ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before: GIBBONS and ROSENN, Circuit Judges and WEBER,*fn* District Judge
This is an appeal from a criminal conviction on five counts of distribution of narcotics. Appellant contended at trial that a government informant had induced him to arrange narcotics sales to two government agents. This appeal raises the question of the admissibility and proper use of expert psychological testimony in an entrapment defense to establish a defendant's unique susceptibility to inducement. Because the District Court took too restrictive a view of such evidence and excluded the testimony of appellant's expert witness, we reverse and remand for a new trial.
Appellant, an individual of alleged subnormal intelligence, was employed as a clothing salesman at Krass Bros, in Philadelphia. In February of 1979, he was approached by Ian Daniels, an FBI informant, who inquired about making a heroin buy and locating a source. Hill rebuffed Daniels' initial requests, but the informant persisted in making additional contacts and requests over the following month, and Hill relented.
On March 13, 1979, Daniels and a federal agent made a heroin purchase from Leonard Newton, an acquaintance of Hill. Appellant arranged, and was present at the sale. Additional sales to government agents were arranged by Hill and made by the source. Newton, on March 14, and 29, April 23, and June 12 and 18, 1979.
Appellant was indicted on one count of conspiracy and six counts of distribution of heroin. At trial, appellant raised the defense of entrapment, arguing that the informant Daniels had induced him to procure drugs for the government agent. During trial, the District Court refused to permit appellant's expert witness, a psychologist, to testify to appellant's psychological characteristies, subnormal intelligence, and resultant susceptibility to persuasion and psychological pressure. Following its deliberations, and supplemental instructions from the court, the jury returned with a verdict of not guilty on the conspiracy count and the first distribution count, but guilty on the remaining five distribution counts. The defendant then brought this appeal.
Appellant contends that the District Court abused its discretion by refusing to permit the testimony of the psychologist. The District Court concluded that because the witness had not heard the testimony of the informant or the defendant, no proper foundation had been laid for his testimony.
Federal Rules of Evidence 702 provides that testimony of experts is admissible if it will materially assist the trier of fact. The facts necessary to the foundation of the expert's testimony may be perceived by him at trial, but no such requirement is made by the Rules. The expert may testify to relevant matters based on facts in evidence or those made known to him prior to trial. Fed. R. Evid. 703; United States v. Smith, 519 F.2d 516, 521 (9th Cir. 1975); Jenkins v. United States, 307 F.2d 637 (D.C. Cir. 1962).
The District Court may have been misled as to the intended direction of the offered testimony. The colloquy occurring during the offer at trial was, in part:
[Defense Counsel] The defendant intends to offer a complete profile from records and tests, all of which are in the province of the examination of Dr. Bruteman, Number One.
Number Two, the defendant intends to ask the doctor to testify from his expertise as to the likelihood of a person of Mr. Hill's history, which is available to him, the examinations which he has taken as a professional, to resist the skill or cunning of an informer...
THE COURT: Right there you're loading it Mr. Williams, when you say skill and cunning... I don't know whether the jury will evaluate Mr. Daniels as being a skilled and cunning informant... The reference to "skill and cunning of an informer" clouded the actual import of the expert's testimony. The court was correct in not permitting any testimony by the expert to the effect that a "skilled and cunning informer" could induce the appellant into criminal activity because the expert had no ground in evidence or personal knowledge upon which to base an opinion concerning the informer's persuasiveness. In United States v. Caldwell, 543 F.2d 1333 (D.C. Cir. 1974), a criminal defendant contended that his activity was the result, at least in part, of his having been influenced by his co-defendant because of his co-defendant's capabilities and his own susceptibilities. The trial court refused to permit expert testimony to the effect that the co-defendant was the type of person who could influence the defendant because the psychiatrist had not had an opportunity to examine the co-defendant, and had admitted having had only slight contact with him. This rationale was approved on appeal and this appears consistent with the reasoning of the lower court here.
However, the question remains whether appellant's expert may testify to Hill's intelligence level and psychological traits without reaching a conclusion as to whether the informant could have induced the appellant, ...