U.S. v. Verduzco

• Decision Date: 29 June 2004
• Docket Number: No. 03-50044.,03-50044.
• Citation: 373 F.3d 1022
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jorge Andres VERDUZCO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

373 F.3d 1022

UNITED STATES of America, Plaintiff-Appellee, v. Jorge Andres VERDUZCO, Defendant-Appellant.

No. 03-50044.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 4, 2003.

Filed June 29, 2004.

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Timothy A. Scott, Federal Defenders of San Diego, Inc., San Diego, CA, argued the cause and filed briefs for the defendant-appellant.

Dorn Bishop, Assistant U.S. Attorney for the Southern District of California, San Diego, CA, argued the cause and filed briefs for the plaintiff-appellee. Carol C. Lam, U.S. Attorney, and Roger W. Haines, Jr., Assistant U.S. Attorney, were also on the briefs.

Appeal from the United States District Court for the Southern District of California; Marilyn L. Huff, District Judge, Presiding. D.C. No. CR-02-01130-H.

Before: BRIGHT,^* O'SCANNLAIN, and McKEOWN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether a defendant who drove a marijuana-laden sports utility vehicle into the United States from Mexico was validly convicted of illegal drug importation, notwithstanding a vigorous defense of duress.

I

On the morning of March 22, 2002, Jorge Andres Verduzco drove a Ford Explorer packed with 52.20 kilograms of marijuana from Mexico into the United States. Verduzco made it no further than the San Ysidro, California Port of Entry, where he immediately aroused the suspicions of border inspectors and their drug detector dog. Thirty-six packages of marijuana were discovered hidden throughout the sport utility vehicle.

Verduzco, a United States citizen and Los Angeles resident, was arrested at the Port of Entry. After receiving Miranda warnings, Verduzco admitted knowing that his vehicle was loaded with marijuana. He also described what had led him to make the smuggling attempt. Verduzco was raised in Tijuana, Mexico, where his parents still live. While visiting them a week earlier, he had met an unidentified Hispanic man at a store there. The two men had struck up a conversation, and Verduzco had confided some financial difficulties, which arose in part from his girlfriend's pregnancy. The man proposed to pay Verduzco $2500 to smuggle a load of marijuana across the border. Verduzco assented and returned to Los Angeles with a mobile phone the man had provided. A few days later, the call came; and Verduzco returned by bus to Tijuana, met the smugglers, received from them the pre-loaded vehicle, and drove to the Port of Entry, where he was intercepted.

In what seemed to be an open-and-shut case, the grand jury issued a two-count indictment against Verduzco, charging importation of 50 kilograms or more of marijuana, see 21 U.S.C. §§ 952, 960, and possession with intent to distribute of 50 kilograms or more of marijuana. See 21 U.S.C. § 841(a)(1).

Shortly before trial, Verduzco unveiled a new defense: duress, supported by a fresh account of events in the week prior to his arrest. At trial, Verduzco denied neither his act nor his intent; rather, he contended that he had been forced by Mexican drug traffickers to smuggle the marijuana. In contrast with his story at the border, Verduzco testified that he had struck a black BMW in the parking lot of a Tijuana pharmacy while driving his father's car. Three well-dressed men had piled out and angrily confronted him. Verduzco apologized and offered either to pay for the damage in a few weeks or to accompany them right then to his father's place, where he could retrieve some money immediately. The armed men, who also scared off a police officer who entered the parking lot, refused this offer. Instead, by threat, they required Verduzco to "do a job" for them. Verduzco took the phone they provided and returned to Los Angeles. When the call came, he returned to Mexico, met the three men, and proceeded to the border, followed all along by several tracking vehicles. He never told law enforcement of the threats because he feared the authorities were corrupt and would not protect his family.¹

It turns out that Verduzco had a conviction two years earlier for a nearly identical smuggling episode through the same Port of Entry. The government brought out this prior conviction — and the strikingly similar details of the earlier criminal act — in its cross-examination of Verduzco, and mentioned the episode again at several other points at trial. The defense moved for a mistrial, arguing that use of the prior conviction exceeded the scope of permissible impeachment and that it was impermissible propensity evidence. The court denied the motion.

