U.S. v. Lui

• Citation: 941 F.2d 844
• Decision Date: 05 August 1991
• Docket Number: No. 89-50557,89-50557
• Parties: 33 Fed. R. Evid. Serv. 956 UNITED STATES of America, Plaintiff-Appellee, v. Wing Fook LUI, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 844

941 F.2d 844

33 Fed. R. Evid. Serv. 956

UNITED STATES of America, Plaintiff-Appellee, v. Wing Fook LUI, Defendant-Appellant.

No. 89-50557.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 11, 1991.

Decided Aug. 5, 1991.

Donald C. Randolph, Overland, Berke, Wesley, Gits, Randolph & Levanas, Santa Monica, Cal., for defendant-appellant.

Patricia A. Beaman, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before BOOCHEVER, CYNTHIA HOLCOMB HALL and RYMER, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Appellant Wing Fook Lui appeals his conviction on one count of importation of heroin, in violation of 21 U.S.C. § 952(a), and one count of possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1), following a jury trial. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

I

On May 5, 1989 Lui arrived at Los Angeles International Airport. Lui had begun his trip in Hong Kong, stopping for ten days in Taiwan and two days in Korea. A United States Customs Inspector, noticing that Lui appeared nervous, approached him and asked to see his plane ticket, passport, and customs declaration. Lui told the Inspector that he had come to Los Angeles to show samples of jade figurines to his nephew, who Lui said owned a store. Noting that Lui had failed to claim the figurines on his customs declaration, the inspector decided to bring Lui and his luggage to a secondary inspection area. After some delay, the inspector found two hard-shell suitcases that Lui identified as his.

At the inspector's direction, Lui opened the suitcases and removed some of the loosely packed clothing inside. As Lui did so, the inspector noticed that each side of the suitcases was elevated and appeared to be false. The false areas were four inches from the actual sides of the cases, leaving only two to three inches on each side for clothing. The two suitcases contained over 12 kilograms of nearly 96 percent pure heroin.

Lui was charged with one count of importation of heroin and one count of possession with intent to distribute heroin. On the day of trial, Lui moved, in limine, to preclude the government from offering into evidence the expert testimony of Special Agent Lynn Wood of the United States Customs Service regarding drug courier profiles. The motion was denied and Agent Wood testified.

The jury convicted Lui on both counts of the indictment. The court denied Lui's request that he be categorized as a minimal or minor participant and sentenced him to 188 months imprisonment, to be followed by a five-year term of supervised release. Lui appeals both his conviction and his sentence.

II

Lui first argues that the district court improperly admitted expert testimony by Special Agent Wood regarding drug couriers and that this testimony prejudiced his case. Lui specifically complains that Wood's testimony tied his behavior to that of a drug courier in five ways: 1) although "heroin couriers have a hundred ways to smuggle heroin," typically they wrap it around their bodies or place it in false bottoms and tops of suitcases; 2) in approximately 80 percent of smuggling cases, couriers use hard-sided suitcases; 3) couriers often use the excuse of conducting business or visiting a relative in the United States; 4) couriers create itineries with multiple stops for short periods of time so as to enter the United States from a "non-source" country to avoid detection; and 5) couriers often use paging devices.

A

Although Lui filed a pretrial motion in limine to exclude Agent Wood's testimony on the ground that it was improper drug courier profile testimony, he failed to object on this basis during trial. ¹ The government argues that Lui therefore failed to preserve his objection raised in the motion in limine, and that we should review the admission of Agent Wood's testimony for plain error. See United States v. Anguiano, 873 F.2d 1314, 1319 (9th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 416, 107 L.Ed.2d 381 (1989).

A pretrial motion in limine preserves for appeal the issue of admissibility of that evidence if the substance of the objection has been thoroughly explored during the hearing and the district court's ruling permitting introduction of evidence was explicit and definitive. Palmerin v. City of Riverside, 794 F.2d 1409, 1413 (9th Cir.1986). While it is questionable how thoroughly the motion was explored, the court was definitive in its denial. The judge told Lui, "Your Motion is denied. It is frivolous, without merit. It really deserves a sanction."

