USA v. Vallejo

• Decision Date: 16 January 2001
• Docket Number: No. 99-50762,99-50762
• Citation: 237 F.3d 1008
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GUILLERMO VALLEJO, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1008

237 F.3d 1008 (9th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GUILLERMO VALLEJO, Defendant-Appellant.

No. 99-50762

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted October 10, 2000

Filed January 16, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Todd W. Burns, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

John N. Parmley, United States Attorney, San Diego, California, for the appellee.

Appeal from the United States District Court for the Southern District of California Rudi M. Brewster, District Judge, Presiding. D.C. No.CR-99-0808-RMB

Before: Betty B. Fletcher, Sidney R. Thomas, and Kim McLane Wardlaw, Circuit Judges.

WARDLAW, Circuit Judge:

Guillermo Vallejo appeals his conviction under 21 U.S.C. 841(a)(1), 952, and 960 for importation and possession with intent to distribute marijuana. We consider whether expert testimony detailing the structure of drug trafficking organizations may be routinely introduced in drug importation cases, regardless of whether the defendant is charged with a drug trafficking conspiracy or otherwise charged with membership in such an organization. Applying traditional evidentiary principles, we hold that expert testimony regarding the general structure and operations of drug trafficking organizations is inadmissible where the defendant is not charged with a conspiracy to import drugs or where such evidence is not otherwise probative of a matter properly before the court. We also conclude that (i) Vallejo knowingly and intelligently waived his Miranda rights; (ii) the district court abused its discretion by excluding both the expert testimony of Vallejo's school psychologist and the proffered evidence of third party culpability; and (iii) the district court abused its discretion when instructing the jury regarding the mens rea for a drugimportation offense. We have jurisdiction under 28 U.S.C. 1291. We reverse and remand to the district court for a new trial.

I. Background

On March 4, 1999 at 7:30 in the morning, Vallejo was stopped while driving a white Honda by Customs Inspector Ronnie Jacinto at the Calexico port of entry between Mexico and the United States. Inspector Jacinto testified that he was suspicious of the way Vallejo's hand shook when he handed over his ID and registration, of the way Vallejo followed Jacinto's movements in his rear-view mirror, and of the fact that there were no books or bookbags in his car despite Vallejo's claim that he was on his way to school. Inspector Jacinto therefore referred Vallejo to secondary inspection.

At secondary inspection, Customs Inspector Richard Valencia began questioning Vallejo in Spanish. Vallejo answered some of the questions in Spanish and some in English. Vallejo told the inspector that he had borrowed thecar from his father's car lot in Mexicali, a lie to which Vallejo later admitted during Custom Agent Jay Pina's interrogation. While inspecting the car, Valencia discovered four packages of marijuana concealed under the back seat, four behind the back seat rest, three on each side of the car behind the rear quarter panels, and seven in the dashboard. Approximately 40 kilograms of marijuana were seized.

Around 9:50 a.m. Customs Agents Pina and Louie Garcia arrived to interrogate Vallejo. Vallejo told the agents that he spoke both English and Spanish, but did not express a preference. Agent Pina read him his Miranda rights in English, going into greater detail than was required by the DEA instructions for issuing Miranda warnings because of Vallejo's youth. Pina explained each right in English, phrasing the scope of the right in two different ways. Following each warning, Pina asked whether Vallejo understood and had him initial the DEA form next to the right of which he had just been advised. Once all the rights had been read and Vallejo's understanding of them had been confirmed, the questioning began.

The interrogation took place in both English and Spanish, with Agent Garcia interpreting when necessary. Vallejo told Pina that he was being paid $15 to import the car into the United States for Bebo, a man he had met at a swapmeet. He admitted to having lied at the border about driving the car for his father because he did not want to be referred to secondary inspection and risk being late for school. Vallejo also told the agents that he had been visiting his girlfriend in Mexicali the previous day, and that he had spent the night at his aunt's house.

