United States v. Valencia-Lopez

• Decision Date: 19 August 2020
• Docket Number: No. 18-10482,18-10482
• Citation: 971 F.3d 891
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Enrique VALENCIA-LOPEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

971 F.3d 891

UNITED STATES of America, Plaintiff-Appellee,

v.Enrique VALENCIA-LOPEZ, Defendant-Appellant.

No. 18-10482

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 2020 Phoenix, Arizona

Filed August 19, 2020

BENNETT, Circuit Judge:

Enrique Valencia-Lopez, a truck driver, was transporting 15,000 kilograms of bell peppers from Mexico to Arizona. Customs and Border Protection officers stopped him at the border and found over 6,000 kilograms of marijuana hidden within the pepper packages. Valencia-Lopez was convicted of four drug felonies for his transportation and importation of the marijuana.¹ He was sentenced to 120 months.

Valencia-Lopez claimed he acted under duress; that armed gunmen seized his truck in Mexico and held him at gunpoint for several hours. During that time, a confederate (or confederates) of the gunmen drove the truck away and returned it. The gunmen then told Valencia-Lopez to continue driving and pretend nothing had happened, or they would kill him and his family. During the trial, and over repeated pretrial and trial objections, U.S. Immigration and Customs Enforcement ("ICE") Supervisory Special Agent Matthew Hall testified as an expert for the government. A key part of his testimony was that the likelihood drug trafficking organizations would entrust a large quantity of illegal drugs to the driver of a commercial vehicle who was forced or threatened to comply was "[a]lmost nil, almost none." If this was believed by the jury, it would have gutted Valencia Lopez's duress defense.

On appeal, Valencia-Lopez argues that the district court erred in allowing Agent Hall's testimony. We conclude that, in allowing Agent Hall to so testify, the district court did not properly fulfill its gatekeeping role under Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co. v. Carmichael , 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). On this record, the error was not harmless, and Agent Hall's "almost nil" expert testimony was not reliable, so we vacate Valencia-Lopez's conviction and remand for a new trial.

I.

Valencia-Lopez drove his truck and tractor-trailer into the United States at the U.S.-Mexico border checkpoint in Nogales, Arizona. The shipping manifest listed a cargo of bell peppers weighing 14,969 kilograms. During secondary inspection, the inspectors also found 6,230 kilograms of marijuana concealed among the bell peppers. After Valencia-Lopez was arrested, he told the officers he had been kidnapped in Mexico and forced to drive his truck into the United States.

Valencia-Lopez was charged with four marijuana related felonies. Before trial, the government stated it would offer expert testimony that "drug-trafficking organizations do not typically use unknowing couriers." After Valencia-Lopez moved to preclude that testimony, the government amended the proposed testimony to include a "risk-management analysis that the use of threatened couriers would place the narcotics at a higher risk for seizure than using non-threatened couriers."

Valencia-Lopez then filed a second motion to preclude expert testimony and requested a Daubert hearing.² He argued a Daubert hearing was necessary because "there [was] no methodology whatsoever to substantiate Agent Hall's proposed testimony," and Agent Hall lacked relevant expertise. The district court denied both motions. The court found the proposed expert testimony was relevant and told the defense there "certainly ... can be voir dire of the expert ... to assure that he is qualified to testify as to these matters" at trial, "assuming that the government can lay an appropriate foundation for the expert's expertise in relevant matters." The court did not discuss reliability.

At trial, the government presented five witnesses—four customs officers involved in the inspection or arrest, and Agent Hall. Before Agent Hall's testimony, defense counsel asked the court how to proceed, given that Valencia-Lopez was still disputing Agent Hall's expertise and asking if the defense should voir dire Agent Hall after the government was "done trying to qualify" Agent Hall. The court told counsel that "the issue is whether or not the questioning establishes a foundation and then if you don't believe it does, then you would be able to raise that issue or do additional voir dire at that time," confirming that defense counsel would be able to voir dire then.

