UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

 

Plaintiff, Case Number 15-cr-20020

vs. Honorable Gershwin A. Drain

ANTHONY NIXON,

Defendant.

____________________________/

OPINION AND ORDER GRANTING DEFENDANT’S MOTION 

FOR A DAUBERT HEARING AND EXCLUDING THE GOVERNMENT’S

EXPERT [#28]

I. INTRODUCTION

On February 24, 2015, a federal grand jury issued a four-count Superseding

Indictment charging Defendant, Anthony Nixon, with violations of Title 18 U.S.C. §

1959(a)(5), Conspiracy to Commit Murder in Aid of Racketeering; Title 18 U.S.C. §§

1959(a)(3); 2, Assault with a Dangerous Weapon in Aid of Racketeering; Title 18

U.S.C. §§ 924(c); 2, Use and Carry of a Firearm During, and in Relation to, a Crime

of Violence and Title 18 U.S.C. § 922(g), Felon in Possession of a Firearm. 

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Presently before the Court is Defendant’s Motion for a Daubert1 Hearing, filed

on May 18, 2015. The Government filed a Response in Opposition on June 8, 2015. 

An evidentiary hearing was held on June 30, 2015. For the reasons that follow, the

Court will grant Defendant’s Motion for a Daubert Hearing and will exclude the

Government’s expert.

II. FACTUAL BACKGROUND 

The Government alleges that Defendant, along with others unnamed, were

members and associates of the Vice Lords, a national gang founded in Chicago,

Illinois. It further claims that on or about October 8, 2014 through October 10, 2014,

Defendant plotted with other Vice Lord members to murder approximately five

individuals. Defendant is also alleged to have assaulted five individuals with a

dangerous weapon on October 10, 2014. The Government claims that the purpose of

the Vice Lords enterprise is to (1) maximize profits from a variety of illegal activities,

including murder, armed robbery and distribution of controlled substances, and (2) 

preserve and protect the power, territory, and profits of the enterprise through the use

of intimidation and violence, including assaults and threats of violence. 

The Government seeks to introduce Officer Albert Wyroba,2

 of the Chicago

1

 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

2

 At the time of filing Defendant’s present motion, the Government’s

noticed expert witness was Detective Terrence Shields, also from the Chicago,

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Police Department, as an expert witness during Defendant’s upcoming trial. In its

Response, the Government argues that Wyroba’s expert testimony is necessary to

explain the Vice Lords organization to the jury, including its structure, history, rules,

customs and symbols. However, at the hearing, counsel for the Government explained

that Wyroba’s anticipated testimony was to focus on the common sayings or phrases

and tattoos of the Vice Lords, and not on the history of the Vice Lords. While the

Government maintains that Wyroba’s testimony will be very narrow, it should be

noted that its Expert Witness Disclosure identifies a much broader area of anticipated

testimony including testimony regarding criminal street gangs in general.

See Dkt. No. 33 at 2-6. 

At the hearing, Wyroba testified that he has been a police officer for the

Chicago Police Department for ten years. He has spent seven of those years

investigating gang activity; predominantly the Vice Lords Nation gang. He has led

the investigations in approximately fifty Vice Lord investigations, some being short

term and others leading to Title 3 wiretaps. He estimates conducting physical

surveillance of Vice Lord gang members about five hundred times, listened to roughly

ten to twenty jail calls involving members, and conducted well over one hundred

Illinois Police Department. However, Detective Shields has informed the

Government that he will be unable to testify at the upcoming trial in this matter,

thus the Government recently identified Wyroba as an expert witness. 

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interviews of members. While he has been qualified as an expert in illicit narcotics

distribution, this is the first time he has been proffered as an expert witness on gang

activity. 

He further explained that the Vice Lord Nation’s national headquarters are

located in Chicago, Illinois. He identified several Vice Lord symbols, which include

the top hat, play boy bunny, five point star, five point crown and a champagne glass.

He further testified that there are different factions including the conservative Vice

Lords, the traveling Vice Lords, and the Insane Vice Lords. He indicated that factions

are located outside of the Chicago area and mostly operate in the Midwest, including

Minnesota, Tennessee, Wisconsin and Michigan. While he identified Michigan as a

location with Vice Lord members, he admitted that he has no personal knowledge of

Vice Lord membership in Detroit, nor does he have any knowledge of any Chicago

member being connected to any members located in the Detroit area. 

III. LAW & ANALYSIS

A party offering an expert’s opinion bears the burden of establishing the

admissibility of such opinion by a preponderance of the evidence. Nelson v.

Tennessee Gas Pipeline Co., 243 F.3d 344, 251 (6th Cir. 2001). Expert testimony is

admissible only if it satisfies the requirements of Rule 702 of the Federal Rules of

Evidence, which states:

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A witness who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise

if:

(a) the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue; 

(b) the testimony is based on sufficient facts or data; 

(c) the testimony is the product of reliable principles and

methods; and 

(d) the expert has reliably applied the principles and methods

to the facts of the case.

