JAMES O. BROWNING, District Judge.
The Court recites the basic allegations of the case as stated in an affidavit attached
Goxcon-Chagal informed the officer that he "was en route to Oklahoma from Las Vegas, Nevada where he has been working." Hella Aff. at 2. Goxcon-Chagal "advised he was traveling back to Oklahoma for a ten-day vacation." Hella Aff. at 2. "He identified the passenger," Defendant Maria Vianey Medina-Copete, "as his wife." Hella Aff. at 2. Goxcon-Chagal "had a hard time identifying the owner of the vehicle and all he could say was the owner was a friend of his in Nevada." Hella Aff. at 2. Goxcon-Chagal and Medina-Copete eventually consented to a search of the vehicle. See Hella Aff. at 3-4. "K-9 Marco, who is trained and certified to detect" various drug odors, "was deployed by Sgt. Chavez and subsequently alerted both to the exterior and interior of the vehicle." Hella Aff. at 4. "A follow-up hand search by Sgt. Chavez located a false compartment behind the passenger side air bag." Hella Aff. at 4. "Upon removing the airbag a plastic piece which had been affixed to the airbag compartment was removed and revealed two packages of white glass-like substances which appeared to be methamphetamine." Hella Aff. at 4. "The total weight of both packages was approximately 1003.4 grams." Hella Aff. at 4. The United States also alleges that "officers recovered a Santa Muerte statute and a document from the vehicle that contained a Santa Muerte prayer." Response to Motion in Limine to Exclude Expert Testimony II at 5, filed July 23, 2012 (Doc. 75) ("Response").
On May 10, 2012, the United States filed its United States' Notice of Intention to Offer Expert Testimony. See Doc. 62 ("Notice"). The Notice provides that the United States will offer Almonte as an expert witness "regarding the use of `patron saints' by drug traffickers, with specific attention towards Santa Muerte, and how Santa Muerte prayers and icons are `tools of the trade' for many drug traffickers." Notice at 1. The Notice relates that "Marshal Almonte has over 25 years of combined state and federal law enforcement experience, much of it devoted to narcotics enforcement." Notice at 1. "He currently serves as the United States Marshal for the Western District of Texas, which encompasses San Antonio and El
Notice at 2.
Almonte's curriculum vitae notes that he: (i) worked for the El Paso, Texas Police Department from 1978 to 2003; (ii) served as an instructor for both general police training and drug enforcement training in various capacities from 1990 to 2007; (iii) worked, in the private sector, as a law enforcement trainer and consultant from 2004 to 2010; (iv) served as the executive director of the Texas Narcotic Officers Association from 2006 to 2010; and (v) has served as the United States Marshal for the Western District of Texas since 2010. See Curriculum Vitae of Robert R. Almonte at 1, filed May 10, 2012 (Doc. 62-1) ("Curriculum Vitae"). His Curriculum Vitae notes that he received a bachelor of science degree, summa cum laude, in Criminal Justice Administration from Park University. See Curriculum Vitae at 1. Almonte has published two books: (i) Evolution of Narcotics Investigations in 2004; and (ii) Managing Covert Operations in 2004. See Curriculum Vitae at 1. He has developed a law enforcement training video entitled Patron Saints of the Mexican Drug Underworld. See Curriculum Vitae at 1. He has testified in three federal cases, all in 2011, on the topic of Santa Muerte. See Curriculum Vitae at 1-2. Almonte relates that he has the following research interests:
Curriculum Vitae at 2. He has spoken as a lecturer or provided presentations for over fifty-five different state and federal law enforcement organizations. See Curriculum Vitae at 3-4.
On July 16, 2012, the Defendants filed their Motion in Limine. See Doc. 73. They argue that Almonte "is not qualified to render an expert opinion regarding patron saints of drug traffickers." Motion in Limine at 6. They assert that Almonte's opinions are unreliable, and that the Court should exclude that evidence under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),
Motion in Limine at 8. The Defendants contend that "[t]he sole purpose of United States Marshal Robert Almonte's expert testimony and self-serving testimony regarding patron saints of drug traffickers is solely to bolster the prosecution's case by the use of his self-proclaimed expert theories that the defendants are guilty." Motion in Limine at 6. They argue that the expert testimony is "irrelevant." Motion in Limine at 8. The Defendants assert that the proposed expert testimony "would not assist the jury in fairly discerning the facts of this case, as required by Rule 702." Motion in Limine at 9. They also contend that the Court should exclude the evidence under rule 403, because the testimony is "overly prejudicial" and "would have minimal, if any, probative value." Motion in Limine at 9. They argue that the evidence is improper "profile evidence, which is inadmissible as substantive proof." Motion in Limine at 10. They assert that Almonte's proposed testimony "amounts to little more than telling the jury what conclusion to reach." Motion in Limine at 11. The Defendants contend that the United States' Notice is deficient under rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure "based on the sparse information the prosecution has proffered regarding United States Marshal Robert Almonte's testimony." Motion in Limine at 13-14.
On July 23, 2012, the United States filed its Response to the Motion in Limine. See Doc. 75. The United States asserts that "Santa Muerte is not a saint, and the Catholic church does not recognize it as such." Response at 7 (emphasis in original). The United States refers to Santa Muerte and other saints it asserts are important in the drug trafficking community as "narco-saint[s]." Response at 7. The United States represents that it "plans to introduce, through its own expert, that Santa Muerte is also revered by many law-abiding people, and the presence of Santa Muerte paraphernalia, without more, does not automatically mean somebody is involved in drug trafficking." Response at 7. The United States relates that it will not, "as Defendants suggest, introduce testimony
The United States notes that "Almonte's testimony regarding Santa Muerte has been previously accepted by the district court for the Western District of Texas as admissible." Response at 9 (citing United States v. Javier Guererro, No. DR-09-CR-820(1, 5)-AM, Order at 1-6 (W.D. Tex. May 10, 2011), filed July 23, 2012 (Doc. 75-1) ("Guererro Opinion")). The United States notes that the United States District Court for the Western District of Texas "found that Marshal Almonte had invested thousands of hours of research on this topic, and lectured on the precise subject at hundreds of law enforcement seminars across the country." Response at 9 (citing Guererro Opinion at 3). The United States relates that the Western District of Texas found that Almonte "`is treated as a Santa Muerte expert among the law enforcement community' [and] qualified him as an expert, despite the defendants' challenge that his methodology had not been subjected to peer review." Response at 9 (quoting Guererro Opinion at 4). The United States notes that the United States Court of Appeals for the Tenth Circuit has addressed similar matters and has referred to Jesus Malverde
At the hearing on July 25, 2012, the parties stated that they would prefer to have a separate hearing on the Motion in Limine regarding Santa Muerte but provided some arguments on the motion. The Defendants stated that, if the Court will allow Almonte's expert testimony regarding Santa Muerte, they may need their own expert to rebut his testimony. See Transcript of Hearing at 37:19-25 (taken July 25, 2012) (Riggs) ("July 25, 2012 Tr.").
