U.S. v. Mendoza-Paz

• Decision Date: 10 April 2002
• Docket Number: No. 00-50029.,00-50029.
• Citation: 286 F.3d 1104
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christina Maria MENDOZA-PAZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

286 F.3d 1104

UNITED STATES of America, Plaintiff-Appellee, v. Christina Maria MENDOZA-PAZ, Defendant-Appellant.

No. 00-50029.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 10, 2000.

Filed April 10, 2002.

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Steven F. Hubachek, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Patrick K. O'Toole, United States Attorney; Bruce R. Castetter, Assistant United States Attorney, Chief, Appellate Section Criminal Division; Renee M. Bunker, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Judith N. Keep, Chief Judge, Presiding. D.C. No. CR-99-01601-JNK.

Before B. FLETCHER, THOMAS, and WARDLAW, Circuit Judges.

OPINION

WARDLAW, Circuit Judge.

Christina Mendoza-Paz appeals her jury conviction for importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960, and possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1). She contends that Sections 841 and 960 are unconstitutional on their face and as applied. She also argues that the district court erred in (1) finding that the government complied with Federal Rule of Criminal Procedure 16(a)(1)(E); (2) failing to discharge its gatekeeping duty in the admission of expert testimony; and (3) permitting a lay witness to comment on Mendoza-Paz's credibility. We hold that 21 U.S.C. §§ 841 and 960 are facially constitutional, and Mendoza-Paz's as-applied challenges to the statutes are without merit. We further conclude that the district court did not commit error with respect to any of the other challenged rulings. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I. Background

On May 21, 1999, Mendoza-Paz attempted to enter the United States at the San Ysidro, California Port of Entry. A United States Customs Inspector was working in the primary inspection area of the port of entry when Mendoza-Paz arrived. His suspicions were aroused by a strong odor of perfume throughout Mendoza-Paz's vehicle, the number of keys on her key ring, the vehicle registration in her name as of the day before, and the depth discrepancy in the trunk, indicating a compartment. The Inspector therefore placed Mendoza-Paz in handcuffs and escorted her to the security office.

A second United States Customs Inspector was sent to drive the vehicle to the secondary inspection lot. After noticing the odor and the lack of personal belongings in the car, he summoned a narcotics dog, which alerted to the back seat. The Inspector there found a compartment containing packages that tested positive for marijuana, as well as packages under the front bumper. Mendoza-Paz was placed under arrest and advised of her Miranda rights, which she waived.

On June 2, 1999, Mendoza-Paz was indicted for knowingly and intentionally importing into the United States approximately 34.32 kilograms of marijuana in violation of 21 U.S.C. §§ 952 and 960, and for knowingly and intentionally possessing with intent to distribute approximately 34.32 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1).

In advance of trial, Mendoza-Paz requested "written summaries of all expert testimony that the government intends to present ... during its case in chief, written summaries of the bases for each expert's opinion, and written summaries of the experts' qualifications." The United States filed an in limine motion to admit expert testimony regarding narcotics trafficking and the value of the seized marijuana. The government's motion also noted that it had previously advised defense counsel that it intended to call a United States Customs Special Agent as its narcotics expert. It provided a two-page letter designating the expert and summarizing the scope and bases for his testimony. In response, Mendoza-Paz filed an in limine motion to preclude expert testimony regarding drug courier profiles and the value of the seized marijuana as prejudicial. In the alternative, the motion sought a hearing to determine the reliability and relevance of "experience-based" expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

The district court held a Daubert hearing on the Agent's expert testimony, ruling that the government must produce any reports upon which the expert relied in rendering a valuation opinion. The court also held that it would permit expert testimony regarding the retail value of the seized marijuana but would limit the testimony on the nature and structure of drug smuggling organizations. Shortly thereafter, the government provided Mendoza-Paz with a Street Drug Price List upon which the valuation expert relied in part.

Before opening statements, on the first day of trial, defense counsel noted that, although the government had provided the opinion of another expert — the chemist — and a copy of his report, the government had not provided the bases for his opinion, i.e., the tests that he had run, as required under Federal Rule of Criminal Procedure 16(a)(1)(E). The district court required the government to disclose the tests the chemist conducted, which the government did during the recess before opening statements. The chemist testified at trial that same day.

Also, before opening statements, defense counsel noted that they had not yet received any written materials relied upon by the valuation expert. The government responded that the expert relied upon his general experience and background, rather than anything tangible. The court ruled immediately thereafter that under Rule 16, Mendoza-Paz was entitled only to tangible materials rather than background materials. The district court also ruled that it would hold the Daubert hearing on the expert in the presence of the jury for efficiency purposes, and defense counsel objected.

When the trial commenced, before the government called the valuation expert, defense counsel renewed their objections to the court's denial of a Daubert hearing outside the presence of the jury and to the government's failure to adequately provide the bases for the expert opinion. The court reviewed the written summary provided to the defense, the expert's resume, and the drug value report produced pursuant to the court's pre-trial order and found that they provided sufficient bases for the opinion. It also found that its gatekeeper functions did not require a hearing outside the presence of the jury.

During cross examination, defense counsel conducted a voir dire of the valuation expert, questioning him regarding the reliability and bases for his opinions. At side bar, the defense requested access to the database and confidential informants that the expert testified had informed his opinion. The court denied the request, finding that the basis of the expert's opinions was his general background and life experience. The court asked the government to inquire whether there were any specific publications that the expert could produce and stated that defense counsel could recall the expert to question him about whatever materials were produced. The court then qualified the expert, and his testimony was presented.

In defense, Mendoza-Paz testified that while visiting a friend in Mexico at La Mesa Penitentiary, she agreed to price a television for an inmate at a swap meet the next day. She stated that she went to the swap meet, and although it was closed, she met two men on the street, one of whom was called Pablo, from whom she agreed to buy the vehicle in which she was arrested. Although she did not have with her the money to purchase the car, she followed the men to the Mexican Department of Motor Vehicles, and they transferred the registration to her name. Mendoza-Paz claimed that the men met her the next morning in a parking lot, and they exchanged the money for the car. Leaving her old car in the parking lot, she then drove her new car to San Ysidro to enter the United States so she could buy big-size Kit Kat candy bars at Target and possibly some watch batteries.

In rebuttal, the government called a United States Customs Special Agent to impeach Mendoza-Paz's testimony. The Agent explained that, at the post-arrest interview, Mendoza-Paz stated that she bought the car from one unknown individual and never mentioned the name Pablo. Nor did she mention watch batteries. The Agent further testified, without objection, that she "didn't believe her story."

At the close of trial, the court instructed the jury that the government "is not required to prove that the amount or quantity of marijuana was as charged in the indictment. It need only prove beyond a reasonable doubt there was a measurable or detectable amount of marijuana." The jury returned a verdict of guilty on both counts after less than three hours. After a sentencing hearing on January 3, 2000, the district court sentenced Mendoza-Paz to twenty-one months. The judgment and commitment was filed on January 3, 2000, and Mendoza-Paz filed a Notice of Appeal on the same day.

II. Discussion

A. Constitutionality of 21 U.S.C. §§ 841 and 960

Mendoza-Paz contends that 21 U.S.C. § 841(a)(1) and § 960 are facially unconstitutional because they require the determination of drug quantity, and therefore the establishment of the applicable maximum sentence, to be made by the judge rather than a jury. Thus, Mendoza-Paz reasons, this scheme violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Mendoza-Paz's argument that 21 U.S.C. § 841(a)(1) is unconstitutional is foreclosed by our recent decision in United States v. Buckland, 277 F.3d 1173 (9th Cir.2002) (en banc), which held that the provisions of Section 841 are constitutional. Applying the rationale of Buckland, we must also reject...