Date: 01-27-2018

Case Style:

Case Number: 17-1604

Judge:

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Southern District of Indiana (Marion County)

Plaintiff's Attorney: Bradley A. Blackington, Matthew J. Lasher, MaryAnn Totino Mindrum

Defendant's Attorney: Thomas W. Patton - FPD

Description: Ronald Tingle was tried and convicted
of possessing and distributing methamphetamine and
of possessing a firearm in furtherance of a drug trafficking
crime. On appeal, he argues that the district court erred when
it allowed a government witness to give expert testimony
without properly vetting the witness’s credentials and when
it allowed the same witness to testify regarding the defendant’s
mental state. Additionally, Tingle argues that he should
2 No. 17‐1604
have been granted access to grand jury materials and that his
case should have been dismissed based on prosecutorial vindictiveness.
For the reasons that follow, each of these claims
fails, and the judgment of the district court is affirmed.
I. BACKGROUND
The Indiana State Police received information from a confidential
informant that defendant, Ronald Tingle, was selling
methamphetamine. Through the confidential informant, the
police conducted several controlled buys at Tingle’s residence.
Then the police obtained and executed a search warrant
at the residence. During the search, the police discovered
165 grams of methamphetamine, digital scales, $5,520 in cash
in the house, and an additional $1,190 on Tingle’s person. The
police also found eight firearms, including a loaded handgun
on top of a desk that contained methamphetamine, scales, and
money.
A grand jury returned an indictment charging Tingle with
one count of possession of methamphetamine with intent to
distribute and three counts of distribution, as well as a forfeiture
allegation. The government offered Tingle a plea deal.
During the plea negotiation, the government informed Tingle
that if he rejected the offer, the government would seek a superseding
indictment adding charges that would increase the
mandatory minimum sentence. Tingle rejected the offer, and
the government obtained two superseding indictments charging
Tingle with additional offenses that increased the possible
mandatory minimum sentence. Tingle’s counsel filed a motion
to dismiss the additional charges based on prosecutorial
vindictiveness. The motion was denied.
No. 17‐1604 3
Tingle filed a pretrial motion seeking disclosure of grand
jury testimony, which the district court denied. He also filed
a motion to suppress items found in the search, which was
denied, and a motion to bar the government from introducing
a 1982 drug conviction, which was granted.
At trial, the court told the government that it would not
label any witness as an “expert witness,” pursuant to the
judge’s courtroom procedures. Despite this procedure, the
court gave a final jury instruction on expert witnesses, without
identifying which witnesses were considered experts.
Tingle and the government agreed to this instruction without
objection.
Tingle testified and admitted to possessing the methamphetamine,
but denied the distribution allegations. He
claimed the drugs were for personal use, explaining that he
was planning a year‐long boat trip to justify the large quantity.
Agent Steele, a DEA agent, testified regarding the
amount of drugs and the location of the guns found during
the search of Tingle’s house. The jury convicted Tingle on all
counts. Tingle appeals.
II. ANALYSIS
Tingle raises four issues on appeal: whether the district
court allowed an expert witness to testify without properly
certifying his credentials; whether Agent Steele improperly
testified regarding Tingle’s mental state; whether Tingle
should have been granted access to grand jury transcripts;
and whether the charges should have been dismissed for
prosecutorial vindictiveness. For the reasons that follow, each
of these claims fails.
4 No. 17‐1604
A. Whether the district court failed to assess Agent Steele’s credentials
before allowing him to testify as an expert witness
Before trial, the government notified the court that it intended
to introduce expert‐witness testimony. It provided information
on the experts’ qualifications and an explanation of
how their testimony would be helpful to the jury. Pursuant to
its standard courtroom procedures, the district court refused
to label any witnesses as experts. At the conclusion of the trial,
however, the district court told the jury that they had heard
testimony from expert witnesses. The district court instructed
the jury to “judge these witnesses’ opinions and testimony the
same way you judge the testimony of any other witness.”(R.
151 at 12.) Tingle and the government agreed to this instruction.
Tingle argues the court allowed Steele to testify as an expert
witness without properly examining his credentials or
considering whether expert testimony would assist the jury.
Because this argument is raised for the first time on appeal,