The Court related that, although rule 610 bars evidence of a witness' religious beliefs for credibility purposes, the Court is not aware of any authority construing that rule to include matters such as evidence offered to prove intent to commit a crime. See July 30, 2012 Tr. at 16:3-15 (Court). The Court stated that the limitations stated in rule 610 are such that it likely does not conflict with the First Amendment. See July 30, 2012 Tr. at 16:3-15 (Court). The Defendants emphasized that the evidence is unfairly prejudicial in light of its low probative value and that presenting the evidence would encroach on their religious freedom. See July 30, 2012 Tr. at 16:16-18:4 (Gandert). The United States analogized to a case where a defendant killed an individual to sacrifice the person for religious purposes and related that evidence like that Almonte intends to present helps elucidate a defendant's intentions. See July 30, 2012 Tr. at 18:21-19:10 (Stanford). The United States emphasized that this evidence does not mean that the Defendants are automatically guilty of drug trafficking, but related that the jury should have the evidence before it to more fully understand the context behind the Defendants' actions. See July 30, 2012 Tr. at 19:11-22 (Stanford). The United States also asserted that it is inaccurate to describe Almonte as the only expert on this topic, given that an online computer search can reveal several others who are qualified to testify on these matters. See July 30, 2012 Tr. at 19:23-20:6 (Stanford). The United States argued that, in every case where courts have admitted similar testimony, the underlying issue was whether the charged individuals were trafficking drugs. See July 30, 2012 Tr. at 20:7-24 (Stanford). The United States emphasized that the Defendants can easily resolve any improper inferences the jury might draw from the evidence through effective cross-examination. See July 30, 2012 Tr. at 20:25-21:7 (Stanford). The United States related that it could
The Tenth Circuit "has repeatedly held that in narcotics cases, expert testimony [by a law enforcement officer] can assist the jury in understanding transactions and terminology." United States v. Walker, 179 Fed.Appx. 503, 507 (10th Cir.2006) (unpublished) (quoting United States v. Quintana, 70 F.3d 1167, 1171 (10th Cir.1995)). "This rule is based on the Tenth Circuit's recognition that the modus operandi of drug organizations, the value of drug quantities, the language of narcotics dealers, and the tools of the narcotics trade `are not subjects with which most jurors are familiar.'" United States v. Hernandez-Mejia, No. 05-0469, 2007 WL 2219411, at *4 (D.N.M. Apr. 30, 2007) (Browning, J.) (quoting United States v. McDonald, 933 F.2d 1519, 1522 (10th Cir.1991)). Other Circuit Courts of Appeal are in accord. See United States v. Martinez, 476 F.3d 961, 967 (D.C.Cir.2007) ("Expert testimony about the methods of drug organizations is common in drug cases."); United States v. Robles-Rosas, 27 Fed.Appx. 897, 899 (9th Cir.2001) (unpublished) (holding that the district court did not abuse its discretion in permitting testimony regarding the modus operandi of drug organizations); United States v. Gastiaburo, 16 F.3d 582, 589 (4th Cir.1994) ("[T]estimony on the modus operandi of criminals `is commonly admitted,' particularly regarding the methods of drug dealers."). More specifically, in cases involving possession with intent to distribute, the Tenth Circuit has held that "testimony with regard to the significance of a quantity of drugs possessed is specialized knowledge that assists the jury in understanding a fact at issue." United States v. Mundy, 97 Fed.Appx. 844, 846 (10th Cir. 2004) (unpublished).
"Tools of the trade may necessitate the appearance of an expert witness if the jury could not understand the significance of the possession of those items." United States v. Becker, 230 F.3d 1224, 1231 (10th Cir.2000). The Tenth Circuit has held that it was appropriate for the government to present evidence regarding "typical indica of drug trafficking activity" in a case where the government sought "to identify for the jury common red flags suggestive of an illicit pharmaceutical operation." United States v. Lovern, 590 F.3d 1095, 1102 (10th Cir.2009). The Tenth Circuit has "upheld the admission of expert testimony detailing the significance of `a drug dealer's tools of [the] trade: a single-edge razor blade, a pager or beeper, and a loaded pistol.'" United States v. Becker, 230 F.3d at 1231 (alteration in original). The Tenth Circuit has also upheld "the admission of expert testimony to `explain[] the meaning of the physical evidence' officers `found at the arrest scene ... where the narcotics were confiscated." United States v. Becker, 230 F.3d at 1231. The Tenth Circuit found it permissible for an officer to testify "about the common features of drug transactions to assist the jury in understanding the nature of the drug business," including "that most drug
"Since the Supreme Court of the United States decided Daubert v. Merrell Dow Pharmaceuticals, Inc., trial courts have had the responsibility to make certain that proffered experts will assist the jury in understanding the evidence and in determining the factual issues it must decide." United States v. Gutierrez-Castro, 805 F.Supp.2d 1218, 1224 (D.N.M.2011) (Browning, J.). "The Court now must not only decide whether the expert is qualified to testify, but, under Daubert v. Merrell Dow Pharmaceuticals, Inc., whether the opinion testimony is the product of a reliable methodology." United States v. Gutierrez-Castro, 805 F.Supp.2d at 1224. "Daubert v. Merrell Dow Pharmaceuticals, Inc. requires a court to scrutinize the proffered expert's reasoning to determine if that reasoning is sound." United States v. Gutierrez-Castro, 805 F.Supp.2d at 1224.
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony:
Fed.R.Evid. 702. Rule 702 thus requires the trial court to "determine whether the expert is proposing to testify to (1) scientific, technical, or other specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." United States v. Muldrow, 19 F.3d 1332, 1337 (10th Cir.1994). Rule 702 uses a liberal definition of "expert." Fed.R.Evid. 702 advisory committee's note to 1972 proposed rules ("[W]ithin the scope of this rule are not only experts in the strictest sense of the word, e.g. physicians, physicists, and architects, but also the large group sometimes called `skilled' witnesses, such as bankers or landowners testifying to land values."). An expert is "required to possess such skill, experience or knowledge in that particular field as to make it appear that his opinion would rest on substantial foundation and would tend to aid the trier of fact in his search for truth." LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir.2004). The proponent of expert testimony has the burden of establishing by a preponderance of the evidence that the pertinent admissibility requirements are met. See Morales v. E.D. Etnyre & Co., 382 F.Supp.2d 1252, 1266 (D.N.M.2005) (Browning, J.) (citing Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987)). Once the trial court has determined that expert testimony would be helpful to the trier of fact, a witness "may qualify as an expert by knowledge, skill, experience, training, or education and ... the expert... should not be required to satisfy an overly narrow test of his own qualifications."
In its gatekeeper role, a court must assess the reasoning and methodology underlying an expert's opinion, and determine whether it is both scientifically valid and relevant to the facts of the case, i.e., whether it is helpful to the trier of fact. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 594-95, 113 S.Ct. 2786; Witherspoon v. Navajo Ref. Co., LP, No. 03-1160, 2005 WL 5988649, at *2 (D.N.M. July 18, 2005) (Black, J.) (citing Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir.2003)). The Supreme Court articulated a non-exclusive list of factors that weigh into a district court's first-step reliability determination, including: (i) whether the method has been tested; (ii) whether the method has been published and subject to peer review; (iii) the error rate; (iv) the existence of standards and whether the witness applied them in the present case; and (v) whether the witness' method is generally accepted as reliable in the relevant medical and scientific community. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 594-95, 113 S.Ct. 2786. The court is also to consider whether the witness' conclusion represents an "unfounded extrapolation" from the data; whether the witness has adequately accounted for alternative explanations for the effect at issue; whether the opinion was reached for the purposes of litigation or as the result of independent studies; or whether it unduly relies on anecdotal evidence. See Witherspoon v. Navajo Ref. Co., LP, 2005 WL 5988649 at *3 (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)). The Tenth Circuit stated the applicable standard in Norris v. Baxter Healthcare Corp.:
397 F.3d 878, 883-84 (10th Cir.2005) (footnote omitted). "The second inquiry is related to the first. Under the relevance prong of the Daubert analysis, the court must ensure that the proposed expert testimony logically advances a material aspect of the case.... The evidence must have a valid scientific connection to the disputed facts in the case." Norris v. Baxter Healthcare Corp., 397 F.3d at 884 n. 2 (citing Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir.1995) (on
Kumho Tire Co. v. Carmichael, 526 U.S. at 150, 119 S.Ct. 1167 (internal quotation marks omitted).