At trial, Vallejo testified that a friend of his, Francisco Harrera, had picked him up in the morning at his Aunt's house and driven him to meet Bebo. Vallejo had told Bebo that Francisco would also be willing to drive a car across the border, but there is some dispute as to why Francisco ultimately did not do so. Vallejo testified at trial that there was only one car to drive when they arrived, but Agent Pina remembered Vallejo telling him during the interrogation that Francisco had refused to drive because he believed the car contained drugs. At trial, Vallejo denied having made that statement.

During the three-day jury trial, there was extensive testimony regarding the process of importing used cars from the United States to Mexico, a business in which Vallejo's uncle and two of his cousins were involved. Auto dealers in Mexicali buy cars in the United States to be resold in Mexico. To be legally imported into Mexico, the car must be driven through a commercial port of entry, and if all the paperwork is not in order at that time, the Mexican authorities can seize the car. To avoid seizure, Mexicali auto dealers will often bring their cars to Mexico -without officially importing them -while waiting for the paperwork to be completed. When it is done, the car is driven back to the United States and then officially imported into Mexico through a commercial port of entry. Vallejo testified that he was driving the Honda back to the United States so that Bebo could import the car officially.

Expert testimony regarding the structure of drug trafficking organizations and the wages earned by drug couriers was also permitted at trial. Customs Agent Gordon Ajioka testified about how drug trafficking organizations divide responsibilities among the people who grow, store, smuggle, and sell drugs. He also testified about the price at which marijuana can be sold in Mexico, its higher price in the United States, and the reasons for the discrepancy between the two. Later, during its rebuttal case, the Government called customs Agent Louie Garcia to testify regarding the amount of money couriers are paid to smuggle drugs into the United States from Mexico. The Government introduced this testimony to explain its theory of why Vallejo was found with a business card, the writing on which identified a Honda like the car he was driving and stated a dollar amount of $700-800. The government believed the card identified the car to be used for drug importation and the price Vallejo would be paid. Vallejo, on the other hand, testified that the card identified a car he wanted to buy and its price.

The jury returned a guilty verdict on August 20, 1999, and Vallejo was sentenced to 21 months in custody to commence June 28, 2000, following completion of his senior year of high school. This timely appeal followed.

II. Miranda Warning

As a preliminary matter, we must determine whether the district court clearly erred in finding that Vallejo knowingly and intelligently waived his Miranda rights. United States v. Garibay, 143 F.3d 534, 536 (9th Cir. 1998) (determinations that a defendant knowingly and intelligently waived his Miranda rights are reviewed for clear error); United States v. Binder, 769 F.2d 595, 598 (9th Cir. 1985) (same). Vallejo argues that statements he made to Agent Pina during his interrogation should have been suppressed because he did not knowingly or intelligently waive his Miranda rights.

For a confession obtained during a custodial interrogation to be admissible, any waiver of Miranda rights must be voluntary, knowing, and intelligent. Miranda v. Arizona, 384 U.S. 436, 479 (1966). To be knowing and intelligent,"the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412,421 (1986). We look to the "totality of the circumstances including the background, experience, and conduct of defendant" in determining whether a waiver was valid. Binder, 769 F.2d at 599.

Vallejo analogizes his case to United States v. Garibay, 143 F.3d 534 (9th Cir. 1998), in which we held that Garibay had not knowingly or intelligently waived his Miranda rights. In that case, Garibay moved to suppress incriminating statements obtained after he had orally waived his Miranda rights on the ground that he had not understood the recitation of his rights in English. During the interrogation, the agent had to rephrase questions because Garibay did not understand them. Garibay was not given the option of speaking in Spanish nor was a Spanish-speaking agent present. See Garibay, 143 F.3d at 537. Additional evidence established that Spanish was Garibay's primary language, that he had a low verbal IQ, that he had received a D+ in eleventh and twelfth grade English, and that some people in his community did not believe that Garibay spoke English at all. See id. at 537-38.

This case presents a different factual situation. Vallejo was given the opportunity to speak in Spanish or English during his interrogation but did not express a preference. Agent Pina carefully explained each Miranda right to Vallejo, who confirmed his understanding orally and by signing his initials adjacent to each written right. Vallejo answered most of Agent Pina's questions in English, but a Spanish-speaking Agent, Agent Garcia, was present at all times to...