JAMES O. BROWNING, District Judge.
The Court sets forth these facts as the United States alleges them in its Superseding Indictment, filed July 24, 2014 (Doc. 9)("Indictment"), and the United States' Response to Defendant's Appeal of Detention Order, filed April 20, 2015 (Doc. 36)("Detention Appeal"),
In late 2013, the FBI was conducting an investigation involving the Vincente Carrillo Fuentes Organization, also known as the Juarez Cartel or La Linea. See Indictment ¶ 1, at 1; Detention Appeal at 1. Undercover agents were in contact with members of the Juarez Cartel and were arranging for the importation of cartel-produced cocaine and marijuana into the United States. See Detention Appeal at 1. Members of the Juarez Cartel provided the FBI with a 2004 Dodge Durango sport utility vehicle ("SUV"), and the undercover source was instructed to register the vehicle. See Detention Appeal at 1. Afterward, the undercover source would return the vehicle to Juarez Cartel representatives in Mexico, who would load it with marijuana and cocaine, and then transport it back into the United States with the drugs hidden inside. See Detention Appeal at 1. The FBI installed a tracking device in the SUV, and in December, 2013, a member of the Juarez Cartel took possession of the SUV and took it into Mexico. See Detention Appeal at 1-2.
In February, 2014, FBI agents conducted an international controlled delivery from Juarez, Mexico to Albuquerque, New Mexico. See Detention Appeal at 2. The SUV was delivered to the undercover agent on the Bridge of the Americas in El Paso, Texas. See Detention Appeal at 2. The undercover agent then drove the vehicle to Albuquerque and met with Rodriguez, who was going to take possession of the vehicle. See Detention Appeal at 2. A high-ranking member of the Juarez Cartel — co-Defendant Jorge Olivas Nevarez, more commonly known as "Compa Chuy" — had provided Rodriguez' telephone number to the undercover agent. Detention Appeal at 2. See Indictment at 1. Rodriguez met with the undercover agent and instructed the agent to follow him to a hotel to spend the night, and he also paid the undercover agent $2,890.00, which he had received from co-Defendant Guadalupe Prieto. See Detention Appeal at 2; Indictment at 1. Rodriguez indicated that he would pay the undercover agent the rest of the money owed to him in the morning. See Detention Appeal at 2. While FBI agents were conducting surveillance on Rodriguez, they observed him doing what appeared to them to be counter-surveillance runs — also known as heat runs — which consisted of him driving around in such a way that he would recognize any law enforcement surveillance vehicles following him. See Detention Appeal at 2. The FBI took possession of the SUV later that evening once Rodriguez had left the area, and an intensive search of the vehicle revealed approximately eighty-seven kilograms — or roughly 192 pounds — of marijuana. See Detention Appeal at 2.
A federal grand jury indicted Rodriguez — along with eleven co-Defendants, who remain at large in Mexico — on July 24, 2014. See Indictment at 1. The Indictment charges Rodriguez with a single count of possession of fifty kilograms or more of marijuana with intent to distribute it — a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).
The United States filed its Notice on June 10, 2015, disclosing Acee and his anticipated testimony. See Notice at 1. The Notice first describes Acee and his qualifications. See Notice at 1-2. Acee is a special agent in the FBI's Albuquerque division, where he primarily investigates Mexican drug cartels, Mexican drug trafficking organizations, and gang/criminal enterprises. See Notice at 1. He has been a law enforcement officer for sixteen years, six of which were with the FBI. See Notice at 2. He has undergone more than 800 hours of "formal training in the area of drug, firearm, and money laundering investigations," including over forty formal classes. Notice at 2. He has participated in "several hundred drug investigations," and the FBI has designated him a "subject matter expert" on the Juarez Cartel. Notice at 2. He handles a large number of often high-level informants in the Juarez Cartel, and he has debriefed numerous others, and reviewed "hundreds of hours" of intercepted telephone and radio communications among Juarez Cartel members. Notice at 2.
The Notice discloses the following opinions: (i) "that the quantity of marijuana seized in this case is a distributable amount, as opposed to a personal use amount," Notice at 3; (ii) "the value of the marijuana," Notice at 3; and (iii) "that the manner in which the marijuana was packaged in addition to the items seized with controlled substances is consistent with distribution," Notice at 3. Acee also intends to offer testimony describing
At a hearing on June 19, 2015, see Clerk's Minutes, filed June 19, 2015 (Doc. 122), the Court heard a motion that Rodriguez had filed almost two months earlier seeking to strike the introductory language in the Indictment, see Defendant's Motion to Strike Surplusage from the Redacted, Superseding Indictment, filed April 30, 2015 (Doc. 42). The Court concluded that it would not strike any of the Indictment, but that the introductory information about the Juarez Cartel would be prejudicial to Rodriguez, and, thus, the Court would not read that portion of the Indictment to the venire (before voir dire) or to the jury (in its instructions). See Transcript of Hearing at 3:15-4:10 (taken June 19, 2015)
Rodriguez filed the MIL fifteen days after the United States filed the Notice, asking the Court to strike "in part" Acee's testimony. MIL at 1. Rodriguez seeks to bar Acee from offering expert testimony on four grounds: (i) that Acee's anticipated testimony is not a suitable topic for expert testimony in this case, see MIL ¶ 5, at 4; (ii) that the United States' Notice of Expert Witness Testimony, which is the only document relating to Acee's testimony that the United States has filed, constitutes an inadequate disclosure of Acee's opinions and his basis for holding them, see MIL ¶ 3, at 3; (iii) that the ultimate-issue doctrine bars Acee's testimony, see MIL ¶ 6, at 4; and (iv) that the unfair prejudicial impact of Acee's testimony substantially outweighs its probative value, see MIL ¶ 4, at 3-4. Rodriguez argues that the United States
MIL at 6 (quoting Notice at 3).