In conducting its review under Daubert v. Merrell Dow Pharmaceuticals, Inc., the court must focus generally on "principles and methodologies, and not on the conclusions generated." Armeanu v. Bridgestone/Firestone N. Am., Tire, LLC, No. 05-0619, 2006 WL 4060665, at *11 (D.N.M. Sept. 26, 2006) (Browning, J.) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 595, 113 S.Ct. 2786). "Despite this focus on methodology, `an expert's conclusions are not immune from scrutiny... and the court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Armeanu v. Bridgestone/Firestone N. Am., Tire, LLC, 2006 WL 4060665, at *11 (alterations omitted) (internal quotation marks omitted). The proponent of the expert's opinion testimony bears the burden of establishing that the expert is qualified, that the methodology he or she uses to support his or her opinions is reliable, and that his or her opinion fits the facts of the case and thus will be helpful to the jury. See Norris v. Baxter Healthcare Corp., 397 F.3d at 881. As the Tenth Circuit noted in Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193 (10th Cir.2002):
289 F.3d at 1206. As the United States Court of Appeals for the Ninth Circuit noted in Claar v. Burlington Northern Railroad Co., 29 F.3d 499 (9th Cir.1994):
29 F.3d at 502-503.
Ram v. N.M. Dep't of Env't, No. 05-1083, 2006 WL 4079623, at *10 (Dec. 15, 2006) (Browning, J.) (citing United States v. Rodriguez-Felix, 450 F.3d 1117, 1123 (10th Cir.2006)).
An untested hypothesis does not provide a scientific basis to support an expert opinion. See Norris v. Baxter Healthcare Corp., 397 F.3d at 887 ("[A]t best, silicone-associated connective tissue disease is an untested hypothesis. At worst, the link has been tested and found to be untenable. Therefore, there is no scientific basis for any expert testimony as to its specific presence in Plaintiff."); In re Breast Implant Litig., 11 F.Supp.2d 1217, 1228 (D.Colo.1998) ("An untested hypothesis cannot be a scientifically reliable basis for an opinion on causation."). A court is not required "to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. The court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). See Hollander v. Sandoz Pharm. Corp., 289 F.3d 1193, 1209 (10th Cir.2002) (noting a lack of similarity between animal studies and human studies); Tyler v. Sterling Drug, Inc., 19 F.Supp.2d 1239, 1244 (N.D.Okla.1998) ("Test results on animals are not necessarily reliable evidence of the same reaction in humans."). Courts have excluded experts' opinions when the experts depart from their own established standards. See Truck Ins. Exch. v. MagneTek, Inc., 360 F.3d 1206, 1213 (10th Cir.2004) ("The district court noted that [the expert]'s opinion did not meet the standards of fire investigation [the expert] himself professed he adhered to."); Magdaleno v. Burlington N. R.R. Co., 5 F.Supp.2d 899, 905 (D.Colo. 1998) ("In sum, [the expert]'s methodology is not consistent with the methodologies described by the authors and experts whom [the expert] identifies as key authorities in his field.").
The restrictions in Daubert v. Merrell Dow Pharmaceuticals apply to both "novel" expert testimony and "well-established propositions." 509 U.S. at 593 n. 11, 113 S.Ct. 2786 ("Although the Frye
"[W]hen experts employ established methods in their usual manner, a district court need not take issue under Daubert. ..." Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 780 (10th Cir.2009). "[H]owever, where established methods are employed in new ways, a district court may require further indications of reliability." Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d at 780. Whether courts have accepted theories underlying an expert's opinion is a relevant consideration in determining whether expert testimony is reliable. See Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d at 780 ("The case law indicates that the courts are not unfamiliar with the PCR methodology, and in fact some courts have indicated their acceptance of it.").
Rule 704 of the Federal Rules of Evidence states:
Fed.R.Evid. 704. "Traditionally, there was a general doctrine that witnesses could not give their opinion or conclusions on an ultimate issue of fact." Vondrak v. City of Las Cruces, No. 05-0172, 2009 WL 3241555, at *10 (D.N.M. Aug. 25, 2009) (Browning, J.). "The stated justification was sometimes that such testimony usurps the function or invades the province of the jury." Vondrak v. City of Las Cruces, 2009 WL 3241555, at *10 (quoting 1 K. Broun, McCormick on Evidence § 12 (6th ed. 2006 update)). The Federal Rules of Evidence reflect that the ultimate-issue rule has been abolished. See United States v. Smith, 156 F.3d 1046, 1054 (10th Cir.1998). Although rule 704(a) permits an expert to testify about areas that embrace an ultimate issue, there are some other limitations, aside from those expressed in rule 704(b), regarding testimony on ultimate issues. More specifically, the Tenth Circuit has stated: "[A]n expert may not state legal conclusions drawn by applying the law to the facts." A.E. by and Through Evans v. Indep. Sch. Dist. No. 25, of Adair Cnty., Okla., 936 F.2d 472, 476 (10th Cir.1991).
"Rule 704(b) prohibits an expert from expressly stating the final conclusion or inference as to a defendant's mental state; it does not prevent an expert from testifying to facts or opinions from which the jury could conclude or infer that the defendant had the requisite mental state." United States v. Ganadonegro, No. 09-0312, 2012 WL 592170, at *5 (D.N.M. Feb. 17, 2012) (Browning, J.) (citing United States v. Torres, 53 F.3d 1129, 1141-42 (10th Cir.1995)). The restrictions in rule 704(b) do not apply to lay witnesses, see United States v. Goodman, 633 F.3d 963, 968 (10th Cir.2011), although the lay witnesses' testimony must still be helpful to the trier of fact to satisfy rule 701, see Fed.R.Evid. 701(b). "[Rules 701, 702, and 403] afford ample assurances against the admission of opinions [under rule 704] which would merely tell the jury what
"A defendant is entitled, under some circumstances, to request a written summary of expert testimony the United States intends to use in its case-in-chief." United States v. Gutierrez-Castro, 805 F.Supp.2d at 1227. Rule 16 provides in relevant part:
Fed.R.Crim.P. 16(a)(1)(G). Rule 16 similarly provides that a defendant must produce a summary of expert testimony under some circumstances:
Fed.R.Crim.P. 16(b)(1)(C).
Rule 610 provides: "Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility." Fed.R.Evid. 610. As a leading evidence treatise has stated: "The rule [stated in rule 610] does not bar evidence that is offered to prove something other than the effect of the witness's religion on his or her credibility.... Evidence as to a defendant's religious affiliations was properly admitted when it established a possible motive in a criminal case." 4 J. Weinstein & M. Berger, Weinstein's Federal Evidence § 610.03[2], at 610-4 to 610-5 (2d ed. 2012) (citing United States v. Hoffman, 806 F.2d 703, 708 (7th Cir.1986)). In United States v. Hoffman, the United States Court of Appeals for the Seventh Circuit addressed a district court's decision to admit evidence of a defendant's religious affiliation to establish "a possible
United States v. Hoffman, 806 F.2d at 708-10.
