United States v. Teresa Maria Campos

jury able could have concluded that he predisposition

revealed a having toward young

sexual relations with children. government

At established that

Poehlman first mentioned sex with having children, and each proposed sexual act

originated though him. Even

case is not cut as clear as a case in which a

defendant, example, exemplifies predis-

position by owning library explicit

materials before the commencement of a

sting operation, jury heard enough evi-

dence for it reasonably conclude that predisposition

Poehlman fact had a

commit the crime. majority

As the acknowledges, the dis-

trict court properly jury,1 instructed the

and Poehlman does not contend otherwise.

What we are left with is a case in which jury followed the in- court’s correct

structions, evidence, considered the

simply rejected the defense. I af-

firm the conviction. America,

UNITED STATES

Plaintiff-Appellee, CAMPOS,

Teresa Maria Defendant-

Appellant.

No. 97-50635.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted March

Filed June 1. The district court by followed the Ninth Circuit 2. The defendant was not induced government agents Jury Manuel of Model Instructions commit 6.2.1 (1997) crime. instructing govern- that the person, independent aWhere of and before prove following: ment must contact, predisposed to com- predisposed 1. The defendant was to com- crime, entrapment mit the it is not if the being mit the crime before contacted government agents merely provide op- government agents, or portunity to commit the crime. WALLACE,

Before: PREGERSON THOMAS, Judges. Circuit THOMAS; Opinion Judge Partial Concurrence and by Judge Partial Dissent PREGERSON.

THOMAS, Judge: Circuit appeal presents This question unstipulated polygraph whether evidence concerning the defendant’s mental state is admissible under Federal Rule of Evi- dence when it involves the ultimate issue of mens rea. We' conclude that it is not and affirm the judgment of conviction. I Teresa Maria Campos entered the Unit- ed States at the San Ysidro Port Entry in a Upon white van. inquiry primary inspection, Campos denied that she was bringing anything back into the United States and belonged stated the van boyfriend, her' Lopez. Jose Antonio inspector INS that Campos ap- observed nervous, peared extremely with her hands wheel, gripped tightly on the steering presence “space discrepan- noticed the of a cy” ceiling in the van. Based on observations, Campos these and other secondary inspection. referred to secondary At inspection, Campos told a second inspector customs she was car- alcohol, rying soap and medicine into the States, but described Jose Antonio van, Lopez, alleged owner of the III, Murphy, Diego, Frank San Califor- merely Campos complied friend. After nia, the defendant-appellant. for request with his to disembark from the Hernandez, Antonio Assistant United van, inspector the INS searched the van California, Attorney, States Diego, San eighty-nine packages and discovered —or 'on the brief and plaintiff-appellee, in a com- pounds ceiling —of Butcher, Daniel E. Assistant United partment passenger above the side seat. California, Attorney, Diego, San for the Campos was arrested. plaintiff-appellee, argument. at oral grand jury subsequently A federal