The United States responded six days after Rodriguez filed the MIL — five days before the start of trial. See United States' Response to Defendant's Motion to Strike the Expert Testimony of Bryan Acee (Doc. 81), filed July 1, 2015 (Doc. 100)("Response"). It contends that,
Response at 4-5 (citations omitted).
The Court held a hearing — on the MIL and a number of other pretrial motions — on July 2, 2015. See Transcript of Hearing (taken July 2, 2015)("Tr."). Rodriguez stated that he had no problem with the bulk of Acee's anticipated testimony but that he did not want Acee to testify on the ultimate issue, to which the Court responded:
Tr. at 32:19-33:5 (Court, Pori). The United States indicated that it did indeed intend to elicit testimony from Acee that Rodriguez' actions were inconsistent with those of a blind mule. See Tr. at 35:7-16 (Armijo). It also stated that it still intended to have Acee testify to the facts out-lined in the introductory portion of the Indictment, despite the Court declining to read those passages to the jury. See Tr. at 36:23-37:25 (Court, Armijo). Rodriguez stated that he had "no objection to [Acee]... testifying in general about the sociological aspects of this criminal organization," Tr. at 39:13-15 (Pori), but that, "when you tran[s]form[] from sociologist into case agent, testifying as an expert that these facts fit precisely with the manner of the cartel in his expert opinion[,] that's objectionable testimony," Tr. at 39:21-25 (Pori).
The Court then held an evidentiary hearing to examine Acee; the dual purpose of calling Acee to the stand was to analyze his expertise pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ("Daubert"), and to allow Rodriguez to fully cross-examine Acee on his testimony, thus alleviating any deficiencies in the Notice. See Tr. at 42:3-11 (Court)("I need to hear ... [and] probably Mr. Pori needs to hear[,] so we make sure that we're not surprised at trial ... [,] what his testimony [is] ... [and] what he's going to say so that ... Mr. Pori [can] attack the basis for it, and then I'll make a determination ... under Daubert ...."). On direct examination, Acee gave his qualifications and stated that he was the case agent assigned to investigate the case that resulted in Rodriguez' arrest. See Tr. at 45:4-12 (Armijo, Acee). Acee stated that neither he nor anyone else with the FBI task force he led knew Rodriguez before the day of his apprehension. See Tr. at 46:5-14 (Acee). He said that the FBI had sent an undercover agent to talk to a known Juarez Cartel higher-up in Mexico, and that the
Tr. at 47:1-48:21 (Acee, Armijo); id. at 49:22-51:3 (Armijo, Acee).
On cross-examination, Acee admitted that he had, in his many years of law enforcement, had some experience with blind mules, i.e., that they exist, and the drug cartels occasionally use them. See Tr. at 70: 22-23 (Pori, Acee). Acee stated that he had seen blind mules "three or four" times, but that the cartels used blind mules only in two situations. Tr. at 70:25 (Acee). First, Acee testified that, when the driver does not have true control of the load — namely, commercial tractor-trailer drivers who drop off their hauls without opening or knowing anything about their contents — the cartel might have an insider at the drop-off point but use a legitimate, innocent driver. See Tr. at 78:3-10 (Acee). Second, Acee said that, if the cartel uses a blind mule in other situations — those in which the cartel would have to retrieve the drugs from the vehicle itself, rather than relying on the mule to drop off a detachable, closed load — they will always track the vehicle as it travels, either through in-person surveillance or GPS
After receiving testimony, the Court stated that it would prohibit references to the cartel's operations in Mexico, except to the extent that Rodriguez desires to bring them up to bolster his case that a sophisticated drug-trafficking organization tricked him into unknowingly delivering drugs — a defense that obviously benefits from showing the jury other ways in which the organization employs sophisticated and devious means of getting drugs into the United States; the Court also stated that it would remove the first name on the Indictment, which belongs to the head of the Juarez Cartel, whom some jurors might recognize. See Tr. at 127:14-25 (Court). The Court also told the United States that Acee could testify that Rodriguez' driving was consistent with heat runs, but, if Acee so testified, he must also testify that it could be consistent with a number of other, innocent explanations, like being drunk or lost. See Tr. at 110:10-17 (Court). The Court also stated that it would not allow Acee to draw the final conclusion that Rodriguez' conduct, overall, was inconsistent with that of a blind mule. See Tr. at 104:2-13 (Court). Last, Rodriguez stated that the hearing satisfied his request for fuller disclosure and dropped his contention that the United States' disclosure of Acee's testimony was inadequate under rule 16(a)(1)(G). See Tr. at 108:3-14 (Court,
"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 "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 proposed testimony meets the pertinent admissibility requirements. 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." Gardner v. Gen. Motors Corp., 507 F.2d 525, 528 (10th Cir.1974) (internal quotation marks omitted). Courts should, under the Federal Rules of Evidence, liberally admit expert
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, 509 U.S. at 594-95, 113 S.Ct. 2786; Witherspoon v. Navajo Ref. Co., LP, No. CIV 03-1160 BB/LAM, 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, 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 expert reached the opinion 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 United States Court of Appeals for 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 Pharmaceuticals, Inc., 43 F.3d 1311, 1315 (9th Cir.1995) (on remand from the Supreme Court); Daubert, 509 U.S. at 591, 113 S.Ct. 2786). If the expert's proffered testimony fails on the first prong, the court does not
Kumho Tire Co. v. Carmichael, 526 U.S. at 150, 119 S.Ct. 1167 (internal quotation marks omitted).
