## Facts

- After his arrest on drug and money-laundering charges, Darryl Storm agreed to cooperate with federal agents and identified “Raul” (Raul Figueroa-Lopez) as a narcotics trafficker.
- Under DEA direction, Storm contacted Figueroa-Lopez to determine whether he would sell narcotics; an early in-person meeting was not successfully recorded due to equipment malfunction.
- In a recorded phone call, Figueroa-Lopez offered to sell Storm ten kilograms of cocaine for $170,000, using coded, industry-style terminology.
- Agents arranged a controlled purchase at a McDonald’s parking lot; Figueroa-Lopez arrived in one vehicle, with a second “follow” vehicle carrying the cocaine.
- Surveillance officers observed driving and conduct they described as counter-surveillance behavior and consistent with an experienced narcotics trafficker.
- Agents arrested Figueroa-Lopez and seized one kilogram of cocaine from his vehicle and nine kilograms from the follow vehicle (ten kilograms total).
- At trial, the government elicited officer opinions characterizing Figueroa-Lopez’s conduct as typical of an experienced narcotics trafficker, expressly relying on the officers’ training and experience, without qualifying them as experts under Federal Rule of Evidence 702.
- The district court admitted the officer opinions as lay testimony under Rule 701 because the officers were percipient witnesses.
- The jury convicted Figueroa-Lopez of possession of cocaine with intent to distribute under 21 U.S.C. § 841(a)(1).

## Issues

1. Whether officer opinions that a defendant’s conduct was consistent with an experienced narcotics trafficker, based on training and experience, are inadmissible as lay opinion under Rule 701 and instead require expert treatment under Rule 702.
2. Whether admission of certain out-of-court statements through the informant violated the Confrontation Clause or the hearsay rules.
3. Whether Figueroa-Lopez was entrapped as a matter of law.
4. Whether any discovery, evidentiary, or sentencing errors required reversal or resentencing.

## Decision

- The Ninth Circuit held the district court erred by admitting the officers’ specialized opinions as lay testimony under Rule 701 rather than as expert testimony under Rule 702.
- The court concluded the error was harmless because the officers could have been qualified as experts and the remaining evidence of guilt was overwhelming (recorded negotiations and seizure of ten kilograms of cocaine).
- The court found some informant-related out-of-court statements were improperly admitted but held any Confrontation Clause or hearsay error was harmless beyond a reasonable doubt.
- The court rejected the entrapment claim, finding evidence of predisposition, including readiness to supply a large quantity and familiarity with trafficking methods.
- The court affirmed the conviction and sentence.

## Legal Principles

- Rule 701 lay opinion must be rationally based on the witness’s perception, helpful to the factfinder, and not based on scientific, technical, or other specialized knowledge within Rule 702.
- When law-enforcement testimony interprets observed conduct using “training and experience” to explain its meaning in drug trafficking (e.g., counter-surveillance, use of a follow car), it is expert testimony governed by Rule 702, not lay opinion under Rule 701.
- The government’s failure to treat such testimony as expert evidence may implicate procedural requirements for expert evidence, including pretrial disclosure obligations.
- Misclassification of expert testimony as lay opinion can be harmless where the witnesses were readily qualifiable as experts and properly admitted evidence independently establishes guilt.
- Entrapment requires government inducement and lack of predisposition; a defendant’s ready participation in a large-scale drug deal supports predisposition.

## Conclusion

The Ninth Circuit ruled that officer opinions tying a defendant’s behavior to drug-trafficking methods, when grounded in specialized training and experience, must be treated as expert testimony under Rule 702 rather than lay opinion under Rule 701, but affirmed because the evidentiary errors were harmless and the record supported rejection of entrapment and other claims.


United States v. Figueroa-Lopez, 125 F.3d 1241 (9th Cir. 1997)