United States v. Rodriguez, CR 12–3109–10 JB.

• Decision Date: 24 August 2015
• Docket Number: No. CR 12–3109–10 JB.,CR 12–3109–10 JB.
• Citation: 125 F.Supp.3d 1216
• Parties: UNITED STATES of America, Plaintiff, v. Ernesto RODRIGUEZ, Defendant.
• Court: U.S. District Court — District of New Mexico

125 F.Supp.3d 1216

UNITED STATES of America, Plaintiff,

v.Ernesto RODRIGUEZ, Defendant.

No. CR 12–3109–10 JB.

United States District Court, D. New Mexico.

Filed Aug. 24, 2015.

Damon P. Martinez, United States Attorney, Reeve L. Swainston, Assistant United States Attorney, United States Attorney's Office, Albuquerque, NM, Damon P. Martinez, United States Attorney, Maria Y. Armijo, Randy M. Castellano, Assistant United States Attorneys, United States Attorney's Office, Las Cruces, NM, for Plaintiff.

Brian A. Pori, Federal Public Defender's Office, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant's Motion to Strike the Expert Testimony of Bryan Acee, filed June 25, 2015 (Doc. 81) ("MIL"). The Court held a hearing on July 2, 2015. The primary issues are: (i) whether the anticipated testimony of Plaintiff United States of America's proposed expert witness, Federal Bureau of Investigation ("FBI") special agent Bryan Acee, is allowable expert testimony under rule 702 of the Federal Rules of Evidence, where he is expected to explain, in detail, the inner workings of a single drug cartel; (ii) whether Acee's anticipated testimony violates rule 704's prohibition on ultimate-issue testimony, where he is expected to opine that Defendant Ernesto Rodriguez' behavior was consistent with a knowing drug smuggler and inconsistent with innocent explanations; (iii) whether the unfair prejudicial impact of Acee's expected testimony substantially outweighs its probative value under rule 403, where he is expected to testify about acts of violence and public corruption committed by a drug cartel of which Rodriguez, the sole Defendant in the trial, is not a member; and (iv) whether the United States' disclosure of Acee's opinions satisfies rule 16(a)(1)(G) of the Federal Rules of Criminal Procedure, where it provided a seven-page notice twenty-six days before trial and made Acee available for an evidentiary hearing four days before trial. As to the first issue, although Acee's anticipated testimony falls within a generally accepted and appropriate category of law enforcement expert testimony, the Court will place significant limitations on its scope to prevent Acee's expert testimony from becoming a summary of the evidence or a circumvention of the United States' burden to prove its case with admissible evidence. As to the second issue, the Court concludes that Acee's anticipated testimony does not violate rule 704, because he will not opine directly on Rodriguez' knowledge, or lack thereof, of the marijuana that was hidden in the vehicle in Rodriguez' possession. As to the third issue, the Court concludes that some of Acee's anticipated testimony—that which relates to the Juarez Cartel's acts of violence and public corruption in Mexico—fails the rule 403 balancing test and will be excluded. As to the fourth and final issue, the Court concludes that, while there were shortcomings in the United States' Notice of Expert Witness Testimony, filed June 10, 2015 (Doc. 61)("Notice"), the evidentiary hearing that the Court conducted the week before trial mitigated these deficiencies. The Court will thus grant the MIL in part and deny it in part.

FACTUAL BACKGROUND

The Court sets forth these facts as the United States alleges them in its Superseding Indictment, filed July 24, 2014 (Doc. 9)("Indictment"), and the United States' Response to Defendant's Appeal of Detention Order, filed April 20, 2015 (Doc. 36)("Detention Appeal"),¹ bearing in mind, of course, that Rodriguez is presumed innocent of all charges, see Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) ("The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice." (citing Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 39 L.Ed. 481 (1895) )). The Court recites the United States' version of the facts merely because the high burden of proof placed on it necessitates that it have a cogent, internally consistent version of events,² and not out of any predisposition to believe the United States' side of the story. See In re Winship, 397 U.S. 358, 365, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ("[W]e explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.").

