217 F.3d 720 (9th Cir. 2000), 99-10270, United States v. Benavidez-Benavidez

Docket Nº:99-10270
Citation:217 F.3d 720
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JUAN A. BENAVIDEZ-BENAVIDEZ, Defendant-Appellant.
Case Date:June 28, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 720

217 F.3d 720 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JUAN A. BENAVIDEZ-BENAVIDEZ, Defendant-Appellant.

No. 99-10270

United States Court of Appeals, Ninth Circuit

June 28, 2000

Argued and Submitted March 9, 2000--Pasadena, California

Page 721

[Copyrighted Material Omitted]

Page 722

S. Jonathan Young, Tucson, Arizona, for the defendant-appellant.

Richard E. Gordon, Assistant United States Attorney, Tucson, Arizona, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Frank R. Zapata, District Judge, Presiding. D.C. No. CR-98-00674-FRZ

Before: J. Clifford Wallace, Harry Pregerson and Sidney R. Thomas, Circuit Judges.

THOMAS, Circuit Judge:

This appeal presents the question whether the district court properly excluded unstipulated polygraph evidence. We conclude that it did and affirm the judgment of conviction.

I

Juan A. Benavidez-Benavidez ("Benavidez") was arrested, along with Blanca Veronica Ruiz-Aguiar, as he tried to enter the United States in a van at the Lukeville, Arizona port of entry. When questioned by customs agents at the primary inspection area, Benavidez stated that he had lost his border crossing card in Mexico and requested directions to the nearest Department of Motor Vehicles to see if he could have his driver's license reinstated. He denied that he was bringing anything into the country. An agent knocked on the side of the van and thought it sounded dense and solid. Upon opening the rear of the van, the agent noticed a sweet perfume or air freshener type smell. After further investigation, the agents discovered seventy-six bundles of marijuana, weighing approximately 169 pounds, in the doors and walls of the van.

A customs agent interviewed Benavidez. The interview was not tape recorded and the substance is a matter of dispute. The customs agent testified that Benavidez stated that he had gone to Rocky Point, in Mexico, for his son's birthday. While in Rocky Point, Benavidez's wallet was stolen and thus he did not have his green card or driver's license. The customs agent also testified that Benavidez claimed that he had obtained the van from a church organization that wanted him to drive it to the United States to pick up a load of clothing in Phoenix. In exchange, Benavidez was to keep the van, which was valued at approximately $1,200. The agent testified that he told Benavidez that the story was preposterous and that the defendant eventually admitted that he was aware that the marijuana was in the van and confessed that he had agreed to transport the marijuana to Phoenix for a third party in exchange for receiving ownership of the van. The defendant denied confessing the crime to the customs agent. He also denied telling the agent that he was to receive ownership of the van as compensation.

Prior to trial, Benavidez took a polygraph examination and sought to introduce the results of the examination at trial, specifically the measured responses of his negative answers to the following questions:

Did you admit to Agent Cherry that you were knowingly transporting marijuana?

Did you tell Agent Cherry that you knew there was marijuana in the van when you crossed the border?

Did you know there was marijuana in the van when you crossed the border into the United States?

In response, pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the district court held a hearing to consider the admissibility of the proffered evidence. At the hearing, Special Agent James Murphy, a twenty-eight-year veteran of the FBI, testified on behalf of the government. Dr. Charles Honts testified on behalf of Benavidez. The hearing took place on October 19-20, 1998.

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Voluminous exhibits were offered at the hearing. Most of these exhibits consisted of scientific papers pertaining to such issues as the reliability of polygraphs, the use of countermeasures by persons taking polygraphs, and the relative merits of various techniques for both administering and studying polygraphs. The district court issued its ruling on December 18, 1998 and held the evidence inadmissible on three different grounds: Fed. R...

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