We must decide whether a defendant who drove a marijuana-laden sports utility vehicle into the United States from Mexico was validly convicted of illegal drug importation, notwithstanding a vigorous defense of duress.
I
On the morning of March 22, 2002, Jorge Andres Verduzco drove a Ford Explorer packed with 52.20 kilograms of marijuana from Mexico into the United States. Verduzco made it no further than the San Ysidro, California Port of Entry, where he immediately aroused the suspicions of border inspectors and their drug detector dog. Thirty-six packages of marijuana were discovered hidden throughout the sport utility vehicle.
Verduzco, a United States citizen and Los Angeles resident, was arrested at the Port of Entry. After receiving Miranda warnings, Verduzco admitted knowing that his vehicle was loaded with marijuana. He also described what had led him to make the smuggling attempt. Verduzco was raised in Tijuana, Mexico, where his parents still live. While visiting them a week earlier, he had met an unidentified Hispanic man at a store there. The two men had struck up a conversation, and Verduzco had confided some financial difficulties, which arose in part from his girlfriend’s pregnancy. The man proposed to pay Verduzco $2500 to smuggle a load of marijuana across the border. Verduzco assented and returned to Los Angeles with a mobile phone the man had provided. A few days later, the call came; and Ver-duzco returned by bus to Tijuana, met the smugglers, received from them the preloaded vehicle, and drove to the Port of Entry, where he was intercepted.
In what seemed to be an open-and-shut case, the grand jury issued a two-count indictment against Verduzco, charging importation of 50 kilograms or more of marijuana, see 21 U.S.C. §§ 952, 960, and possession with intent to distribute of 50 kilograms or more of marijuana. See 21 U.S.C. § 841(a)(1).
Shortly before trial, Verduzco unveiled a new defense: duress, supported by a fresh account of events in the week prior to his arrest. At trial, Verduzco denied neither his act nor his intent; rather, he contended that he had been forced by Mexican drug traffickers to smuggle the marijuana. In contrast with his story at the border, Verduzco testified that he had struck a black BMW in the parking lot of a Tijuana pharmacy while driving his father’s car. Three well-dressed men had piled out and angrily confronted him. Verduzco apologized and offered either to pay for the damage in a few weeks or to accompany them right then to his father’s place, where he could retrieve some money immediately. The armed men, who also scared off a police officer who entered the parking lot, refused this offer. Instead, by threat, they required Verduzco to “do a job” for them. Verduzco took the phone they provided and returned to Los Ange-les. When the call came, he returned to Mexico, met the three men, and proceeded to the border, followed all along by several tracking vehicles. He never told law en-forcément of the threats because he feared the authorities were corrupt and would not protect his family. 1
*1026 It turns out that Verduzco had a conviction two years earlier for a nearly identical smuggling episode through the same Port of Entry. The government brought out this prior conviction — and the strikingly similar details of the earlier criminal act— in its cross-examination of Verduzco, and mentioned the episode again at several other points at trial. The defense moved for a mistrial, arguing that use of the prior conviction exceeded the scope of permissible impeachment and that it was impermissible propensity evidence. The court denied the motion.
At the end of the defense’s case, the court formally excluded a proposed defense expert witness, who would have offered what the court termed “cultural stereotyping” testimony to attempt to explain why Verduzco failed to report the alleged threats against him to the police. The court based its decision to exclude the witness upon the defendant’s having violated a discovery rule regarding the expert’s qualifications, the prejudicial and confusing nature of the proposed testimony, and its lack of relevance.
After closing arguments, the importation count was submitted to the jury. During its deliberations, the jury sought clarification on the meaning of the term “reasonable” and the court issued a supplemental instruction. Several minutes later, the jury returned a guilty verdict. The government then dismissed the possession count, because it would have no effect for sentencing purposes.
The district court sentenced Verduzco to 30 months in prison and three years of supervised release. Verduzco timely appeals.
II
Verduzco first urges that the district court erred by permitting the introduction of evidence regarding his prior drug smuggling, which the court admitted pursuant to Fed.R.Evid. 404(b) and 609. Though the government introduced this evidence primarily by its cross-examination of the defendant, the government also referenced the conviction at other points, including diming the cross-examination of the defendant’s father and in its closing statement.