The United States Court of Appeals for the Eleventh Circuit has stated: "A person's beliefs, superstitions, or affiliation with a religious group is properly admissible where probative of an issue in a criminal prosecution." United States v. Beasley, 72 F.3d 1518, 1527 (11th Cir.1996). The Eleventh Circuit explained:
United States v. Beasley, 72 F.3d 1518, 1527 (11th Cir.1996). In an unpublished decision, the United States Court of Appeals for the Sixth Circuit quoted approvingly the Eleventh Circuit's holding from United States v. Beasley. See United States v. Shalom, 113 F.3d 1236, 1997 WL 225514, at *4 (6th Cir.1997) (unpublished table decision) ("Although we have not previously addressed the issue of error arising from a prosecutor's mention of a defendant's religious beliefs, we agree with the Eleventh Circuit's conclusion...."). The United States Court of Appeals for the Second Circuit similarly concluded that it was proper for a district court to admit evidence regarding "Unification Church practices," because "it was inevitable" some of that evidence "would creep into the trial" given the central issue in the trial regarding the defendant's "control over the activities of other church officials." Accord United States v. Sun Myung Moon, 718 F.2d 1210, 1233 (2d Cir.1983) ("The central issue for the jury to decide was whether the Tong I1 stock and Chase Manhattan Bank accounts belonged to the Church or to Moon personally."). In the context of proposed voir dire questions, the Court has stated the following about rule 610 and the problems that come with permitting inquiry into religious matters in a case:
United States v. Sandoval, No. 04-02362, 2006 WL 1304955, at *5 (D.N.M. Feb. 1, 2006) (Browning, J.).
Rule 403 provides: "The court may 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. Under rule 403, the trial court must weigh the proffered evidence's probative value against its potential for unfair prejudice. See United States v. Record, 873 F.2d 1363, 1375 (10th Cir.1989). "[I]t is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter [under rule 403]." United States v. Pettigrew, 468 F.3d 626, 638 (10th Cir.2006) (quoting United States v. Sides, 944 F.2d 1554, 1563 (10th Cir.1991)). The Tenth Circuit has recently reminded district courts that they should be "mindful" that "exclusion of evidence under Rule 403 that is otherwise admissible under the other rules is an extraordinary remedy and should be used sparingly." United States v. Smalls, 605 F.3d 765, 787 (10th Cir. 2010).
The decision to admit or exclude evidence pursuant to rule 403 is within the trial court's discretion, see United States v. Lugo, 170 F.3d 996, 1005 (10th Cir.1999), and the trial court's discretion to balance possible unfair prejudice against probative value is broad, see United States v. Bice-Bey, 701 F.2d 1086, 1089 (4th Cir. 1983); United States v. Masters, 622 F.2d 83, 87-88 (4th Cir.1980). As the Supreme Court recently noted:
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008) (quoting 1 S. Childress & M. Davis, Federal Standards of Review § 4.02, at 4-16 (3d ed. 1999)). See United States v. Abel, 469 U.S. 45, 54, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984) ("Assessing the probative value of [proffered evidence], and weighing any factors counseling against admissibility is a matter first for the district court's sound judgment under Rules 401 and 403....").
Evidence may be unfairly prejudicial if it would likely provoke an emotional response from the jury or would otherwise tend to adversely affect the jury's attitude toward a particular matter. See United States v. Rodriguez, 192 F.3d 946, 951 (10th Cir.1999). Evidence is not unfairly prejudicial merely because it damages a party's case. See United States v. Caraway, 534 F.3d 1290, 1301 (10th Cir. 2008); United States v. Curtis, 344 F.3d 1057,
The Court will deny the Motion in Limine. Almonte is sufficiently qualified to give an expert opinion based on his training, experience, and skill. Almonte's testimony about the tools of the trade of drug organizations as they relate to individuals who worship Santa Muerte would be helpful to the jury. Almonte's proposed expert testimony is sufficiently reliable for the Court to permit him to testify before a jury. Almonte's proposed testimony is not improper profile evidence. Neither the Establishment Clause nor the Free Exercise Clause require exclusion of this evidence. Because the risk of unfair prejudice does not substantially outweigh the probative value of Almonte's testimony, the Court will not exclude his testimony under rule 403. Lastly, the Court finds that the United States' notice under rule 16(a)(1)(E), with the additional disclosures at the two hearings, is sufficient to comply with that rule.
The Defendants contend that Almonte is not qualified to provide expert testimony. Once the trial court has determined that expert testimony would be helpful to the trier of fact, a witness "may qualify as an expert by `knowledge, skill, experience, training, or education' and ... the `expert' ... should not be required to satisfy an overly narrow test of his own qualifications." Gardner v. Gen. Motors Corp., 507 F.2d at 528. The Tenth Circuit has stated that the modus operandi of drug organizations, the value of drug quantities, the language of narcotics dealers, and the tools of the narcotics trade "are not subjects with which most jurors are familiar," see United States v. McDonald, 933 F.2d at 1522, and that, more specifically, "testimony with regard to the significance of a quantity of drugs possessed is specialized knowledge that assists the jury in understanding a fact at issue," United States v. Mundy, 97 Fed. Appx. at 846.
Because of the covert and unique nature of narcotics trafficking, Almonte's testimony will assist the jury to understand the evidence presented at trial. See United States v. Walker, 179 Fed.Appx. at 507 (recognizing that the Tenth Circuit "has repeatedly held that in narcotics cases, expert testimony [by a law enforcement officer] can assist the jury in understanding transactions and terminology"). Almonte's proposed testimony is somewhat different from a typical case where a law enforcement officer seeks to testify on tools of the drug trade, such as the value of drugs or coded language for narcotics dealers. Nevertheless, the Court cannot say that Almonte's proposed testimony, specifically that the presence of Santa Muerte items in the Defendants' possession creates a stronger inference that they knew drugs were in the vehicle, would be unhelpful to the jury. The United States has related that Almonte will be forthright with the jury that not everyone who honors Santa Muerte has a connection to drug trafficking. Drawing the connection between a religious icon and drug trafficking is not a straightforward matter, and the Court cannot reasonably say that an expert's testimony would not be helpful to flesh out that matter. See United States v. Pena-Ponce, 588 F.3d at 584 (noting that the following matters constituted "suspicious circumstances: the passenger's
United States v. Bobadilla-Campos, 839 F.Supp.2d at 1234 (emphasis in original). This matter relates to the tools of the narcotics trade, which the Tenth Circuit has recognized may require expert assistance to aid the jury. See United States v. McDonald, 933 F.2d at 1522. Accord United States v. Solorio-Tafolla, 324 F.3d 964, 966 (8th Cir.2003) ("It is well within the discretion of a district court `to allow law enforcement officials to testify as experts concerning the modus operandi of drug dealers in areas concerning activities which are not something with which most jurors are familiar.'").
Furthermore, Almonte has extensive qualifications. Almonte's Curriculum Vitae notes that he: (i) worked for the El Paso, Texas Police Department from 1978 to 2003; (ii) served as an instructor for both general police training and drug enforcement training in various capacities from 1990 to 2007; (iii) worked, in the private sector, as a law enforcement trainer and consultant from 2004 to 2010; (iv) served as the executive director of the Texas Narcotic Officers Association from 2006 to 2010; and (v) has served as the United States Marshal for the Western District of Texas since 2010. See Curriculum Vitae at 1. His Curriculum Vitae notes that he received a bachelor of science degree, summa cum laude, in Criminal Justice Administration from Park University. See Curriculum Vitae at 1. Almonte has published two books: (i) Evolution of Narcotics Investigations in 2004; and (ii) Managing Covert Operations in 2004. See Curriculum Vitae at 1. He has developed a law enforcement training video entitled Patron Saints of the Mexican Drug Underworld. See Curriculum Vitae at 1. He has testified in three federal cases, all in 2011, on the topic of Santa Muerte. See Curriculum Vitae at 1-2. Almonte relates that he has the following research interests:
Curriculum Vitae at 2. He has spoken as a lecturer or provided presentations for over fifty-five different state and federal law enforcement organizations. See Curriculum Vitae at 3-4.
