U.S. v. Doe, 97-2916

• Decision Date: 13 July 1998
• Docket Number: No. 97-2916,97-2916
• Citation: 149 F.3d 634
• Parties: 49 Fed. R. Evid. Serv. 794 UNITED STATES of America, Plaintiff-Appellee, v. John DOE, a/k/a Owen Lawrence Smith, a/k/a Azubuike Madabuchi Iroh, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 634

149 F.3d 634

49 Fed. R. Evid. Serv. 794

UNITED STATES of America, Plaintiff-Appellee, v. John DOE, a/k/a Owen Lawrence Smith, a/k/a Azubuike

Madabuchi Iroh, Defendant-Appellant.

No. 97-2916.

United States Court of Appeals, Seventh Circuit.

Argued May 11, 1998.

Decided July 13, 1998.

Kenneth M. Hays (argued), Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee.

Kenneth P. Tableman (argued), Kenneth P. Tableman, P.C., Lansing, MI, for Defendant-Appellant.

Before BAUER, FLAUM, and MANION, Circuit Judges.

FLAUM, Circuit Judge.

Defendant John Doe raises several challenges to his convictions and sentence on heroin charges, including a claim that the Government's introduction of drug courier profile evidence at trial constituted impermissible character evidence. We reject Doe's arguments on appeal and affirm his convictions and sentence.

I.

United States customs officials in New York intercepted a package sent from Vietnam and bound for a residence in Elkhart, Indiana. The package contained 262 grams of 70%-pure white heroin hidden inside a hollowed-out book. Law enforcement authorities in Elkhart were notified, and the police arranged for a controlled delivery of the package to the residence. The defendant and his companion, Marla Cones, were apprehended when they arrived at the residence and took possession of the package.

The defendant claimed to be a United States citizen born in the Virgin Islands, and he presented identification (which was later discovered to be false) identifying himself as Owen Lawrence Smith. ¹ The police took "Smith" to a park near the scene of the arrest, and the defendant waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and answered questions for about an hour. The defendant told police that the package was intended for him and that Cones, who was his girlfriend, was not involved. He also explained that he had been expecting a book from his brother in Amsterdam and that he had no knowledge that the package contained heroin. The defendant remained handcuffed in the back seat of the squad car during the entire interrogation, and he claims that the officers held a gun to his head during part of that time. Some of the officers wore masks, which they later explained were necessary to protect their identities because they were involved in local undercover drug operations.

After a jury trial, Doe was convicted of possession with intent to distribute heroin, see 21 U.S.C. § 841(a)(1); attempted possession of heroin over 100 grams, see id. §§ 846, 841(a)(1) & (b)(1)(B); importation of heroin and aiding and abetting importation of heroin, see id. §§ 952, 960(b)(2); 18 U.S.C. § 2; and use of a false social security number, see 42 U.S.C. § 408(a)(7)(B). The court sentenced Doe to 180 months in prison on each of the three heroin charges and 60 months on the charge of using a false social security number, with the sentences to run concurrently.

II.

Doe raises four claims on appeal. First, he argues that the district court erred by admitting expert testimony at trial concerning the profile of Nigerian drug traffickers. Second, Doe contends that statements he made to police during his interrogation in the park should have been suppressed because the interrogation violated Miranda. Third, Doe maintains that the district court erred in departing upward in his sentence in light of the heroin's high purity. Finally, Doe argues that the court erred in imposing a two-level increase in his sentence for obstruction of justice based on its conclusion that Doe perjured himself during the suppression hearing.

A. Drug Profile Testimony

Vincent Balbo, an experienced agent with the Drug Enforcement Agency, testified as an expert witness at Doe's trial regarding the practices of Nigerian drug smugglers. Balbo testified that white heroin from Southeast Asia is commonly smuggled into the U.S. through Nigerian traffickers. Balbo explained that smaller cities, with less law enforcement capacity, are increasingly common destinations for these heroin shipments. He also stated that Nigerian traffickers often use the mailing addresses of other individuals--colloquially known as "smurfs"--to receive imported heroin, and he testified that Nigerian traffickers are skilled in the use of false identities to elude detection by law enforcement.

Doe argues that this testimony should have been excluded because its prejudicial nature substantially outweighed its probative value, see Fed.R.Evid. 403, and because it constituted impermissible character evidence, see Fed.R.Evid. 404(a). Because Doe did not object to Balbo's testimony at trial, we review the district court's decision to admit the testimony for plain error, which requires Doe to "not only prove that the admission of the testimony was error, but also that reversal is required to prevent a miscarriage of justice." United States v. Funches, 84 F.3d 249, 254 (7th Cir.1996) (quotation omitted).

