U.S. v. Lim

• Decision Date: 27 January 1993
• Docket Number: No. 92-10078,92-10078
• Citation: 984 F.2d 331
• Parties: 37 Fed. R. Evid. Serv. 1258 UNITED STATES of America, Plaintiff-Appellee, v. Jose Dominguez LIM, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 331

984 F.2d 331

37 Fed. R. Evid. Serv. 1258

UNITED STATES of America, Plaintiff-Appellee, v. Jose Dominguez LIM, Jr., Defendant-Appellant.

No. 92-10078.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 18, 1992.

Decided Jan. 27, 1993.

Richard S. Kawana, Honolulu, HI, for defendant-appellant.

Michael K. Kawahara, Asst. U.S. Atty., Honolulu, HI, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before: HUG, PREGERSON, and WIGGINS, Circuit Judges.

PREGERSON, Circuit Judge:

Jose Dominguez Lim, Jr. ("Lim") appeals his conviction after a jury trial on one count of conspiracy to distribute and possess with intent to distribute ten or more grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and on one count of possession with intent to distribute ten or more grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2. We affirm.

BACKGROUND

Lim, wearing a yellow sweater, was arrested at the Honolulu Airport on a flight from Los Angeles. Lim had no drugs in his possession. But another passenger, Herman Martinez Apostol ("Apostol"), who carried a flight itinerary connecting him to Lim, was found in possession of drugs.

Undercover Honolulu police officers were assigned the task of observing arriving passengers. They noticed that Apostol, who walked off the plane before Lim, appeared to be looking around the airport as if he were seeking someone. They then saw Lim walk off the plane. Lim also appeared to be looking around for someone and to be watching Apostol and the undercover agents. The agents then stopped Apostol for questioning. Lim, however, proceeded to the baggage claim area, claimed a bag, and walked outside the terminal.

Undercover Agent Ohia followed Lim and asked to search his luggage. Lim consented to the search. Ohia found no drugs or other contraband in Lim's possession. Ohia returned to the baggage claim area. Lim hailed a cab.

In the meantime, at the baggage claim area, undercover Agent Nazarchyk conducted a consensual search of Apostol's luggage. Nazarchyk found methamphetamine in the pocket of Apostol's jacket and found a flight itinerary that referred to Lim. Nazarchyk questioned Apostol, who said that the drugs were not his but belonged to another passenger. Nazarchyk asked Apostol if the other passenger was wearing a yellow sweater. Apostol answered Lim and Apostol were both indicted for conspiracy to distribute and to possess with intent to distribute ten or more grams of methamphetamine and for knowingly and intentionally possessing with intent to distribute ten or more grams of methamphetamine.

                affirmatively.   Nazarchyk arrested Apostol and instructed Ohia to hurry outside and arrest Lim.   This was done
                

Before trial, Lim moved to suppress evidence derived from his warrantless arrest for lack of probable cause. After a hearing, the court denied the motion. Lim then requested a continuance to obtain witnesses from California and the Philippines. The district court denied Lim's request. At trial, the district court granted the government's motion to correct a typographical error in the indictment because the government had incorrectly cited the statutory subsection that Lim allegedly violated.

Apostol pled guilty to one count of conspiracy. He testified as a witness for the government in its case against Lim. Apostol testified to out-of-court conversations he had with Lim and with a third individual, "Alex." The government alleged that Apostol, Lim, and Alex, an unindicted co-conspirator, were involved in a conspiracy to distribute and possess methamphetamine.

At Lim's jury trial, the government's expert witness, Agent Nazarchyk, testified regarding the drug courier "shotgun" profile. Nazarchyk testified that a "shotgun" is a member of a drug conspiracy who travels with a "mule," who carries the drugs. The "shotgun" carries no drugs but accompanies the "mule" to ensure that all goes according to plan.

Lim objected in limine to Nazarchyk's testimony regarding the drug courier shotgun profile. The district court overruled the objection, but stated that it would not allow Nazarchyk to express an opinion to the jury that Lim was a "shotgun" because he fit the profile. The district court also gave a limiting instruction to the jury.

Lim also objected in limine to Apostol's testimony regarding out-of-court statements allegedly made by Apostol, Alex, and Lim. The court conditionally allowed Apostol to testify to the out-of-court statements subject to a motion to strike should the government fail to establish the evidentiary basis for their admissibility. Before the case went to the jury, the court unconditionally admitted Apostol's out-of-court statements when it denied Lim's subsequent motion to strike. The court found Lim's statements admissible as party-opponent admissions. The court also found that Apostol's testimony was sufficient to show that a conspiracy existed between Apostol and Alex and that Lim's and Apostol's actions at the airport showed they acted in concert. The district court, therefore, found that there was sufficient evidentiary basis to support the existence of a conspiracy.

