UNITED STATES of America, Plaintiff-Appellee v. Jason HOLMES, Defendant-Appellant. United States of America, Plaintiff-Appellee v. Juan Antonio Castaneda Rendon, also known as Tony, Defendant-Appellant.
Nos. 13-1660, 13-1661
United States Court of Appeals, Eighth Circuit
May 12, 2014
Rehearing and Rehearing En Banc Denied July 9, 2014.
Submitted: Jan. 17, 2014.
James Phillips, argued, Little Rock, AR, for appellant.
Alexander D. Morgan, AUSA, argued, Little Rock, AR (Anne E. Gardner, AUSA, on the brief), for appellee.
Before GRUENDER, BENTON, and KELLY, Circuit Judges.
BENTON, Circuit Judge.
A jury convicted Jason Lee Holmes and Juan Antonio Castaneda Rendon of conspiracy to possess with intent to distribute methamphetamine, in violation of
I.
As the first witness, the government called Robert R. Almonte, the United States Marshall for the Western District of Texas, as an expert on the iconography of the Mexican drug underworld. He linked to drug trafficking several images and shrines in the home of Rendon and Christian Maldonado, a co-conspirator. Almonte‘s testimony focused on images of Jesús Malverde, a “narco-saint” hailed as a “Mexican Robin Hood.” Almonte also testified that Malverde is a patron saint of the poor, noting that many not associated with drug trafficking have statues of Malverde. Almonte concluded that a statue is only one indication of drug activity.
Holmes and Rendon attack Almonte‘s testimony, arguing that the testimony was (a) given by an unqualified expert, (b) unreliable, (c) irrelevant, (d) unfairly prejudicial, and (e) improper “drug courier” profile evidence. This court reviews the district court‘s decision to admit expert testimony for abuse of discretion, according it substantial deference. United States v. Roach, 644 F.3d 763, 763-64 (8th Cir.2011).
Almonte was properly qualified. A witness may be qualified by knowledge, skill, experience, training, or education.
Holmes and Rendon challenge the reliability of Almonte‘s testimony, arguing that his methodology has an impermissibly high rate of error. In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 597 (1993), the Supreme Court made trial judges the gatekeepers to exclude unreliable scientific testimony. In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999), the Court stated that this gatekeeper function applies to all expert testimony, not just testimony based in science. Daubert established a non-exclusive checklist for trial courts to use in assessing the reliability of expert testimony. See 509 U.S. at 592-94. The checklist includes: (1) whether the theory or technique can and has been tested, (2) whether it has been subjected to peer review, (3) whether there is a high known or potential rate of error, and (4) whether the theory or technique enjoys general acceptance within a relevant scientific community. Id. In Kumho Tire, the Court explained that, depending upon “the particular circumstances of the particular case at issue,” these factors might apply in assessing the reliability of nonscientific expert testimony. 526 U.S. at 150. Holmes and Rendon focus on the third Daubert factor, asserting that Almonte‘s testimony is unreliable because he acknowledged a high rate of error because many not associated with drug trafficking have statues of Malverde.
Holmes and Rendon misread Kumho Tire and exaggerate the importance of error rates in non-scientific evidence. Almonte‘s testimony is non-scientific evidence, and not all of the Daubert factors necessarily apply. Kumho Tire, 526 U.S. at 150. Expert testimony must rest on reliable principles and methods, but the “relevant reliability concerns may focus upon personal knowledge or experience” rather than scientific foundations. Id. This court has repeatedly approved of law enforcement officials testifying as experts on the modus operandi of drug dealers. See, e.g., Schwarck, 719 F.3d at 923; Molina, 172 F.3d at 1056 (“A district court has discretion to allow law enforcement officials to testify as experts concerning the modus operandi of drug dealers in areas concerning activities which are not something with which most jurors are familiar.“). Law-enforcement officers may testify about the drug trafficking connection of otherwise innocuous household items. United States v. Jeanetta, 533 F.3d 651, 657 (8th Cir.2008). In Jeanetta, an officer testified as an expert about the significance of Ziploc bags in the drug trade. Although most users of Ziploc bags are not drug dealers, the bags have drug-trade application. Similarly, even if many with Malverde statues are not affiliated with the drug trade, narco-saint iconography may be an indicator of drug trafficking. The reliability of such evidence comes not from scientific foundations but from Almonte‘s personal knowledge and experience. Kumho Tire, 526 U.S. at 150. The district court did not abuse its discretion in finding Almonte‘s expert testimony reliable.