charged Campos in a two count indictment importation possession with the marijuana with intent to distribute in viola- 841(a)(1). §§ tion of 21 960 and U.S.C. II poly- underwent a Prior to exami- During polygraph graph test. im court did not The district two nation, asked the examiner polygraph properly exclude questions: relevant pursuant by Campos tendered driving the van on you were Q.33: When 704(b), declining to con nor did it err January, you did twenty-fifth of review a hearing. duct a Daubert We drugs in the van? were know there or exclude court’s decision to admit district Answer: No. testimony for an abuse of discre Morales, tion. See United States crossing the border on Q.35: Before (9th Cir.1997) (en banc); know January, you did twenty-fifth of Cordoba, 104 F.3d United States drugs in the van? were there (9th Cir.1997). A district court abuses 229 No. Answer: when it bases its decision its discretion concluded that examiner polygraph clearly of the law or a an erroneous view # questions 33 “[c]oncerning the relevant facts. See erroneous assessment of the were not responses # and 35 examinee’s Morales, 108 F.3d at 1035. deception.” those associated with typical of envisioned, Federal Rule originally As poly- of this Campos sought admission “specifically Evidence 704 was intended to ruling, In how- graph pre-trial evidence. a allow- prohibition “against abohsh[ ]” ever, precluded its ad- the district court upon ul- ing express opinions witnesses to pursuant to Fed.R.Evid. mission advisory 704 timate issues.” Fed.R.Evid. hearing pursuant to conduct a and refused rule, adopted, notes. The as committee’s Pharmaceuti- to Daubert v. Merrell Dow entirely of the cur- consisted of version cals, 113 S.Ct. U.S. (a), “other- rent subdivision which deems (1993), ad- to determine the L.Ed.2d 469 opinion wise admissible” “not results as sci- missibility polygraph of the objectionable because it embraces an ulti- entific under Fed.R.Evid. by mate to be decided the trier of issue ruling, In the court pre-trial another Gold, 704(a); Wright & fact.” Fed.R.Evid. testi- government expert to admit agreed Federal Practice and Procedure: Evidence mony the value of regarding (1997). abandoning general § drug Campos, seized the structure testimony, against rule “ultimate issue” organizations, and smuggling as Advisory Committee dismissed “unknowing traffickers would not entrust that ulti- “empty rhetoric” the rationale large quantities couriers” with of narcotics. “usurp[ ] mate issue trial, At claimed that she did jury.” Adv. Ctte. Note to province any mari- that the van contained know (citation omitted). Rule 704 gone Tijuana, had juana and that she In Mexico, enacted the Congress subsequently for a medical examination and only jury sanity Act of which party. two-day After a Defense Reform attend a (b).1 Campos guilty on both amended Rule 704 to add subdivision found 98-473, 401-106, §§ court sentenced Cam- See Pub.L. No. counts. The district (1984). Stat.1937, 2057-68 Federal Rule of pos custody, penal- to 27 months $200 704(b) provides excep a limited ty years super- and three assessment Evidence general tion in criminal cases to the rule vised release. 1990). 704(b), Along amending Insanity 1. "The Defense Reform Act insanity placed passed Hinckley's acquit altered the test for and wake of John Act upon proving charges arising the defendant the burden tal of from his actions in convincing insanity by evidence. shooting Reagan clear and President Ronald and Press Gold, Wright A. & Victor J. Secretary Brady." United States v. See Charles James Cameron, 6281; § generally § U.S.C. 17. Cir. see

7H here, experts may testify opin- Applying their this rule to the facts by to be decided it ions on ultimate issues is clear that the district court did not It its by excluding the trier of fact. states: abuse the testi .discretion mony of polygraph examiner. To con testifying witness with re- No vict Campos importation and possession spect to the mental state or condition of distribute, with intent to may a defendant in a criminal case state prove had to an or inference as to whether opinion knowingly intentionally imported and the defendant did or did not have the possessed marijuana. See U.S.C. constituting mental state or condition 841(a)(1) §§ & 960. The district court charged element of the crime or of a would therefore have had to conclude that defense thereto. Such ultimate issues the examiner “would have opin stated an are matters for the trier of fact alone. ion or drawn an inference which would Congress provision added this out of a necessarily compel the conclusion” that confusing specta- desire to “eliminate the Campos did not know that possessed she testify- cle of competing witnesses intentionally imported directly ing contradictory conclusions as Morales, into the United States. ultimate legal issue be found at 1037. fact.” S.Rep. the trier of No. 98-225 at During the hearing, motions the court (1984), reprinted 230-31 in 1984 inquired the polygraph' whether examiner 3182, (“S.Rep.98- U.S.C.C.A.N. 3412-13 “going was 225”). testify to that —that she Thus, respect to a criminal asked whether or drugs not she knew the state, defendant’s mental con- Congress answer, in the gave were van and she an that jury firmed “the is the lie detector.” and in opinion, his that truth- Barnard, answer was 907, United States v. (9th Cir.1973) added). Campos’ replied ful.” in the affir- counsel (emphasis 912 response, mative. Based on this the dis- Congress primarily target While trict court determined that the examiner’s (b) ed limiting subdivision towards the use 704(b)’s testimony would fall within rule. of on psychiatric expert testimony whether insane, a defendant is sane holding testimony or our Such falls squarely 704(b) in Morales made clear that Rule scope pro is within the of “A Rule not limited in psychiatrists ‘opinion “its reach to hibited or inference’ under Rule experts,” and other mental testimony health but is from which it necessar rather, follows, credited, expert ily testimony extends to all witnesses. if Morales, 1036; 108 F.3d at see also that the defendant possess S. did or did not Moreover, Morales, Rep. 98-225 at 230-31. the ra requisite mens rea.” precluding opinion tionale for ultimate polygraph tes F.3d at 1037. The examiner’s timony applies insanity testimony to both the defense was truthful any stating and “to ultimate mental state of the that she did not know that she was defendant that to the legal transporting is relevant con leaves no room for inference, rather, sought proven,” clusion to such pre compels be but the conclu in a meditation homicide case or lack of that she possess requisite sion did not (even predisposition entrapment knowledge.2 Compare jury an case. id. if S. Morales, Rep. light 98-225 at 231. In account believed defendant’s 704(b) clearly applies poly ing expert that defendant had a weak graph testimony grasp knowledge, jury “the bookkeeping ultimate issues. Posado, holding 2. Our does not have the effect also United States v. evidence, 1995) excluding polygraph relating (polygraph questions all Cir. because polygraph relating resulting charges propriety to collateral is of search potentially possession sues will continue to be admissi in violation of Cordoba, 228-29; 841(a)(1)). § ble. See 104 F.3d at see under Rule evidence was not admissible to draw its own infer- had would still have 704(b), to con the court obviated the need testimony to an- predicate ence from that evidentiary analysis an under Rule duct question”). factual the ultimate swer 702 or Rule polygraph that her contention Campos’ Campos’ testify only examiner Ill polygraph responses physiological the dis argues also an ultimate is- and not reach examination by admitting erred trict court Polygraph tests re- account. sue is of no to measure and inter- examiner quire the not use “un trafficking organizations do correlates of “physiological a set of

pret Before the district knowing couriers.” and, by a four-mem- anxiety” as described court, in a motion in limine argued she Court, to Supreme plurality ber improper constituted about opinion “offer[ ] profile” courier evidence. We re “drug often, case, inas whether the witness— for an of discretion. view this issue abuse answering deceptive the accused—was Beltran-Rios, v. See United States very matters at issue questions about (9th Cir.1989). Because F.2d Scheffer, the trial.” United “testimony drug traffickers do not 118 S.Ct. 523 U.S. drugs un large quantities entrust (1998). principled There is no L.Ed.2d 413 knowing transporters is not courier case—as elicited distinction in this Cordoba, testimony,” profile the district court and dialogue between 229-30, the district court did not abuse its Campos’ counsel—between in admitting discretion it. polygraph expert regarding of Campos’ ques- to the responses physiological her Campos argues also appeal, On the examination and posed during tions testimony improperly also was testimony that the conclusion from that un admitted as “ultimate issue” that the van contained she did not “know” 704(b). Campos der Rule Because failed marijuana. a amount of significant objection a specific to raise to the testimo 704(b), ny at trial based on Rule we review in did the district court err Nor respect decision in this district court’s hearing to conduct a Daubert failing only plain affecting error substantial polygraph determine whether the evidence Elmer, 21 rights.4 See State Arizona v. under Rule 702.3 If evi was admissible (9th 331, Cir.1994); F.3d United States 334 one application dence is inadmissible (9th Muniz, 634, Cir.1982); v. 684 F.2d 640 rule, is no need for a evidentiary there Fed.R.Crim.P. it court whether satisfies to determine In pertaining “plain order to constitute predicate evidentiary standards error,” “plain” error or clear another United States v. must be rule. See (9th Marshall, 1349, law must F.2d 1360 Cir. on its face under current and 1975). determining right. that the affect a substantial See United By properly objection thoroughly Campos’ to the of Cus- 3. We more admission discuss this issue her companion States v. toms Darvas’ based on United Benavidez- case. (9th Benavidez, Cir.2000). improper drug contention that it was courier Benavidez-Benavidez, profile encompass objec- we does not hold that our de- 704(b), new tion to the based on Rule cision in does not "mandate a. Cordoba rather, inquiry, requiring implicates 403. The exclu- the dis- but seriatim formalistic hearing profile prem- evidence is a Daubert sion of courier trict court conduct Rather, every ised on the concern that "the use of such case." Id. at 724. the district profiles probative value and is may court admit or exclude evi- is of limited choose to Beltran-Rios, evidentiary extremely prejudicial.” dence based on a of several choice grounds. F.2d at 1210. Olano, 725, 782-34, v. 507 U.S. 113 cient evidence which a rational trier States (1993). Al- 123 L.Ed.2d 508 of fact could have beyond S.Ct. concluded a rea yet approved we have not of the though Campos knowingly sonable doubt that and expert testimony use of such non-com- intentionally imported possessed and cases, disapproved we have not of it. plex pounds marijuana with intent to distrib Thus, may because such evidence be ad- Thus, ute. the motion properly was de Cordoba, cases, complex mitted in see 104 nied. did not F.3d the district court AFFIRMED here, admitting err in see