At the end of the government's case, Lim moved for judgment of acquittal on the grounds that the government had failed to prove each and every element of the charges against Lim as to both the conspiracy and the possession counts. The district court denied the motion.

Lim appeals (1) the admission of the drug courier evidence, (2) the admission of Apostol's testimony as to the out-of-court statements, (3) the court's order allowing amendment of the indictment, (4) the court's denial of his motion for a continuance to obtain witnesses, (5) the court's denial of his motion to suppress evidence because Lim's warrantless arrest lacked probable cause, and (6) the court's denial of his motion for acquittal based on insufficiency of the evidence.

DISCUSSION

I. Drug Courier Profile Evidence

Lim challenges the admission of Agent Nazarchyk's testimony regarding the drug courier profile. We review the district court's admission of expert testimony on drug courier profiles for abuse of discretion. United States v. Lui, 941 F.2d 844, 846 (9th Cir.1991).

The admission of drug courier profile evidence is inherently prejudicial to the defendant because the profile may suggest that innocuous events indicate criminal activity. Id. at 848. Our court has denounced the use of a drug courier profile as substantive evidence of a defendant's innocence or guilt. Id. at 847. In Lui we stated that, " '[e]very defendant has a right to be tried based on the evidence against him or her, not on the techniques utilized by law enforcement official in investigating criminal activity.' " Id. (quoting United States v. Beltran-Rios, 878 F.2d 1208, 1210 (9th Cir.1989)).

Drug courier profile evidence, however, has been admitted in certain limited circumstances. In Beltran-Rios, this court held that while drug courier profiles have no place as substantive evidence of guilt at trial, they are, nonetheless, admissible as rebuttal testimony where the defendant has initially "opened the door" by emphasizing the fact that he did not fit the stereotype of a drug smuggler. 878 F.2d at 1211.

The government contends that because the defendant "opened the door" by testifying that he was innocent, the drug courier shotgun profile was admissible as rebuttal evidence. Nazarchyk's testimony regarding the profile, however, was introduced as part of the government's case-in-chief, before the defense introduced any evidence of the innocence of Lim's behavior. Thus, the profile evidence was not introduced "to rebut specific attempts by the defense to suggest innocence based on the particular characteristics described in the profile." Id. at 1213 n. 2. Therefore, the narrow Beltran-Rios exception does not apply.

Drug courier profile testimony may be admissible to establish modus operandi, but only in exceptional, complex cases. United States v. Lui, 941 F.2d at 848. See, e.g. United States v. Johnson, 735 F.2d 1200 (9th Cir.1984) (defendant was charged with securities fraud, mail fraud, and wire fraud for using two companies to defraud several investors). Here, there were merely two defendants traveling on the same plane allegedly involved in a conspiracy of three people to distribute methamphetamine. There is nothing complex about this conspiracy.

In Lui we indicated that the probative value of drug courier evidence must be weighed against the prejudice to the defendant so that "perfectly innocent items" are not turned into "evidence of guilt." Lui, 941 F.2d at 848. Here the profile was applied to two innocuous bits of evidence concerning Lim--the fact that he was engaging in domestic travel and was not carrying drugs. It seems clear that the prejudicial effect of applying the profile far outweighed its probative value and that the court abused its discretion in admitting such testimony.

We next consider whether this error was harmless. "The error is harmless if it is more probable than not that the prejudice resulting from the error did not materially affect the verdict." Lui, 941 F.2d at 848 (citing United States v. Echavarria-Olarte, 904 F.2d 1391, 1398 (9th Cir.1990)). In the instant case, there was more than sufficient evidence in the record to establish Lim's guilt. In fact, at oral argument Lim's counsel described the government's use of this evidence as "overkill." The error was harmless.

II. Out-of-Court Statements

We review the district court's decision to admit evidence for abuse of discretion. United States v. Torres, 908 F.2d 1417, 1424 (9th Cir.), cert. denied, 498 U.S. 905, 111 S.Ct. 272, 112 L.Ed.2d 228 (1990). We review for clear error the district court's preliminary findings that there was a conspiracy, that the defendant was connected to the conspiracy, and that the out-of-court statements...