757 F.3d 1092 (10th Cir. 2014), 13-2026, United States v. Medina-Copete

Docket Nº:13-2026, 13-2035
Citation:757 F.3d 1092
Opinion Judge:LUCERO, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARIA VIANEY MEDINA-COPETE and RAFAEL GOXCON-CHAGAL. Defendants - Appellants
Attorney:Kevin Nault, (Amy Sirignano on the briefs) Law Office of Amy Sirignano, Albuquerque, New Mexico, for Defendant-Appellant Maria Vianey Medina-Copete. Kari Converse, Assistant Federal Public Defender, (Joseph W. Gandert, Assistant Federal Public Defender, on the briefs) Office of the Federal Public...
Judge Panel:Before LUCERO, GORSUCH, and MATHESON, Circuit Judges.
Case Date:July 02, 2014
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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757 F.3d 1092 (10th Cir. 2014)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

MARIA VIANEY MEDINA-COPETE and RAFAEL GOXCON-CHAGAL. Defendants - Appellants

Nos. 13-2026, 13-2035

United States Court of Appeals, Tenth Circuit

July 2, 2014

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of New Mexico. (D.C. Nos. 1:11-CR-2002-JB-2 and 1:11-CR-2002-001 JB).

Kevin Nault, (Amy Sirignano on the briefs) Law Office of Amy Sirignano, Albuquerque, New Mexico, for Defendant-Appellant Maria Vianey Medina-Copete.

Kari Converse, Assistant Federal Public Defender, (Joseph W. Gandert, Assistant Federal Public Defender, on the briefs) Office of the Federal Public Defender, District of New Mexico, Albuquerque, New Mexico, for Defendant-Appellant Rafael Goxcon-Chaga.

David N. Williams, Assistant United States Attorney (Steven C. Yarbrough, Acting United States Attorney, with him on the briefs), Office of the United States Attorney, District of New Mexico, Albuquerque, New Mexico, for Plaintiff-Appellee.

Before LUCERO, GORSUCH, and MATHESON, Circuit Judges.

OPINION

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LUCERO, Circuit Judge.

These appeals, brought to us by Maria Vianey Medina-Copete (" Medina" ) and Rafael Goxcon-Chagal (" Goxcon" ) following their convictions on drug trafficking charges, requires us to consider an issue of first impression in our circuit. During the trial, the district court allowed a purported expert on certain religious iconography to testify that veneration of a figure known as " Santa Muerte" was so connected with drug trafficking as to constitute evidence that the occupants of the vehicle were aware of the presence of drugs in a secret compartment. In addition to qualifying a law enforcement official as an expert on Santa Muerte, the district court allowed the witness to wander far afield and render theological opinions about the " legitima[cy]" of Santa Muerte vis-à-vis other venerated figures.

We conclude that the law enforcement officer was improperly vetted under Fed.R.Evid. 702, Daubert v. Merrell Dow Pharmaceuticals, 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), and that the testimony thus proffered was both impermissible and prejudicial, requiring us to reverse the convictions and order a new trial. Exercising jurisdiction under 28 U.S.C. § 1291, we vacate and remand.

I

A

On June 28, 2011, Goxcon was driving a pickup truck on Interstate 40 in New Mexico, with Medina in the passenger seat. New Mexico State Police Sergeant Arsenio Chavez stopped the truck for following another vehicle too closely. Upon approaching the vehicle from the passenger side, Chavez requested Goxcon's driver's license as well as registration and proof of insurance for the vehicle. Although Chavez testified that Goxcon and Medina appeared to have difficulty locating the registration and insurance information, he later stated that he received the registration,

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insurance, and Goxcon's Oklahoma driver's license in approximately twenty seconds. Chavez also noticed an " overwhelming odor of air freshener emitting from the vehicle."

Goxcon's hand was shaking when he handed over the documents. Chavez testified that Goxcon became more nervous after being asked about the owner of the vehicle. Goxcon gestured towards the paperwork, but had trouble identifying the owner.

Medina also exhibited visible nervousness during the stop. She appeared to be praying. Chavez testified that " [s]he was fidgeting around, her legs were shaking, and . . . she was reading [a] document during the course of the stop." He said that the document " looked like some type of prayer of some sort." A translation of the prayer was introduced at trial. It reads:

For protection during a trip

Holy Spirit of Death, I invoke your Holy Name to ask you to help me in this venture. Make my way over the mountains valleys and paths an easy one, never stop bestowing upon me your good fortune weave the destiny so that bad instincts vanish before me because of your powerful protection. Prevent Santa Muerte problems from growing and embracing my heart, my Lady, keep any illness from embracing my wings (Illegible) Glorious Santa Muerte* be my protector and light my path. Be my advocate before the redeemer. Be my truth in times of darkness Grant me the strength and faith to invoke your name and to thank you now and forever for all your favours Amen Oh miraculous Santa Muerte, Niña Blanca of my heart and right arm of god our lord. Today I come to you with infinite devotion to implore you for health, fortune and luck Remove from my path (illegible) that hurts me, envy and misfortune; don't allow my enemy's slander reach and harm my spirit may no one prevent me from receiving the prosperity that I am asking of you today my powerful lady bless the money that will reach my hands and multiply it so that my family lacks for nothing and I can outreach my hand to the needy that crosses my path keep tragedy pain and shortage away from me this votive candle I will light so that the radiance of your eyes forms an invisible wall around me grant me prudence and patience holy lady, Santa Reina de las Tinieblas (" Holy Queen of Darkness" ) strength, power and wisdom tell the elements not to unleash their fury wherever they cross paths with me take care of my happy surroundings and that I want to adorn decorate in my Santa Muerte amen

(Page breaks omitted).

Chavez also testified that Goxcon and Medina told inconsistent stories. When he spoke with them separately, both Goxcon and Medina indicated that they were traveling to Oklahoma, but Chavez stated that they provided different accounts as to the length of their visit and the people with whom they planned to stay. Goxcon said that they were traveling to visit family, but Medina said that they had no family in Oklahoma. Because Chavez speaks imperfect Spanish and Goxcon speaks imperfect English, the parties had difficulty communicating throughout the stop. The record reveals that Chavez had difficulty conjugating Spanish verbs outside of the first-person form, leading him to ask questions

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such as, " I don't have any illegal firearms in this truck?"

Chavez issued a traffic citation, and then, " [b]ased on [his] training and experience and indicators that [he] had noticed," requested that Goxcon answer a few more questions. The " indicators" included the odor of air freshener, Goxcon's and Medina's nervousness, Goxcon's inability to identify the truck's owner, Medina's reading from the prayer, and the inconsistencies in their initial stories. Chavez also said that Goxcon's attire struck him as " kind of odd . . . like he was trying to fit in with the innocent motoring public" because people " typically don't wear an Army shirt with an Air Force hat."

In response to Chavez's additional questions, Goxcon denied having explosives, cocaine, marijuana, or heroin in the car. When Chavez asked if there was methamphetamine in the car, however, Goxcon's voice grew louder, and " he dropped his head and looked away from [Chavez]." Medina similarly denied the presence of explosives and other drugs, and Chavez testified that her demeanor also changed in response to Chavez's question about methamphetamine: " She had the piece of paper in her hand, and she was like crumbling it up. And [Chavez] also noticed, when [he] asked about methamphetamine, she looked away from [him]." 1

Chavez requested consent to search the truck and provided a consent form in Spanish, which both Goxcon and Medina signed. Chavez then deployed a drug-sniffing dog, which alerted to the area of the glove box on the passenger side. A subsequent search revealed a secret compartment concealed within the vehicle's dash area containing what was later determined to be two pounds of roughly 90% pure methamphetamine.

Goxcon and Medina were placed under arrest. Following their arrest, they were separately interviewed at an office of the United States Drug Enforcement Administration (" DEA" ). DEA Agent Reynaldo Rodriguez, a native Spanish speaker, conducted the interview of Goxcon. Over the course of the interrogation, Goxcon initially referred to Medina as his girlfriend, then later began describing her as his wife. Goxcon told Rodriguez that he was traveling from Las Vegas to Tulsa in order to pick up several items--furniture, tools, and a refrigerator--from a storage facility to bring them back to Las Vegas. Goxcon was initially unable to identify where he planned to stay, but he eventually provided the name of a friend who might host him. Goxcon said that the truck belonged to Julio Lopez, but that he had picked it up at the home of Julio's brother, Goyo.

DEA Supervisor Eduardo Chavez, another native Spanish speaker, interviewed Medina. Medina said that she and Goxcon borrowed the truck from Pablo Perez and his brother Gregorio. She suggested that she and Goxcon would stay with an individual named Manuel Valdez in Tulsa.

Medina also had a brief interaction with Rodriguez, who escorted her to an interview with Border Patrol. Medina requested the opportunity to gather some personal items from the truck in which she had been traveling. She identified a black gym bag as hers. Rodriguez retrieved the bag, removed a piece of clothing, and discovered a loaded Walther P99 handgun.

In a superseding indictment filed May 8, 2012, Goxcon and Medina were jointly charged under 21 U.S.C. § 846 with conspiracy to possess with intent to distribute 50 or more grams of methamphetamine; under 21 U.S.C. § 841(a)(1) and (b)(1)(A)

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with possessing with intent to distribute 50 grams and more...

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