Particularly in light of his numerous presentations, his publications, and his production of a law-enforcement training video on so-called narco saints, Almonte has considerable qualifications for a law enforcement officer. A small number of law enforcement officers have similar qualifications. Almonte has worked in law enforcement in border districts for over twenty years. He has provided training and consulting services to train law enforcement. An expert may obtain qualifications through "knowledge, skill, experience, training, or education." Fed.R.Evid. 702. The Court cannot reasonably conclude, in light of Almonte's extensive law-enforcement background, that he is unqualified. Simply because Almonte has not worked with criminal defense organizations or had personal involvement in drug trafficking himself does not mean he is unqualified. Those considerations go more towards the weight of his testimony rather than his qualifications. Expert testimony is liberally admissible under the Federal Rules of Evidence. See United States v. Gomez, 67 F.3d at 1526. Thus, the Court concludes that Almonte is qualified to provide expert testimony.
The Defendants argue that Almonte "is not qualified to render an expert opinion regarding patron saints of drug traffickers." Motion in Limine at 6. They assert that Almonte's opinions are unreliable, and that the Court should exclude that evidence under Daubert v. Merrell Dow Pharmaceuticals and rule 702 of the Federal Rules of Evidence. See Motion in Limine at 6. They argue:
Motion in Limine at 8. The Defendants contend that "[t]he sole purpose of United States Marshal Robert Almonte's expert testimony and self-serving testimony regarding patron saints of drug traffickers is solely to bolster the prosecution's case by the use of his self-proclaimed expert theories that the defendants are guilty." Motion in Limine at 6.
While many of the Tenth Circuit's precedent regarding expert testimony about the modus operandi and tools of the trade of drug organizations predate either Daubert v. Merrell Dow Pharmaceuticals or Kumho Tire Co. v. Carmichael, the decision that expanded the rules under Daubert v. Merrell Dow Pharmaceuticals to non-scientific expert testimony, the Tenth Circuit has reaffirmed those precedents in a 2009 decision:
United States v. Garza, 566 F.3d 1194, 1198-1200 (10th Cir.2009) (alteration in original) (citations omitted).
The Tenth Circuit has found, as a general matter, that expert testimony regarding the modus operandi and tools of the trade of drug organizations withstands scrutiny under Daubert v. Merrell Dow Pharmaceuticals. Whether courts have accepted theories underlying an expert's opinion is a relevant consideration in determining whether expert testimony is reliable. See Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d at 780. Furthermore, as the Supreme Court stated in Daubert v. Merrell Dow Pharmaceuticals, "well-established propositions are less likely to be challenged than those that are novel, and they are more handily defended." 509 U.S. at 593 n. 11, 113 S.Ct. 2786. "[W]hen experts employ established methods in their usual manner, a district court need not take issue under Daubert...." Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 780 (10th Cir.2009). "[H]owever, where established methods are employed in new ways, a district court may require further indications of reliability." Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d at 780. Almonte's proposed testimony, at least to some degree, falls in this latter category of cases, "where established methods are employed in new ways." Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d at 780. Accordingly, the Court will assess the reliability of his opinion.
It is worth noting that various courts have found the general proposition that the presence of personal items related to so-called narco saints can support a conclusion that a defendant was engaged in drug trafficking. For instance, in rejecting an argument that an officer did not
Courts have reached similar conclusions regarding Jesus Malverde. In assessing whether it was "clearly improbable that... firearms were possessed during the commission of ... drug offenses" in an appeal of a sentencing determination, the Sixth Circuit stated that the following circumstances supported a sentencing enhancement: "[O]fficers seized two handguns from the Honda, along with various pictures of Jesus Malverde, and a K-9 unit positively alerted twice to the Honda, suggesting that drugs had been in the vehicle." United States v. Caballero, 417 Fed. Appx. 500, 507 (6th Cir.2011) (unpublished). The Sixth Circuit, earlier in the opinion, referred to Jesus Malverde as "the `patron saint' of drug traffickers." United States v. Caballero, 417 Fed.Appx. at 502. The Tenth Circuit, in an unpublished decision, has similarly referred to Jesus Malverde as a saint who "is considered a patron saint by some drug traffickers." United States v. Lopez-Gutierrez, 334 Fed.Appx. at 882. In an unpublished decision, the Ninth Circuit concluded that it was not plain error for a law enforcement officer to testify about the display of an image of Jesus Malverde, who the officer referred to as "the unofficial `patron saint of narcotics traffickers.'" United States v. Uriarte-Acosta, 304 Fed.Appx. 551, 554 (9th Cir.2008) (unpublished). For that conclusion, the Ninth Circuit relied on the following facts: (i) "the government's agent ... made clear that many people who have `nothing to do with drug trafficking' honor Jesus Malverde, undercutting any suggestion that the image on the cell phone compelled the conclusion that [the defendant] was involved in drug trafficking"; and (ii) "the government in its closing rebuttal argument markedly downplayed the significance of the cell phone image, telling the jury that the image of Malverde was `the least influential circumstance that you should rely upon in this case.'" United States v. Uriarte-Acosta, 304 Fed.Appx. at 554.
Various district court judges in border states have permitted evidence regarding Santa Muerte and Jesus Malverde for the purpose of showing it is a tool of the trade of drug traffickers. The Honorable Robert C. Brack, United States District Judge, stated the following: "In that these authorities demonstrate that cultural icons such as the Santa Muerte and Jesus Malverde are associated with drug smugglers, evidence of the prayer to the Santa Muerte would be highly relevant to the issue of knowledge." United States v. Favela-Lujan, No. 10-3232, Memorandum Opinion and Order at 4, filed January 21, 2011 (Doc. 35) (D.N.M.) (Brack, J.) ("Favela-Lujan Opinion") (citing United States v. Lopez-Gutierrez, 334 Fed.Appx. at 882; United States v. Pena-Ponce, 588 F.3d at 582). Judge Brack rejected an argument that rule 403 counseled in favor of excluding
United States v. Bobadilla-Campos, 839 F.Supp.2d at 1235.
As a preliminary note, the factors from Daubert v. Merrell Dow Pharmaceuticals do not neatly apply to the proposed expert testimony. The Supreme Court has recognized this scenario:
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. at 150, 119 S.Ct. 1167 (citations omitted) (internal quotation marks omitted). The Supreme Court articulated a non-exclusive list of factors that weigh into a district court's first-step reliability determination, including: (i) whether the method has been tested; (ii) whether the method has been published and subject to peer review; (iii) the error rate; (iv) the existence of standards and whether the witness applied them in the present case; and (v) whether the witness' method is generally accepted as reliable in the relevant medical and scientific community. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 594-95, 113 S.Ct. 2786. Testing in the scientific sense of the word does not occur in the field when officers pursue drug traffickers. While there are commentators on law enforcement practices, the Court assumes that law enforcement agencies do not generally publish law enforcement techniques in peer-reviewed journals or in books. A potential rate of error for law-enforcement techniques, unlike an experiment, is difficult to quantify. The Supreme Court gives as an example when discussing rate of error "the error rate of spectrographic voice identification technique." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 594, 113 S.Ct. 2786. Standards in the scientific sense do not normally apply to law-enforcement techniques, such as a "professional organization's standard governing spectrographic analysis." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 594, 113 S.Ct. 2786. There is no relevant medical or scientific community, although, as outlined above, the federal court system and the Tenth Circuit have generally accepted expert testimony on the modus operandi of drug organizations as reliable. See United States v. Garza, 566 F.3d at 1198-1200. There are different factors courts have considered that are more directly applicable to this case such as whether the witness' conclusion represents an "unfounded extrapolation" from the data; whether the witness has adequately accounted for alternative explanations for the effect at issue; whether the opinion was reached for the purposes of litigation or as the result of independent studies; or whether it unduly relies on anecdotal evidence. Witherspoon v. Navajo Ref. Co., LP, 2005 WL 5988649 at *3 (citing Gen. Elec. Co. v. Joiner, 522 U.S. at 146, 118 S.Ct. 512).