At the end of the defense's case, the court formally excluded a proposed defense expert witness, who would have offered what the court termed "cultural stereotyping" testimony to attempt to explain why Verduzco failed to report the alleged threats against him to the police. The court based its decision to exclude the witness upon the defendant's having violated a discovery rule regarding the expert's qualifications, the prejudicial and confusing nature of the proposed testimony, and its lack of relevance.

After closing arguments, the importation count was submitted to the jury. During its deliberations, the jury sought clarification on the meaning of the term "reasonable" and the court issued a supplemental instruction. Several minutes later, the jury returned a guilty verdict. The government then dismissed the possession count, because it would have no effect for sentencing purposes.

The district court sentenced Verduzco to 30 months in prison and three years of supervised release. Verduzco timely appeals.

II

Verduzco first urges that the district court erred by permitting the introduction of evidence regarding his prior drug smuggling, which the court admitted pursuant to Fed.R.Evid. 404(b) and 609. Though the government introduced this evidence primarily by its cross-examination of the defendant, the government also referenced the conviction at other points, including during the cross-examination of the defendant's father and in its closing statement.

A

We first consider admissibility under Fed.R.Evid. 404(b). Rule 404(b) forbids the admission of evidence of "other crimes, wrongs, or acts ... to prove the character of a person in order to show action in conformity therewith." Fed.R.Evid. 404(b). This prohibition reflects the "underlying premise of our criminal justice system, that the defendant must be tried for what he did, not for who he is. Thus, guilt or innocence of the accused must be established by evidence relevant to the particular offense being tried, not by showing that the defendant has engaged in other acts of wrongdoing." United States v. Bradley, 5 F.3d 1317, 1320 (9th Cir.1993) (internal quotation marks and citations omitted). Because such evidence may be highly relevant, however, the Rule does permit its admission "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident...." Fed.R.Evid. 404(b). See United States v. Hearst, 563 F.2d 1331, 1337 n. 3 (9th Cir.1977) ("The Rule embodies an inclusionary rule which admits all evidence of other crimes relevant to an issue in a trial, except that which tends to prove only criminal disposition." (internal citation and quotations omitted)). In making admissibility decisions, the court will admit Rule 404(b) evidence if (1) the evidence tends to prove a material point; (2) the prior act is not too remote in time; (3) the evidence is sufficient to support a finding that the defendant committed the other act; and (4) (in cases where knowledge and intent are at issue) the act is similar to the offense charged. United States v. Mayans, 17 F.3d 1174, 1181 (9th Cir.1994); United States v. Garcia-Orozco, 997 F.2d 1302, 1304 (9th Cir.1993); United States v. Bibo-Rodriguez, 922 F.2d 1398, 1400 (9th Cir.1991).

At Verduzco's trial, the district judge instructed the jury that the prior crime could be considered "only as it bears on the Defendant's intent, preparation, plan, knowledge, absence of duress, and for no other purpose." Verduzco contests each of these five bases for admission, arguing that absence of duress is not a permissible ground for admission, that preparation and plan were not elements of the offense, and that intent and knowledge were conceded by the defense. We focus initially on whether the bad acts evidence was admissible to show "absence of duress." If it were, then any error in the alternative bases would be harmless. See United States v. Cordoba, 104 F.3d 225, 229 (9th Cir.1997).

Our court has previously addressed the admissibility of Rule 404(b) evidence to show absence of duress. In United States v. Hearst, 563 F.2d 1331 (9th Cir.1977), Patty Hearst raised a duress defense at her trial for armed bank robbery in San Francisco. We approved the admission of evidence under Rule 404(b) connecting Hearst to criminal activity at a Los Angeles sporting goods store and to a kidnaping and theft, separate events that occurred approximately one month after the bank robbery for which she stood trial. Id. at 1335-36. The circumstances of the later criminal acts, we reasoned, were relevant to her state of mind and tended to show that "appellant had not acted under duress when she participated in the bank robbery." Id. at 1336. We explained:

The trial judge was called upon to balance the need for the evidence in the search for the truth against the possibility that the jury would be prejudiced against appellant because the evidence revealed she had participated in other conduct that was criminal. The district court acted well within its discretion in admitting the evidence. Appellant's state of mind during the San Francisco robbery was the central issue in the case. State of mind is usually difficult to prove, and the evidence on the issue was sharply divided. The timing and other circumstances of the Los Angeles incidents made evidence of them highly probative on this critical issue. Though...