U.S. v. Webb, 96-50160

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Before FLETCHER and TROTT, Circuit Judges, and JENKINS; TROTT; JENKINS; Trott; FLETCHER
• Citation: U.S. v. Webb, 115 F.3d 711 (9th Cir. 1997)
• Decision Date: 09 June 1997
• Docket Number: No. 96-50160,96-50160
• Parties: 46 Fed. R. Evid. Serv. 1243, 97 Cal. Daily Op. Serv. 4327, 97 Daily Journal D.A.R. 7237 UNITED STATES of America, Plaintiff-Appellee, v. Marty WEBB, Defendant-Appellant.

Page 711

115 F.3d 711

46 Fed. R. Evid. Serv. 1243, 97 Cal. Daily Op.

Serv. 4327,

97 Daily Journal D.A.R. 7237

UNITED STATES of America, Plaintiff-Appellee, v. Marty WEBB, Defendant-Appellant.

No. 96-50160.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 7, 1997.

Decided June 9, 1997.

Richard D. Burda, Deputy Federal Public Defender, Los Angeles, California, for defendant-appellant.

Aaron S. Dyer, Assistant United States Attorney, Los Angeles, California, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Lourdes G. Baird, District Judge, Presiding. D.C. No. CR-95-00985-LGB-01.

Before FLETCHER and TROTT, Circuit Judges, and JENKINS, District Judge. ^*

TROTT, Circuit Judge.

I. OVERVIEW

Marty Webb appeals his conviction following a jury trial for possession of ammunition by a felon in violation of 18 U.S.C. § 922(g)(1). The sole issue on appeal is whether the district court abused its discretion by admitting police expert testimony regarding the reasons criminals conceal weapons in the engine compartments of their cars. Because the expert testimony in this case is proper expert testimony regarding criminal modus operandi, we affirm.

II. BACKGROUND

On October 17, 1995, Los Angeles law enforcement officers executed a search warrant for Webb's person and vehicle. Informants had told the officers that Webb was dealing cocaine and that he was carrying a firearm. Webb had a reputation for being armed and violent. During the search, the officers found a loaded semiautomatic pistol wrapped in a shirt and concealed in the car's engine compartment. There were no fingerprints on the weapon.

Because Webb had three prior felony convictions, the Government charged him with being a felon in possession of ammunition. ¹ Prior to trial, the Government informed Webb's attorney that it intended to introduce expert testimony regarding the reasons people typically hide guns in the engine compartments of cars. The Government proffered that the police expert's testimony would establish that people typically conceal weapons in the engine compartment of a car for two reasons: 1) so that they have ready access to the gun, but police do not easily discover it; and 2) so that they can disclaim knowledge of the weapon if police do discover it. Webb objected to this proposed testimony on the grounds that it was inadmissible reputation evidence, that it was irrelevant, and that it was more prejudicial than probative.

At trial, Webb's main defense was that he did not know the gun was in his car. Over Webb's objection, the district court allowed the police expert to testify that:

it is typical for people to conceal weapons in the engine compartments of their cars;

people typically conceal weapons in the engine compartments because police seldom search there;

people typically conceal weapons in their cars so that the weapons are easily accessible, as compared with storing the weapons at home; and

people typically store weapons in the engine compartments rather than the passenger compartments because, if discovered, it is easier to claim that they did not know about the weapon.

The expert used the term "people" rather than "criminals" in an effort to mitigate any potential prejudice. He did not offer an opinion as to whether Webb knew the weapon was in his car.

The jury returned a guilty verdict.

III. STANDARD OF REVIEW

We review a district court's decision to admit expert opinion testimony for abuse of discretion. United States v. VonWillie, 59 F.3d 922, 928 (9th Cir.1995).

IV. DISCUSSION

Webb claims that the expert's testimony should have been excluded because: 1) it was improper and unduly prejudicial modus operandi evidence; 2) it was similar to drug courier profile evidence; 3) it consisted of opinions on the ultimate issue in the case-Webb's knowledge of the gun's presence; and 4) it was unreliable expert testimony prohibited by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). As discussed below, these claims are meritless.

A. Probative Value and Prejudicial Effect

If "specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue," a qualified expert witness may provide opinion testimony on the issue in question. Fed.R.Evid. 702. The expert testimony that people conceal firearms in the engine compartment of their cars to avoid arrest and prosecution was relevant to and probative of Webb's knowledge of the gun's presence. Moreover, the testimony explained evidence about the gun's whereabouts that easily could have been beyond the knowledge of an average juror. The question therefore becomes whether the testimony's possible prejudicial effect substantially outweighed its probative value. Fed.R.Evid. 403.

