## Facts

- DEA investigated suspected PCP distributor James Anthony Welch in Compton, California.
- A confidential informant arranged a PCP purchase on August 14, 1996 involving Welch and “Poo,” later identified as Lavern Hankey; additional transactions occurred October 28, 1996, and an attempted October 30, 1996 deal failed for lack of funds.
- Hankey and Welch were charged with conspiracy and distribution of PCP; the indictment did not include a substantive count for the August 14 sale.
- At Hankey’s trial, the government presented informant and officer testimony and evidence of Hankey’s post-arrest confession; the defense argued misidentification and presented witnesses claiming Hankey was not “Poo.”
- Welch testified for the defense that Hankey was not involved; in rebuttal, the court admitted police gang-expert testimony describing a gang “code of silence” and retaliation against members who testify against other members.
- The court excluded testimony from an attorney contacted by Hankey’s girlfriend on the day of arrest; the attorney would have said police told him Hankey would be released, though Hankey was held overnight and confessed the next morning.
- At sentencing, the court treated the August 14 sale and the unconsummated October 30 incident as “relevant conduct” under U.S.S.G. § 1B1.3(a)(2), producing a 188-month sentence.

## Issues

1. Whether admitting a police gang expert’s testimony about a gang “code of silence” to impeach a defense witness for bias was an abuse of discretion under Federal Rules of Evidence 702 and 403.
2. Whether excluding defense attorney testimony about police statements to the attorney regarding Hankey’s purported release was an abuse of discretion, where the defense argued it bore on confession voluntariness.
3. Whether the sentencing court erred by including uncharged drug incidents (an August 14 sale and an unconsummated October 30 deal) as relevant conduct under U.S.S.G. § 1B1.3(a)(2).

## Decision

- The Ninth Circuit affirmed the conviction and sentence.
- The district court did not abuse its discretion under Rule 702 in admitting the gang expert’s experience-based testimony and properly performed its gatekeeping role under Daubert/Kumho Tire/Joiner.
- The district court did not abuse its discretion under Rule 403 because the testimony’s probative value on witness bias was not substantially outweighed by unfair prejudice, and the jury received a limiting instruction.
- The district court did not abuse its discretion in excluding the attorney testimony because, without evidence Hankey knew of the alleged police misrepresentation, it was not relevant to the voluntariness of his confession.
- The district court did not err in finding by a preponderance of the evidence that the August 14 and October 30 incidents were part of the same course of conduct and therefore relevant conduct for Guidelines purposes.

## Legal Principles

- Experience-based law-enforcement expertise can qualify as “specialized knowledge” under Rule 702 if the trial court finds it sufficiently reliable and relevant for the purpose offered.
- Gang-related expert testimony may be admitted for a limited, non-character purpose such as showing a witness’s potential bias or motive to lie; limiting instructions may reduce unfair-prejudice risk under Rule 403.
- Evidence offered to challenge confession voluntariness must be tied to pressures or inducements that affected the defendant; alleged police misconduct unknown to the defendant is generally irrelevant to voluntariness.
- At federal sentencing, uncharged (and even uncompleted) drug transactions may be included as relevant conduct under U.S.S.G. § 1B1.3(a)(2) when part of the same course of conduct or common scheme, proved by a preponderance of the evidence.

## Conclusion

The Ninth Circuit upheld the admission of gang-expert testimony to show a defense witness’s potential bias, affirmed exclusion of attorney testimony that lacked relevance to the defendant’s confession voluntariness, and sustained inclusion of uncharged and unconsummated drug incidents as relevant conduct supporting Hankey’s Guidelines sentence.


United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000)