United States v. Ayala-Pizarro

407 F.3d 25 (1st Cir. 2005)

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Nature of the Case

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Facts

Officer Mulero, one of the arresting officers, testified that he arrested near a house known to be a drug point. The officers saw both men and that they were armed with firearms. D was trying to cock his gun. The officers then detained and arrested the two men. A search of D turned up 153 aluminum-foil covered decks of heroin from his left pocket; his companion had $250. The officers arrested three other men standing nearby; each had a revolver. Experts determined that the heroin weighed 10.94 grams. An expert also testified that D's gun was functioning and capable of firing in semiautomatic mode and that its serial number was obliterated. On the stand, P asked Officer Mulero about his experience with drug points. D objected, arguing that this was expert testimony and P had not given notice of expert testimony from Mulero under Fed. R. Crim. P. 16(a)(1)(G), the Officer could not so testify. On P's proffer, D claimed that the testimony about the nature of the packaging was even more clearly expert testimony. The court ruled that it was permissible lay testimony as to the drug points, but it needed to hear more foundation and allowed the packing testimony subject to a motion to strike. Officer Mulero testified about his experience with Melilla Street as a drug point. He also testified that the heroin was typically packed in aluminum decks. Officer Mulero stated that the heroin seized was packaged 'in a shape or manner of a deck.' D did not later move to strike. D was convicted and appealed. D contends that the testimony could only be given by an expert and P failed to give notice that Officer Mulero would testify as an expert.