Fed. R. Evid. 702. The district court must determine whether the expert’s testimony

meets three requirements: (1) the expert witness must be qualified by “knowledge,

skill, experience, training or education,” (2) the proffered testimony is relevant and

“will assist the trier of fact to understand the evidence or to determine a fact in issue,”

and (3) the testimony is reliable in that it is based on scientific, technical or other

specialized knowledge. Fed. R. Evid. 702; In re Scrap Metal Antitrust Litigation, 527

F.3d 517, 529 (6th Cir. 2008). 

In his present motion, Defendant argues that the Government’s proposed expert

witness is not qualified to testify as an expert about the Vice Lords gang activity in

Detroit. Defendant further asserts that Wyroba’s proposed testimony will not assist

the trier of fact. Lastly, Defendant maintains that even if the Court were to find the

anticipated testimony has limited probative value, it would be outweighed by the

danger of unfair prejudice. 

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 The Government maintains that Wyroba’s “considerable expertise regarding

the Vice Lords organization” is highly relevant, will assist the trier of fact and is

reliable. The Government argues that Wyroba has “extensive expertise” with the Vice

Lords organization. Specifically, the Government indicates in its Expert Witness

Disclosure that Wyroba’s testimony will be based on his training and experience,

which includes:

C Ten years of employment with the Chicago police

department; 

C Current assignment to the Organized Crime Division’s

Gang Investigation Unit;

C Previous assignment to a tactical team in the 15th District

and an area-wide gang unit;

C Investigation of street gangs in the city of Chicago for at

least 8 of the past 10 years; 

C Numerous short term and long term investigations of Vice

Lord gang members;

C Participation in a year-long federal operation investigating

the Vice Lords, which included a joint DEA Title III

wiretap;

C Since 2008, involvement with numerous conspiracy

investigations of both state and federal crimes;

C Served as affiant on numerous applications for search

warrants, consensual overhears and tracker orders;

C Interviewed numerous gang members regarding gang

activities, hierarchies and violence related to control of

narcotics activities. 

Dkt. No. 33 at 6-7. This mirrors Wyroba’s testimony concerning his background at

the June 30, 2015 hearing. 

Defendant argues that while the Government’s expert may have expertise

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regarding Chicago street gangs, he had no part in the investigation of this case in

Detroit, nor did he have any involvement with any of the alleged gang members who

may testify. Defendant relies on United States v. Norwood, 16 F. Supp.3d 848 (E.D.

Mich. 2014), and United States v. Johnson, No. 13-20764, 2014 WL 6686766 (E.D.

Mich. Nov. 26, 2014), in support of his argument. 

In Johnson, the district court excluded the Government’s proposed expert

witness under Rule 702. Johnson, 2014 WL 6686766, *3. The Government sought

to introduce its expert’s testimony on the Phantom Motorcycle Club’s Detroit chapter. 

Id. at *1. However, the Government’s expert was only knowledgeable about the

Phantom’s Columbus, Ohio chapter and its command structure. The expert had no

knowledge of the command structures of other chapters nor had he ever been in

another chapter’s clubhouse. Id. at *2. The Government’s expert had only been to

Detroit twice; once to interview a confidential informant and later to testify before the

grand jury. Id. In determining that the Government could not introduce the anticipated

expert testimony, the district court concluded in relevant part that:

His limited Phantoms background, involving primarily the peripheral

Columbus Phantoms Chapter, does not qualify him as an expert under

Daubert in this trial in Detroit, involving primarily Detroit members of

the Detroit headquarters chapter. 

Id. at *3. 

In its Response brief, the Government fails to explain how Wyroba’s training

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and experience working for the Chicago Police Department qualifies him to testify as

an expert about the local Detroit chapter of the Vice Lords. The Court did not glean

any further insight on this issue at the hearing. While the Government argues that

symbols and phrases of the Vice Lord Nation are universal, such a premise is hard to

accept considering Wyroba’s experience encompasses only the Chicago area Vice

Lord members. It is not clear to this Court that Wyroba is qualified to testify that

certain symbols and phrases are universal among factions located outside of Chicago

when he has never been involved in any investigations of the Vice Lords outside of

Chicago. 

The Government cites to United States v. Tocco, 200 F.3d 401 (6th Cir. 2000),

for the proposition that police witnesses can be qualified as experts if they possess the

requisite level of training and/or experience. The problem with relying on Tocco

however is that the officer in that case “ha[d] extensive experience in the investigation

of organized crime in the Detroit area, including . . . his role since 1990 as the Cosa

Nostra coordinator for the Detroit division, and as liaison with other FBI offices and

FBI headquarters.” Id. at 419. Wyroba does not possess the “extensive experience

in the investigation of organized crime in the Detroit area” similar to the expert in

Tocco. Id. In fact, Wyroba has no knowledge of Vice Lord gang activity in Detroit. 

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The Government argues that the fact Wyroba has “more experience with the

Chicago based Vice Lords should not preclude him from testifying about the Vice

Lords organization’s common origins, structure, symbols, and rules, which are found

whether it operates in Detroit, Michigan; Chicago, Illinois; or another of the cities

where the Vice Lords organization has a presence.” Gov.’s Resp. At 14. However,

the Government has offered no supporting evidence for this proposition, nor any case

law in support of such an argument.

