The opinion of the court was delivered by: Surrick, J.
Presently before the Court is the Government's Motion in Limine to Admit Lay Testimony Pursuant to Federal Rules of Evidence 104 and 701. (ECF No. 755.) For the following reasons, the Government's Motion will be granted.
On May 9, 2012,*fn2 a federal grand jury returned a seventeen-count Fourth Superseding Indictment (the "Indictment") charging Defendant Kaboni Savage with: conspiracy to participate in the affairs of a racketeering ("RICO") enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1); twelve counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Counts 2-7, 10-15); conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count 9); retaliating against a witness, in violation of 18 U.S.C. § 1513(a) (Count 16); and using fire to commit a felony, in violation of 18 U.S.C. § 844(h)(1) (Count 17). (Fourth Superseding Indictment, ECF No. 480.)*fn3 Savage was charged along with three co-defendants, Steven Northington, Robert Merritt, and his sister, Kidada Savage. Defendant Lamont Lewis was also charged in the First Superseding Indictment. The charges against Lewis were disposed of by guilty plea on April 21, 2011. On March 14, 2011, the Government filed a notice of intent to seek the death penalty against Savage, Merritt and Northington. (ECF Nos. 196, 197, 198.)
On November 26, 2012, the Government filed a Motion in Limine to Admit Lay Testimony Pursuant to Federal Rules of Evidence 104 and 701. (Gov't's Mot., ECF No. 755.) Merritt filed a Response on December 5, 2012. (Merritt's Resp., ECF No. 783.) On December 26, 2012, Kidada Savage filed an Objection to the Government's Motion. (Kidada's Resp., ECF No. 858.) The Government has filed a reply. (Gov't's Reply., ECF No. 917.)
The Government asks the Court to permit the Government to elicit the lay opinion and perceptions of FBI Special Agent Kevin Lewis with regard to his understanding of coded conversations between Defendants captured on recordings and to provide context and clarification where the subject matter of those conversations is ambiguous. (Gov't's Mot. 1-3.) Merritt does not object to Special Agent Lewis testifying with regard to the meaning of certain coded terms used by individuals involved in the sale of drugs, but seeks to prohibit testimony about terms purportedly identifying certain individuals and about his understanding of generic terms in the recordings. (Merritt's Resp. 2.) Kidada Savage asks the Court to deny the Government's Motion in Limine and objects to Special Agent Lewis being permitted to provide expert testimony about taped conversations while being characterized as a lay person. (Kidada's Resp. 5.)
A. Admission of Testimony Pursuant to Federal Rule of Evidence 701
Federal Rule of Evidence 104 provides: "[t]he court must decide any preliminary questions about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege." Fed. R. Evid. 104(a). Under Federal Rule of Evidence 701, a lay witness may provide opinion testimony if it is "(a) rationally based on the witness's perception, (b) helpful to clearly understanding the witness's testimony or to determine a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed. R. Evid. 701; see also United States v. Polishan, 336 F.3d 234, 242 (3d Cir. 2003). In 2000, subsection (c) was added to Rule 701 "to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing." Fed. R. Evid. 701 advisory committee notes to the 2000 Amendment.*fn4
Courts may permit lay witnesses to testify with regard to their understanding of "code-like" conversations if it will assist the fact-finder to understand the testimony of the witness on the stand. See United States v. O'Grady, 280 F. App'x 124, 130 (3d Cir. 2008) (citing United States v. De Peri, 778 F.2d 963, 977-78 (3d Cir. 1985)). Furthermore, "where conversations are only clear to the speaker and his intended audience, lay opinion testimony stating the witness' understanding of the testimony may be admitted pursuant to Rule 701." United States v. Kruckel, No. 92-611, 1994 WL 774645, at *21 (D.N.J. May 5, 1994).
Under Rule 701(a), a lay witness may only offer opinions "rationally based on [his or her] perception." Fed. R. Evid. 701(a). "[T]his foundational requirement goes to the admissibility of evidence, not merely its weight, because a 'witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.'" United States v. Garcia, 291 F.3d 127, 140 (2d Cir. 2002) (quoting Fed. R. Evid. 701 advisory committee notes on the 1972 proposed rules).
Lay opinion testimony based on a witness' own perceptions is permissible where the witness was a participant in the recorded conversation. See, e.g., United States v. Estrada, 39 F.3d 772, 773 (7th Cir. 1994) (permitting confidential informant's testimony as a participant in the conversation with the defendant); United States v. Simas, 937 F.2d 459, 464 (9th Cir. 1991) (permitting FBI agent to testify about his conversations with defendant, which were vague and partially incomprehensible); De Peri, 778 F.2d at 977-78 ("To the uninitiated listener, [defendant] speaks as if he were using code. [The witness'] opinions are based upon his direct perception of the event, are not speculative, and are helpful to the determination of [defendant's] involvement in the protection scheme . . . ."); United States v. Georgiou, 742 F. Supp. 2d 613, 631 (E.D. Pa. 2010).
Even where a lay witness was not a participant in the conversation, he may provide interpretive testimony clarifying unclear, coded, or ambiguous portions of a recording. See United States v. Jayyousi, 657 F.3d 1085, 1102 (11th Cir. 2011) ("We have never held that a lay witness must be a participant or observer of a conversation to provide testimony about the meaning of coded language used in the conversation. We have allowed a lay witness to base his opinion testimony on his examination of documents even when the witness was not involved in the activity about which he testified."); United States v. Rollins, 544 F.3d 820, 830-33 (7th Cir. 2008) (finding no error where district court permitted an FBI agent to testify about his impressions of recordings as testimony was rationally based on, inter alia, his extensive experience in the investigation, his review of every intercepted conversation, and his ability to confirm his interpretation based on surveillance and interviews of witnesses); United States v. Peoples, 250 F.3d 630, 641 (8th Cir. 2001) ("When a law enforcement officer is not qualified as an expert by the court, her testimony is admissible as lay opinion only when the law enforcement officer is a participant in the conversation, has personal knowledge of the facts being related in the conversation, or observed the conversations as they occurred."); United States v. Saulter, 60 F.3d 270, 276 (7th Cir. 1995) (finding no abuse of discretion where district court permitted cooperating witness to testify about recorded conversation in which he did not participate as witness "had knowledge of the terms being used . . . [and] personal knowledge of [defendant's] behavior and speech"); United States v. Flores, 63 F.3d 1342, 1359 (5th Cir. 1995) (finding no error where district court permitted co-conspirators to provide interpretation of recorded conversation as the co-conspirators were familiar with the events being discussed and the conversations were disguised ...