In conducting its review under Daubert, the court must focus generally on "principles and methodologies, and not on the conclusions generated." Armeanu v. Bridgestone/Firestone N. Am., Tire, LLC, No. CIV 05-0619 JB/DJS, 2006 WL 4060665, at *11 (D.N.M. Sept. 26, 2006) (Browning, J.)(citing Daubert, 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. The Tenth Circuit noted in Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193 (10th Cir.2002):
289 F.3d at 1206. 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 (citation omitted).
Ram v. N.M. Dep't of Env't, No. CIV 05-1083 JB/WPL, 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) (Sparr, J.)("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 apply to both "novel" expert testimony and "well-established propositions." Daubert, 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 ...." Att'y 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." Att'y 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 Att'y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d at 780 ("The case law indicates that the courts are not unfamiliar with the [polymerase chain reaction] methodology, and in fact some courts have indicated their acceptance of it.").
"The credibility of witnesses is generally not an appropriate subject for expert testimony." United States v. Toledo, 985 F.2d 1462, 1470 (10th Cir.1993). See United States v. Ganadonegro, 805 F.Supp.2d 1188, 1213 (D.N.M.2011) (Browning, J.)(excluding expert testimony on whether defendant's confession was credible).
United States v. Hill, 749 F.3d 1250, 1258 (10th Cir.2014) (quoting United States v. Toledo, 985 F.2d at 1470). The bar on credibility-bolstering expert testimony is grounded in a number of evidentiary rules. See United States v. Charley, 189 F.3d 1251, 1267 n. 21 (10th Cir.1999) (en banc). Expert testimony that vouches for the credibility of other witnesses lacks "relevance [under rule 401] and would not `assist the trier of fact as required by Rule 702.'" United States v. Adams, 271 F.3d 1236, 1246 (10th Cir.2001) (quoting United States v. Charley, 189 F.3d at 1267). See United States v. Harry, 20 F.Supp.3d 1196, 1242-43 (D.N.M.2014) (Browning, J.)(concluding that expert's testimony was not relevant if expert testified that witness' demeanor suggested that the witness was not subjected to a sexual assault, because the testimony impermissibly went to the witness' credibility).
United States v. Charley, 189 F.3d at 1267 n. 21. See United States v. Benally, 541 F.3d 990, 995 (10th Cir.2008)(affirming district court's exclusion of vouching testimony under rule 403's balancing test). The bar on bolstering a witness' testimony extends only to expert testimony concerning the witness' credibility and not to expert testimony that is consistent with another witness' testimony. See United States v. Charley, 189 F.3d at 1264. In United States v. Charley, the Tenth Circuit held, en banc, that the district court did not err in permitting an expert witness to testify that the actions and symptoms of two girls were consistent with those of a sexual assault victim. See 189 F.3d at 1264. The expert's testimony was consistent with the two girls' testimony that they had been sexually assaulted. See 189 F.3d at 1258. The Tenth Circuit held, however, that the district court erred in permitting a psychiatrist to testify that he believed the girls were sexually assaulted, based on statements the girls made to the psychiatrist, because the testimony "was essentially vouching for [the girls'] truthfulness." 189 F.3d at 1267.
In United States v. Chaco, 801 F.Supp.2d 1200 (D.N.M.2011) (Browning, J.), the Court permitted a doctor to testify that an examination of a sexual assault victim did not show any signs of sexual assault but that the majority of physical examinations on sexually assaulted prepubescent girls result in normal findings. See 801 F.Supp.2d at 1216. The Court permitted the doctor to testify that the examination, which resulted in no evidence of sexual abuse, was still consistent with the victim being sexually abused. See 801 F.Supp.2d at 1216. The Court excluded, however, testimony from the doctor that the victim had been sexually assaulted, because the doctor knew that the victim was sexually assaulted based on statements that the victim made to the doctor. See 801 F.Supp.2d at 1216. The Court reasoned that permitting the doctor to testify that the victim had been sexually assaulted would serve to impermissibly vouch for the witness' credibility. See 801 F.Supp.2d at 1216 (citing United States v. Velarde, 214 F.3d 1204, 1211 n. 6 (10th Cir.2000)). The Court concluded, however, that the doctor's testimony that the examination results were consistent with that of a sexual assault victim was based on the doctor's knowledge and experience, and was, thus, permissible expert testimony. See United States v. Chaco, 801 F.Supp.2d at 1216. Similarly, in United States v. Harry, 20 F.Supp.3d 1196 (D.N.M.2014) (Browning, J.), the Court allowed a SANE nurse to testify that a sexual assault victim's injuries were consistent with her version of events — that the defendant raped her. See 20 F.Supp.3d at 1238-39. The Court noted that the expert could not determine whether the sex was consensual or whether the defendant was the alleged abuser. See United States v. Harry, 20 F.Supp.3d at 1239-40. The Court, however, excluded the testimony of another expert, who sought to testify that the victim's demeanor during the sexual-assault examination suggested that she was not assaulted, because the credibility of witnesses was not an appropriate subject for expert testimony. See United States v. Harry, 20 F.Supp.3d at 1240-43.