United States v. Dozal, 173 F.3d 787, 797 (10th Cir.1999). In fact, the Tenth Circuit has characterized evidence of tools of the trade as circumstantial evidence. See United States v. McDonald, 933 F.2d at 1522 ("The possession of the remaining tools of the trade, the pager and the loaded pistol, are likewise circumstantial evidence."). There is also no indication that Almonte unduly relies on anecdotal evidence. He has extensive firsthand experience in the field of law enforcement and with so-called narco saints. The Western District of Texas has made specific findings about Almonte's experience that are relevant here:
Guererro Opinion at 3. In light of these considerations, the Court cannot say that Almonte has an unreasonable basis for his conclusions, a lack of a sufficient basis for his opinion, or that he has in an unreliable manner applied his experience to the facts of the case. Accordingly, the Court finds that Almonte's opinion is reliable.
At the hearing on July 30, 2012, the Defendants objected to the use of various terms, such as narco saint and tools of the trade, on the basis that they invade the province of the jury. See July 30, 2012 Tr. at 6:25-8:2 (Riggs). The United States informed the Court that it could instruct Almonte to avoid using the term narco saint. See July 30, 2012 Tr. at 22:3-23:3 (Court, Stanford). Accordingly, given the United States' representation at the hearing on July 30, 2012, it should instruct Almonte that he should not use the term narco saint.
Furthermore, that Almonte's proposed testimony bears on the Defendants' intent does not mean that it is improper expert testimony under rule 704(b). Rule 704(b) provides: "In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone." Fed. R.Evid. 704(b). Rule 704(b) prohibits an expert from expressly stating the final conclusion or inference as to a defendant's mental state; it does not prevent an expert from testifying to facts or to opinions from which the jury may conclude or infer that the defendant had the requisite mental state. See United States v. Torres, 53 F.3d at 1141-42. In making such a determination, a court should consider whether the question tracks the language of the legal principle or statute at issue, and then consider whether any terms employed have a specialized legal meaning. See United States v. Perkins, 470 F.3d at 158. The United States should instruct Almonte that he should not phrase his testimony in terms of opining on the Defendants' mental state — specifically whether they intentionally or knowingly were conspiring to distribute drugs, or whether they knew drugs were in the car. He may testify that he is aware that Santa Muerte materials have been present in other situations where a drug conspiracy occurred and explain why these materials have been present when drug trafficking in other cases took place. He may testify about what he has seen in previous drug cases. He may not, however, testify that the Defendants intentionally or knowingly engaged in drug trafficking based on the surrounding circumstances, or that they knew that they had drugs in the vehicle. "Those matters are for the trier of fact alone." Fed. R.Evid. 704(b).
The Defendants argue that Almonte's proposed evidence is improper profile evidence that the Court should exclude. The Tenth Circuit has described profile evidence as follows: "[A] profile is simply an investigative technique. It is nothing more than a listing of characteristics that in the opinion of law enforcement officers are typical of a person engaged in a specific illegal activity." United States v. Robinson, 978 F.2d at 1563. "A more tailored definition was offered in Florida v. Royer, 460 U.S. 491, 493, 103 S.Ct. 1319, 75 L.Ed.2d 229 ... (1983), where drug courier profile was described as an abstract of characteristics found to be typical of persons transporting illegal drugs." United States v. Robinson, 978 F.2d at 1563 (internal quotation marks omitted). "Courts have condemned the use of profiles as substantive evidence of guilt." See United States v. Robinson, 978 F.2d at 1563. The Tenth Circuit has explained the difference between profile evidence and evidence that the prosecution may circumstantially use to prove criminal activity:
United States v. Robinson, 978 F.2d at 1563. The Tenth Circuit has emphasized that there must but "other evidence showing guilt" to support a conviction rather than just "profile evidence." United States v. McDonald, 933 F.2d at 1521. Profile evidence is distinguishable from proper evidence regarding the modus operandi or tools of the trade of drug organizations largely based on "whether a juror would be able to understand the evidence without specialized knowledge concerning the subject":
United States v. McDonald, 933 F.2d at 1522 (footnotes omitted).
Profile evidence is primarily a concern when a court is reviewing Fourth Amendment issues and deciding whether the police's actions complied with the Fourth Amendment. See United States v. McDonald, 933 F.2d at 1521 ("The common use of profile evidence is to make investigative stops. Courts have frequently upheld investigative stops based upon profile characteristics."). Almonte was not the arresting officer, and appears to have no connection with the underlying investigation and arrest. His testimony falls within the category of "evidence ... used after the investigation was complete to explain the items found in the possession of the defendants" and to connect them to criminal activity. United States v. Robinson, 978 F.2d at 1563. Furthermore, the Court has already held that the proposed expert testimony would be helpful to the jury, because the matters Almonte will discuss are generally outside a given juror's common knowledge. Thus, the proposed testimony is not excludable on the basis that it is profile evidence. See United States v. McDonald, 933 F.2d at 1522. The United States should instruct Almonte, however, not to use the word profile to avoid putting the idea of profile evidence in the minds of the jury. There is no need for him to use this term.
The Defendants argue that the Court should exclude Almonte's testimony under rule 403 in light of the potential of unfair prejudice as well as the religious implications the evidence raises. The Court concludes that these arguments are not persuasive. Neither rule 610 nor the First Amendment require exclusion of this evidence. Furthermore, the risk of unfair prejudice the evidence would create does not substantially outweigh its probative value. Courts have permitted evidence of religious beliefs in a case to prove various matters, including motive or criminal intent. The Defendants cite no authority for the proposition that evidence of a defendant's religious affiliation is per se inadmissible.
Rule 610 provides: "Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility." Fed.R.Evid. 610. As a leading evidence treatise has stated: "The rule [stated in rule 610] does not bar evidence that is offered to prove something other than the effect of the witness's religion on his or her credibility.... Evidence as to a defendant's religious affiliations was properly admitted when it established a possible motive in a criminal case." 4 J. Weinstein & M. Berger, supra § 610.03[2], at 610-4 to 610-5. In a criminal case, the Seventh Circuit noted that the evidence of the defendant's religious affiliation "was probative of whether [he] intended the letter to constitute a `true threat.'" United States v. Hoffman, 806 F.2d at 708.
The Eleventh Circuit has stated: "A person's beliefs, superstitions, or affiliation with a religious group is properly admissible where probative of an issue in a criminal prosecution." United States v. Beasley, 72 F.3d at 1527. The Eleventh Circuit explained:
United States v. Beasley, 72 F.3d at 1527. In an unpublished decision, the Sixth Circuit quoted approvingly the Eleventh Circuit's holding from United States v. Beasley. See United States v. Shalom, 113 F.3d 1236, 1997 WL 225514, at *4.
All the authority the Court has located undercuts the Defendants' argument that evidence of a defendant's religious beliefs is per se excludable. The Defendants cite no authority for their argument and, in fact, did not raise it until the Court held a hearing on the Motion in Limine. While the Court acknowledges that religious matters may be sensitive and that a court
United States v. Sandoval, 2006 WL 1304955, at *5. Thus, the Court will assess the religious nature of the evidence under rule 403 as opposed to under some independent legal ground for exclusion of the evidence outside of rule 403.
