United States v. Goxcon–Chagal

• Citation: 886 F.Supp.2d 1222
• Decision Date: 03 August 2012
• Docket Number: No. CR 11–2002 JB.,CR 11–2002 JB.
• Parties: UNITED STATES of America, Plaintiff, v. Rafael GOXCON–CHAGAL, and Maria Vianey Medina–Copete, Defendants.
• Court: U.S. District Court — District of New Mexico

886 F.Supp.2d 1222

UNITED STATES of America, Plaintiff,

v.Rafael GOXCON–CHAGAL, and Maria Vianey Medina–Copete, Defendants.

No. CR 11–2002 JB.

United States District Court,

D. New Mexico.

Aug. 3, 2012.

Kenneth J. Gonzales, United States Attorney, Jon K. Stanford, Raul Torrez, Assistant United States Attorneys, Albuquerque, NM, for Plaintiff.

Joseph W. Gandert, Assistant Federal Public Defender, Federal Public Defender's Office, Albuquerque, NM, for Defendant Rafael Goxcon–Chagal.

Joseph Riggs, Albuquerque, NM, for Defendant Maria Vianey Medina–Copete.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Motion in Limine to Exclude Unqualified Expert Testimony, filed April 23, 2012 (Doc. 55) (“Motion in Limine”). The Court held a hearing on July 25, 2012. The primary issues are: (i) whether Ivar Hella, an agent with the Drug Enforcement Administration (“DEA”), is qualified to present expert testimony on aspects of drug organizations and narcotics investigations; (ii) whether Hella's expert testimony would be helpful to the finder of fact; (iii) whether Hella's proposed expert testimony is sufficiently reliable for the Court to permit him to testify before a jury; (iv) whether Hella's proposed testimony is improper profile evidence; (v) whether the Court should exclude Hella's testimony under rule 403 of the Federal Rules of Evidence; and (vi) whether the Court should exclude Hella's testimony on the basis that Plaintiff United States of America has not provided sufficient information regarding his proposed testimony in its notice under rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure. The Court will grant in part and deny in part the Motion in Limine. Hella is sufficiently qualified to give an expert opinion based on his training, experience, and education. Hella's testimony about the modus operandi of drug organizations, the tools of the trade of drug trafficking, and the general aspects of narcotics investigations would be helpful to the jury. Except on the issue whether the Defendants were traveling on a known drug route, Hella's proposed expert testimony is sufficiently reliable for the Court to permit him to testify before a jury. If the United States seeks to present expert testimony that traveling along Interstate Highway 40 qualifies as traveling on a known drug route, it must, either pretrial or before it presents such testimony at trial, lay a proper predicate for doing so outside the presence of the jury. Hella's proposed testimony is not improper profile evidence. Because the risk of confusing or misleading the jury, or the risk of unfair prejudice, does not substantially outweigh the probative value of Hella's testimony, the Court will not exclude his testimony under rule 403. Lastly, the Court finds that the United States' notice under rule 16(a)(1)(E) is sufficient, with the additional, detailed descriptions that the United States gave regarding Hella's testimony at the hearing on July 25, 2012, to comply with that rule.

FACTUAL BACKGROUND

The Court recites the basic allegations of the case as stated in an affidavit attached to the Criminal Complaint, filed June 29, 2011 (Doc. 1). “On June 28, 2011, ... New Mexico State Police Sergeant Arsenio Chavez was on patrol on Interstate 40 near the 134 mile marker traveling westbound.” Affidavit of Ivar Hella at 2 (executed June 29, 2011), filed June 29, 2011 (Doc. 1) (“Hella Aff.”). “Chavez observed a gray Chevrolet pickup traveling too closely behind a UPS Commercial Motor vehicle.” Hella Aff. at 2. “Chavez pulled up behind the vehicle, engaged his emergency equipment, and initiated a traffic stop.” Hella Aff. at 2. “After making contact with the driver,” Defendant Rafael Goxcon–Chagal, Chavez asked Goxcon–Chagal for his identification. Hella Aff. at 2. Goxcon–Chagal “appeared as if he did not know where the documentation was in the vehicle and fumbled through the contents of the center console then the glove box.” Hella Aff. at 2. Goxcon–Chagal “provided an Oklahoma driver's license with an address in Tulsa, Ok.” Hella Aff. at 2. Goxcon–Chagal had a “Nevada license plate” on the vehicle he was driving. Hella Aff. at 2. “The registration indicated the owner of the vehicle was Julio Lopez with an address in Las Vegas, Nevada along with recently purchased insurance.” Hella Aff. at 2. While Goxcon–Chagal “was looking for the documents, Sgt. Chavez noted the following: strong chemical odor emanating from the vehicle, air freshener hanging from rear view mirror,” and Goxcon–Chagal “seemed not to know exactly where the documents were located in the vehicle.” Hella Aff. at 2.