Holmes and Rendon assert that Almonte‘s testimony was irrelevant and unfairly prejudicial. This court has approved as relevant and helpful expert testimony on the modus operandi of drug dealers. Schwarck, 719 F.3d at 923-24; Molina, 172 F.3d at 1056-57. The standard for relevancy is low. Evidence should be admitted if it has any tendency to make a fact of consequence more or less probable.
II.
Holmes argues that the trial court should have given a limiting instruction on the narco-saint testimony, claiming this testimony was relevant only to Rendon. This court reviews for abuse of discretion the decision whether to give a limiting instruction. United States v. Velazquez-Rivera, 366 F.3d 661, 666 (8th Cir.2004).
Holmes‘s argument is without merit. The government had to prove that a conspiracy existed between Holmes, Christian Maldonado, and Gladis L. Maldonado and that Holmes knowingly and intentionally joined it. Rendon was charged with being in the same conspiracy with the Maldonados. Since the narco-saint evidence was relevant to establish the existence of the conspiracy, its admission was proper for both parties, and no limiting instruction was necessary.2
III.
Holmes attacks the sufficiency of the evidence for his conspiracy convic-
To prove conspiracy, the government must show: (1) there was a conspiracy; (2) Holmes knew of it; and (3) he intentionally joined it. United States v. Rolon-Ramos, 502 F.3d 750, 754 (8th Cir.2007). “The conspiracy‘s existence may be proved by direct or circumstantial evidence.” Id., citing United States v. Cain, 487 F.3d 1108, 1111 (8th Cir.2007). Large quantities of drugs—rather than amounts consistent with personal use—support an inference that the defendant knew he was part of a larger venture that extended beyond his participation. United States v. Moya, 690 F.3d 944, 949 (8th Cir.2012), citing United States v. Prieskorn, 658 F.2d 631, 634-35 (8th Cir.1981).
The government proved a conspiracy between Daniel L. Henry and the Maldonados. Henry testified that Holmes knew of that conspiracy. Evidence of Holmes‘s participation in the conspiracy was: (1) the presence of Holmes‘s nickname in the Maldonados’ drug ledger, showing the purchase of meth in distributable quantities; (2) testimony by Henry that Holmes purchased meth from him in distributable quantities; and (3) recorded conversations of the Maldonados and Holmes discussing meth purchases—in thinly-veiled language. Based on this evidence, a reasonable jury could find Holmes guilty beyond a reasonable doubt.
IV.
Holmes attacks his sentence, arguing that the district court (a) procedurally failed to determine the scope of the criminal activity he agreed to jointly undertake and (b) erred in finding foreseeable to Holmes the distribution of 500 grams or more of meth. This court reviews de novo the district court‘s interpretation and application of the Sentencing Guidelines and reviews for clear error its findings of fact. United States v. Spotted Elk, 548 F.3d 641, 668 (8th Cir.2008). “This court will overturn a finding of drug quantity ‘only if the entire record definitively and firmly convinces us that a mistake has been made.‘” United States v. Young, 689 F.3d 941, 945 (8th Cir.2012), quoting United States v. Gonzalez-Rodriguez, 239 F.3d 948, 953 (8th Cir.2001).
