U.S. v. Pablo Varela-Rivera

• Decision Date: 12 February 2002
• Docket Number: No. 99-10575.,99-10575.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pablo VARELA-RIVERA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

279 F.3d 1174

UNITED STATES of America, Plaintiff-Appellee, v. Pablo VARELA-RIVERA, Defendant-Appellant.

No. 99-10575.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 8, 2001.

Filed February 12, 2002.

Francisco Leon, Law office of Francisco Leon, Tucson, AZ, for the defendant-appellant.

Virginia C. Kelly, Assistant United States Attorney, Tucson, AZ, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; John M. Roll, District Judge, Presiding.

Before: HAWKINS and TASHIMA, Circuit Judges, and CLAUDIA WILKEN,^* District Judge.

OPINION

WILKEN, District Judge.

Pablo Varela-Rivera appeals his conviction by a jury for importation of cocaine, importation of methamphetamine, possession with intent to distribute cocaine, and possession with intent to distribute methamphetamine. He contends that the district court abused its discretion when it admitted expert testimony regarding the structure, organization, and modus operandi of drug trafficking enterprises and the fees paid to drug couriers within those organizations.

We reverse and remand.¹

BACKGROUND

On February 21, 1998, Appellant Pablo Varela-Rivera drove a pickup truck from Mexico into Nogales, Arizona. Customs inspectors found 23.1 pounds of cocaine and 519 grams of methamphetamine concealed in the gas tank of the truck. A grand jury returned a four count indictment charging Varela-Rivera with importation of and possession with intent to distribute cocaine and methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 952(a). Varela-Rivera was not charged with conspiracy.

At a June 15, 1998 pre-trial motions hearing before Judge Browning, the government told Varela-Rivera and the court that it intended to call an expert witness to testify "regarding modus operandi," but had not yet completed a summary of the expert's testimony.

At this hearing, Varela-Rivera moved, pursuant to Rules 401 and 403 of the Federal Rules of Evidence, to exclude drug courier profile information and evidence of drug quantity and street value on the grounds that such information asked the jury to draw an improper inference. Specifically, Varela-Rivera objected to permitting the government to introduce expert testimony that people with "large amounts of drugs have them because they're entrusted to them." Judge Browning overruled this objection.

Two months after the hearing at which this colloquy took place, the government filed a "Supplemental Notice of Expert Witness Testimony." This notice stated that the identity of the government's expert witness had changed, but that the substance of the testimony remained the same.

The substance of that testimony was stated as follows: 1) the source of cocaine which is imported into the United States through southern Arizona; 2) the methods by which cocaine crosses the border between the United States and Mexico; 3) where cocaine is transported once it enters the United States; 4) how much cocaine couriers are typically paid; 5) the value of cocaine; 6) the fact that smugglers typically store narcotics in hidden compartments rather than in passenger compartments because if the drugs are discovered, it is easier for the defendant to claim that he did not know about the drugs; and, 7) the distinction between personal as opposed to distribution quantities of cocaine.

In this notice, the government stated that at the June 15 hearing Judge Browning had "denied defendant's motion to suppress the testimony of the Government's expert witness."

The case was subsequently reassigned to Judge Roll for trial. At a status conference before Judge Roll, the government proffered that its expert, United States Customs Agent Wooley, would testify to the "fact that ... cocaine couriers are typically paid, how much they are paid. I don't plan. to go into whether they are trusted members of an organization. I don't plan to go into anything that remotely approaches that person's state of mind." In response, Varela-Rivera "reurge[d] previous motion to exclude this type of testimony." He also told Judge Roll that his motion to exclude had been rejected by Judge Browning, but requested that the court reconsider that ruling. Judge Roll did not exclude the testimony, stating that he wouldn't "revisit any of the previous rulings of Judge Browning's. That is the law of the case." Varela-Rivera never raised Rule 704(b) of the Federal Rules of Evidence as the basis of his objection.

At trial, the government questioned Agent Wooley on "methods and techniques used by narcotics smugglers." Agent Wooley testified that narcotics smuggling operations are highly segmented, and that different groups or persons are generally in charge of supplying, manufacturing, transporting and distributing the narcotics. In addition, Agent Wooley testified that people who drive narcotics into the United States are typically paid between $400 and $1000 per kilogram, and that there is an "ample supply of people from Mexico that are willing to do this to be paid." Therefore, a drug smuggler would not risk using an unknowing courier to transport drugs.

