess with intent to distribute oxycodone; 15 and, 16 Second, the defendants joined in the agreement knowing of its purpose and intending to help 17 accomplish that purpose. 18 19 ATo distribute@ means to deliver or transfer possession of oxycodone to another person, with or 20 without any financial interest in that transaction. 21 A conspiracy is a kind of criminal partnershipCan agreement of two or more persons to commit 22 one or more crimes. The crime of conspiracy is the agreement to do something unlawful; it does not 23 24 matter whether the crime agreed upon was committed. Keith Foster is charged in Counts Two, Four, Six and Eight with Distribution of Oxycodone in 25 26 27 28 violation of Section 841(a)(1) of Title 21 of the United States Code. In order for him to be found guilty of these charges, the government must prove each of the following elements beyond a reasonable doubt: First, the defendant knowingly distributed oxycodone; and, TRIAL BRIEF 7 Case 1:15-cr-00104-AWI-SKO Document 192 Filed 04/03/17 Page 8 of 16 1 Second, the defendant knew that it was oxycodone or some other prohibited drug. 2 ADistributing@ means delivering or transferring possession of oxycodone to another person, with 3 or without any financial interest in that transaction. 4 The government is not required to prove the amount or quantity of oxycodone. It need only 5 prove beyond a reasonable doubt that there was a measurable or detectable amount of oxycodone. 6 Randy Flowers is charged in Counts Three, Five, Seven and Nine with Possession with Intent to 7 8 Distribute Oxycodone in violation of Section 841(a)(1) of Title 21 of the United States Code. In order 9 for him to be found guilty of these charges, the government must prove each of the following elements 10 beyond a reasonable doubt: 11 First, the defendant knowingly possessed oxycodone; and, 12 Second, the defendant possessed it with the intent to distribute it to another person. 13 To Apossess with intent to distribute@ means to possess with intent to deliver or transfer 14 15 possession of oxycodone to another person, with or without any financial interest in the transaction. Keith Foster is charged in Count Eleven with Conspiracy to Distribute and Possess with Intent to 16 17 Distribute Heroin in violation of Sections 846 and 841(a)(1) of Title 21 of the United States Code. In 18 order for him to be found guilty of that charge, the government must prove each of the following 19 elements beyond a reasonable doubt: 20 First, beginning on or about December 23, 2014 and ending on or about February 2, 2015, there 21 22 was an agreement between two or more persons to distribute and possess with intent to distribute heroin; 23 and, 24 Second, the defendant joined in the agreement knowing of its purpose and intending to help 25 accomplish that purpose. 26 27 Keith Foster and Ricky Reynolds are charged in Count Twelve with Conspiracy to Distribute and Possess with Intent to Distribute Marijuana in violation of Sections 846 and 841(a)(1) of Title 21 of the 28 TRIAL BRIEF 8 Case 1:15-cr-00104-AWI-SKO Document 192 Filed 04/03/17 Page 9 of 16 1 United States Code. In order for them to be found guilty of that charge, the government must prove 2 each of the following elements beyond a reasonable doubt: 3 First, beginning on or about July 14, 2014 and ending on or about March 26, 2015, there was an 4 agreement between two or more persons to distribute and possess with intent to distribute marijuana; 5 6 and, Second, the defendants joined in the agreement knowing of its purpose and intending to help 7 8 accomplish that purpose. 