plainly (9th v. 720-22 PREGERSON, Judge, Circuit Cir.1997) (Jenkins, do concurring). J. We concurring part and dissenting part: question not reach the whether such would be admissible I concur in the majority’s opinion with objection non-complex proper case over a respect inadmissibility polyg- made to trial court. rapher’s testimony proffered by the de- only fense. There is disputed one issue in

IV case, viz: Whether Maria Teresa correctly Campos The district court denied knew that the was hid- Campos’ acquittal, Rule 29 motion for a den in the ceiling compartment above the passenger decision we review de novo. See of the van U.S. side that she was Hernandez, driving Cir. when arrested at the San Ysidro 1997). government presented Entry.1 suffi Port of Campos working and —a opinion majority Lopez 1. The fails set forth much tor’s office. the two and unidentified hours; of the factual record gone couple in this case. The record men were for a Cam- appeals following: pos reveals the Vargas they and did not know where Meanwhile, they went or what did. Teresa Maria licensed and got daughter's eyeglasses person- her and working cosmetologist Angeles in Los and a children, ally eye surgeon, referred to an who she prior also mother of four with no crimi- arrest, day. Lopez picked day went to see that then them nal record. On the of her Cam- up, party. pos, along three-year-old all and went to the with her twin daughters, 15-year-old daughter, p.m., Campos Vargas At around 5:00 her and a coworker, girlfriend Vargas, it was time drive Eustolia decided back home be- Tijuana, day. they expected traveled to Mexico for the Her cause were in back work Los 10-year-old Angeles. Angeles day. Lopez son remained in Los the next But to refused Lopez, Campos, already Jose Antonio a customer of leave. He either too drunk or Tijuana just keep drinking. had offered to drive her to to attend wanted to He told them party. Campos agreed go they an afternoon to could use his white van to drive them- daughter because she wanted to take her back selves back. The white van was a different eye Tijuana Lopez to an clinic in that she had that visited van than the one drove them down before, in; up pick Lopez four times and wanted to that she said the van he drove them daughter's eyeglasses working her there. She also down in was not well. herself, van, eye Campos wanted to the see doctor and she did not want to drive a be- go party. Campos wanted to the has an cause she had never driven one before. She eye surgery. condition for which she needs asked if was a that there smaller car she cost, Lopez She has no insurance to cover the but He could use. said there was not. thought she she could afford treatment in told her to drive his white van back to Los along 3-yéars-old park Angeles, Mexico. She took her on the street in front of her salon, beauty pick up because she did want to that he twins not leave them and would it Angeles; days. a alone Los and she asked her few girlfriend go Vargas, Vargas Campos, too did and the children took the because she go They bought not want to alone. van and drove to a white store. children, underwear, Lopez Campos, Vargas, large laundry soap, drove box of the some alcohol, (neither and two unidentified friends of his a bottle and some medication. were) Campos Vargas they They nor knew who then drove to the San Ysidro Port of Tijuana. They togeth- Entry. down to had breakfast dropped During primary inspection, Lopez er in a restaurant. Then the border the Campos, Vargas, agent Campos appeared and the children at the doc- customs said that More- testimony was inadmissible. Angeles, pher’s in Los cosmetologist licensed over, in- di- steadfastly because such criminal with no record — the not know about ultimate issue of rectly that she did addressed the sists by one that is owned marijuana in the van knowledge, it is not admissible Campos’s reason, she Lopez. For this Antonio Jose operandi” “modus evidence. generic as testimo- polygrapher’s the sought to admit testimony was inadmissible Finally, such to his responses physiological that her ny Rule 702 because expert testimony under concerning knowledge her questions the trier of it was not needed to “assist van not consistent marijuana in the were Fed. fact to understand evidence.” court correct- The district deception. reasons, I R.Evid. 702. For these under inadmissible ly ruled this evidence and remand for a new trial. reverse 704(b)2 of Evi- the Federal Rules ulti- directly it spoke dence because I. Campos’s mens rea. mate issue majority’s with the con- disagree But I Special Agent Peter Dar- U.S. Customs plainly did judge that the trial clusion testify follows on permitted vas was as 704(b) permitting err under Rule knowledge of the Campos’s the issue of expert’s to offer an marijuana hidden in the van: that knew about Now, in your opinion, Agent Prosecutor: judge trial stated on the the van. The Darvas, trafficking organiza- would a retired to deliberate: record after trafficking quantity tion result I “I don’t know what the will be. marijuana, pounds, entrust case for the Govern- very think it’s a thin courier that does not know what he or decision to admit ment.” His incorrect transporting? she is clearly affected expert testimony thus Campos’s the trial and the outcome of [Objection noted] I would hold that the rights. substantial no, my opinion, Darvas: under Rule plainly district court erred would not. ex- admitting government’s And what for the same reason it Prosecutor: basis for pert first Campos’s polygra- your opinion? correctly ruled Vargas, eye Campos, children were then nervous would not make contact with Meanwhile, arrived at said that when she him. taken into the customs office. border, angry Lopez still she was narcotics detection unit was called in canine Angeles would not drive them back Los dogs agents and the "alerted” the to the ceil- nervous promised, he had she about-hav- ing agents Whereupon discov- van. van, ing to drive a and that her children were eighty-nine packages marijuana, ered agent crying customs also at the time. The weighing pounds, a total of 151 hidden in the Lopez Campos told him that was her said ceiling compartment passenger on the side of boyfriend. Campos denied that she ever said Campos Vargas knowing the van. denied showing produced at trial that and anything marijuana. Campos about the boyfriend. agent Lopez was not her The Vargas arrested. was not. during primary inspection the noticed ceiling appeared the lower than of the van 704(b) 2. Rule states: basis, he ordered a second- normal. On this testifying respect to No witness ary inspection. the a mental state or condition of defendant secondary During inspection, another opinion may or criminal case state an agent questions. some customs asked inference as to whether the defendant did ceiling noticed of the van and the He or did not state or condi- have mental laundry detergent, which he later said is often constituting tion an of the crime element by drug smugglers used to cover the smell of charged of a defense thereto. Such ulti- or marijuana. step He asked to out and issues are matter for the trier of fact open the back of the van. It took her a few mate record, alone. seconds to do From the it is not so. why immediately comply. clear did not Fed.R.Evid. she

