UNITED STATES DISTRICT COURT
___________DISTRICT OF TEXAS		
________________ DIVISION

UNITED STATES OF AMERICA	                 §
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V.	                                                                 §		NO. ________________
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________________	                                         §

DEFENDANT’S MOTION IN LIMINE

	NOW COMES Defendant __________________, by and through his undersigned attorney, and respectfully moves this Court for a pre-trial ruling on the admissibility of the Government’s expert law enforcement witness, ______________, pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998) (en banc).
I
	________________________ is charged by indictment with possession with intent to distribute marijuana.  It is anticipated that the central issue in this litigation will be whether ________________________ had knowledge of the contraband hidden in the vehicle in which he was a passenger.  The trial in this case is scheduled for August 19.  On August 8, the defense received the Government’s Notice and Summary of Testimony of Law Enforcement Witness________________, indicating its intent to call ______________ as an expert witness.  ________________________ responded and filed a motion in limine, asking the Court to exclude ________________________’s testimony on the basis that it does not constitute proper expert testimony.1  Alternatively, ________________________ asks the Court to exercise it “gatekeeping” function to make a pre-trial ruling on the admissibility of ________________________’s testimony pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,  589 n.7, 597 (1993) and Moore v. Ashland Chemical, Inc., 151 F.3d 269, 273, 275–76 (5th Cir. 1998) (en banc).
Before expert testimony may be presented to the jury, this Court must review the testimony to determine whether it is reliable. 

II
	Federal Rule of Evidence 702 allows the presentation of expert testimony on the basis of “scientific, technical, or other specialized knowledge.”  Before such evidence is admitted, however, the trial judge must ensure that an expert’s testimony “rests on a reliable foundation.”  Daubert, 509 U.S. 579, 597.   Daubert’s requirement applies to all expert-opinion testimony.  “[W]hile Daubert dealt with expert scientific evidence . . . the decision’s focus on a standard of evidentiary reliability and the requirement that the expert’s testimony must be appropriately validated are criteria equally applicable to ‘technical, or other specialized knowledge’”  Watkins v. Telsmith, Inc., 121 F.3d 984, 991 (5th Cir. 1997).  Thus, whether expert testimony and evidence is based on scientific, technical or other specialized knowledge, Daubert and Rule 702 demand that the district court evaluate the methods, analysis, and principles relied upon by the expert in reaching his opinion.  Id.
	“Procedurally, Daubert instructs . . . that the district court must determine admissibility under Rule 702 by following the directions provided in Rule 104(a).”  Moore, 151 F.3d 269, 273.  Rule 104(a) requires preliminary fact-finding by the judge for the purpose of determining whether the reasoning or methodology underlying the testimony is valid.  Id.  The burden is on the party seeking admission of expert testimony—in this case, the Government—to demonstrate that the expert’s findings and conclusions meet these standards.  Id. at 276.
	To determine reliability, Daubert provides a five-factor, non-exclusive test: (1) whether the expert’s theory can be or has been tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error of a technique or theory; (4) the existence and maintenance of standards and controls; and (5) the degree to which the technique or theory has been generally accepted.  Daubert, 509 U.S. 579, 593–95; Moore, 151 F.3d at 275.  This analysis applies whether the expert testimony is considered to be “hard science,” or whether it is based solely on experience or training.  Moore, 151 F.3d 269, 275 n.6.
A hearing is needed to determine whether the expert evidence meets Daubert’s standards.

III

	Lieutenant ________________________, who has worked as a Department of Public Safety patrol trooper and narcotics officer, is expected to testify to various conclusions, including that “it is uncommon for innocent third parties to be used to transport drugs,” and that it would be unusual for transporters to not have knowledge of the fact that they are transporting valuable controlled substances.”  See Gov’t Notice at 6–7. ________________________ is also expected to testify that in his entire experience as a narcotics investigator, “he has never seen a genuine ‘blind mule,’ a person transporting drugs who did not have knowledge of what he was transporting.”  Gov’t Notice at 7.  While this proposed testimony is not within the realm of scientific evidence, under Daubert’s and Moore’s principles, set forth above, a hearing is needed to determine the reliability and relevancy of these conclusions.
	The Government’s disclosure does not reveal what analytical process or other source ________________________ employed to reach his conclusions, or whether that process can be tested, Daubert, 509 U.S. 579, 593.  While ________________________’s experience as a narcotics officer is the purported basis of his “expert” conclusions, there is no indication of whether he is basing his conclusions on conviction rates or some other source that he might have for divining the mental states of those participants in the drug cases he has investigated.  The Government’s notice does not reveal whether the process has been subject to peer review and publication, id. at 593–94; it does not reveal the known or potential rate of error for the process, id. at 594; it does not reveal whether the process is subject to standards or controls, id.; and, it does not reveal whether the process employed by the experts is generally accepted, id.   The burden is on the Government as the party seeking admission of expert testimony to demonstrate that the expert’s findings and conclusions meet these standards.  Moore, 151 F.3d 269, 276.  
	________________________ must be permitted to cross-examine the Government’s witness to test reliability, and to have an opportunity to present evidence to refute the Government’s claim of reliability.  For these reasons, ________________________ requests that this Court hold a pretrial hearing on these matters, and thereafter order exclusion of testimony or evidence that does not satisfy the standards set forth in Daubert and cases interpreting it.  In any event, ________________________ requests that this Court order the Government not to allude before the jury to evidence about any of the enumerated issues unless, and until, this Court has ruled the evidence admissible under Daubert and the Federal Rules of Evidence.
The Court Should Exclude Any Expert Testimony Not Included in the Government’s Notice and Summary of ________________________’s Testimony

IV

	Both Rule 16 of the Federal Rules of Criminal Procedure and this Court’s discovery order direct the Government to provide summaries of any expert testimony it intends to offer at trial.  Those summaries should assist counsel for the defense in preparing to answer the expert testimony and in assessing its reliability.  The summaries also help prevent unfair surprise and trial by ambush.
________________________ has relied on the notice and summary provided by the Government on August 8, 2002, in the preparation of his defense.  Any expert testimony or evidence not reflected in those summaries should be excluded.  This Court’s order provides for exclusion of this expert testimony, and Rule 16 permits exclusion.  See Taylor v. Illinois, 484 U.S. 400, 401–02 (1988) (exclusion of witness whose name did not appear on party’s response to discovery request may be appropriate sanction); see also Fed. R. Crim. P. 16(d)(2).
						Respectfully submitted.

						_________________
						Attorney for Defendant

CERTIFICATE OF SERVICE

	I certify that I served a copy of the foregoing Defendant's Motion to Exclude Expert Testimony to ________________, United States Attorney for the _________________ District of Texas (ATTN: Assistant U.S. ____________), by mailing it to his office at ____________________________ on ____________________.

						______________________________
						Attorney for Defendant		

UNITED STATES DISTRICT COURT
_____________________ DISTRICT OF TEXAS
__________________ DIVISION

UNITED STATES OF AMERICA	                 §
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V.	                                                                 § 		NO. _______________
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O R D E R
	On this date came on to be considered the Defendant's Motion in Limine, and the Court having considered the premises is of the opinion that the same should be and is hereby GRANTED.  	It is therefore ORDERED that a pre-trial hearing, pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998) (en banc), to determine the admissibility of  ________________________’s testimony, is scheduled for the ___ of August, 2002. 
	 It is further ORDERED that any expert testimony or evidence not reflected in the August 8, 2002, notice and summary that the Government provided to the defense, should be excluded from  evidence in the trial of this cause.
							
						______________________________________
						United States District Judge