U.S. v. Vizcarra

• Decision Date: 16 June 1994
• Docket Number: No. 93-10253,93-10253
• Citation: 29 F.3d 637
• Parties: NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Jesus Alonso VIZCARRA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 637

29 F.3d 637

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee, v. Jesus Alonso VIZCARRA, Defendant-Appellant.

No. 93-10253.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 13, 1994.

Decided June 16, 1994.

Before: GOODWIN, POOLE, and REINHARDT, Circuit Judges.

MEMORANDUM ^*

Jesus Alonso Vizcarra was convicted, following a jury trial, of conspiracy to distribute and to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. Sec. 846, and possession with intent to distribute a controlled substance, in violation of 21 U.S.C. Sec. 841(a)(1). The district court enhanced Vizcarra's sentence, pursuant to Sentencing Guideline Sec. 3C1.1, for obstruction of justice, and sentenced Vizcarra to forty-five months incarceration followed by three years supervised release. Vizcarra appeals the district court's judgment and conviction, claiming that the court (1) erred in admitting the expert testimony of a federal agent regarding the various roles performed in drug transactions, and (2) failed to make the necessary findings of perjury prior to enhancing Vizcarra's sentence for obstruction of justice. We affirm.

I. Expert Testimony.

At trial, the government sought to establish that Vizcarra conspired in the possession and sale of marijuana by acting as a "lookout"--a term used to describe a person who participates in a drug deal by watching out for law enforcement personnel prior to and during the exchange of drugs for money. The government called FBI Agent John I. Plunkett III as an expert witness on the various roles performed by participants in drug transactions. Plunkett testified both generally about the various roles ¹ and specifically regarding the standard modus operandi of lookouts. ² Vizcarra argues that the district court erred in admitting this testimony.

Vizcarra did not raise this issue at trial, and therefore we review the district court's decision to admit Agent Plunkett's testimony for plain error. United States v. Dischner, 974 F.2d 1502, 1514 (9th Cir.1992), cert. denied, 113 S.Ct. 1290 (1993). "A plain error is a highly prejudicial error affecting substantial rights." Id.

We have recognized a distinction "between opinions of a defendant's guilt or innocence," which are impermissible, "and expert testimony regarding the various roles played by persons involved in illegal enterprises." United States v. Fleishman, 684 F.2d 1329, 1336 (9th Cir.), cert. denied, 459 U.S. 1044 (1982). In Fleishman and subsequent decisions, we

rejected the argument that expert testimony is inadmissible simply because it is founded solely on observations of innocent conduct. For that very reason, the expert testimony may be valuable to the jury.

United States v. Espinosa, 827 F.2d 604, 612 (9th Cir.1987), cert. denied, 485 U.S. 968 (1988) (citing Fleishman, 684 F.2d at 1336). Nevertheless, Vizcarra argues that, because of the absence of other evidence linking him to the crimes charged, the probative value of Detective Plunkett's testimony regarding Vizcarra's seemingly innocent conduct was outweighed by its prejudicial effect. See United States v. Espinosa, 827 F.2d at 612 (trial court should carefully weigh expert testimony's probative value against its possible prejudicial effect).

Vizcarra relies heavily on United States v. Echavarria-Olarte, 904 F.2d 1391 (9th Cir.1990), in support of his argument. However, our decision in United States v. Echavarria-Olarte is inapposite. In Echavarria-Olarte, the government's expert testified generally about the structure of the Medellin Cartel and the Cartel's various methods of enforcing its will--through bribery, torture, and murder--while only limitedly discussing the specific role of one of the many co-conspirators involved in the immediate drug smuggling operation. 904 F.2d at 1398. We held that the expert's testimony had little probative value and was highly prejudicial. Id. Here, in contrast, all of Agent Plunkett's testimony was relevant, and none of it could be said to have been highly prejudicial. Plunkett restricted the brunt of his testimony to the role and methods of lookouts in drug transactions--the very role of which Vizcarra was accused.

Vizcarra also seeks to distinguish his case from the many Ninth Circuit cases in which we have upheld the admission of expert testimony of law enforcement officials regarding the various roles in criminal enterprises. See United States v. Mares, 940 F.2d 455 (9th Cir.1991); United States v. Bosch, 914 F.2d 1239 (9th Cir.1990); United States v. Andersson, 813 F.2d 1450 (9th Cir.1987); United States v. Fleishman, 684 F.2d 1329 (9th Cir.), cert. denied, 459 U.S. 1044 (1982). Vizcarra argues that, in each of the aforementioned cases, the evidence linking the defendant to drug activity was much more substantial. Here, by contrast, Vizcarra claims that his actions were consistent with that of an innocent person having no interest in a drug transaction.

However, we held that the circumstantial evidence presented by the government in United States v. Mares, 940 F.2d 455 (9th Cir.1991), which was no more substantial than in the present case, was sufficient to sustain a conviction for conspiracy to distribute heroin. In Mares, the defendants were observed speaking with a drug courier minutes before the transaction was to occur and circling the site numerous times; they appeared to be watching the deal and offered conflicting explanations when asked by the police what they were doing. 940 F.2d at 458-59.

Here, Vizcarra's presence at the scene, viewed in context with other evidence, supports the jury's verdict. Vizcarra twice followed into a parking lot a pickup truck driven by one Jose Martinez-Cano, a person making arrangements for the sale of 100 pounds of marijuana. On both occasions, Vizcarra parked some distance away from Martinez-Cano--a rational jury could find this to be an unusual course of action for someone just hanging out with a friend. On the first occasion, Vizcarra did not have to be told to follow Martinez-Cano when he left the parking lot, indicating at the very least some prior planning on their part. On the second occasion, Vizcarra was observed looking around the parking lot. In addition, the marijuana was located in the bed of the truck that Vizcarra was driving, yet Vizcarra neither showed surprise when the undercover agent removed a tarpaulin covering the marijuana, nor questioned the agent when he took a brown bag filled with marijuana from the truck bed.

Furthermore, Vizcarra's trial counsel cross-examined Agent Plunkett at some length regarding past situations in which people whom Plunkett initially thought were involved in drug activity turned out to be innocent. Such questioning helped guard against the jury taking Plunkett's testimony "as an opinion on the mental state or guilt" of...