9 10 11 Ricky Reynolds is charged in Counts Fourteen, Sixteen, and Eighteen with Distribution of Marijuana in violation of Section 841(a)(1) of Title 21 of the United States Code. In order for him to be found guilty of these charges, the government must prove each of the following elements beyond a 12 13 reasonable doubt: First, the defendant knowingly distributed marijuana; and, 14 Second, the defendant knew that it was marijuana or some other prohibited drug. 15 Ricky Reynolds is charged in Count Twenty-Two with Manufacturing Marijuana in violation of 16 17 Sections 841(a)(1) and (b)(1)(D) of Title 21 of the United States Code. In order for him to be found 18 guilty of these charges, the government must prove each of the following elements beyond a reasonable 19 20 doubt: First, the defendant knowingly manufactured marijuana; 21 Second, the defendant knew that it was marijuana or some other prohibited drug; and, 22 23 24 Third, this manufacturing offense involved 50 or more marijuana plants. Keith Foster is charged in Count Twenty-Six, Randy Flowers is charged in Count Twenty-Seven, 25 and Ricky Reynolds is charged in Count Thirty with Illegal Use of a Communication Facility in 26 violation of Section 843(b) of Title 21 of the United States Code. In order for a defendant to be found 27 guilty of this charge, the government must prove the following element beyond a reasonable doubt: 28 TRIAL BRIEF 9 Case 1:15-cr-00104-AWI-SKO Document 192 Filed 04/03/17 Page 10 of 16 1 The defendant knowingly or intentionally used a telephone to help bring about the distribution of 2 a controlled substance. 3 Finally, Randy Flowers is charged in Count Ten with Felon in Possession of Firearms in 4 violation of Section 922(g)(1) of Title 18 of the United States Code. In order for him to be found guilty 5 6 of the charge, the government must prove each of the following elements beyond a reasonable doubt: 7 First, the defendant knowingly possessed firearms; 8 Second, the firearms had been shipped or transported from one state to another, or between a 9 foreign nation and the United States; and 10 11 Third, at the time the defendant possessed the firearms, the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year. 12 13 E. 14 Evidentiary Issues 1. Statements The government will introduce recorded phone conversations that the defendants participated in 15 16 under Federal Rule of Evidence 801(d)(2). 17 801(d)(2) - Admissions by Party-Opponent: 18 A statement is not hearsay if ... (2) Admission by party-opponent. The statement is offered 19 against a party and is (A) the party's own statement, in either an individual or a representative capacity 20 or .... Federal Rule of Evidence 801(d)(2)(a). Admissions by a party are treated as non-hearsay under 21 Rule 801(d)(2)(A) and are thus admissible for their truth. Cotchett, Federal Courtroom Evidence, 22 Fourth Edition, ' 801.5.1. The government may also introduce statements of the defendants in this case made during the 23 24 course of the conspiracies. Pursuant to Federal Rule of Evidence 801(d)(2)(E), a statement of a co25 conspirator is admissible against a defendant if the statement was made during the course of the 26 conspiracy and in furtherance of the conspiracy. United States v. Smith, 893 F.2d 1573, 1577 (9th Cir. 27 1989). 28 TRIAL BRIEF 10 Case 1:15-cr-00104-AWI-SKO Document 192 Filed 04/03/17 Page 11 of 16 1 Statements are in furtherance of the conspiracy if they are "made to keep a person abreast of the 2 conspirators' activities, to induce continued participation in the conspiracy or to allay fears." United 3 States v. Crespo de Llano, 830 F.2d 1543 (9th Cir. 1987). The focus is not on the effect of the statement 4 in advancing the actual goals of the conspiracy, but upon the declarant's intent in making the statements. 5 6 United States v. Zavela-Serra, 853 F.2d 1512, 1516 (9th Cir. 1988). In addition, statements need not be 7 made to other co-conspirators to fall within the hearsay exception. Id. Title III intercepts are not 8 testimonial, and do not implicate the Confrontation Clause. United States v. Hendricks, 395 F.3d 173 9 (3rd Cir. 2005). 10 11 The government will also introduce into evidence spontaneous statements made by Keith Foster to FBI Special Agent Harkness during his transportation to court, which are admissible as statements by 12 13 a party opponent under Federal Rule of Evidence 801(d)(2). Under Federal Rule of Evidence 901(b)(5), testimony by a witness familiar with a defendant=s 14 15 voice is a sufficient basis for the admission of recorded conversations of a defendant with others. In the 16 instant case, a case agent or cooperating defendant who is familiar with the defendants and sound of 17 each of their voices can identify the voices of the defendants on the recorded calls. See, e.g., United 18 States v. Cerone, 830 F.2d 938, 949 (8th Cir. 1987); United States v. Albert, 595 F.2d 283, 290 (5th Cir. 19 1979). 