U.S. v. Sepulveda–barraza

• Decision Date: 15 July 2011
• Docket Number: No. 09–10362.,09–10362.
• Citation: 645 F.3d 1066
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Alejandro SEPULVEDA–BARRAZA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

645 F.3d 1066

11 Cal. Daily Op. Serv. 8927

2011 Daily Journal D.A.R. 10,715

UNITED STATES of America, Plaintiff–Appellee,

v.Alejandro SEPULVEDA–BARRAZA, Defendant–Appellant.

No. 09–10362.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 1, 2010.Filed March 3, 2011.Amended July 15, 2011.

Robert L. Miskell (argued) and Joshua C. Mellor, United States Department of Justice, Tucson, AZ, for plaintiff-appellee United States of America.Daniel L. Kaplan, Federal Public Defender's Office, Phoenix, AZ, for defendant-appellant Alejandro Sepulveda–Barraza.Appeal from the United States District Court for the District of Arizona, Cindy K. Jorgenson, District Judge, Presiding. D.C. No. CR 07–01773–TUC–CKJ.Before: RONALD M. GOULD and SANDRA S. IKUTA, Circuit Judges, and JAMES C. MAHAN, District Judge.^*

ORDER

The opinion filed March 3, 2011, and published at 634 F.3d 1075 (9th Cir.2011) is superseded by the amended opinion below.

With these amendments, the panel has voted to deny Appellant's Petition for Panel Rehearing filed on May 18, 2011. Judges Gould and Ikuta have voted to deny the en banc petition, and Judge Mahan so recommends.

The full court has been advised of the Petition for Rehearing En Banc and no Judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The Petition for Rehearing and the Petition for Rehearing En Banc are DENIED. No further petitions for rehearing shall be entertained.

OPINION

IKUTA, Circuit Judge:

Alejandro Sepulveda–Barraza appeals his conviction for importation of cocaine and possession with the intent to distribute, claiming that the district court erred in admitting expert testimony regarding the structure and operations of drug-trafficking organizations and unknowing drug courier modus operandi, including testimony that drugs are rarely smuggled by unknowing couriers. We hold that the district court did not abuse its discretion in admitting this testimony, because it was relevant, probative, and not unduly prejudicial in light of Sepulveda–Barraza's defense theory that he did not know that he was transporting drugs, and because he opened the door to the testimony by providing notice that he intended to call an expert witness to testify that drug trafficking organizations sometimes utilize unknowing couriers to smuggle drugs across the border.

I

On September 11, 2007, Sepulveda–Barraza was stopped by government inspectors at a port of entry in Nogales, Arizona. He claimed that he was driving across the border to run errands at Wal–Mart, but was only carrying $21 in United States currency. Because he seemed a “little nervous” and a “little too friendly,” an inspector referred him for secondary inspection. At secondary inspection, officers discovered eleven packages of cocaine hidden in the seats of his vehicle.

A grand jury indicted Sepulveda–Barraza on one count of importation of cocaine in violation of 21 U.S.C. §§ 952(a) and 960(a)(1), (b)(1)(B)(ii) and one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii)(II). The first trial ended in a deadlocked jury and mistrial. Before the second trial, defense counsel filed a notice that he intended to call an expert witness, retired FBI Special Agent Erik Godtlibsen, to testify that drug trafficking organizations sometimes use unknowing couriers (known as “blind mules”) to smuggle drugs across the border. The government then filed a notice of its intent to call Immigration and Customs Enforcement (“ICE”) Supervisory Special Agent Juan Bortfeld to provide expert testimony regarding the control of drug couriers by drug trafficking organizations, the street value of the cocaine found in Sepulveda–Barraza's vehicle, and the implausibility that drug traffickers would entrust valuable drug loads to an unknowing individual.

Defense counsel filed a motion in limine to exclude Bortfeld's testimony regarding these issues, but the district court denied the motion in reliance on our decision in United States v. Murillo, 255 F.3d 1169, 1176–78 (9th Cir.2001), overruled on other grounds by Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005). In Murillo, we held that expert testimony on the operation and structure of drug trafficking organizations, including testimony about “typical travel itineraries of drug couriers,” how “drug traffickers do not entrust large quantities of drugs to people who are unaware that they are transporting them,” and “the value of the drugs” found in a courier's car, Murillo, 255 F.3d at 1176, is admissible when relevant, probative, and not unfairly prejudicial, id. at 1177–78. Accordingly, the district court ruled that the government could testify regarding the matters allowed by Murillo.

At trial, retired Special Agent Godtlibsen (the defense expert) testified that he recalled two instances in which unknowing drivers had been used by drug traffickers. In both instances, the drivers crossed the border each day to go to work, and parked their vehicles in the same location each time. Godtlibsen testified that traffickers would have to spend a substantial amount of time profiling an unknowing driver to ensure that the driver would travel to a known location where the traffickers could retrieve their drugs. He also stated that the traffickers would not put drugs in a car unless they knew where they could retrieve the drugs, and concluded that the use of unknowing couriers was “rare.”

Bortfeld (the government's expert) first testified regarding the basis of his knowledge, experience, and background, including his experience as an undercover drug courier transporting and delivering drugs to various locations, the relationship between drug traffickers and drug couriers, different methods of transporting drugs, and fees paid for transporting drugs. Bortfeld then testified regarding the implausibility of Sepulveda–Barraza's alleged lack of knowledge that the drugs were in his car. Bortfeld explained that drug traffickers want to maintain control of the drugs they are transporting, and that they would need to know who was transporting the drugs and when they could be retrieved. Further, he testified that drug traffickers do not typically use unknowing drivers to transport drugs, and that he knew of only one occasion in which an unwitting courier was used. Finally, Bortfeld testified that the cocaine in Sepulveda–Barraza's car had a value of between $154,000 and $183,000 in the Tucson area. Defense counsel did not object to Bortfeld's testimony during direct examination.

During redirect, the prosecutor asked Agent Bortfeld whether, given that the drugs being smuggled were worth hundreds of thousands of dollars, a drug trafficker was likely to use an unknowing drug courier in order to avoid paying a fee to a courier who understood the risks. Defense counsel objected to the question as “beyond the scope,” but the court overruled the objection. Bortfeld testified that “when the value of the narcotics or the drugs are in the hundred thousand dollar range or above, the cost of a driver is minimal” and so “there's an inherent benefit to making the payment” and having a reliable means of smuggling the load to the intended destination.

At the end of the second trial, the jury convicted Sepulveda–Barraza on both counts, and the district court sentenced him to 120 months of incarceration and 60 months of supervised release.

II

On appeal, Sepulveda–Barraza argues that the district court abused its discretion in admitting Bortfeld's testimony. Before reaching this issue, we must determine whether to review the district court's admission of Bortfeld's testimony for abuse of discretion or plain error. Sepulveda–Barraza argues that he objected to Bortfeld's testimony in his motion in limine, and had no obligation to renew his objection at trial. We agree. “Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” Fed.R.Evid. 103(a). A district court's decision that the probative value of evidence exceeds its potential for unfair prejudice, and the court's decision to admit that evidence, are reviewed for abuse of discretion. United States v. Curtin, 489 F.3d 935, 943 (9th Cir.2007) (en banc).

We next turn to the question of whether the district court erred in allowing Bortfeld's testimony. According to Sepulveda–Barraza, United States v. Vallejo established the per se rule that the government may not introduce expert testimony describing the “general structure and operations of drug trafficking organizations” because the introduction of such testimony inevitably creates the implication that the defendant “had knowledge of how the entire organization operated, and thus knew he was carrying the drugs.” 237 F.3d 1008, 1012, 1017 (9th Cir.2001), amended by 246 F.3d 1150 (9th Cir.2001). Moreover, Sepulveda–Barraza urges us to extend the rationale of Vallejo, and hold that an expert's testimony that a drug trafficking operation is unlikely to use an unknowing drug courier is always inadmissible in a non-complex case such as this one. Because Bortfeld's testimony addressed both issues, Sepulveda–Barraza argues, the district court abused its discretion in admitting it.

We disagree. First, Agent Bortfeld's testimony pertained primarily to the modus operandi of drug couriers, which falls outside the scope of Vallejo. See 246 F.3d at 1150 n. 3 (expressly stating that the court was “not address [ing] the admissibility of [unknowing courier] testimony” because Vallejo “does not involve the Government's use of ‘unknowing courier’ testimony, in which a law enforcement official testifies that certain drug traffickers do not entrust large quantities of drugs to unknowing transporters”).

Second, testimony on the structure and operations of drug trafficking organizations is...