In analogous cases, we have held that drug-enforcement experts may testify that a defendant's activities were consistent with a common criminal modus operandi. See United States v. Johnson, 735 F.2d 1200, 1202 (9th Cir.1984) ("[G]overnment agents or similar persons may testify as to the general practices of criminals to establish the defendants' modus operandi."). This testimony "helps the jury to understand complex criminal activities, and alerts it to the possibility that combinations of seemingly innocuous events may indicate criminal behavior." Id. Further, we even allow modus operandi expert testimony in cases that are not "complex." United States v. Gil, 58 F.3d 1414, 1422 (9th Cir.) (rejecting defendants' contentions that the "modus operandi testimony was more prejudicial than probative because the activities described are not complex ones requiring expert explanation"), cert. denied, --- U.S. ----, 116 S.Ct. 430, 133 L.Ed.2d 345 (1995).

In Gil, the district court permitted the Government to offer expert testimony that drug traffickers often employ counter-surveillance driving techniques, register cars in others' names, deliver narcotics and cash in public parking lots, and frequently use pagers and public telephones. Id. at 1421-22. Noting a long line of cases allowing modus operandi testimony, we held that the admission of this testimony was not an abuse of discretion. Id. at 1422; see also United States v. Espinosa, 827 F.2d 604, 611-12 (9th Cir.1987) (allowing expert testimony regarding the use of apartments as "stash pads" for drugs and money); United States v. Patterson, 819 F.2d 1495, 1507 (9th Cir.1987) (allowing expert testimony on how criminal narcotics conspiracies operate); United States v. Maher, 645 F.2d 780, 783 (9th Cir.1981) (per curiam) (permitting expert testimony that defendant's actions were consistent with the modus operandi of persons transporting drugs and engaging in counter-surveillance); cf. United States v. Boykin, 986 F.2d 270, 275 (8th Cir.1993) (allowing testimony that "the type of firearms found in [the defendant's] home, their location, and the fact that they were loaded was significant to their usefulness and availability for use in connection with a drug business").

The above cases are analogous to the instant case. In the drug cases, the testimony was necessary to inform the jury of the techniques employed by drug dealers in their illegal trade. Here, the expert testimony similarly was necessary to inform the jury that concealment of weapons in the engine compartment of a car: 1) indicates an intention on the part of the person who put them there to avoid detection; and 2) does not necessarily indicate that the occupant of the car did not know of the weapon's presence.

The expert's testimony in the instant case is also similar to the expert testimony consistently admitted in drug trials to rebut lack of knowledge claims. For example, in United States v. Castro, 972 F.2d 1107, 1111 (9th Cir.1992), an expert testified that millions of dollars worth of cocaine "would have never been entrusted to an unknowing dupe." Here, as in Castro, the expert's testimony rebutted the defendant's lack of knowledge claim.

The necessity of this expert testimony was apparent from the very beginning of Webb's trial. Webb's attorney stated in her opening statement:

So what is the focus of this case, and what are we asking you to pay close attention to? Whether or not the government will be able to prove to you beyond a reasonable doubt that Marty Webb knew that the gun that was hidden in this shirt, hidden under the hood of the car, was there, that he knew it was there, and that it was his gun, that he possessed that gun. That's the key question in this case....

[The Government] will not be able to prove to you, ladies and gentlemen, that he knew that that gun was hidden in that car and that he intentionally and knowingly possessed that gun.

The Government therefore properly used the expert's testimony to rebut Webb's lack of knowledge claim.

Significantly, the expert was particularly qualified to give such an opinion. He testified that, in his nineteen years as a police officer, he had training and experience in the way that guns are concealed in cars. While working in the county jail for a period of one year, the officer talked to 50 to 60 inmates per day about how and why criminals conceal weapons. Thus, the officer's experience qualified him to render an opinion regarding one of the most important concerns faced by police officers-where, how, and why criminals conceal their weapons.

In addition, the trial court and the Government took steps to mitigate the testimony's potential prejudicial effect. The Government focused its questions on the practices of "persons" rather than criminals or gang members. Moreover, even if the jury drew the adverse inference that Webb was a criminal, that inference would not prejudice him because the jury already knew that Webb was a criminal: Webb had stipulated that he had been convicted of three prior felonies.

In light of the above, the district court properly...