Varela-Rivera's defense was based entirely on the contention that he did not know the drugs were in the car. The jury returned guilty verdicts on all counts. Varela-Rivera was sentenced to four concurrent terms of 109 months in prison followed by four concurrent terms of 60 months supervised release.

DISCUSSION

A. Standard of Review

The parties disagree on the appropriate standard of review. The government argues that the admission of Agent Wooley's testimony should be reviewed for plain error because Varela-Rivera failed to object in the district court. United States v. Campos, 217 F.3d 707, 712 (9th Cir.2000). Varela-Rivera contends that he did preserve his objection below and, therefore, the trial court's decision to admit evidence should be reviewed for an abuse of discretion. United States v. VonWillie, 59 F.3d 922, 928-929 (9th Cir.1995).

Varela-Rivera did object to the government's expert witness testimony. This objection was first made in an in limine motion to exclude drug courier profile information and to exclude evidence of the quantity and value of the drugs found. Varela-Rivera argued to the district court that this testimony was excludable "under a 401, 403 analysis." At a subsequent status conference before Judge Roll, the government indicated that its expert testimony would be limited to "the fact that cocaine couriers are paid [and] how much they are paid." Varela-Rivera moved "to exclude this type of testimony."

The government contends that Varela-Rivera was required to reassert his objection at trial to preserve the issue for appeal. However, in Palmerin v. City of Riverside, 794 F.2d 1409, 1413 (9th Cir.1986), we rejected "an invariable requirement that an objection that is the subject of an unsuccessful motion in limine be renewed at trial." We disapproved the "bright line" rule advocated here by the government (and previously adopted by the Fifth and Eighth Circuits) because such a rule could "bar an appeal of a meritorious issue on essentially technical grounds." Id. Instead, we held that "where the substance of an objection has been thoroughly explored and the trial court's ruling was explicit and definitive, the issue is preserved for appeal." United States v. Palmer, 3 F.3d 300, 304 (9th Cir.1993) (citing Palmerin, 794 F.2d at 1413).²

In Palmer, we further explained that "the purpose of requiring a party to timely object is to ensure that the district court has an opportunity to cure any potential errors in the first instance." 3 F.3d at 304. Where the trial court has left no possibility of a different ruling on a renewed objection, there is no requirement that a party engage in a futile and formalistic ritual to preserve the issue for appeal. Id. ("requiring a contemporaneous objection... after the district court denied a pretrial objection and motion ... would have the perverse result of making form the master of substance") (citing Palmerin, 794 F.2d at 1413). In United States v. Lui, 941 F.2d 844, 846 (9th Cir.1991), for example, the trial court denied an in limine evidentiary objection, stating, "Your motion is denied. It is frivolous, without merit. It really deserves a sanction." On appeal, we noted that "it is questionable how thoroughly the motion was explored," but held that because the denial of the motion was definitive, the issue was nevertheless subject to review for an abuse of discretion rather than for plain error. Id.; compare Scott v. Ross, 140 F.3d 1275, 1285 (9th Cir.1998) ("issue of admissibility ... not properly preserved for review because the district court's ruling lacked the necessary definitiveness" in that the court indicated a willingness to consider objections to specific testimony at trial).

Varela-Rivera's objection at the status conference before Judge Roll was overruled on the grounds that the previous ruling was "the law of the case." Because Varela-Rivera could not show "changed circumstances" since the previous motions hearing, Judge Roll refused to consider his objection. "I won't revisit any of the previous rulings...." We conclude that the district court's pre-trial denial of Varela-Rivera's objection was "explicit and definitive" and a subsequent objection at trial would have been futile.

It is true that Varela-Rivera did not clearly state below the precise content of the expert testimony to which he objected. However, the government's descriptions of its expert testimony were neither clear nor consistent. At the pre-trial motions hearing, the government asserted only that it was going to call an expert to testify "regarding modus operandi." Varela-Rivera timely objected pursuant to Federal Rules of Evidence 401 and 403. In its "Supplemental Notice of Expert Witness Testimony," the government presented a more comprehensive description of the substance of its expert witness testimony. At...