"[P]olice officers can testify as experts based on their experience `[b]ecause the average juror is often innocent of the ways of the criminal underworld,'" United States v. Kamahele, 748 F.3d 984, 998 (10th Cir.2014)(alteration in United
Although early cases dealing with this genre of expert testimony articulated the standard of admissibility as being whether the expert testimony is "necessary" to achieve jury understanding, United States v. Robinson, 978 F.2d 1554, 1563 (10th Cir.1992) ("[G]ang-related items may necessitate the appearance of an expert witness if the jury could not understand the significance of possession of these items." (emphasis added) (citation omitted)); id. at 1564-65 ("[T]he expertise of this particular witness was necessary. ... The average juror would fail to recognize the `significance of this evidence without the particular background knowledge' of gangs and the philosophy of gang membership. `Without [the expert testimony], the basic evidence would leave a juror puzzled.'" (emphases added)(quoting United States v. McDonald, 933 F.2d at 1522)), more recent cases — perhaps as a result of the broader liberalization of expert testimony that accompanying the replacement of the Frye v. United States, 293 F. 1013 (D.C.Cir.1923),
There are special concerns attendant to law enforcement expert testimony. The Court will first describe United States v. Medina-Copete, 757 F.3d 1092 (10th Cir.2014)("Medina-Copete"), which appears to be the sole case from the Tenth Circuit — which has generally broadly approved expert testimony by law enforcement officers — reversing a district court for allowing such testimony. Second, the Court will describe the special dangers of expert testimony by law enforcement officers as other Circuits, particularly the United States Court of Appeals for the Second Circuit, have outlined them.
It is noteworthy that the Tenth Circuit routinely identifies so-called tools of the drug trade — such as razor blades, pagers and beepers, pistols, and food stamps — as being particularly appropriate subjects of law enforcement expert testimony, see, e.g., United States v. Becker, 230 F.3d 1224, 1231 (10th Cir.2000); United States v. McDonald, 933 F.2d at 1522, but law enforcement expert testimony is by no means limited to tools of the trade. The Tenth Circuit has upheld law enforcement expert testimony describing drug-dilution practices and street names for drug weights, see United States v. Quintana, 70 F.3d at 1171, stating that the defendant fits the "profile" of someone who commits the crime with which the defendant is charged, United States v. Becker, 230 F.3d at 1231, and explaining general procedures followed at drug transactions, such as that "outsiders [are] not... allowed to count and handle money," United States v. Wilson, 276 Fed.Appx. at 861. "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 indicia 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 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 organizations are closed and secretive and that it would be unusual for a person who was not otherwise
In most of the Tenth Circuit's cases, there appears to be no analytical distinction between "tools of the trade" testimony and other law enforcement expert testimony — the former is simply a prominent genus of the latter. That said, the Court can find only one case in which the Tenth Circuit held that a district court abused its discretion by permitting law enforcement expert testimony — Medina-Copete — and that case reversed the Court at least in part on the basis that the subject about which the law enforcement expert witness testified was not a tool of the trade. Medina-Copete appears to be not only the sole Tenth Circuit case reversing a district court for allowing law enforcement expert testimony, but the only case even holding that a district court abused its discretion in admitting such testimony.
Medina-Copete, 757 F.3d at 1102-03 (footnote omitted) (citations omitted). This passage appears to graft a functionality requirement onto rule 702, i.e., it appears to say that a physical object must "do" something related to the crime for the United States to be allowed to present expert testimony about the object. If so, Medina-Copete represents a departure from the prior cases, in which function was incidental to association, i.e., when some object or practice was a recognizable hallmark of a criminal organization, it was often because that object or practice aided the organization in the pursuit of its criminal goals, but what made the object or practice useful as evidence was the association — the fact that organization members use it and nonmembers do not — and not the function. After all, if a criminal organization used tools of the trade that had extremely high functionality in all aspects of the organization's criminal activity, but very little statistical association with the organization — e.g., cars, credit cards, or cellular telephones — such "tools" would provide weak evidence that the person on whom the tool was found is, in fact, a member of the organization.
Medina-Copete might not be about functionality or tools of the trade at all, however. After discussing tools of the trade, the Tenth Circuit went on to talk about how the Marshal that the United States had named as its expert witness was unreliable under Daubert, because his
Medina-Copete, 757 F.3d at 1103-04 (emphasis in both Medina-Copete and quoted source) (citations omitted)(quoting United States v. Holmes, 751 F.3d 846, 854 (8th Cir.2014) (Kelly, J., concurring)).
The Tenth Circuit has spoken on the subject of law enforcement expert testimony since Medina-Copete, and the Tenth Circuit's most recent word on law enforcement expert testimony leaves little doubt as to the liberality of the standard to be applied. The new case, United States v. Vann, 776 F.3d 746 (10th Cir.2015) (Tymkovich, J.), explicitly walks back the Tenth Circuit's earlier holding in Medina-Copete:
United States v. Vann, 776 F.3d at 759 (citations omitted).
United States v. Vann also provides a useful characterization of another recent Tenth Circuit case on the topic of law enforcement expert testimony, United States v. Kamahele, ascribing great importance to that case:
United States v. Vann, 776 F.3d at 758 (alteration in original) (citations omitted). It seems unlikely that these three requirements are sufficient, in every case, to render law enforcement expert testimony appropriate. United States v. Vann couples its characterization of United States v. Kamahele with the adages — applicable in all expert — witness context, and not just with law enforcement experts — that "the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination," United States v. Vann, 776 F.3d at 758 (alteration omitted)(emphasis in both United States v. Vann and quoted source)(quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)), and that "district courts [need not] extensively explain their reliability determinations," United States v. Vann, 776 F.3d at 758 (quoting United States v. Avitia-Guillen, 680 F.3d 1253, 1260 (10th Cir.2012)).