Medina-Copete argues that the admission of this evidence infringes on her religious freedom. She cites no authority for this proposition and does not provide the Court with much guidance as to the contours of her argument. The First Amendment provides in relevant part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." U.S. Const. amend. I. There are two operative clauses in the First Amendment, "the Establishment Clause and the Free Exercise Clause." Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, ___ U.S. ___, 132 S.Ct. 694, 702, 181 L.Ed.2d 650 (2012) ("We have said that these two Clauses `often exert conflicting pressures,' and that there can be `internal tension ... between the Establishment Clause and the Free Exercise Clause.'" (citations omitted)). Accord Walz v. Tax Comm'n of N.Y., 397 U.S. 664, 673, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) ("The limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause. To equate the two would be to deny a national heritage with roots in the Revolution itself."). The basic purpose of the Establishment Clause is to make unconstitutional laws that either advance or inhibit a given religion; the government should not establish or prefer one religion over another, or discriminate against or disfavor a religion. See Walz v. Tax Comm'n of N.Y., 397 U.S. at 672, 90 S.Ct. 1409 ("The legislative purpose of a property tax exemption is neither the advancement nor the inhibition of religion; it is neither sponsorship nor hostility."). The basic purpose of the Free Exercise Clause is to prevent the government from passing laws that "discriminate[] against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) ("At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or
Medina-Copete does not clarify the scope of her First Amendment argument, including whether she raises an Establishment Clause argument at all. She complains that the admission of the Santa Muerte evidence violates her First Amendment rights on the basis that it interferes with her freedom of religion. The Court will analyze her argument in the context of the rules of evidence that permit introduction of that evidence and the relevant criminal statutes under which she faces charges for drug-related conduct.
Rule 610 provides: "Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility." Fed.R.Evid. 610. In an unpublished decision, the United States Court of Appeals for the Fifth Circuit found that admission of "evidence of a prayer card found in [the defendant's] purse" did not violate rule 610 or the First Amendment, although the Fifth Circuit only briefly addressed the matter:
United States v. Rutiaga, 220 F.3d 585, 2000 WL 959589, at *1 (5th Cir.2000) (per curiam) (unpublished table decision). While rule 610 refers to religion, it is neutral in that it does not distinguish between given religions such that it advances or inhibits a given religion. See Larson v. Valente, 456 U.S. 228, 260, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) (stating that a Court should evaluate a law under the three-part test in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), when a law "afford[s] uniform benefit to all religions" rather than "discriminate[s] among religions"). Even if a law is "facially neutral, `the Establishment Clause forbids a State to hide behind the application of formally neutral criteria and remain studiously oblivious to the effects of its actions.'" Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 307 n. 21, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000). To survive an Establishment Clause challenge, a facially neutral law: (i) "must have a secular legislative purpose"; (ii) "its principal or primary effect must be one that neither advances nor inhibits religion"; and (iii) "must not foster `an excessive government entanglement with religion.'" Lemon v. Kurtzman, 403 U.S. at 612-13, 91 S.Ct. 2105.
28 C. Wright, V. Gold, & M. Graham, Federal Practice and Procedure § 6152, at 309-10 (1993). That rule 610 permits evidence of witness' religion for other purposes is consistent with the general principle that a party may present circumstantial evidence that bears on a relevant matter, including motive and knowledge. See United States v. Beasley, 72 F.3d at 1527 ("A person's beliefs, superstitions, or affiliation with a religious group is properly admissible where probative of an issue in a criminal prosecution."). As both the Supreme Court and the Tenth Circuit have recognized, an individual's "knowledge must almost always be proved ... by circumstantial evidence." United States v. Santos, 553 U.S. at 521, 128 S.Ct. 2020. Accord United States v. Wright, 412 Fed.Appx. at 56 ("Intent to distribute may be inferred from circumstantial evidence, including a large drug quantity."). Rule 610, in many instances, bars evidence of a person's religious belief, and other rules of evidence regarding relevancy would keep that evidence out in many cases. Thus, it does not have the principal effect of advancing or inhibiting religion. This rule of evidence, which creates no substantive law and creates no relationship between governmental entities and religious principles, does not foster excessive entanglement with religion. Consequently, introducing the evidence under rule 610 would not violate the Establishment Clause.
The Court believes that Medina-Copete primary argument is not an Establishment Clause argument, but rather an argument under the Free Exercise Clause. Introduction of the evidence is not a matter that advances or inhibits a particular religion, or that establishes one religion over another. Medina-Copete has not identified what religion introduction of the evidence would establish or favor. Introduction of the Santa Muerte prayer and statute does not establish or favor Christianity or any subset of Christianity. Introducing the evidence does not condition governmental privileges, benefits, or protections on Medina-Copete believing in a given religion.
There are three drug charges brought against the Defendants: (i) Count 1 — conspiracy under 21 U.S.C. § 846
Medina-Copete does not clarify the scope of her First Amendment argument. She complains that the admission of the Santa Muerte evidence violates her First Amendment rights on the basis that it interferes with the exercise of her beliefs. The Court will analyze her argument in the context of the rules of evidence that permit introduction of that evidence and the relevant criminal statutes under which she faces charges for drug-related conduct. The Free Exercise Clause primarily protects beliefs. The issue is whether the introduction of Medina-Copete's beliefs and prayers violates her free-exercise rights. Nothing in the introduction of the evidence punishes her for her beliefs. She remains free before and after trial to believe what she wants. Nothing prevents the other two million believers in Santa Muerte from continuing those practices. While it might be argued that the introduction of the Santa Muerte evidence places a burden on the exercise of her religion, it is incidental and not great enough to violate the Constitution. She is facing punishment for the drugs and gun found in her possession, not for her beliefs. Her religious beliefs are neither sufficient or necessary conditions for criminal punishment.
Rule 610 provides: "Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility." Fed.R.Evid. 610. The basic purpose of the Free Exercise Clause is to prevent the government from passing laws that "discriminate[] against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. at 532, 113 S.Ct. 2217 (1993) ("At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons."). A law is subject to strict scrutiny under the Free Exercise Clause when it lacks "facial neutrality" in that "it refers to a religious practice without a secular meaning discernable from the language or context." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. at 533, 113 S.Ct. 2217 (1993).
28 C. Wright, V. Gold, & M. Graham, supra § 6152, at 309-10. That it permits evidence of witness' religion for other purposes is consistent with the general principle that a party may present circumstantial evidence that bears on a relevant matter, including motive and knowledge. United States v. Beasley, 72 F.3d at 1527 ("A person's beliefs, superstitions, or affiliation with a religious group is properly admissible where probative of an issue in a criminal prosecution."). As both the Supreme Court and the Tenth Circuit have recognized, an individual's "knowledge must almost always be proved ... by circumstantial evidence." United States v. Santos, 553 U.S. at 521, 128 S.Ct. 2020. Accord United States v. Wright, 412 Fed. Appx. at 56 ("Intent to distribute may be inferred from circumstantial evidence, including a large drug quantity."). Rule 610, in many instances, bars evidence of a person's religious belief, and other rules of evidence regarding relevancy would keep that evidence out in many cases. Thus, the Court cannot reasonably conclude that rule 610 is "without a secular meaning discernable from the language or context." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. at 533, 113 S.Ct. 2217. Thus, rule 610 is generally applicable to all cases, and "[t]he government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, `cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development.'" Emp't Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. at 885, 110 S.Ct. 1595. "[T]he right of free exercise does not relieve an individual of the obligation to comply with a `valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'" Emp't Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. at 885, 110 S.Ct. 1595. Once again, the Court emphasizes that Medina-Copete provides the Court with very little guidance on what her First Amendment argument is. That a neutral and generally applicable rule of evidence permits in, when that matter is relevant, evidence of a person's religion does not
Two examples help to illustrate the lack of a free-exercise problem. If a Christian were to write a prayer asking for Jesus' help and protection before committing a murder, the introduction of the note could be relevant to show who might have murdered the person, even if admitting the evidence might discourage Christians from writing out similar prayers in the future. If a Muslim wrote out a prayer to Allah asking for success in a terrorist attack, the First Amendment would not protect that individual from having that evidence introduced at trial. Furthermore, it may be necessary to have someone explain who Allah is to an American jury and explain that Muslims pray to Allah in their faith, and so it was likely a Muslim individual who committed the crime rather than a person of a different faith. The religion is not on trial. The prayers are not a necessary or sufficient condition of what the government is trying to prove. While someone might say that the introduction of such evidence discourages people from exercising their faith, the practical effect on the exercise of religious rights would be relatively minimal. What the introduction of the evidence discourages would be the acts of murderers and terrorists — both secular goals. Few would say that the burden on religion would rise to the level that it unnecessarily interferes with the free exercise of religion.