On direct examination Agent Hall testified to his law enforcement background. He explained that he had been working for Homeland Security Investigations (HSI), a branch of ICE, since 2010. Before that he worked as a police officer with the Swinomish Tribe in Washington in 1999-2000, and the Tohono O'dham Tribe in Arizona from around 2002 through 2010. From 2007 to 2010 he was on the HSI task force, assigned from the Tohono O'dham Police Department. Agent Hall then explained his drug smuggling training, his undercover work as a police officer and supervisor, and his subsequent work at HSI "working on crimes with a nexus to the [Tohono O'dham] Nation." He noted, for example, that working undercover gave him insight into how drug trafficking organizations operate because he "gather[ed] information straight from the horse's mouth" and he successfully went undercover in these organizations "[i]n several instances, on many different levels." As an HSI agent, he obtained a commercial trucking license from a commercial trucking school while in an undercover capacity. Agent Hall also generally outlined his experience with setting up undercover drug trafficking deals across the border, while noting that he did not operate undercover in Mexico.³ After Agent Hall testified that he had served as an expert witness in federal drug smuggling cases, the government moved to qualify him as an expert.

Valencia-Lopez timely objected and requested to either explain the basis for the objection or be allowed to voir dire Agent Hall. The court then asked counsel at sidebar to explain the objection. Counsel explained she would prefer to voir dire Agent Hall "to show the Court more reasons why he doesn't qualify as an expert in this type of case." The court asked to hear argument "since [they] were over here." After counsel argued that Agent Hall lacked any experience directly working with drug cartels in Mexico and had not adequately explained the basis for his specialized knowledge, and the government responded, the court ruled the objection went "more to the weight of the evidence as opposed to its admissibility" and found "the foundation ha[d] been established" for Agent Hall to testify as an expert "as to how drug trafficking organizations operate."

Valencia-Lopez again objected and asked to conduct a Daubert hearing through voir dire. The court overruled the objection, did not allow voir dire, and found a Daubert hearing was not required "particularly in light of the issues that were raised in the Daubert hearing about testing and such that don't apply to experts such as Agent Hall." The court then told the jury that it "recognize[d] Agent Hall as an expert on the issue of drug trafficking cartels’ operations and methodology."

Once qualified, Agent Hall testified to the similarities between a drug trafficking organization and a legal business, the approximate value of the marijuana found in Valencia-Lopez's truck, and the risks to a cartel of using an unwilling or unknowing driver. Finally, in response to the government's question about "the likelihood regarding whether [drug trafficking organizations] would entrust a large quantity of illegal drugs to the driver of a commercial vehicle who's been forced or threatened to comply," Agent Hall replied, "[a]lmost nil .... Almost nil, almost none."

After the government rested, Valencia-Lopez presented his duress defense. He testified and called other witnesses, including two experts. Valencia-Lopez first explained that his brother had disappeared years before, and his family found his brother's remains three months later. Valencia-Lopez believed the cartels killed his brother. Valencia-Lopez also testified that several years before being stopped at the border, he had been shot in the back by cartel members while returning from a work trip in Mexico. He showed his gunshot scars to the jury.

Valencia-Lopez next testified to what happened before he arrived at the checkpoint. He picked up a load of bell peppers in Sinaloa, Mexico for delivery to Arizona. About 80 kilometers south of the border, he pulled off for a bathroom stop where he was accosted by two armed men. At gunpoint, the men took his wallet with his driver's license,⁴ phone, and keys, and placed Valencia-Lopez face down in the back of their car. The men "took the truck" and "came back with it" about ninety minutes later. The men returned the wallet and phone to Valencia-Lopez and told him to keep driving north. They also told him to pretend nothing had happened or they would kill him and his family. Valencia-Lopez followed these directions because he "had no choice." The court gave Valencia-Lopez's requested jury instruction on duress.

During closing argument, the government relied on Agent Hall's testimony to emphasize not only that "the use of unwilling, unknowing couriers is not a practical way to smuggle drugs into the United States," but also that "there is almost no use of unwitting, unwilling couriers."

The jury convicted Valencia-Lopez as charged.

We have jurisdiction under 18 U.S.C. § 1291.

II.

"We review the district court's decision to admit expert testimony for an abuse of discretion." United States v. Ruvalcaba-Garcia , 923 F.3d 1183, 1188 (9th Cir. 2019) (citation omitted). We first "consider whether the district court identified the correct legal standard for decision of the issue before it," and we then "determine whether the district court's findings of fact, and its application of those findings of fact to the correct legal standard, were...