U.S. v. Beltran-Rios
| Decision Date | 06 July 1989 |
| Docket Number | No. 88-5279,D,BELTRAN-RIO,88-5279 |
| Citation | 878 F.2d 1208 |
| Parties | 28 Fed. R. Evid. Serv. 127 UNITED STATES of America, Plaintiff-Appellee, v. Luisefendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Janice Hogan, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant.
Patrick K. O'Toole, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California.
Before FLETCHER, NELSON and NORRIS, Circuit Judges.
Beltran-Rios was convicted of importation of a controlled substance and possession of a controlled substance with intent to distribute. He appeals the conviction, contending that the district court erred in allowing the Government to introduce expert testimony describing the "profile" characteristics of drug couriers, and that the jury instruction on the elements of Beltran's duress defense was erroneous. We affirm.
At approximately 9:00 a.m. on February 16, 1988, Luis Beltran-Rios entered the pedestrian inspection area of the Calexico, California Port of Entry. Customs Agent Donald Hylton performed a pat-down search of Beltran and found three small packages of heroin in Beltran's shoes. Beltran was placed under arrest, and was questioned by Customs and DEA agents. During the course of this questioning, Beltran gave several conflicting explanations for the presence of heroin in his shoes.
On February 22, 1988, a two count indictment was filed in the United States District Court for the Southern District of California, charging Beltran with violations of 21 U.S.C. Secs. 952, 960 () and 21 U.S.C. Sec. 841(a)(1) (). On February 26, Beltran pleaded not guilty. Beltran filed a motion to suppress physical evidence as well as statements he made to Customs and DEA agents. The district court denied this motion after an April 25 hearing. A jury trial began on May 17, 1988.
Beltran offered duress as his major defense at trial. Beltran argued that he brought heroin into the United States against his will because an individual named Jesus Holguin Lopez approached him and demanded that he do so. Lopez allegedly threatened to kill Beltran or his family if he did not comply. Beltran presented testimony from a Father Augustin Gonzalez-Magana attesting to Beltran's good reputation and Lopez's reputation as a dangerous drug trafficker. In his opening statement, defense counsel also emphasized Beltran's vulnerability to Lopez's threats, portraying Beltran as a simple, poor farmer. Counsel pursued a related theme in cross-examination, questioning witnesses about Beltran's appearance in an effort to emphasize that Beltran dressed poorly, and did not display flashy or expensive jewelry.
Allegedly to rebut the "poor simple farmer" theme, the Government introduced expert testimony describing the characteristics of the typical drug courier, or "mule." The Government's expert witness, Deputy Sheriff Jose Moreno-Nava, testified that mules were generally poor, sympathetic-looking individuals, who went into the drug courier trade because it is the only way for such individuals to make money quickly. This testimony was admitted over defense counsel's objection.
After the presentation of the evidence, counsel and the trial judge conferred concerning the instructions. The judge indicated that she would not give the defendant's proposed duress instruction, but would give a modified version of the Ninth Circuit Model Jury Instruction on duress. Defense counsel objected, contending that the instruction improperly introduced a requirement of prompt surrender to the authorities as an element of the defense.
On May 20, 1988, the jury returned a verdict of guilty on both counts. On July 11, 1988, Beltran was sentenced to 33 months in custody, and a term of three years of supervised release. This appeal follows. We have jurisdiction under 28 U.S.C. Sec. 1291.
A. Admission of Nava's Testimony
Over the objection of defense counsel, the district court permitted Nava to testify about the characteristics of the typical drug courier. Nava testified that "[y]our typical mule would be a poorer individual, who does not wear flashy clothes or jewelry, and is, like I say, in the--he's the bottom of the totem pole in the organization but he is a paid individual by that organization." Reporter's Transcript (RT) vol. II at 275. 1 Beltran argues that admission of this testimony was an abuse of discretion because the use of such profiles is of limited probative value and is extremely prejudicial. The district court has broad discretion to admit or exclude expert testimony. The court's decision to admit Nava's "drug courier profile" testimony therefore is reviewed for abuse of discretion. United States v. Gillespie, 852 F.2d 475, 478 (9th Cir.1988).
The use of criminal profiles as evidence of guilt in criminal trials has been severely criticized. As the Eleventh Circuit has pointed out,
[d]rug courier profiles are inherently prejudicial because of the potential they have for including innocent citizens as profiled drug couriers.... Every defendant has a right to be tried based on the evidence against him or her, not on the techniques utilized by law enforcement officials in investigating criminal activity. Drug courier profile evidence is nothing more than the opinion of those officers conducting an investigation.... [W]e denounce the use of this type of evidence as substantive evidence of the defendant's innocence or guilt.
United States v. Hernandez-Cuartas, 717 F.2d 552, 555 (11th Cir.1983). Similarly, in Gillespie, 852 F.2d at 479-80, we found the admission of the testimony of a clinical psychologist describing the common characteristics of child molesters to be reversible error.
The hostility exhibited by the lower courts to the use of criminal profiles as substantive evidence of guilt is not undermined by the Supreme Court's recent decision in United States v. Sokolow, --- U.S. ----, ----, 109 S.Ct. 1581-1586, 104 L.Ed.2d 1 (1989). Sokolow merely establishes that a law enforcement official may make an investigative stop based on observed behavior consistent with DEA drug courier profiles. There is no indication that the Court's approval of profiles to help establish reasonable suspicion warranting further investigation extends to use of profile evidence at trial. Beltran's argument that such profiles generally have no place as substantive evidence of guilt at trial is still valid.
The Government, while conceding that profile testimony is generally undesirable as evidence of guilt, argues that Nava's testimony was permissible in this case because defense counsel "opened the door" to this line of questioning by emphasizing Beltran's apparent poverty. The record clearly demonstrates defense counsel's efforts to raise an inference that Beltran was not a drug courier because his life-style was inconsistent with that line of business. In cross-examination of the Government's first witness, Customs Agent Donald Hylton, the following exchange took place:
Mr. Ainbinder: Does he [Beltran] look essentially the same as he did on the 16th?
Defense counsel pursued a similar line of questioning in cross-examination of DEA Agent Eddie Marquez:
The purpose of this questioning is clear--counsel is trying to suggest to the jury that Beltran is not part of a smuggling operation because he lacks the accoutrements of wealth associated with such a profitable activity. In light of this testimony, the district court concluded that the Government should have an opportunity to rebut the inference that defense counsel was trying to raise.
What I am going to do is allow limited inquiry. I am worried about too much prejudice on it.... So at least I think by having everybody look, you had him stand up, did he have on gold chains, did he appear wealthy, did he have a lot of cash, I think at least it would be proper to say that most of the couriers that they...
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