The same is true for the criminal statutes under which the Defendants face charges. There are three drug charges brought against the Defendants: (i) Count 1 — conspiracy under 21 U.S.C. § 846 to commit possession with intent to distribute 50 grams and more of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A); (ii) Count 2 — possession with intent to distribute 50 grams and more of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A); and (iii) Count 3 — carrying and using a firearm during and in relation to a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A). See Superseding Indictment at 1-2. A law is subject to strict scrutiny under the Free Exercise Clause when it lacks "facial neutrality" in that "it refers to a religious practice without a secular meaning discernable from the language or context." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. at 533, 113 S.Ct. 2217 (1993).
Under rule 403, the trial court must weigh the proffered evidence's probative value against its potential for unfair prejudice. See United States v. Record, 873 F.2d at 1375. "[I]t is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter [under rule 403]." United States v. Pettigrew, 468 F.3d at 638. The Tenth Circuit has recently reminded district courts that they should be "mindful" that "exclusion of evidence under Rule 403 that is otherwise admissible under the other rules is an extraordinary remedy and should be used sparingly." United States v. Smalls, 605 F.3d at 787. Evidence may be unfairly prejudicial if it would likely provoke an emotional response from the jury or would otherwise tend to adversely affect the jury's attitude toward a particular matter. See United States v. Rodriguez, 192 F.3d at 951. Evidence is not unfairly prejudicial merely because it damages a party's case. See United States v. Caraway, 534 F.3d at 1301. Rather, "[t]o be unfairly prejudicial, the evidence must have `an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'" United States v. Caraway, 534 F.3d at 1301.
The Court will not exclude this evidence under rule 403. As the Court has
Simply because the evidence bears on religious matters does not mean that the Court should exclude it. Both parties agree that the Catholic faith does not recognize Santa Muerte as an official saint. Wikipedia describes Santa Muerte as "probably a syncretism between Mesoamerican and Catholic beliefs" Santa Muerte, Wikipedia, http://en.wikipedia.org/wiki/Santa_Muerte (last visited August 3, 2012). Thus, given that the Catholic faith does not recognize Santa Muerte as an official saint, the risk of unfair prejudice is lower, because less Catholic jury members would likely find the evidence offensive. If Catholic jury members thought that a drug organization was adopting a recognized saint for criminal purposes, the risk of those jurors approaching the case in an emotional manner would be greater. Judge Johnson has also explained why more traditional religious symbols, like a cross or a rosary, would be less probative of criminal activity than evidence relating to a so-called narco saint:
United States v. Bobadilla-Campos, 839 F.Supp.2d at 1235 (citation omitted). Permitting religious evidence in a case is something courts should approach cautiously, but that does not mean that the evidence has no legitimate value. Intent to commit a crime is a disputed manner in this case that requires an intense evaluation of all the relevant circumstances. The jury will have to make that difficult determination. The Court should be hesitant to exclude evidence that would legitimately aid the jurors in their task. District courts should be "mindful" that "exclusion of evidence under Rule 403 that is otherwise admissible under the other rules is an extraordinary remedy and should be used sparingly." United States v. Smalls, 605 F.3d at 787. Voir dire and cross-examination are both effective tools to mitigate any prejudicial effect the evidence will have. The Court finds that the unfair prejudice which the evidence might have does not substantially outweigh its probative value.
To the extent Goxcon-Chagal finds the testimony objectionable
Zafiro v. United States, 506 U.S. at 541, 113 S.Ct. 933.
The Defendants also seek to exclude Almonte's testimony on the basis that the expert Notice the United States provided was not sufficiently specific to satisfy rule 16(a)(1)(G). "A defendant is entitled, under some circumstances, to request a written summary of expert testimony the United States intends to use in its case-in-chief." United States v. Gutierrez-Castro, 805 F.Supp.2d at 1227. Rule 16 provides in relevant part:
Fed.R.Crim.P. 16(a)(1)(G). As Professor James Moore has stated: "It is not clear how much detail must be provided to satisfy this provision." 25 J. Moore, Moore's
United States v. Jackson, 51 F.3d 646, 651 (7th Cir.1995). The Seventh Circuit elaborated that, in "cases involving technical or scientific evidence," there may be a "greater disclosure" obligation, "including written and oral reports, tests, investigations, and any other information that may be recognized as a legitimate basis for an opinion under Fed.R.Evid. 703." United States v. Jackson, 51 F.3d at 651 (citing Fed.R.Crim.P. 16(a)(1)(E) advisory committee's note).
The Notice provides that the United States will offer Almonte as an expert witness "regarding the use of `patron saints' by drug traffickers, with specific attention towards Santa Muerte, and how Santa Muerte prayers and icons are `tools of the trade' for many drug traffickers." Notice at 1. The Notice relates that "Marshal Almonte has over 25 years of combined state and federal law enforcement experience, much of it devoted to narcotics enforcement." Notice at 1. "He currently serves as the United States Marshal for the Western District of Texas, which encompasses San Antonio and El Paso." Notice at 1. The United States asserts that "Marshal Almonte has studied various patron saints throughout Mexico for many years." Notice at 1-2. The United States represents:
Notice at 2.
The Notice is sufficiently specific. The United States provides the exact subject matter on which Almonte will testify — the relationship between drug traffickers and Santa Muerte. The United States then lays out Almonte's qualifications. It also directs the Defendants to a video on this matter that Almonte helped create and produce. The Notice then provides the Defendants with a citation to a case in which Almonte has testified. Furthermore, the United States is not seeking to have him testify on a complex scientific or
Furthermore, even if a sanction were appropriate, the Defendants have not shown any prejudice in light of the extensive outline the United States gave regarding Almonte's proposed testimony at the hearings on July 25 and July 30, 2012. See United States v. Charley, 189 F.3d 1251, 1262 (10th Cir.1999) ("Frequently it will be found that the party who requested disclosure has not been prejudiced and that no sanction is needed."). The Tenth Circuit has also stated: "We note that the sanction requested by Defendant — exclusion of the witnesses' expert testimony — is almost never imposed `in the absence of a constitutional violation or statutory authority for such exclusion.'" United States v. Charley, 189 F.3d at 1262.
Santa Muerte, supra.
Jesús Malverde, Wikipedia, http://en.wikipedia.org/wiki/JesCds_Malverde (last visited August 3, 2012) (footnotes omitted). Wikipedia provides the following information about Jesus Malverde's history:
Jesús Malverde, supra.
Crips, Wikipedia, http://en.wikipedia.org/wiki/Crips (last visited August 2, 2012) (emphasis omitted) (footnote omitted).
18 U.S.C. § 924(c)(1)(A).
United States v. Hutchinson, 573 F.3d at 1026 (citation omitted).
