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United States v. Nixon

United States District Court, E.D. Michigan, Southern Division

July 2, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTHONY NIXON, Defendant.

OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR A DAUBERT HEARING AND EXCLUDING THE GOVERNMENT'S EXPERT [#28]

GERSHWIN A. DRAIN, District Judge.

I. INTRODUCTION

On February 24, 2015, a federal grand jury issued a four-count Superseding Indictment charging Defendant, Anthony Nixon, with violations of Title 18 U.S.C. § 1959(a)(5), Conspiracy to Commit Murder in Aid of Racketeering; Title 18 U.S.C. §§ 1959(a)(3); 2, Assault with a Dangerous Weapon in Aid of Racketeering; Title 18 U.S.C. §§ 924(c); 2, Use and Carry of a Firearm During, and in Relation to, a Crime of Violence and Title 18 U.S.C. § 922(g), Felon in Possession of a Firearm.

Presently before the Court is Defendant's Motion for a Daubert [1] Hearing, filed on May 18, 2015. The Government filed a Response in Opposition on June 8, 2015. An evidentiary hearing was held on June 30, 2015. For the reasons that follow, the Court will grant Defendant's Motion for a Daubert Hearing and will exclude the Government's expert.

II. FACTUAL BACKGROUND

The Government alleges that Defendant, along with others unnamed, were members and associates of the Vice Lords, a national gang founded in Chicago, Illinois. It further claims that on or about October 8, 2014 through October 10, 2014, Defendant plotted with other Vice Lord members to murder approximately five individuals. Defendant is also alleged to have assaulted five individuals with a dangerous weapon on October 10, 2014. The Government claims that the purpose of the Vice Lords enterprise is to (1) maximize profits from a variety of illegal activities, including murder, armed robbery and distribution of controlled substances, and (2) preserve and protect the power, territory, and profits of the enterprise through the use of intimidation and violence, including assaults and threats of violence.

The Government seeks to introduce Officer Albert Wyroba, [2] of the Chicago Police Department, as an expert witness during Defendant's upcoming trial. In its Response, the Government argues that Wyroba's expert testimony is necessary to explain the Vice Lords organization to the jury, including its structure, history, rules, customs and symbols. However, at the hearing, counsel for the Government explained that Wyroba's anticipated testimony was to focus on the common sayings or phrases and tattoos of the Vice Lords, and not on the history of the Vice Lords. While the Government maintains that Wyroba's testimony will be very narrow, it should be noted that its Expert Witness Disclosure identifies a much broader area of anticipated testimony including testimony regarding criminal street gangs in general. See Dkt. No. 33 at 2-6.

At the hearing, Wyroba testified that he has been a police officer for the Chicago Police Department for ten years. He has spent seven of those years investigating gang activity; predominantly the Vice Lords Nation gang. He has led the investigations in approximately fifty Vice Lord investigations, some being short term and others leading to Title 3 wiretaps. He estimates conducting physical surveillance of Vice Lord gang members about five hundred times, listened to roughly ten to twenty jail calls involving members, and conducted well over one hundred interviews of members. While he has been qualified as an expert in illicit narcotics distribution, this is the first time he has been proffered as an expert witness on gang activity.

He further explained that the Vice Lord Nation's national headquarters are located in Chicago, Illinois. He identified several Vice Lord symbols, which include the top hat, play boy bunny, five point star, five point crown and a champagne glass. He further testified that there are different factions including the conservative Vice Lords, the traveling Vice Lords, and the Insane Vice Lords. He indicated that factions are located outside of the Chicago area and mostly operate in the Midwest, including Minnesota, Tennessee, Wisconsin and Michigan. While he identified Michigan as a location with Vice Lord members, he admitted that he has no personal knowledge of Vice Lord membership in Detroit, nor does he have any knowledge of any Chicago member being connected to any members located in the Detroit area.

III. LAW & ANALYSIS

A party offering an expe rt's opinion bears the burden of establishing the admissibility of such opinion by a preponderance of the evidence. Nelson v. Tennessee Gas Pipeline Co., 243 F.3d 344, 251 (6th Cir. 2001). Expert testimony is admissible only if it satisfies the requirements of Rule 702 of the Federal Rules of Evidence, which states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence ...

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