Although the Tenth Circuit has been generally enthusiastic about law enforcement expert testimony, there are a number of ways in which it can run afoul of the rules of evidence. The leading case and most comprehensive case in outlining these dangers is United States v. Mejia, 545 F.3d 179, 188-93 (2d Cir.2008)(Hall, J.)("Mejia"). In that case, the United States
Mejia, 545 F.3d at 186-88 (hearing transcript omissions in original)(footnote omitted). The Second Circuit had numerous qualms with this testimony:
Mejia, 545 F.3d at 190-94, 197 (citations omitted).
There are, thus, many different angles from which defendants can attack law enforcement officers' expert testimony, and equally many pitfalls into which district courts can fall in admitting such testimony. The Court can identify at least six such dangers.
First, as the officer's expertise narrows in scope from broad generalities about certain criminal practices — which are fixed in a meaning that transcends the
A second danger inherent in expert testimony by law enforcement officers is common to all situations where a witness' expertise is based on experience, rather than on scientific or technical principles. It is easy for an experience-based expert witness to pass off suspicion, speculation, and intuition as real expertise. See Joelle Anne Moreno, What Happens When Dirty Harry Becomes an (Expert) Witness for the Prosecution?, 79 Tul. L.Rev. 1, 30 (2004)("When an expert opinion is based on personal experience, opinions and conclusions derived from this experience are often personal, idiosyncratic, and subjective.... `[T]he practical result is that the [experience-based expert] witness is immunized against effective cross-examination.'" (footnote omitted)). To prevent this danger, the district court must vigilantly apply the rule 702 reliability standard to each opinion or assertion to which the defendant objects and, again, ensure that facts outside of the case at hand back the witness' expertise. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (applying the rule 702 reliability standard to nonscientific expert testimony). Although expert witnesses generally need not disclose the bases of their assertions or opinions as they give them, see Fed.R.Evid. 705 ("Unless the court orders
A third danger is that stray facts and background information are often more damaging in the context of law enforcement testimony than with other expert testimony. See Fed.R.Evid. 403. A forensic accountant off-handedly mentioning that an organization's practice of maintaining a bank account in the Cayman Islands is per se suspicious may be somewhat damaging, but a law enforcement officer testifying about how the defendant rose to his position within an organization by supporting the murder of the organization's former leader is likely to be damning. This observation is not so much a separate danger as it is a recognition that minor errors in admitting expert testimony that should have been excluded — errors that can happen in a matter of seconds in the courtroom — can render an entire trial unfair.
A fourth danger is that law enforcement experts who were also involved in the investigation of the case — the most dangerous kind — will often attempt to use profile evidence to bolster their conclusions about the defendant. "[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). Although most "[c]ourts have condemned the use of profiles as substantive evidence of guilt," the Tenth Circuit has been consistently more permissive than most other Circuits in allowing such evidence. United States v. Robinson, 978 F.2d at 1563. In the first of its two major profile-evidence cases, the Tenth Circuit wrote:
United States v. McDonald, 933 F.2d 1519, 1522 (10th Cir.1991). The Tenth Circuit continued this approach — effectively telling
A fifth danger is that the United States will use the expert witness to circumvent the rules of evidence. An expert witness may rely upon any
Fed.R.Evid. 703. "The expert may not, however, simply transmit ... hearsay [or other inadmissible evidence] to the jury." Mejia, 545 F.3d at 197. This danger always exists with regard to expert witnesses, but it is especially great with law enforcement expert testimony, because — as the Court has already mentioned — the inadmissible facts on which law enforcement experts rely are often far more prejudicial to the defendant than those on which scientific and technical experts rely.
Sixth, and finally, there is something qualitatively different about law enforcement expertise from other forms of expertise that makes the Court uncomfortable. When an expert testifies about DNA left at a crime scene or an organization's bookkeeping, he or she does so in recognition of the fact that most jurors are inexpert in matters of molecular biochemistry or forensic accounting, and to aid them in understanding such evidence and making determinations well shy of the final determination of the defendant's guilt or innocence. Law enforcement officers, on the other hand, are experts in whodunit, and there is a danger that a jury will perceive their area of expertise as solving crimes and determining guilt or innocence. Juries — or at least individual jurors — are inexpert in making these determinations just as surely as they are in biochemistry and forensic accounting, but the Constitution nonetheless consciously vests the power to make these findings in the jury. See U.S. Const. art. III, § 2; id. amend. VI. Expert testimony by law enforcement officers can encroach not only on the jury's role, but on the role of counsel, as well. When the expert opines on the basis of "expertise" rooted in the facts of the case being tried, it is effectively arguing the case as a mouthpiece for counsel. It is inappropriate for an expert witness to bolster the credibility of another witness, and the Court finds this use of law enforcement
Even if these dangers do not render a given opinion or piece of testimony per se inadmissible under rule 702, they contribute to its unfair prejudicial value, which the district court may determine substantially outweighs any probative value it might have. See United States v. Fosher, 590 F.2d 381, 383 (1st Cir. 1979)("Quite apart from questions of limited relevance and reliability, ... the proffered expert testimony would create a substantial danger of undue prejudice and confusion because of its aura of special reliability and trustworthiness.").
"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.
Fed.R.Crim.P. 16(a)(1)(G).