In late 2013, the FBI was conducting an investigation involving the Vincente Carrillo Fuentes Organization, also known as the Juarez Cartel or La Linea. See Indictment ¶ 1, at 1; Detention Appeal at 1. Undercover agents were in contact with members of the Juarez Cartel and were arranging for the importation of cartel-produced cocaine and marijuana into the United States. See Detention Appeal at 1. Members of the Juarez Cartel provided the FBI with a 2004 Dodge Durango sport utility vehicle ("SUV"), and the undercover source was instructed to register the vehicle. See Detention Appeal at 1. Afterward, the undercover source would return the vehicle to Juarez Cartel representatives in Mexico, who would load it with marijuana and cocaine, and then transport it back into the United States with the drugs hidden inside. See Detention Appeal at 1. The FBI installed a tracking device in the SUV, and in December, 2013, a member of the Juarez Cartel took possession of the SUV and took it into Mexico. See Detention Appeal at 1–2.

In February, 2014, FBI agents conducted an international controlled delivery from Juarez, Mexico to Albuquerque, New Mexico. See Detention Appeal at 2. The SUV was delivered to the undercover agent on the Bridge of the Americas in El Paso, Texas. See Detention Appeal at 2. The undercover agent then drove the vehicle to Albuquerque and met with Rodriguez, who was going to take possession of the vehicle. See Detention Appeal at 2. A high-ranking member of the Juarez Cartel—co–Defendant Jorge Olivas Nevarez, more commonly known as "Compa Chuy"—had provided Rodriguez' telephone number to the undercover agent. Detention Appeal at 2. See Indictment at 1. Rodriguez met with the undercover agent and instructed the agent to follow him to a hotel to spend the night, and he also paid the undercover agent $2,890.00, which he had received from co-Defendant Guadalupe Prieto. See Detention Appeal at 2; Indictment at 1. Rodriguez indicated that he would pay the undercover agent the rest of the money owed to him in the morning. See Detention Appeal at 2. While FBI agents were conducting surveillance on Rodriguez, they observed him doing what appeared to them to be counter-surveillance runs—also known as heat runs—which consisted of him driving around in such a way that he would recognize any law enforcement surveillance vehicles following him. See Detention Appeal at 2. The FBI took possession of the SUV later that evening once Rodriguez had left the area, and an intensive search of the vehicle revealed approximately eighty-seven kilograms—or roughly 192 pounds—of marijuana. See Detention Appeal at 2.

PROCEDURAL BACKGROUND

A federal grand jury indicted Rodriguez—along with eleven co-Defendants, who remain at large in Mexico—on July 24, 2014. See Indictment at 1. The Indictment charges Rodriguez with a single count of possession of fifty kilograms or more of marijuana with intent to distribute it—a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).³ See Indictment at 8. Police in Santa Teresa, New Mexico, arrested Rodriguez on March 13, 2015, see Arrest Warrant, filed March 18, 2015 (Doc. 27), and his trial is currently set to begin July 6, 2015.

The United States filed its Notice on June 10, 2015, disclosing Acee and his anticipated testimony. See Notice at 1. The Notice first describes Acee and his qualifications. See Notice at 1–2. Acee is a special agent in the FBI's Albuquerque division, where he primarily investigates Mexican drug cartels, Mexican drug trafficking organizations, and gang/criminal enterprises. See Notice at 1. He has been a law enforcement officer for sixteen years, six of which were with the FBI. See Notice at 2. He has undergone more than 800 hours of "formal training in the area of drug, firearm, and money laundering investigations," including over forty formal classes. Notice at 2. He has participated in "several hundred drug investigations," and the FBI has designated him a "subject matter expert" on the Juarez Cartel. Notice at 2. He handles a large number of often high-level informants in the Juarez Cartel, and he has debriefed numerous others, and reviewed "hundreds of hours" of intercepted telephone and radio communications among Juarez Cartel members. Notice at 2.

The Notice discloses the following opinions: (i) "that the quantity of marijuana seized in this case is a distributable amount, as opposed to a personal use amount," Notice at 3; (ii) "the value of the marijuana," Notice at 3; and (iii) "that the manner in which the marijuana was packaged in addition to the items seized with controlled substances is consistent with distribution," Notice at 3. Acee also intends to offer testimony describing

the duties of different individuals involved in a marijuana trafficking scheme, a general overview of the business aspects of a marijuana trafficking scheme and how it involves the coordinated efforts of several different people to include people that do, among other things, the following: grow the marijuana, harvest the marijuana, package the marijuana, sell the marijuana, buy the marijuana, arrange for transportation of the marijuana, load the marijuana, transport the marijuana, unload the marijuana, stash the marijuana and distribute the marijuana.

Special Agent Acee may also testify that each of these roles is generally separate and distinct in a marijuana trafficking scheme, but that sometimes people have multiple tasks.

Notice at 3. The Notice concludes its...