20 21 2. Public Records 22 23 Pursuant to Federal Rules of Evidence 803(8) and 901(b)(7) or 902(4), the government will offer 24 into evidence copies of public records: to wit, California DMV title documents for cars driven by Keith 25 Foster and Rafael Guzman, and California DOJ Controlled Substance Utilization and Review System 26 computer database records of oxycodone prescriptions obtained by Keith Foster. Copies of such public 27 records are self-authenticating under Rule 902(4) or can be authenticated by testimony under 901(b)(7), 28 TRIAL BRIEF 11 Case 1:15-cr-00104-AWI-SKO Document 192 Filed 04/03/17 Page 12 of 16 1 are excepted from the hearsay rule under Rule 803(8), and are non-testimonial under Crawford. 2 Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009); United States v. Berry, 683 F.3d 1015, 3 1022 (9th Cir. 2012). See, e.g., United States v. Gilbertson, 435 F.3d 790, 796 (7th Cir. 2006) (Public 4 records of sellers’ statements of odometer readings attached to titles not testimonial); United States v. 5 6 Mendez, 514 F.3d 1035, 1044-45 (10th Cir.), cert. denied, 128 S. Ct. 2455 (2008) (ICE database is non- 7 testimonial public record). Originals of public records are not required pursuant to Federal Rule of 8 Evidence 1005. 9 10 11 Absolute certainty is not required for authentication. United States v. Whittington, 783 F.2d 1210, 1215 (5th Cir.), cert. denied, 497 U.S. 882 (1988). The government, in order to satisfy the minimal authentication requirement to establish that the computer printouts were the records of a 12 13 14 government agency, did not have to show the accuracy of the information. United States v. Meienberg, 263 F.3d 1177, 1181 (10th Cir. 2001). 15 3. Experts 16 A witness who is "qualified as an expert by knowledge, skill and experience" may present expert 17 18 testimony if his or her specialized knowledge will assist the trier of fact to understand the evidence or to 19 determine a fact in issue. Federal Rule of Evidence 702; United States v. Espinoza, 827 F.2d 604, 612 20 (9th Cir. 1987). The admission of expert testimony is a matter within the sound discretion of the trial 21 court. United Stated v. Kinsey, 843 F.2d 383, 387-89 (9th Cir.); United States v. Anderson, 813 F.2d 22 23 1450, 1458 (9th Cir. 1987). The government anticipates calling the following types of experts in this 24 case: 25 A Special Agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives with expertise 26 in the meaning of slang terms used by drug traffickers will testify to the meaning of such terms used by 27 the defendants in recorded conversations. “The jargon of the narcotic trade and the codes that drug 28 TRIAL BRIEF 12 Case 1:15-cr-00104-AWI-SKO Document 192 Filed 04/03/17 Page 13 of 16 1 dealers often use constitute specialized bodies of knowledge … and are therefore proper subjects of 2 expert opinion.” United States v. Plunk, 153 F.3d 1011, 1017 (9th Cir. 1998) overruled on other 3 grounds by United States v. Hankey, 203 F. 3d 1160, 1169 n. 7 (9th Cir. 2000); 104 A.L.R. Fed. 230 4 (1991) (“Admissibility of expert evidence concerning meaning of narcotics code language in federal 5 6 prosecution for narcotics dealing – modern cases”). 7 A Special Agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives with expertise 8 in where particular firearms are manufactured will testify that firearms seized in this case were 9 manufactured outside of the State of California, and thus traveled in interstate commerce. Evidence 10 from a government agent that the particular firearm or ammunition was not manufactured in the state 11 where the defendant possessed it has been held sufficient to establish the firearm traveled in interstate 12 commerce. See, United States v. Dunn, 935 F.2d 1053 (9th Cir.), cert. denied, 112 S.Ct. 401 (1991); 13 United States v. Gann, 732 F.2d 714, 724 (9th Cir.) cert. denied, 469 U.S. 1034 (1984); United States v. 14 Clawson, 831 F.2d 909, 912-913 (9th Cir. 1987), cert. denied 488 U.S. 923 (1988); United States v. 15 Washington, 17 F.3d 230, 233 (8th Cir.), cert. denied, 115 S.Ct. 153 (1994); United States v. Buggs, 904 16 F.2d 1070, 1076-77 (7th Cir. 1990); Thomas, 810 F.2d at 480. This evidence can also be in the form of 17 markings found on the firearm itself. United States v. Bowling, 32 F.3d 326, 328 (8th Cir.), cert. denied, 18 115 S.Ct. 650 (1994) (manufacturer stamped on firearm was properly admitted over defendant's hearsay 19 objection and established a nexus with interstate commerce); United States v. Patterson, 820 F.2d 1524, 20 1526 (9th Cir. 1987) (commerce nexus satisfied by evidence that handgun found in defendant's 21 possession in California bore an imprint that it had been manufactured in Florida). 22 A Special Agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives with expertise 23 in the extraction of data from cell phones may testify to the extraction of data from cell phones seized 24 from the defendants. 25 A Special Agent from the Federal Bureau of Investigations with expertise in the technical aspects 26 of intercepting telephone calls will testify as to how the calls of the defendants were intercepted in this 27 case. 28 TRIAL BRIEF 13 Case 1:15-cr-00104-AWI-SKO Document 192 Filed 04/03/17 Page 14 of 16 1 Forensic Chemists from the Drug Enforcement Administration Western Regional Lab with 2 expertise in testing for the presence of controlled substances will testify to the testing of the oxycodone 3 and marijuana seized in this case. And, a Forensic Chemist from the Federal Bureau of Investigation 4 Laboratory will testify that the blood and urine samples of Keith Foster tested negative for the presence 5 of oxycodone. Courts have traditionally admitted expert testimony by forensic chemists concerning the 6 identification of controlled substances. See, e.g., United States v. Soto, 1 F.3d 920 (9th Cir. 1993); 7 United States v. Robinson, 59 F.3d 1318 (D.C. Cir. 1995). It is well settled, however, that the 8 government is not required to offer expert testimony to establish the identity of controlled substances. 9 The identity of controlled substances can be proved by circumstantial evidence, including opinion 10 testimony by lay witnesses. United States v. Cole, 537 F.3d 923, 927 (8th Cir. 2008); United States v. 11 Kelly, 519 F.3d 355, 364 (6th Cir. 2008); United States v. Johnson, 519 F.3d 478, 485 D.C. Cir. 2008). 12 13 4. Photographs 14 15 The government will introduce photographs of evidence. Under Federal Rule of Evidence 16 90l(a), testimony that a photograph fairly and accurately depicts the scene is a sufficient basis for 17 admission of the photograph. See United States v. Brannon, 616 F.2d 413, 416 (9th Cir.), cert. denied, 18 447 U.S. 908 (1980). 19 5. 20 21 22 Physical Evidence The government intends to introduce into evidence some objects and documents seized from the defendants during the investigation of the case. It is well settled that evidence of possession of an item 23 24 25 is relevant evidence from which it can be inferred that a defendant had knowledge of the item. United States v. Carrasco, 257 F.3d 1045, 1048 (9th Cir. 2001); United States v. Butcher, 926 F.2d 811, 815 26 (9th Cir. 1991). Seized cash is relevant to a drug trafficking charge, even though there is no proof it was 27 the product of a particular transaction. United States v. Martinez, 938 F.2d 1078 (10th Cir. 1991). 28 TRIAL BRIEF 14 Case 1:15-cr-00104-AWI-SKO Document 192 Filed 04/03/17 Page 15 of 16 1 Dated: April 3, 2017 PHILLIP A. TALBERT United States Attorney 2 3 By: /s/ Dawrence W. Rice, Jr. Dawrence W. Rice, Jr. Assistant United States Attorney 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TRIAL BRIEF 15 Case 1:15-cr-00104-AWI-SKO Document 192 Filed 04/03/17 Page 16 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A-1