United States v. Goxcon–Chagal

• Decision Date: 05 August 2012
• Docket Number: No. CR 11–2002 JB.,CR 11–2002 JB.
• Citation: 885 F.Supp.2d 1118
• 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

885 F.Supp.2d 1118

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. 5, 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 Defendants' Motion in Limine to Exclude Unqualified Expert Testimony II, filed July 16, 2012 (Doc. 73) (“Motion in Limine”). The Court held hearings on July 25 and July 30, 2012. The primary issues are: (i) whether United States Marshal Robert Almonte, the United States Marshall for the Western District of Texas, is qualified to present expert testimony on whether Santa Muerte ¹ materials are tools of the trade of drug traffickers; (ii) whether Almonte's expert testimony would be helpful to the finder of fact; (iii) whether Almonte's proposed expert testimony is sufficiently reliable for the Court to permit him to testify before a jury; (iv) whether Almonte's proposed testimony is improper profile evidence; (v) whether the Court should exclude the evidence under the First Amendment to the United States Constitution; (vi) whether the Court should exclude Almonte's testimony under rule 403 of the Federal Rules of Evidence; and (vii) whether the Court should exclude Almonte'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 deny the Motion in Limine. Almonte is sufficiently qualified to give an expert opinion based on his training, experience, and skill. Almonte's testimony about the tools of the trade of drug organizations as they relate to individuals who worship Santa Muerte would be helpful to the jury. Almonte's proposed expert testimony is sufficiently reliable for the Court to permit him to testify before a jury. Almonte's proposed testimony is not improper profile evidence. Neither the First Amendment to the United States Constitution's Establishment Clause nor the Free Exercise Clause require exclusion of this evidence. Because the risk of unfair prejudice does not substantially outweigh the probative value of Almonte'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), with the additional disclosures at the two hearings, is sufficient to comply with that rule.

FACTUAL BACKGROUND

The Court recites the basic allegations of the case as stated in an affidavit attachedto 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. The United States also alleges that “officers recovered a Santa Muerte statute and a document from the vehicle that contained a Santa Muerte prayer.” Response to Motion in Limine to Exclude Expert Testimony II at 5, filed July 23, 2012 (Doc. 75) (“Response”).

PROCEDURAL BACKGROUND

On May 10, 2012, the United States filed its United States' Notice of Intention to Offer Expert Testimony. See Doc. 62 (“Notice”). The Notice provides that the United States will offer Almonte as an expert witness “regarding the use of ‘patron saints' by drug traffickers, with specific attention towards Santa Muerte, and how Santa Muerte prayers and icons are ‘tools of the trade’ for many drug traffickers.” Notice at 1. The Notice relates that “Marshal Almonte has over 25 years of combined state and federal law enforcement experience, much of it devoted to narcotics enforcement.” Notice at 1. “He currently serves as the United States Marshal for the Western District of Texas, which encompasses San Antonio and El Paso.” Notice at 1. The United States asserts that “Marshal Almonte has studied various patron saints throughout Mexico for many years.” Notice at 1–2. The United States represents:

His experience in this area, comprising hundreds, if not thousands of hours of study, has led Marshal Almonte to create and produce a law enforcement training video; “Patron Saints of the Mexican Drug Underworld,” and he is currently writing a book on this topic. Marshal Almonte has trained several thousand law enforcement officers on this topic throughout the United States over the last seven years. Marshal Almonte has been previously qualified as an expert in federal court on this topic, including at least one such instance in the District of New Mexico. Marshal Almonte's expert testimony, specifically regarding Santa Muerte, has been previously accepted by the district court for the Western District of Texas as admissible evidence. See United States v. Javier Guererro, et al., Criminal No. 09–820 AM, Doc. 454; [sic] Marshal Almonte's biography and curriculum vitae is attached.

Notice at 2.

Almonte's curriculum vitae notes that he: (i) worked for the El Paso, Texas Police Department from 1978 to 2003; (ii) served as an instructor for both general police training and drug enforcement training in various capacities from 1990 to 2007; (iii) worked, in the private sector, as a law enforcement trainer and consultant from 2004 to 2010; (iv) served as the executive director of the Texas Narcotic Officers Association from 2006 to 2010; and (v) has served as the United States Marshal for the Western District of Texas since 2010. See Curriculum Vitae of Robert R. Almonte at 1, filed May 10, 2012 (Doc. 62–1) (“Curriculum Vitae”). His Curriculum Vitae notes that he received a bachelor of science degree, summa cum laude, in Criminal Justice Administration from Park University. See Curriculum Vitae at 1. Almonte has published two books: (i) Evolution of Narcotics Investigations in 2004; and (ii) Managing Covert Operations in 2004. See Curriculum Vitae at 1. He has developed a law enforcement training video entitled Patron Saints of the Mexican Drug Underworld. See Curriculum Vitae at 1. He has testified in three federal cases, all in 2011, on the topic of Santa Muerte. See Curriculum Vitae at 1–2. Almonte relates that he has the following research interests:

While working as a narcotics detective, I learned that Mexican drug traffickers were praying for protection from law enforcement. They prayed to various religious icons and many of these traffickers also utilized an advisor known as a “curandero” for guidance and to perform “blessings” on themselves as well as their drug loads. In 2003, I began conducting extensive research on how the Mexican drug traffickers involve the spiritual world in their activity. Mexican drug traffickers pray to various recognized and non-recognized religious icons that are known as their “patron saints”. These “patron saints” or icons include; Jesus Malverde, Santa Muerte, San Simon, Juan Soldado, St. Jude, The Virgin of Guadalupe, San Ramon, San Toribio Romo, Nino de Atocha and others. I have visited several shrines of their patron saints throughout Mexico, Spain, and the United States. I have compiled several cases from law enforcement officers...