The other cases cited by the Government, including United States v. Tindell,

No. 3:06-CR-30, 2007 WL 4223667 (E.D. Tenn. Nov. 28, 2007), and United States

v. Swafford, 385 F.3d 1026 (6th Cir. 2004), are not on point with the issue before this

Court. Both Tindell and Swafford dealt with the qualifications of police officers to

testify as experts about drug distribution and the role of firearms in drug trafficking. 

Tindell, 2007 WL 4223667, at *1; Swafford, 385 F.3d at 1030. These cases are

therefore distinguishable and offer no support for permitting Wyroba’s testimony. See

United States v. Norwood, 16 F. Supp.3d 848, 863 (E.D. Mich. 2014) (noting that

while “the Sixth Circuit permits generalized drug sale and distribution testimony, the

cases allowing gang experts regularly discuss the expert’s familiarity with the subject

gang.”)(internal citations omitted). 

Additionally, another case relied on by the Government, United States v.

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Mansoori, 304 F.3d 635 (7th Cir. 2002) is distinguishable from the facts present here. 

In Mansoori, the Seventh Circuit Court of Appeals found no error with the district

court’s decision to allow a Chicago police officer to testify as an expert on the

Traveling Vice Lords, who were engaged in narcotics trafficking in Chicago. Id. at

653-54. The officer, who was also involved in the investigation culminating in the

prosecution of the defendants, was allowed to offer opinion testimony regarding the

location that the Traveling Vice Lords distributed narcotics in Chicago. Id. at 653.

Here again, unlike the circumstances present here, the expert at issue had first hand

knowledge of the Chicago Vice Lords that were the subject of the indictment. See also

United States v. Archuleta, 737 F.3d 1287 (10th Cir. 2013) (concluding that admission

of a New Mexico Police Department officer’s expert testimony on the New Mexico

gang, Tortilla Flats, did not violate the Federal Rules of Evidence). 

The Government’s reliance on United States v. Zerilli, 128 F. App’x 473 (6th

Cir. Apr. 13, 2005), an unpublished decision from this Circuit is also unhelpful in

supporting the Government’s position. The Zerilli court concluded that the district

court did not abuse its discretion in admitting the gang expert testimony of an FBI

agent concerning the Detroit Cosa Nostra family. Id. at 477. However, Zerilli

provides no background information on the FBI agent and does not persuade this

Court that Wyroba is qualified to testify about the universal nature of the Vice Lords

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symbols and phrases when he has never investigated any members outside of the

Chicago area. The case of United States v. Rivers, No. 3:11-00194, 2013 WL 3937026

(M.D. Tenn. Jul. 30, 2013) is similarly problematic for the Government. The Rivers

court offered absolutely no analysis when it concluded that a gang expert’s testimony

on “[t]he methods and history of the Vice Lords gang are relevant and will assist the

jury.” Id. at *4. 

As to whether Wyroba’s testimony will assist the trier of fact, the Government

argues that Wyroba’s knowledge about the Vice Lords organization, structure and

rules will help the trier of fact understand the evidence, including the testimony of a

number of witnesses. It is beyond dispute that the Sixth Circuit has allowed police

officers to testify as expert witnesses concerning organized crime, including gang

activity. Tocco, 200 F.3d at 419 (“[E]vidence regarding the inner-workings of

organized crime has been held to be a proper subject of expert opinion because such

matters are ‘generally beyond the understanding of the average.’”). 

However, here it is not clear to this Court that Wyroba’s testimony will assist

the trier of fact. At the hearing, the Government produced five exhibits with pictures

of Defendant’s tattoos. Wyroba testified that the tattoos were consistent with the

symbols he is familiar with in connection with his investigations of the Chicago Vice

Lords gang members. The Government intends to introduce the testimony of one of

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Defendant’s accomplices who is also a member of the Vice Lords gang in Detroit. As

such, this witness can testify to the phrases and symbols used by the gang members

in Detroit. Moreover, an average juror will be familiar with the concept of individual

gang members committing crimes at the behest of the leaders of the gang in order to

secure a higher position within the gang’s hierarchy. 

In summary, the Court concludes that Wyroba’s anticipated expert testimony

fails to meet the requirements for admissibility under Rule 702 because it is unreliable

and will not assist the trier of fact. Additionally, in this Court’s view, the proposed

expert testimony concerning Defendant’s tattoos would be unfairly prejudicial. Rule

403 permits this Court to “exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” Fed. R. Evid. 403. The pictures of

Defendant’s tattoos do not look like atypical tattoos evidencing gang membership. 

In fact, one of the tattoos is a picture of a baseball cap, while Wyroba testified that a

top hat is a typical symbol of the Vice Lords gang in Chicago. 

IV. CONCLUSION 

For the foregoing reasons, Defendant’s Motion for a Daubert Hearing to

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Exclude the Government’s Expert [#28] is GRANTED. 

SO ORDERED.

Dated: July 2, 2015 /s/Gershwin A Drain 

GERSHWIN A. DRAIN

UNITED STATES DISTRICT JUDGE 

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