we review the district court’s decision to admit Steel’s testimony
for plain error. United States v. Phillips, 596 F.3d 414, 416
(7th Cir. 2010).
When “[f]aced with a proffer of expert scientific
testimony … the trial judge must determine at the
outset … whether the expert is proposing to testify to (1)
scientific knowledge that (2) will assist the trier of fact to
understand or determine a fact in issue.” Daubert v. Merrell
Dow Pharmaceuticals, 509 U.S. 579, 592 (1993); see also Fed. R.
Evid. 702. “This entails a preliminary assessment of whether
the reasoning or methodology underlying the testimony is
scientifically valid and of whether that reasoning or
methodology can be applied to the facts in issue.” Daubert, 509
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U.S. at 592–93. In Kumho Tire Co. v. Carmichael, the Supreme
Court clarified that this “gatekeeping” obligation of the court
applies to all expert testimony. 526 U.S. 137, 147–49 (1999).
Although the court never held a Daubert hearing, a hearing
is unnecessary “where the reliability of an expert’s methods
is properly taken for granted.” Id. at 152. It is clear that Steele
was properly qualified to testify as an expert in his field and
that his testimony could be helpful to the jury. Steele served
as a DEA agent for sixteen years and as a trooper with the
Missouri State Highway Patrol for fourteen years. He attended
the DEA academy and the Missouri State Highway
Patrol Academy. He was involved in many drug cases, including
searches of drug suspects’ residences and vehicles.
Steele explained that his testimony was based on that training
and experience. Expertise of this sort is helpful to a jury in a
drug distribution case. See United States v. Winbush, 580 F.3d
503, 510–11 (7th Cir. 2009). The district court did not err in
allowing Steele to testify.
That being said, the district court’s practice of not identifying
expert witnesses is problematic. The Federal Rules of
Evidence and Supreme Court precedent make clear that
courts must examine the qualifications of expert witnesses
and consider whether the expert’s testimony will be helpful
to the jury. The district court cannot use such procedures to
avoid its gatekeeper responsibility.
B. Whether Agent Steele improperly testified regarding Tingle’s
mental state
Tingle also argues that the district court erred when it allowed
Steele to testify regarding Tingle’s mental state. Tingle
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did not object to this testimony at trial, so the plain error
standard of review applies. Phillips, 596 F.3d at 416.
No expert witness may state an opinion as to whether a
defendant had a mental state that constitutes an element of
the charged crime. Fed. R. Evid. 704(b). Circumstantial evidence
regarding a criminal defendant’s state of mind, however,
is admissible. See Winbush, 580 F.3d at 511–12 (noting
that direct evidence of intent to distribute is “predictably rare,
so the government often employs expert testimony”). Tingle
argues that Steele testified regarding Tingle’s mental state
when he said that the amount of drugs found in the residence
was “definitely for distribution” (R. 201 at 70) and when he
testified that the gun found on top of the desk where the
drugs and money were located was “utilized as protection by
Mr. Tingle to protect himself and/or the methamphetamine
and the currency (R. 201 at 70–71).”
When read in context, Steele’s testimony does not speak
directly to Tingle’s mental state. He compared the quantity of
drugs found in the search with the amount of an average
user’s personal consumption. He also described the proximate
location of the gun to the drugs and explained that guns
found elsewhere in a house would not typically be considered
as used in connection with drugs. True, Steele testified regarding
his impression of the evidence in this case instead of
speaking generally, but he framed his responses in light of his
training and experience.
In Winbush, an FBI agent was asked about various quantities
of drugs. 580 F.3d at 512. The agent testified that, “from
[his] perspective,” the discovery of a given quantity of crack
cocaine would indicate that an individual should be investigated
as a trafficker. Id. The agent further testified that a given
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quantity of crack cocaine was “distribution level … not user
level.” Id. The court decided the testimony was not an inadmissible
opinion on the defendant’s intent. Id.
In United States v. Blount, drugs, a scale, and a handgun
were found on the defendant’s bed during a search of his
home. 502 F.3d 674, 676 (7th Cir. 2007). A police officer testified
that, given the location of the items, he thought that the
gun was likely used to protect the defendant’s drug business.
Id. at 677. The court concluded that “[n]o juror could have believed
that [the officer] was using special personal knowledge
of [the defendant] rather than assisting the jury to infer [the
defendant’s] motives from a general trend linking guns and
drugs.” Id. at 679. Therefore, the court decided, this testimony
did not violate Rule 704. Id.
The testimony offered in this case is very similar to the testimony
in Winbush and in Blount. Admission of the testimony
was not an error, let alone plain error.
C. Whether the district court abused its discretion when it refused
Tingle access to the grand jury materials
Tingle filed a pretrial motion seeking disclosure of all
grand jury materials. The district court denied the motion. We
review the district court’s decision not to disclose grand jury
materials for abuse of discretion. Walker v. Sheahan, 526 F.3d
973, 977–78 (7th Cir. 2008).
Information from a grand jury inquiry is presumptively
secret. Fed. R. Crim. P. 6(e). The district court need not allow
the defense to examine grand jury materials in the absence of
a showing of a particularized need. United States v. Procter &
Gamble Co., 356 U.S. 677, 683 (1958); see also Dennis v. United
States, 384 U.S. 855, 870–72 (1966); Pittsburg Plate Glass Co. v.
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United States, 360 U.S. 395, 400 (1959). To obtain grand jury
materials, the moving party “must show that the material
they seek is needed to avoid a possible injustice in another
judicial proceeding, that the need for disclosure is greater
than the need for continued secrecy, and that the request is
structured to cover only material so needed.” Douglas Oil Co.
v. Petrol Stops Northwest, 441 U.S. 211, 222 (1979).
Tingle had an opportunity to explain why he should have
access to the grand jury materials when he moved for disclosure.
He failed to show that his need for disclosure outweighed
the need for secrecy. The district court did not abuse
its discretion when it denied the motion.
D. Whether the district court erred when it denied Tingle’s motion
to dismiss the superseding indictment
Finally, Tingle argues that his due process rights were violated
when the prosecutor sought superseding indictments
after Tingle rejected the government’s plea offers. He argues
that the superseding indictments were sought immediately
after he rejected the offer—thus exercising his constitutional
right to a jury trial—and that there was no basis for seeking a
superseding indictment at that time. Tingle moved to have
the charges against him dismissed on this basis. The district
court denied his motion without a hearing. We review the district
court’s legal conclusions de novo and its findings of fact
for clear error. United States v. Spears, 159 F.3d 1081, 1086 (7th
Cir. 1998).
To obtain an evidentiary hearing on a prosecutorial vindictiveness
claim, Tingle needed to show he “offer[ed] sufficient
evidence to raise a reasonable doubt that the government
acted properly” in seeking the superseding indictments.
No. 17‐1604 9
United States v. Falcon, 347 F.3d 1000, 1004 (7th Cir. 2003). Prosecutorial
vindictiveness is, in some contexts, presumed where
a prosecutor takes action that is detrimental to a defendant
after the defendant exercises a legal right. United States v.
Goodwin, 457 U.S. 368, 373 (1982); Spears, 159 F.3d at 1086. But
“the Supreme Court has refused to extend the presumption of
vindictiveness to pre‐trial prosecutorial conduct.” Spears, 159
F.3d at 1086. So, no presumption applies here.
The government informed Tingle that it would seek the
superseding indictments if he rejected the plea offer. In Alabama
v. Smith, the Supreme Court said that a prosecutor may
“threaten[] a defendant with increased charges if he does not
plead guilty, and follow[] through on that threat if the defendant
insists on his right to stand trial.” 490 U.S. 794, 802 (1989);
see also Goodwin, 457 U.S. at 378–79 (“For just as a prosecutor
may forgo legitimate charges already brought in an effort to
save the time and expense of trial, a prosecutor may file additional
charges if an initial expectation that a defendant would
plead guilty to lesser charges proves unfounded.”). In this
case, Tingle was well aware that the prosecutor intended to
exercise his authority to file additional charges if the plea offer
was not accepted. Tingle’s motion to dismiss was properly denied.
III. CONCLUSION
Although the district court should have labeled Agent
Steele an expert witness, Steele had the requisite qualifications
to testify as an expert in this case. Steele’s testimony,
drawn from his training and experiences, provided circumstantial
evidence of Tingle’s intent to commit the crimes, but
Steele did not improperly opine on Tingle’s mental state. The
district court did not err when it allowed Steele to testify.
10 No. 17‐1604
Nor did the district court err when it denied Tingle’s motion
for access to grand jury transcripts without a hearing or
when it denied Tingle’s motion to dismiss the charges
brought against him.

Outcome: The judgment of the district court is, therefore,
AFFIRMED.

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Defendant's Experts:

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