USA v. Alatorre

• Citation: 222 F.3d 1098
• Decision Date: 09 June 2000
• Docket Number: No. 99-50587,99-50587
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JORGE ALBERTO ALATORRE, Defendant-Appellant. Office of the Circuit Executive
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1098

222 F.3d 1098 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JORGE ALBERTO ALATORRE, Defendant-Appellant.

No. 99-50587

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted June 9, 2000--Pasadena, California

Filed August 16, 2000

Carla V. Gomez, Federal Defenders of San Diego, Inc., San Diego, California, for defendant-appellant Jorge Alberto Alatorre.

Julie F. Puleo (on the brief) and Anne K. Perry (at oral argument), United States Attorney's Office--Criminal Division, San Diego, California, for plaintiff-appellee United States.

Appeal from the United States District Court for the Southern District of California, D.C. No. CR-99-00616-JNK; Judith N. Keep, Chief Judge, Presiding

Before: Stephen S. Trott, Ferdinand F. Fernandez, and M. Margaret McKeown, Circuit Judges.

OPINION

McKEOWN, Circuit Judge:

The question in this case is whether the district court must hold a separate hearing before trial, as opposed to making an evidentiary determination during trial, in order to fulfill the "gatekeeping" function outlined in the Supreme Court's trilogy of cases addressing the admissibility of expert testimony: Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), General Elec. Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Here the district court rejected appellant Jorge Alberto Alatorre's request for such a pretrial hearing but permitted him to question the government's proffered expert at trial, in the presence of the jury, via voir dire. Alatorre appeals the court's refusal to grant his request for a separate hearing.¹ Although we believe that it may be appropriate, at least in some cases, to conduct a pretrial or other hearing outside the presence of the jury to assess preliminary questions of relevance and reliability relating to experts, we hold that a separate hearing is not required. Further, under the circumstances presented here, the district court did not abuse its discretion in denying Alatorre's request.

BACKGROUND

On February 7, 1999, Alatorre, accompanied by his two children, drove a car to the San Ysidro, California, port of entry near San Diego, where he drew the attention of a U.S. Customs Service inspector. While the inspector was questioning Alatorre, a dog alerted to the car he was driving, and upon further inspection, packages of marijuana weighing 68.8 pounds were found in a compartment above the rear tire well. A grand jury indicted Alatorre on charges of importing marijuana, in violation of 21 U.S.C. SS 952 and 960, and possessing marijuana with intent to distribute, in violation of 21 U.S.C. S 841(a)(1).

Prior to trial, the parties filed motions in limine regarding the government's proposed expert testimony. After a hearing on the motions, the district court ruled that the government could introduce expert testimony on the value of the marijuana seized and on whether it was a distributable quantity but that testimony about the organization and structure of drug enterprises would be admitted only if the defense raised the issue of why no fingerprints were taken from the tire compartment or its contents.

During the in limine hearing, Alatorre requested that a separate "Daubert hearing" be held outside the presence of the jury to determine whether the government's proposed expert witness was qualified to testify about the value of the marijuana and to assess whether this testimony was relevant to the sole issue in the case: whether Alatorre knew that the car he was driving contained drugs. The court denied this request but indicated that Alatorre could conduct voir dire of the proffered expert at trial, in the presence of the jury, and stated that if the expert's testimony raised any concerns, then further questioning would be permitted outside the jury's presence.² Alatorre did not request a separate hearing with regard to any issue other than value.

At trial, the government called Lee Jacobs, a senior special agent of the Customs Service, to testify as an expert about the issues of value, distributable quantity, and structure and organization.³ The government elicited background testimony that Jacobs was familiar with the relative prices of marijuana as a result of his activities "as the case agent, co-case agent, running undercover operations, being an undercover operative, reviewing reports from other agents, and consulting with the various Narcotics Information Network systems and intelligence systems" available to agents in San Diego. The government also elicited testimony that Jacobs had twelve years of experience as a special agent; that he had specialized training in the methods by which narcotics are used and sold; and that, based on his experience, he was familiar with the structure of marijuana smuggling operations.

During voir dire, Alatorre inquired at length into the basis for Jacobs's expertise on the value issue and established that he used the low-end figure cited by the Narcotics Information Network to estimate conservatively the wholesale value of the marijuana seized. When Alatorre renewed his objection to the value testimony, including on Daubert grounds, the court overruled his objection. Jacobs then testified about the wholesale and retail value of the marijuana; he explained that the wholesale value increased when the marijuana crossed the border and that the marijuana's value increased again when it was broken down into retail quantities for sale in San Diego.

Alatorre did not voir dire Jacobs with regard to any issue other than value, nor did he object to Jacobs's qualifications (or to the relevance or reliability of his testimony) with regard to any other issue. Accordingly, limited testimony about the structure of marijuana smuggling operations--specifically, that different people within such operations perform different, non-overlapping tasks and that a driver's only task is to drive a load of drugs across the border--went unchallenged. This testimony was offered to rebut the defense's suggestion that failure to lift fingerprints from the marijuana packages or the compartment reflected improper investigative work.

The jury convicted Alatorre on both counts charged, and the district court sentenced him to 21 months imprisonment.

DISCUSSION

We review the district court's decision to admit expert testimony for an abuse of discretion, see Joiner , 522 U.S. at 139, except where no objection has been made, in which case we review for plain error, see United States v. Hanley, 190 F.3d 1017, 1029 (9th Cir. 1999).

The Supreme Court's trilogy of cases--Daubert , Joiner, and Kumho Tire--provides the backdrop for analysis of the issue presented here: whether a separate, pretrial hearing, outside the presence of the jury, is required before expert testimony may be admitted at trial. In light of the Supreme Court's emphasis on the broad discretion granted to trial courts in assessing the relevance and reliability of expert testimony, and in the absence of any authority mandating such a hearing, we conclude that trial courts are not compelled to conduct pretrial hearings in order to discharge the gate keeping function.

Daubert has become ubiquitous in federal trial courts. Under Daubert, which addressed the standard for admitting expert scientific testimony in a federal trial, the Supreme Court made clear that the Federal Rules of Evidence ⁴ impose a "gatekeeping" duty on the district court, requiring the court to "screen[ ]" the proffered evidence to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert, 509 U.S. at 597, 589. The Court explained that:

Faced with a proffer of expert scientific testimony, . . . the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. . . . Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test.

Id. at 592-93. After discussing a number of factors that would ordinarily bear on the reliability inquiry, the Court reiterated that "[t]he inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its overarching subject is the scientific validity --and thus the evidentiary relevance and reliability--of the principles that underlie a proposed submission." Id. at 594-95.

In Joiner and Kumho Tire, the Court further defined the contours of the gatekeeping duty and the level of deference to be accorded the trial court's decisions in this arena. After clarifying that the abuse of discretion standard applies to the trial court's decision to admit or exclude expert testimony under Daubert, see Joiner, 522 U.S. at 138-39, the Court held that Daubert's "general holding--setting forth the trial judge's general `gate keeping' obligation--applies not only to testimony based on `scientific' knowledge, but also to testimony based on `technical' and `other specialized' knowledge." Kumho Tire, 526 U.S. at 141. In addition, the Court held that the trial court "may consider one or more of the specific factors that Daubert mentioned when doing so will help determine that testimony's reliability." Id. (emphasis added). Significantly, underscoring the trial court's discretion, the Court noted that it was "[e]mphasizing the word `may.' " Id. at 150. The Court then explained that "the test of reliability is `flexible,' and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine...