Appellees White and Wade appeal their conviction by jury of drug related crimes. The two were tried together in a conspiracy case before the Honorable George F. Gunn. White presents four causes for reversal. He argues that: (1) the trial court improperly allowed the use of “drug courier profiles” as substantive evidence of guilt; (2) the trial court erred in denying his mоtion for severance of trials; (3) the government improperly commented on his failure to testify; (4) the sentencing guidelines were unconstitutional in their application to this case. Wade jоins in the challenges of the use of the “drug courier profiles” and the constitutionality of the sentencing guidelines. She also challenges the admissibility of evidence used at trial as the fruit of an illegаl search. The court, for the reasons discussed below, finds all of the challenges without merit and affirms the convictions. We first address the common challenges.
Constitutionality of Sentencing Guidelines
Appellants challenge the сonstitutionality of the sentencing guidelines as: a violation of the separation of powers doctrine; a violation of their due process rights; and a violation of the presentment clause. Appellants’ separation of power challenges were rejected by the Supreme Court in
Mistretta v. United States,
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Drug Courier Profiles
Appellants’ allegations that “drug courier prоfiles” were used during the trial as substantive evidence of guilt raises a troublesome issue for the court because such
Generally, the admission of this evidence is nothing more than the introduction of the investigative techniques of law enforcement officers. Every defendant has a right to be tried based on the evidence against him or her, not on the techniques utilized by law enforcement officers in investigating criminal activity. Drug courier profile evidence is nothing more than the opinion of those officers conducting an investigation. Although this information is valuable in helping drug agents to identify potential drug couriers, we denounce the use оf this type of evidence as substantive evidence of a defendant’s innocence or guilt.
Id.
at 555. Additionally, the profile has a “chameleon-like way of adapting to any particular sеt of observations.”
United States v. Sokolow,
— U.S. -,
However, it is also well established that it is within a federal court’s discretion to allow law enforcement officials to testify as experts concerning the modus operandi of drug dealers and other criminals in areas concerning activities which are “not something with which most jurors are familiar.”
United States v. Daniels,
We find that the challenged testimony, prejudicial by its nature, was probative in explaining the modus operandi of the crimes defendants were charged with. It was not simply an introduction of a drug courier profile as substаntive evidence of guilt. “Thus, the question becomes one of balance” and one in which we must give the trial court “great deference”. Id. In making this balance we find it relevant that defendants’ guilt was clearly and overwhelmingly established by the remaining evidence in the record, making the modus operandi evidence of little significance. Accordingly, we are unwilling to find that the district court so abusеd its discretion as to warrant a reversal of the conviction. This finding does not indicate any belief that the district court followed the best course in admitting all of the evidence that was admitted, оr that we favor admission of such evidence in general. Instead we merely find that in this case there was no clear abuse of discretion and that appellants’ challenges on this ground must fail.
Wе turn next to appellant Wade’s assertion that she was subjected to illegal searches while occupying restrooms at the airport. The first of these searches occurred shortly аfter Wade had deplaned from her flight to Los Angeles when a female officer followed her into an airport restroom. Once in the restroom Wade entered one of the stalls and thе officer observed what she could of Wade’s actions through a gap between the bathroom stall door and the bathroom stall wall. The officer made her observations from the common area of the restroom by looking through the gap from a distance, and by looking through the gap via the reflections of the bathroom mirror. She did not position herself in any way that would be unеxpected by someone using the restroom. Specifically, she did not peer in “knothole fashion” through the gap. Nor did she look under or over the bathroom stall door.
The court finds that the observations made by the officer were not an illegal search in this case because they were not a violation of any reasonable expectations of privacy.
See Katz v. United States,
does not afford complete privacy, but an occupant of the stall would reasonably expect to enjoy such privacy as the design of the stall afforded, i.e., to the extent that defendant’s activities were performed beneath a partition and could be viewed by one using the common area of the restroom, the defendant had no subjective expectаtion of privacy, and, even if he did, it would not be an expectation which society would recognize as reasonable.
People v. Kalchik,
The second search occurred when Wade entered a second bathroom after conversing with co-defendant White. In this instance an officer knocked the bathroom door open after Wade failed to respond to a demand to open the door. This demand was made bаsed on the officer’s conclusion that Wade was in the process of destroying evidence.
The court finds that there was probable cause for the officer’s action in the second bathroom and that the seizure of the cocaine in the bathroom was valid as incident to Wade’s arrest. The evidence at trial and at a hearing on a motion to suppress establish thаt it was reasonable to assume that Wade was involved in illegal activity and was in the process of trying to destroy evidence in the bathroom. The court incorporates by reference the analysis of Magistrate Carol Jackson’s June 20, 1989 report and recommendation on this point. Accordingly, this challenge is also denied.
The Government’s Comment on White’s Silence
White's allegation that the trial court should have declared a mistrial because of the government's comment on his failure to testify is also without merit. The challenged comment consisted of the government's statement during closing argument that "{y]ou didn't heаr why Larry White used the word-the name Idleburg." White's counsel immediately objected to this statement as an inappropriate comment on White's failure to testify. The trial court sustained the objection and instructed the jury to disregard the comment. This is not sufficiently prejudicial to warrant a mistrial. It had little cumulative effect when viewed in context of the entire trial, the trial court took curative actions, and there was an abundance of properly admitted evidence establishing defendant's guilt. See United States v. Dougherty,
The Denial of Severance
White’s assertion that the trial court committed reversible error by not
Conclusion
We affirm the convictions.
Notes
. Justice Marshall documented this chameleon-like nature with the following listing of some of the "drug courier” characteristics relied upon in various cases:
Compare e.g., United States v. Moore (suspect was first to deplane), with United States v. Mendenhall (last to deplane), with United States v. Buenaventure-Ariza (deplaned from middle); United States v. Sullivan (one-way tickets), with United States v. Craemer (roundtrip tickets), with United States v. McCaleb (non-stop flight), with United States v. Sokolow (changed planes); Craemer, supra (no luggage), with United States v. Sanford (gym bag), with Sullivan, supra (new suitcases); United States v. Smith (traveling alone), with United States v. Fry (traveling with companion); United States v. Andrews (acted nervously), with United States v. Himmelwright (acted too calmly).
Sokolow,