A
We first consider admissibility under Fed.R.Evid. 404(b). Rule 404(b) forbids the admission of evidence of “other crimes, wrongs, or acts ... to prove the character of a person in order to show action in conformity therewith.” Fed. R.Evid. 404(b). This prohibition reflects the “underlying premise of our criminal justice system, that the defendant must be tried for what he did, not for who he is. Thus, guilt or innocence of the accused must be established by evidence relevant to the particular offense being tried, not by showing that the defendant has engaged in other acts of wrongdoing.”
United States v. Bradley, 5
F.3d 1317, 1320 (9th Cir.1993) (internal quotation marks and citations omitted). Because such evidence may be highly relevant, however, the Rule does permit its admission “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident....” Fed.R.Evid. 404(b).
See United States v. Hearst,
1
At Verduzco’s trial, the district judge instructed the jury that the prior crime could be considered “only as it bears on the Defendant’s intent, preparation, plan, knowledge, absence of duress, and for no other purpose.” Verduzco contests each of these five bases for admission, arguing that absence of duress is not a permissible ground for admission, that preparation and plan were not elements of the offense, and that intent and knowledge were conceded by the defense. We focus initially on whether the bad acts evidence was admissible to show “absence of duress.” If it were, then any error in the alternative bases would be harmless.
See United States v. Cordoba,
Our court has previously addressed the admissibility of Rule 404(b) evidence to show absence of duress. In
United States v. Hearst,
The trial judge was called upon to balance the need for the evidence in the search for the truth against the possibility that the jury would be prejudiced against appellant because the evidence revealed she had participated in other conduct that was criminal. The district court acted well within its discretion in admitting the evidence. Appellant’s state of mind during the San Francisco robbery was the central issue in the case. State of mind is usually difficult to prove, and the evidence on the issue was sharply divided. The timing and other circumstances of the Los Angeles incidents made evidence of them highly probative on this critical issue. Though criminal, the incidents were not of a kind likely to inflame the jury. The prejudice to appellant arose primarily from the light the evidence cast on appellant’s state of mind during the San Francisco robbery and not from the incidental circumstance that it revealed appellant’s involvement in other criminal acts.
Id. at 1337. As in Hearst, Verduzco’s state of mind was the central issue at trial, the parties offered sharply divergent accounts, and the circumstances of the prior smuggling attempt were plainly probative, though by no means dispositive, of his state of mind on this occasion.
United States v. McCollum,
Verduzeo would distinguish
Hearst
and
McCollum
on the theory that in both cases the government was obliged to prove the state of mind that the challenged evidence sought to illuminate. In
Hearst,
for reasons immaterial to this appeal, the government had the burden to prove the absence of duress.
United States v. Dominguez-Mestas,
Verduzeo emphasizes the first prong of our test, which as recited in one case states that “the evidence sought to be introduced must establish a
material element
in the case.”
United States v. Palmer,
We have, as the defendant stresses, stated that “the evidence sought to be introduced must establish a material element in the case.”
See United States v. Palmer,
Moreover, it is questionable what policy interest might underlie admitting 404(b) evidence to assist the government’s proof but not to rebut the defendant’s affirmative defense. While we are deeply mindful of the dangers of propensity evidence, the risk of prejudice is seemingly most acute when the government seeks to employ such evidence to satisfy its constitutional burden of proof.
Cf. Patterson v. New York,
Other circuits agree with us that Rule 404(b) evidence may be admitted to refute a duress defense.
See, e.g., United States v. Zanabria,
2
Verduzco also urges that, even if the strictures of 404(b) were satisfied, the prejudicial impact of the evidence outweighed its probative value and thus violated Fed.R.Evid. 403.
2
We review for abuse of discretion.
United States v. Gon
*1030
zalez-Torres,
B
Verduzco also argues that the district court erred in admitting the bad acts evidence under Rule 609. If evidence is properly admitted under one rule, then improper admission under the second rule is harmless.
Cordoba,
III
Verduzco next claims that the district court erred in responding as it did to the jury question presented during deliberations. 3
The duress defense consists of three elements, each of which the defendant must prove by a preponderance of the evidence: (1) an immediate threat of death or serious bodily injury, (2) a well-grounded fear that the threat will be carried out, and (3) lack of a reasonable opportunity to escape the threatened harm.
United States v. Moreno,
During its deliberations, the jury asked the court, “Does the term ‘reasonable’ relate to the reasonableness in the Defendant’s mind or the jurors’ individual mind or collective mind.” The court answered with the following supplemental instruction:
The standard of reasonableness is to be determined by what a reasonable person would do under the same or similar circumstances. In making this determination, you are to consider all of the facts *1031 in evidence in the case, including whether one in the defendant’s position might believe that reporting the matter to the police did not represent a reasonable opportunity of escape. However, the opportunity to escape must be reasonable. Generally, once a defendant has reached a position where he can safely turn himself in to the authorities, he will have a reasonable opportunity to escape the threatened harm, but you may consider all of the facts in evidence in deciding reasonableness in this case. In making the decision on reasonableness, you should consider all the facts in evidence in the case and the court’s instructions on the law.
The jury returned a guilty verdict several minutes after receiving the supplemental instruction.
Verduzco quarrels with a clause in one sentence of the court's instruction: "Generally, once a defendant has reached a position where he can safely turn himself in to the authorities, he will have a reasonable opportunity to escape the threatened hcvrin, but you may consider all of the facts in evidence in deciding reasonableness in this case" (emphasis added). He contends that this answer was tantamount to directing the verdict insofar as it exceeded the jury's narrow question, that it interfered with the jury's application of law to fact, and that it violated the defendant's constitutional due process rights. He stresses that the jury returned its ver-diet approximately three minutes after receiving the instruction. 4
Trial courts must respond to jury questions with particular care and acumen.
See United States v. Walker, 575
F.2d 209, 214 (9th Cir.1978) (“Because the jury may not enlist the court as its partner in the fact-finding process, the trial judge must proceed circumspectly in responding to inquiries from the jury.”).
See also United States v. Martin,
The challenged sentence was indisputably a correct statement of the law, as Verduzco concedes, and the district court drew it explicitly and verbatim from this court’s precedent.
See United States v. Contento-Pachon,
IV
Verduzco’s third contention is that the district court erred by excluding his proposed expert witness, a Ph.D. sociologist, whose testimony on the drug culture of Tijuana would have, in Verduzco’s view, assisted his defense.
As noted, to prevail on his duress defense, Verduzco was required to show, inter alia, that he lacked a reasonable opportunity to escape the threatened harm.
Moreno,
Though it purportedly based its exclusion decision “primarily” upon the defendant’s discovery violation, see Fed. R.Crim.P. 16, the court outlined three specific rationales for its decision, which we review for abuse of discretion. 6
First, the court had strictly applied Rule 16 to exclude a prosecution expert when, shortly before trial, the government changed an expert’s identity due to scheduling difficulties. 7 The defense expert’s resume erroneously stated that the expert worked for Zeta, a publication, and the resume was prepared partly in Spanish. Moreover, Verduzco had only disclosed the erroneous qualification in response to the court’s questioning on the day before trial. Because it had applied Rule 16 strictly to the government, the court excluded the defense expert as an explicit sanction.
Second, the court found “huge 403 problems.” See Fed.R.Evid. 403. 8 Verduzco *1033 testified that he lacked a reasonable opportunity to escape the threatened harm because he distrusted the police authorities. His stated basis for this distrust was that Mexican police had previously stopped him and asked him for money, not because of any connection to drug cartels. The court characterized any connection between Ver-duzeo’s alleged fear of the police with the expert’s testimony on Tijuana drug culture as “very tenuous.”
Third, the court determined that generalized “cultural stereotyping” testimony on Tijuana would be unhelpful because Ver-duzco had graduated from a United States high school, had lived in the United States for at least two years prior to the arrest, spoke English, had a sister caring for him in the United States, and worked for a United States corporation. The court hypothesized that the testimony might be helpful if the defendant had a green card and had not been educated in the United States. Here, by contrast, the defendant was expex’ienced in American life, and thus the testimony would have less relevance.