We consider first Doe's contention that the prejudicial nature of Balbo's testimony substantially outweighed its probative value. We have upheld the admission of drug courier profile evidence against Rule 403 objections on several occasions. See, e.g., United States v. Brown, 7 F.3d 648, 654-55 (7th Cir.1993); United States v. Foster, 939 F.2d 445, 452 (7th Cir.1991); United States v. Solis, 923 F.2d 548, 550-51 (7th Cir.1991). Despite "[o]ur general acceptance of this type of testimony," Foster, 939 F.2d at 452, however, the balance between probative value and unfair prejudice must be freshly assessed in each individual case.

Balbo's testimony in this case was probative of the issue of Doe's intent to possess and distribute heroin. The Government endeavored to prove the essential element of intent through a variety of circumstantial evidence, including the events surrounding the seizure of the heroin shipment and Doe's arrest, the false identities used by Doe, and Doe's use of countersurveillance techniques in driving away from the scene of the delivery prior to his apprehension by police. Balbo's testimony shed light on the issue of intent by providing a context for Doe's behavior that permitted the jury to infer that Doe must have known that the package contained heroin. Balbo explained the common practices and modus operandi of Nigerian drug traffickers, and the jury was left to compare that information to the facts of this case and Doe's own behavior. See Solis, 923 F.2d at 551 (upholding admission of drug courier profile evidence as probative of intent in a cocaine distribution case). ²

Furthermore, we find little suggestion in the record that Balbo's testimony unfairly prejudiced Doe. "[W]e are not unmindful of [the] potential for undue prejudice" posed by drug courier profile evidence, Foster, 939 F.2d at 452, and we have identified factors that make such evidence particularly prejudicial. For instance, if the expert witness was also an eyewitness or otherwise involved in the defendant's arrest, there is a greater danger of unfair prejudice. This dual role may confuse the jury, which may not understand its own function in evaluating the evidence. See id. at 453; see also Solis, 923 F.2d at 551; United States v. de Soto, 885 F.2d 354, 360 (7th Cir.1989). Special cautionary instructions may be warranted in such a case. See Foster, 939 F.2d at 453. We have also noted the importance of a full opportunity for cross-examination to explore the validity of the profile and to suggest possible legitimate explanations for the defendant's conduct. See Solis, 923 F.2d at 551.

In light of these factors, we do not believe that Balbo's testimony was unfairly prejudicial. Balbo explicitly stated that he was not involved in Doe's arrest and that he appeared only to provide information about heroin trafficking in general. Doe's counsel cross-examined Balbo at length about the basis for the Nigerian drug trafficker profile and the extent of Balbo's knowledge regarding the Southeast Asian white heroin trade. Because of the limited scope of the testimony and the full opportunity for cross-examination, Balbo's testimony did not pose a significant risk of confusing the jury and did not lead the jury to assign greater weight to the testimony than it merited. Accordingly, we conclude that Doe has failed to show that the decision to admit this testimony at trial was plainly erroneous under Rule 403.

Doe also claims that Balbo's testimony constituted impermissible "group character evidence" that should have been excluded under Federal Rule of Evidence 404(a). According to Doe, the use of drug courier profile evidence at trial invites the jury to infer the defendant's guilt solely from the defendant's apparent membership in a nefarious group. This inference, Doe argues, is not based on facts pertaining to the particular defendant and the particular crime charged. Rather, the inference of guilt arises because the jury ascribes to the defendant the motivation of third parties who are not connected to the charged crime. See generally 22 CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE-EVIDENCE- "EVIDENCE § 5233 & n. 53.2 (Supp.1998); Mark J. Kadish, The Drug Courier Profile: In Planes, Trains, and Automobiles; and Now in the Jury Box, 46 Am. Univ. L.Rev. 747, 782-90 (1997); see also David McCord, Syndromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 Or. L.Rev. 19, 51-57 (1987) (making a similar point with respect to child sexual abuser profiles and battering parent profiles).

Although some state courts have mentioned this group character argument favorably in excluding profile evidence, see Minnesota v. Williams, 525 N.W.2d 538, 547-49 (Minn.1995) (drug profile evidence); Ohio v. McMillan, 69 Ohio App.3d 36, 590 N.E.2d 23, 50-51 (Ohio Ct.App.1990) (sexual abuser profile evidence), Balbo's testimony in this...