On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Criminal Nos. 87-00331-01, 87-00331-02, 87-00331-07, 87-00331-09, 87-00331-12, 87-00331-10, 87-00331-13, 87-00331-05.
Sloviter and Hutchinson, Circuit Judges and Gerry, District Judge*fn*
Athanasios Theodoropoulos and seven co-defendants appeal following their conviction of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 (1982) and various additional narcotics-related charges. Theodoropoulos and Constantinos Tsokas were also convicted of two counts each of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1982). Tsokas and George Karivalis were convicted of one count each of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1). Haralambos Trelopoulos, Angelo Argiris, Nestor Barrera, John Bourzikos, and Jimmy Peetros were convicted on various counts of using a telephone to further the conspiracy in violation of 21 U.S.C. § 843(b) (1982). Finally, Trelopoulos was convicted on one count of possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d) (1982) and one count of using a firearm to further a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1) (Supp. 1986). Rolando Ramos, John Makris, and John Pappas, co-defendants at trial, were acquitted of all charges.
The eight appellants raise numerous issues but those we consider most significant relate to the admissibility and scope of expert testimony on allegedly coded conversations and the nature of evidence which can support a conviction for use of a firearm in the course of a drug trafficking offense.
The FBI investigation of Theodoropoulos' drug related activities began in 1985. Based on information received via court-authorized electronic surveillance of the telephone in Theodoropoulos' apartment and other physical surveillance, the government applied for, and received, a warrant to search the apartment frequented by Trelopoulos and Theodoropoulos, among others, for cocaine and related paraphernalia. Theodoropoulos, Trelopoulos, Dimitra (Gina) Gakis (Theodoropoulos' girlfriend), and Jimmy Kotopoulos were present in the apartment during the search on April 3, 1987. The agents seized cocaine and money found in Trelopoulos' pockets, and cocaine found in a metal box belonging to Trelopoulos. The agents also seized a loaded shotgun found in the apartment, and three handguns (two loaded pistols and a disassembled machine pistol which had been altered to fire automatically) and ammunition found in a trash can on the apartment's back porch.
The government's case at trial consisted primarily of the testimony of Robert Watts, a friend of Theodoropoulos turned government informant, Gina Gakis, who testified under a grant of immunity, Valerie Townes, a drug courier for one of Theodoropoulos' suppliers, and Arthur Eberhart, the government's expert witness. Much of the evidence consisted of transcripts of the intercepted conversations, some translated from the Greek, which the government contended consisted of coded references to drugs and drug transactions.
Eberhart is an FBI special agent trained in cryptanalysis (code breaking) and the examination of illicit business records. On the basis of his analysis of the transcripts,*fn1 Eberhart testified that appellants used terms such as clothes, steaks, televisions, furniture, cars and statues, among others, as coded references to drugs. He further testified that references to street numbers specified quantities of drugs to be picked up or delivered, and that references to money in multiples of 28 referred to grams of cocaine. This testimony was corroborated by the testimony of Gakis and Watts, who also described Theodoropoulos' use of codes to conceal the drug related nature of many of his conversations held in their presence.
In addition to identifying and translating the coded conversations, Eberhart was asked to, and did, express an opinion, over defense objection, as to the nature of the business being transacted in the conversations, and the role of each of the defendants in that business. Eberhart testified that Theodoropoulos was the manager or supervisor of a drug distribution business; that Karivalis and Barrera were suppliers of drugs; that Peetros both supplied and distributed drugs; and that Trelopoulos, Bourzikos, and Makris were drug distributors. Eberhart could not identify a set role for Tsokas, but said that on at least one occasion, Tsokas had acted as a broker to set up a deal with one Stavros Katsis. Eberhart did not identify any role for Pappas, but testified merely that he participated in the deal involving Katsis. Finally, Eberhart testified that he could not reach a definite conclusion concerning the roles of Argiris or Ramos.
Admission of The Expert Testimony
Appellants, except Argiris, challenge the admission of Eberhart's testimony on a variety of grounds. We review the trial court's decision for abuse of discretion.
1. The Expert's Use of Transcripts not in Evidence
Appellants object to the admission of Eberhart's testimony because his conclusions were based in part on transcripts not placed in evidence. Rule 703 of the Federal Rules of Evidence explicitly permits an expert to base his or her opinions on facts not in evidence. Although appellants argue that Rule 703 envisions utilization of out-of-court evidence as background material merely and not as evidence that is central to the expert's opinion, the Rule itself makes no such distinction. It provides that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing." Fed. R. Evid. 703.
The Advisory Committee Notes explain that in addition to the existing practice under which experts based their opinions on firsthand observation and presentation at the trial, the Rule added as a source for such expert opinions the "presentation of data to the expert outside of court" in order "to broaden the basis for expert opinions beyond that current in many jurisdictions." In light of the intent of the Rule "to bring the judicial practice into line with the practice of the experts themselves when not in court" and the Advisory Committee's illustration of a physician "bas[ing] his diagnosis on information from numerous sources and of considerable variety," we reject the limiting construction appellants would have us apply to Rule 703. Advisory Committee Notes to Fed. R. Evid. 703.
Of course, as the Rule makes clear, the facts or data which the expert may use must be of a type "reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Fed. R. Evid. 703. There is no question that the material relied on by Eberhart, which consisted exclusively of coded conversations, is the type of data on which ...