Professor James Moore has stated: "It is not clear how much detail must be provided to satisfy this provision." 25 James Wm. Moore, Moore's Federal Practice § 616.05[3], at 616-65 (3d ed.2012). The United States Court of Appeals for the Seventh Circuit found the following summary of expert testimony sufficient, "although barely," when the United States planned to present evidence regarding a drug courier-profile:
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 advisory committee's notes). See Jacobsen v. Deseret Book Co.,
The threshold issue in determining the admissibility of evidence is relevance. As a baseline, under the Federal Rules of Evidence, all evidence that is relevant is admissible — unless another law or rule excludes the evidence — and any evidence that is not relevant is not admissible. See Fed.R.Evid. 402. The standard for relevance is liberal. See United States v. Leonard, 439 F.3d 648, 651 (10th Cir. 2006)("Rule 401 is a liberal standard.")(citing United States v. McVeigh, 153 F.3d 1166, 1190 (10th Cir.1998)). The evidence need only have "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. See United States v. Leonard, 439 F.3d at 651. "[A] fact is `of consequence' when its existence would provide the fact-finder with a basis for making some inference, or chain of inferences, about an issue that is necessary to a verdict," but it only needs to have "any tendency" to do so. United States v. Jordan, 485 F.3d 1214, 1218 (10th Cir.2007). See United States v. Leonard, 439 F.3d at 651; United States v. McVeigh, 153 F.3d at 1190. Although the threshold burden is low, the rules do "not sanction the carte blanche admission of whatever evidence a defendant would like. The trial judge is the gatekeeper under the Rules of Evidence." United States v. Jordan, 485 F.3d at 1218.
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 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). The Supreme Court has noted:
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008)(omission in case but not quoted treatise)(quoting 1 Steven A. Childress & Martha S. 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, 1067 (10th Cir.2003); United States v. Martinez, 938 F.2d 1078, 1082 (10th Cir.1991). 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 (quoting Fed. R.Evid. 403 advisory committee's notes).
The Court will grant the MIL in part and deny it in part. First, the Court concludes that Acee's expected testimony will cover a range of topics that the Tenth Circuit generally allows, but the Court will restrict his testimony to only those individual statements that are beyond the average juror's ken. Second, the Court concludes that Acee's expected testimony does not violate rule 704, as the United States does not expect Acee to testify either that "Rodriguez knew about the drugs" or that a defendant in a hypothetical situation designed to closely mirror this case's facts would likely have known about the presence of drugs. Third, the Court will bar references to the Juarez Cartel's activities in Mexico — except to the extent that Rodriguez wants them brought out — on rule 403 grounds. Last, the Court will not exclude any testimony on inadequate-disclosure grounds, despite its conclusion that the United States' Notice was somewhat deficient.
It appears that Acee has the necessary training, experience, and diverse exposure to provide the jury with "specific `insights into the distinctive traits' of his area of expertise." United States v. Vann, 776 F.3d at 758. His testimony about the Juarez Cartel's structure and operations will be especially "help[ful] to the trier of fact" in cases involving the actual cartel members named in the Indictment. Fed. R.Evid. 702(a). This testimony is less useful as it relates to Rodriguez, although the United States may still be able to salvage something from it.
When it comes to Acee applying his expertise to the case at hand, however, the Court will be more cautious. The United States would like Acee to conclude on the stand that Rodriguez ran heat runs and that he is not a blind mule — or, what is the same thing, that Rodriguez' conduct was consistent with heat runs and inconsistent with anything else, and that his conduct is inconsistent with a blind mule and consistent with a knowing drug runner. The Court will not allow such testimony. Normally, evidence needs only to "ha[ve] any tendency to make a [material] fact more or less probable than it would be without the evidence" to be prima facie admissible. Fed.R.Evid. 401(a) (describing the probative-value component of relevance). See Fed.R.Evid. 401(b) (describing the materiality component of relevance). With expert witnesses, however, testimony is admissible "only if it concerns matters that the average juror is not capable of understanding on his or her own." Mejia, 545 F.3d at 194. See Fed.R.Evid. 702 advisory committee's notes to the 1972 proposed rule ("Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier.... [The test is] `whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without [the expert testimony].'" (citation omitted)); United States v. Amuso, 21 F.3d 1251, 1263 (2d Cir.1994)("A district court may commit manifest error by admitting expert testimony where the evidence impermissibly mirrors the testimony offered by fact witnesses, or the subject matter of the expert's testimony is not beyond the ken of the average juror."); United States v. Montas, 41 F.3d 775, 784 (1st Cir.1994)(disapproving of an expert's answer to the question of why smugglers would use false names — "`[w]ell that's obvious... to avoid being caught'" — because it was "well within the bounds of a jury's ordinary experience"); United States v. Rahm, 993 F.2d 1405, 1413 (9th Cir.1993)(precluding expert testimony on "areas believed to be within the jurors' common understanding"). Once Acee has told the jury about his prior observations of blind mules — including the context in which he observed the cartels use them — and of heat runs — including how he verified their purpose as counter-surveillance measures — the jury is capable of applying Acee's experiential knowledge to this case's facts on its own. The average juror requires no further expertise from Acee to decide how to reconcile his observations in previous cases with the observations of Rodriguez in this case, i.e., whether the likelihood of Rodriguez' conduct being explainable by innocent, non-heat-run behavior and the likelihood of the Juarez Cartel using a blind mule in this case's circumstances
This final determination is for the jury, and it does not need any help — at least not beyond the ample expert testimony that the Court will allow — in coming to its verdict. The United States wants Acee's testimony on this topic, because it will, in effect, vouch for their closing arguments, and not because Acee's final conclusion reflects an insight to which only a seasoned expert could come. The Court will permit Acee to testify in two broad veins: (i) his past experience with blind mules and heat runs; and (ii) Rodriguez' conduct in this case. Adding a third vein — which would basically amount to Acee saying "in my opinion, (ii) does not match (i)" — does nothing that the jury could not do on its own and thus fails to satisfy rule 702(a) requirement that the testimony "help the trier of fact to understand." Although the Federal Rules of Evidence eliminated the common-law prohibition on ultimate-issue expert testimony, see Fed.R.Evid. 704, that doctrinal shift does not amount to a wholesale abdication of judicial authority — and responsibility — to act as a gatekeeper when the portion of the expert's testimony that goes to the case's ultimate issue falls short of rule 702's requirements.