In light of the district court's threat of sanctions, we do not believe that Lui should be penalized for his failure to raise the objection again at trial. We therefore find that the objection was preserved and we review the admission of Agent Wood's testimony for abuse of discretion. See United States v. Beltran-Rios, 878 F.2d 1208, 1210 (9th Cir.1989); United States v. Gillespie, 852 F.2d 475, 479 (9th Cir.1988).

B

The Supreme Court has defined a drug courier profile as "a somewhat informal compilation of characteristics believed to be typical of persons unlawfully carrying narcotics." Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 2753-54, 65 L.Ed.2d 890 (1979) (per curiam). These profiles are commonly used by agents as a basis for reasonable suspicion to stop and question a suspect or to form probable cause. See e.g., United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1587 & n. 6, 104 L.Ed.2d 1 (1989).

We have denounced the use of drug courier profile evidence as substantive evidence of a defendant's innocence or guilt.

Drug 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.

Beltran-Rios, 878 F.2d at 1210 (quoting United States v. Hernandez-Cuartas, 717 F.2d 552, 555 (11th Cir.1983)). See also United States v. Jones, 913 F.2d 174, 177 (4th Cir.1990) ("[T]he use of expert testimony as substantive evidence showing that the defendant 'fits the profile and, therefore, must have intended to distribute the cocaine in his possession' is error.") (quoting United States v. Quigley, 890 F.2d 1019, 1023-24 (8th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1163, 107 L.Ed.2d 1066 (1990)), cert. denied, --- U.S. ----, 111 S.Ct. 766, 112 L.Ed.2d 785 (1991); United States v. Carter, 901 F.2d 683, 684 (8th Cir.1990) ("Drug courier profiles are investigative tools, not evidence of guilt.")

In Quigley, 890 F.2d 1019, the Eighth Circuit faced a situation similar to that which we find here. There, "the drug courier profile was presented at trial through the testimony of a narcotics agent, in the guise of an expert, as a technique for identifying a drug offender." Id. at 1022. The agent delineated several characteristics of the profile and tied them to Quigley: purchasing tickets shortly before departure, paying for them with cash, checking no baggage, providing no local address, and exhibiting nervousness at the airport. The court noted that while the agent "did not directly say that he thought Quigley was guilty of the offense charged because he fit the profile, that was the clear implication of his testimony." Id. at 1024. As in Quigley, here Agent Wood tied Lui's actions to a drug courier profile for the purpose of proving Lui's guilt.

Drug courier profile evidence has been admitted, however, in certain limited circumstances. In Beltran-Rios, we allowed the use of drug courier profile evidence for impeachment purposes after the defendant opened the door to this line of questioning by emphasizing his apparent poverty. 878 F.2d at 1211. In United States v. Gomez-Norena, 908 F.2d 497, 501 (9th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 363, 112 L.Ed.2d 326 (1990), we admitted the use of drug courier profile testimony as background material to explain how the arrest occurred. Significantly, in Gomez-Norena the district judge twice cautioned the jury to consider the testimony only for that purpose.

The government argues that Agent Wood's testimony was admissible under a third exception: when the testimony is necessary to explain the modus operandi of the defendant. In United States v. White, 890 F.2d 1012, 1014 (8th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3254, 111 L.Ed.2d 763 (1990), the Eighth Circuit found no "clear abuse of discretion" when the district court admitted drug courier profile testimony for the limited purpose of explaining modus operandi. The court acknowledged, however, that it was "not indicat[ing] any belief that the district court followed the best course in admitting all the evidence that was admitted, or that we favor admission of such evidence in general." Id.

The question of whether drug courier profile evidence may be admitted to show a modus operandi is a difficult one, since the purpose of modus operandi testimony, to "alert [the jury] to the possibility that combinations of seemingly innocuous events may indicate criminal behavior," United States v. Johnson, 735 F.2d 1200, 1202 (9th Cir.1984), is precisely the reason why drug courier profile testimony is so dangerous. See Beltran-Rios, 878 F.2d at 1210 ("Drug courier profiles are inherently prejudicial because of the potential they have for including innocent citizens as profiled drug couriers."). While it may be appropriate to recognize a modus operandi exception in certain cases, such as those involving complex drug-smuggling conspiracies, we need not reach that issue because we conclude on the facts of this case that the admission of drug courier profile...