Exclusion of a witness as a sanction for a violation of a discovery rule in a criminal trial is generally appropriate “only in cases involving ‘willful and blatant’ ” violations.
United States v. Peters,
Here, however, the district court also cited both “huge 403 problems” with the generalized “cultural stereotyping” testimony and separately concluded that insufficient foundation had been laid to support the testimony’s relevance.
10
See
Fed. R.Evid. 401, 403;
Jinro Am., Inc. v. Secure Invs., Inc.,
With respect to Rule 403, the court was required to weigh the risk of prejudice and confusion against the probative value of the evidence, and it was understandably chary of "cultural stereotyping" testimony-in this case, testimony that sought to link the actions or beliefs of a defendant with those of a particular nationality. See, e.g., Jinro Am.,
The testimony was also likely to be confusing and prejudicial in other respects. Expert testimony on the defendant’s mental state or condition would have been impermissible. Fed.R.Evid. 704(b);
United States v. Brodie,
Finally, generalized testimony on Mexican drug culture had at best a slim, tenuous connection to Verduzco and the particular facts of his case. As the district court noted, Verduzco was an American citizen, educated in the United States, resident in the United States, and employed by an America firm.
See Jinro Am.,
Given the trial court’s “broad discretion to admit or exclude expert testimony,”
see Aguon,
AFFIRMED.
Notes
. Verduzco’s father, sister, and a family friend also offered testimony in support of the new theory. According to their testimony, Ver-duzco did not speak of the threats prior to the arrest. His father, however, testified that Ver-duzco was white-faced and quiet after returning from the accident and that suspicious *1026 ly well-dressed men had come to his home approximately a week later. His sister, with whom Verduzco lived in Los Angeles, testified that Verduzco was uncharacteristically quiet in the days prior to the smuggling attempt. The family friend testified that he saw the altercation and threat in the parking lot.
. Nor did the district court, as a procedural matter, inadequately apply Rule 403 before admitting the evidence. "As long as it appears from the record as a whole that the trial judge adequately weighed the probative value and prejudicial effect of proffered evidence before its admission, we conclude that the demands of Rule 403 have been met.”
United States v. Sangrey,
. We generally review for abuse of discretion a district court's response to a juror inquiry.
United States v. Amlani,
. The government opposed any duress instruction at trial, and it contends on appeal that the district court erred by offering such instruction, given circuit law affirming that "[f]ear alone is not enough to establish a prima facie case of duress,”
Moreno,
. Verduzco's argument that the instruction constituted an improper “permissive inference” is. similarly unconvincing. "A permissive inference instruction allows, but does not require, a jury to infer a specified conclusion if the government proves certain predicate facts.... [I]t violates due process if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.” U.S. v. Warren, 25 F.3d 890, 897 (9th Cir.1994) (internal quotations omitted). Here, the supplemental instruction was simply a correct recitation of the law, not a permissive inference.
. We review decisions to exclude expert testimony for abuse of discretion,
United States v. Seschillie,
. The government had sought to replace a Customs expert who would testify to the marijuana's value with another Customs expert who would offer the same testimony using the same methodology.
. Fed.R.Evid. 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially out *1033 weighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Fed.R.Evid. 403.
. The district court earlier accused the defense of attempting to "sand-bag” the court by attempting to file the expert’s statement shortly before trial. That episode, however, did not figure explicitly in the court’s sanctions decision.
. Was the district court first required to hold a hearing pursuant to
Daubert v. Merrell Dow Pharms., Inc.,
. Verduzco contends that several cases admitting expert testimony to explain apparent inconsistencies in defendants' statements compel admission of the sociologist’s testimony. For example, in
United States v. Vallejo,
2001 U.S.App. LEXIS 7367 (9th Cir.2001), the court admitted a psychologist’s testimony on "the special problems that former special ed
*1035
ucation students have when attempting to communicate in English in high pressure situations” to explain inconsistencies between the defendant's account of his interrogation with that of a customs agent.
Id.
at *26. Similarly, in
United States v. Bighead,