The district court found that Holmes reasonably could foresee distribution of 500 grams or more of methamphet-
Holmes argues that the district court procedurally failed to determine the scope of the criminal activity he agreed to jointly undertake. This argument is without merit. The district court considered his purchasing patterns and debt for past purchases, both indicating Holmes‘s commitment to the conspiracy. The district court also considered the foreseeability of particular drug-sale amounts from Holmes‘s vantage point. The district court properly applied
Holmes argues that the district court clearly erred in finding foreseeable the distribution of 500 grams or more of meth. Because the district court sentenced him based on less than 500 grams, any error is harmless. Nonetheless, the district court found “that the quantity of drugs for which Mr. Holmes would be accountable ... would be 500 grams.” The court based this finding on a DEA agent‘s testimony and the evidence at trial. According to entries in drug ledgers, Holmes received approximately 350 grams from the conspiracy. The district court said distribution of at least another 150 grams by the Maldonados was a foreseeable part of the conspiracy. Holmes argues he withdrew from the conspiracy with the Maldonados, cutting off foreseeability, yet he presents no evidence of affirmative withdrawal. See Smith v. United States, 133 S.Ct. 714, 721 (2013) (explaining that in a conspiracy withdrawal “must be active” and the burden of establishing it “rests upon the defendant“). Nothing in the record definitively and firmly convinces this court that the district court made a mistake in its findings.
The judgment is affirmed.
KELLY, Circuit Judge, concurring.
I concur in the court‘s opinion in all respects but one: I believe the district court erred in qualifying Marshal Almonte as an expert and admitting his testimony.
I.
“We review a district court‘s evidentiary decisions for an abuse of discretion.” United States v. Lupino, 301 F.3d 642, 646 (8th Cir.2002). Courts frequently, and properly, allow law-enforcement officers to give expert testimony as to the “modus operandi” of drug traffickers. Black‘s Law Dictionary defines modus operandi as: “a method of operating or manner of procedure; esp. a pattern of criminal behavior so distinctive that investigators attribute it to the work of the same person.” Black‘s Law Dictionary 1095 (9th ed.2009). And because jurors may not be familiar with the usual way of trafficking drugs, expert testimony may help them understand how otherwise legitimate or commonplace items can be used in furtherance of the drug trade. United States v. Jeanetta, 533 F.3d 651, 657-58 (8th Cir.2008) (“The significance of seemingly innocuous household items, e.g., Ziploc bags and scales, along with the presence of sophisticated surveillance equipment, including scanners, cameras, monitors, and night vision goggles, combined with the presence of large amounts of cash, was highly relevant to Jeanetta‘s
Marshal Almonte‘s testimony was not properly characterized as “modus operandi” evidence. His testimony at trial did nothing more than describe a way to profile persons as being part of what he calls the “Mexican drug underworld” based on their purported religious beliefs, as revealed by their possession of religious icons and statuary. Marshal Almonte testified that he teaches law enforcement officers about the “Patron Saints of the Mexican drug underworld,” describing religious icons, statuary, prayer cards, and amulets, which he believes are “red flags and indicators” of possible drug activity. He testified that he developed the training sessions for two reasons: to “enhance officer safety” and to allow officers to “us[e] that information to assist them in furthering the investigation possibly leading to criminal activity.” He explained: “I tell the officers the rest is up to you to see if you have any other indicators there that would cause you to further investigate and possibly reach probable cause.” In short, he has trained law enforcement officers in the use of a tool to assist them in their efforts to identify a particular type of drug trafficker. This is exactly the sort of “drug courier profile” evidence this court has held is inadmissible. See United States v. Quigley, 890 F.2d 1019, 1021 (8th Cir.1989) (citing Florida v. Royer, 460 U.S. 491, 525 n. 6 (1983) (Rehnquist, J., dissenting)). “Drug courier profiles are investigative tools, not evidence of guilt.” United States v. Carter, 901 F.2d 683, 685 (8th Cir.1990) (“The admission of a profile into evidence is inherently prejudicial and can easily influence a jury into thinking that the defendant is guilty.“).
Marshal Almonte‘s testimony is also not sufficiently reliable to qualify as expert testimony. There is no “‘definitive checklist or test‘” to determine when expert testimony is sufficiently reliable and, thus, admissible under
II.
While I find the district court abused its discretion in allowing Marshal Almonte to give expert testimony, I also conclude the error was harmless. “An improper evidentiary ruling is a nonconstitutional error that must be disregarded under