Goxcon–Chagal informed the officer that he “was en route to Oklahoma from Las Vegas, Nevada where he has been working.” Hella Aff. at 2. Goxcon–Chagal “advised he was traveling back to Oklahoma for a ten-day vacation.” Hella Aff. at 2. “He identified the passenger,” Defendant Maria Vianey Medina–Copete, “as his wife.” Hella Aff. at 2. Goxcon–Chagal “had a hard time identifying the owner of the vehicle and all he could say was the owner was a friend of his in Nevada.” Hella Aff. at 2. Goxcon–Chagal and Medina–Copete eventually consented to a search of the vehicle. See Hella Aff. at 3–4. “K–9 Marco, who is trained and certified to detect” various drug odors, “was deployed by Sgt. Chavez and subsequently alerted both to the exterior and interior of the vehicle.” Hella Aff. at 4. “A follow-up hand search by Sgt. Chavez located a false compartment behind the passenger side air bag.” Hella Aff. at 4. “Upon removing the airbag a plastic piece which had been affixed to the airbag compartment was removed and revealed two packages of white glass-like substances which appeared to be methamphetamine.” Hella Aff. at 4. “The total weight of both packages was approximately 1003.4 grams.” Hella Aff. at 4. A “subsequent consensual search of Medina–Copete's purse revealed fake alien registration documents in her name, women's clothes and personal effects, and a Walther P99 pistol bearing serial number 009622 wrapped in a white towel.” Response to Motion in Limine to Exclude Testimony at 5, filed July 19, 2012 (Doc. 74) (“Response”).

PROCEDURAL BACKGROUND

On April 19, 2012, the United States filed its United States' Notice of Intention to Offer Expert Testimony. See Doc. 52 (“Notice”). The Notice provides: “The United States anticipates that DEA special agent Ivar Hella will testify, inter alia, that the quantity of methamphetamine in question is a distributable amount, as opposed to a personal use amount.” Notice at 2. The Notice states: “Special agent Hella will also quantify the monetary value of the seized methamphetamine. It is anticipated that Special Agent Hella will offer testimony regarding general aspects of narcotics investigations.” Notice at 2. The United States relates that Hella's qualifications include: “He has been employed with DEA since 1998. As an agent with the DEA, SA Hella has attended a 16 week academy....” Notice at 2. The United States asserts that Hella then “was assigned to the wire intercept and long term conspiracy investigations group in Tucson, Arizona for approximately three and a half years.” Notice at 2. The United States notes that “Hella has been involved with numerous narcotics smuggling and distribution investigations which have resulted in the seizure of narcotics, the seizure of property, and the arrest, prosecution and conviction of the subjects of those investigations.” Notice at 2. The United States relates that Hella “has personal knowledge of prices of narcotics in the Albuquerque, New Mexico area, as well as common means of packaging of various narcotics and concealment methods utilized by narcotic traffickers while transporting narcotics.” Notice at 2. The United States represents that Hella “has extensive knowledge in debriefing defendants, co-conspirators, witnesses, and informants who have been involved in unlawfuldrug trafficking.” Notice at 2. The United States asserts that individuals with experience like Hella “often know about the monies exchanged and received for drugs, as well as the techniques and methods by which drug traffickers acquire, spend, convert, transport, distribute and conceal the proceeds they derive from unlawful drug trafficking.” Notice at 3. The United States notes that “Hella's testimony will be based on his cumulative knowledge, experience, and training.” Notice at 3.

On April 23, 2012, the Defendants filed their Motion in Limine. See Doc. 55. They ask the Court to exclude the United States' expert testimony “regarding general aspects of narcotics' investigations” as well as “all additional testimony alleged expert testimony proposed by the prosecution by Special Agent Ivar Hella of the D.E.A. or State Police Sergeant Arsenio Chavez.” Motion in Limine at 1. The Defendants assert that the proposed expert testimony is not sufficiently reliable to withstand scrutiny under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).¹ Motion in Limine at 3–5. The Defendants contend that Hella “is not qualified to render an expert opinion regarding ‘general aspects of narcotic investigations.’ ” Motion in Limine at 7. They argue that “[h]is exposure to drug use and trafficking practices is limited to his experience as an officer and his attendance at training for law enforcement.” Motion in Limine at 7. They contend:

There has been no disclosure or indication that the officer's opinions or theories regarding drug trafficking are reliable. There has been no peer review, nor public review. There is no data to corroborate the potential rate of error in the officer's theory and no technique to prove them. Thus, any opinion of the officer is a self-proclaimed theories without the requisite reliability assurances under Daubert.

Motion in Limine at 7. The Defendants also contend that the proposed expert testimony is improper,...