The Court will allow Acee to testify as to his past experience with blind mules and heat runs. The Court will not allow Acee to testify that either Rodriguez' actions or the overall circumstances of this case are inconsistent with those of a blind mule. If Acee testifies that Rodriguez' conduct is consistent with that of a heat run — and the Court will allow him to do so, for the purpose of clarifying his descriptions of past-observed heat runs, which might not be fully clear to the jury from abstract oral description unaccompanied by examples — then Acee must also testify that Rodriguez' conduct could also be consistent with other explanations, such as being lost or drunk.
Acee's proposed testimony does not violate rule 704(b), because it does 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." Fed. R.Civ.P. 704(b). The common-law ultimate-issue rule, which barred a much wider array of expert opinions, was abolished in 1972. See Fed.R.Civ.P. 704 advisory committee's notes to 1972 proposed rule ("[T]he so-called `ultimate issue' rule is specifically abolished by the instant rule.").
Now, "[r]ule 704(b) only prevents experts from expressly stating the final conclusion or inference as to a defendant's actual mental state. The rule does not prevent the expert from testifying to facts or opinions from which the jury could conclude or infer the defendant had the requisite mental state." United States v. Richard, 969 F.2d 849, 854-55 (10th Cir. 1992). The only additional prohibition is that, to the extent that rule 704(b) bars expert testimony on the defendant's mental state, the United States may not circumvent this prohibition by using "hypotheticals" that closely resemble the case's actual facts. United States v. Boyd, 55 F.3d 667, 672 (D.C.Cir.1995)("[T]he Government may [not] simply recite a list of `hypothetical' facts that exactly mirror the case at hand and then ask an expert to give an opinion as to whether such facts prove an intention to distribute narcotics..., because [this tactic] flies in the face of Rule 704(b)."). See United States v. Watson, 260 F.3d 301 (3d Cir.2001).
In United States v. Richard, the Tenth Circuit rejected an ultimate-issue argument
United States v. Richard, 969 F.2d at 855 (footnote omitted).
Acee's testimony is clearly meant to suggest to the jury that Rodriguez knew what he was doing, i.e., that he was not a blind mule. The testimony does so, however, not by directly opining on Acee's mental state, but by describing the factual environs in which known drug cartels operate and inviting the jury to conclude that the facts of Rodriguez' situation resemble those of a knowing drug courier. From there, the United States will couple the circumstantial evidence that Acee's testimony provides with its strong direct evidence — the presence of drugs in Rodriguez' vehicle — and attempt to use the former to assuage any doubts about Rodriguez' knowledge of the latter. Acee's expert testimony makes it more likely — than it would otherwise seem without the testimony — that Rodriguez had such knowledge, but the testimony does not attempt to establish or opine upon that knowledge directly. Rodriguez' rule 704 argument thus fails to persuade the Court.
The Court will bar Acee from testifying about topics whose unfair prejudicial impact substantially outweighs its probative value. See Fed.R.Evid. 403. Anything relating to cartels' — the Juarez Cartel's or any other's — operations back in Mexico, drug-related violence, or public corruption is excluded. The Court thinks that this trial could probably be conducted without the use of the word "cartel" — and it might be fairer and more focused for it — unless, for strategy reasons, Rodriguez wants such references included.
The United States concedes that Rodriguez is not a cartel member. It is unfairly prejudicial — and, even from a neutral perspective, needless — for the United States to paint Rodriguez with the tarred brush of international cartel operations. People in New Mexico view the cartels in much the same way they view ISIS: morally repugnant, frightening, unrelatable, and in need of eradication. Like ISIS, the cartels have a well-known penchant for torturing and mutilating their rivals and political foes — and the families of those individuals — and documenting it on the internet.
Rule 403 rarely does any work on its own. After all, it requires that the unfair prejudicial impact of a piece of evidence substantially outweigh its probative value. Here, however, Rodriguez might be better off going to trial with a swastika tattooed on his forehead than with the albatross of active, as-yet-unpunished cartel membership around his neck. The Court will
The Notice is not a fully adequate disclosure of everything to which the United States experts Acee to testify, but the Court will nonetheless decline to exclude any of Acee's testimony on that ground. Rule 16 of the Federal Rules of Criminal Procedure provides that the United States "must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications." Fed. R.Crim.P. 16(a)(1)(G). The Notice spends its first two pages shoring up Acee's qualifications; in the one page it then spends laying out what his opinions are, it never gives any indication of what the bases for these opinions are. All of the disclosed opinions are what could fairly be categorized as background information: "the duties of different individuals involved in a marijuana trafficking scheme"; "a general overview of the business aspects of a marijuana trafficking scheme"; the value of the marijuana seized from Rodriguez; that the quantity of marijuana seized "is a distributable amount"; and that the manner in which the marijuana was packaged is suggestive of distribution. Notice at 3. The Court can infer that these opinions come directly from Acee's training and experience.
In "cases involving technical or scientific evidence" — unlike this case — 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 advisory committee's notes). See United States v. Goxcon-Chagal, 886 F.Supp.2d 1222, 1253-54 (D.N.M. 2012) (Browning, J.). While the Court cannot say that the United States' notice is as specific as it could be, the Court does not believe that it is so deficient as to require a sanction. The United States sets out the general subject matter of Acee's proposed testimony and his background. It also sets out the basis for his testimony. The Notice specifically relates that he will testify about drug value, that the evidence indicates the Defendants intended to distribute drugs, and narcotics investigations in general. Furthermore, the United States is not seeking to have him testify on a complex scientific or technical area, which may require greater disclosure. See United States v. Jackson, 51 F.3d at 651.
The bigger problem with the Notice, however, is that it does not disclose the single opinion that the Court can envision being the most valuable in the case against Rodriguez — that the Juarez Cartel uses blind mules only in certain circumstances, which do not match this case's facts. Even if the Court were to credit the United States' somewhat lazy incorporation by reference of the Indictment, see Notice at 3 ("Lastly, Special Agent Acee is expected to testify consistent with the introductory language contained in the redacted superseding indictment in this case."), the Indictment contains no reference to the cartel's use, occasional use, qualified use, or nonuse of blind mules. The Indictment describes many parts of the Juarez Cartel's marijuana-trafficking process its ten introductory paragraphs, but its narrative about how the cartel brings marijuana from the fields of the Golden Triangle, see Indictment ¶ 8, at 5, to American garages
The Court concludes, however, that the evidentiary hearing that the Court conducted on July 2, 2015, cured this deficiency. It was apparent to the Court that Rodriguez' counsel was aware coming into the hearing that Acee intended to testify about blind mules and about how Rodriguez' conduct did not match typical blindmule behavior. In this case, after all, the blind-mule defense is, if not the only plausible defense available, certainly among the most obvious and most likely to succeed in providing an innocent explanation for Rodriguez' conduct. Rodriguez' counsel thoroughly cross-examined Acee, and, afterward, stated that he — Rodriguez' counsel — was satisfied that the hearing constituted sufficient disclosure:
Tr. at 108:3-14 (Court, Pori). The Court will therefore not exclude any of Acee's testimony on inadequate-disclosure grounds.
While reverence for Santa Muerte is almost nonexistent among mainstream, law-abiding citizens, it is not reserved only for the drug cartels. Petty and non-violent criminals not associated with the drug trade often revere her, and she "is also seen as a protector of homosexual, bisexual, and transgender communities in Mexico, since many are considered to be outcast from society." Santa Muerte, Wikipedia.org (last visited July 2, 2015). That Santa Muerte is not associated solely with the drug cartels obviously weakens the circumstantial inference that a someone like the defendants in Medina-Copete — who were found in a vehicle that contained a large quantity of well-hidden drugs and a Santa Muerte prayer card in their hands — is not a blind mule, i.e., a patsy who drives a vehicle that he or she does not know contains hidden drugs. On the other hand, the Tenth Circuit did not hold that the prayer card itself was inadmissible — just that expert testimony explaining the card's significance is inadmissible. The Tenth Circuit's holding may, perversely, be to the detriment of future Santa Muerte-venerating defendants. In the minds of many law-abiding Americans — like the ones who serve on federal juries — Santa Muerte is specifically linked to the Mexican drug cartels. If the United States shows a Santa Muerte prayer card to the jury without accompanying it with expert testimony explaining its significance, and if even one juror out of twelve has seen Breaking Bad — highly likely here in Albuquerque — then the jury is likely to conclude that the defendant is in the drug trade, without considering the valid alternative possibilities that the defendant could merely be a (less culpable) petty criminal or a (completely innocent) homosexual or bisexual person. See supra note 9.
The Court has always thought it odd that the Tenth Circuit found it to be an abuse of discretion, and reversible error, to allow Marshal Almonte to testify, when each member of the Eighth Circuit panel either approved of his testimony or found it erroneous but harmless.
That the Tenth Circuit would be concerned with religious artifacts giving rise to inferences of criminality is not irrational. For example, regardless whether foreign terrorism thus far in the twenty-first century is statistically associated with Islam, it would be unseemly for the United States to use trappings of a criminal defendant's Islamic faith to support an inference that the defendant was associated with terrorist groups. Cf. U.S. Const. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."); Fed. R.Evid. 610 ("Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility.").
Whether and when such concerns rise to the level of a First Amendment violation is an open question; the Court addressed the issue head-on and decided that expert testimony linking a folk-saint prayer card to the drug trade does not violate the First Amendment — provided, of course, that the "link" can be reliably established. The Tenth Circuit ducked the First Amendment issue, presumably on constitutional-avoidance grounds, but it left the following footnote in the opinion, tipping off readers to its concern:
Medina-Copete, 757 F.3d at 1109 n. 6 (emphasis in original). For the record, the Roman Catholic Church maintains an authoritative, nondebatable, and finite list of "legitimate" Saints, and there is a rather elaborate procedure associated with beatification and subsequent canonization. See The Canonization of Pope John XXIII and Pope John Paul II, United States Conference of Catholic Bishops, http://www.usccb.org/about/leadership/holy-see/canonizations-john-xxiiijohn-paul-ii.cfm (last visited July 2, 2015). Whether someone is a Saint in the Catholic Church is something of which a district court could take judicial notice under rule 201(b)(2), as this status "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." The Court suspects that the Honorable Neil M. Gorsuch, United States Circuit Judge for the Tenth Circuit, who is a major proponent and practitioner of constitutional-avoidance doctrine, was probably persuaded to join the majority opinion to avoid the First Amendment issue.
At least one court, in its attempt to reduce a law enforcement officer's sway on the jury, refused to allow the United States to refer to its expert witness as an "expert" in front of the jury, instead opting for the term "opinion witness." United States v. Thomas, 797 F.Supp. 19, 24 (D.D.C.1992) (Richey, J.). The Court would not be as inclined to hamstring the United States, particularly in its closing arguments, as it would be to simply be cautious about its own words.