715 my opinion Darvas: The for admit Agent portion Agent basis this Darvas’s testi- components. mony ... has number of for plain error. See United States v. all, Olano, 725, 730, you 1770, First of have to think about 507 U.S. 113 S.Ct. car, (1993). the value that is contained in the 123 L.Ed.2d 508 money the amount of that’s invested standard, plain Under the error “relief product into the that’s in the car. It’s (1) is not warranted unless there has been product, something a tradeable that’s (2) error; (3) plain; is affects case, readily money, worth in this rights.” substantial Jones v. United many, many thousands of dollars States, 373, 2090, 2095, 119 U.S. S.Ct. money. worth of And the person that (1999). 144 L.Ed.2d 370 To establish is responsible getting across the error affected the defendant’s “sub- the border is accountable for that rights,” stantial the defendant must “show marijuana in much the same as way that the error ‘affected the outcome of the ” person driving the car is accounta- district proceedings.’ court ble for the in the car until (9th 1160, v. Hankey, 203 F.3d it reaches its destination. Cir.2000) Tisor, (quoting United States v. I’ve had a number of talk occasions to (9th Cir.1996) (quoting to individuals in organizations that Olano, 1770)). 507 U.S. at 113 S.Ct. smuggle marijuana across the border— alleged We must examine “the error business, that’s their that’s their liveli- context of the entire record to determine it’s been explained hood—and to me that whether it rises to the ‘plain level of er- ” nobody in right their mind would entrust Wallace, ror.’ United States v. somebody that amount of (9th Cir.1988); see also United that doesn’t know what are doing. States v. Campbell, They may misrepresent the amount that Cir.1994) (“In applying the plain error car, may is in the sometimes they misre- standard we consider all circumstances at present type drug that’s trial including strength of the evidence car, but the driver of the vehicle that’s defendant.”). against the We will not re- crossing the border with—with the verse a conviction “unless the error seri- drugs in it knows what’s in the car be- fairness, ously integrity affect[s] the or way organization cause that’s the public judicial reputation proceed- functions; that’s their livelihood. Olano, ings.” 507 U.S. at 113 S.Ct. (alteration Agent permitted testify original). Darvas was also Proof of the innocence,” however, defendant’s “actual the value of the seized and required. id. drug smuggling organiza- the structure of See tions. II. a motion limine and at Cam- objected all

pos Agent Darvas’s testi- majority opinion summarily con- mony improper drug profile courier evi- cludes that the district court’s decision majority notes, opinion dence. As admit Darvas’s concern- drug profile courier ing knowledge evidence is excluded courier’s could not “ under Fed.R.Evid. 403 “the use of ‘plain’ because constitute error that is or ‘clear profiles such is of probative limited value on its face’ because [under ] extremely prejudicial.” and is may complex United such evidence be admitted in Beltran-Rios, v. Majority Op. (citing 878 F.2d cases.” at 713 United (9th Cir.1989). (9th Cordoba, Because did States v. 104 F.3d Cir.1997); object to the not admission of Dar- States v. 115 F.3d (9th Cir.1997) (Jenkins, testimony vas’s ultimate of issue 720-22 J. con- 704(b), knowledge under Rule court curring)). majority this is mistaken for (1) Expert must review the district testimony court’s decision to three reasons: judge 704(b) admissible; a district court competent obvious is never Rule violates avoid it without benefit (2) be able to speaks directly should testimony Expert v. Tur [any] objection.” of United States of the defendant’s ultimate issue Cir.1997). man, generic 122 F.3d not admissible as knowledge is at of the law” is clear regardless of When “the state operandi” evidence “modus (3) trial, case; perforce court’s error is Expert a “the district of complexity the trier of ... Id. plain.” that does not “assist the evidence” is never fact to understand Campos’s “the state At the time of 702. under Rule admissible 704(b) the law” in this circuit on Rule in court stated unequivocal. As this was 704(b) Inadmissibility Rule Under A. Morales, v. 108 F.3d 1031 United States never held that an ex This circuit has (9th Cir.1997), permits Fed.R.Evid. a courier’s knowl may testify drug pert matter,” testify “predicate to a éxperts doing so violates Rule edge when supports id. at which Rule only held that under This circuit has that the de- an inference or conclusion judge trial does not abuse his or a requisite not have the fendant did or did admitting expert in “modus her discretion rea, does not long mens so as the bearing on the knowl operandi” testimony the ultimate inference or conclu- draw in criminal complex couriers edge jury and the ultimate sion for the infer- Cordoba, at 229.4 cases. See necessarily not ence or conclusion does admitting Agent Darvas’s ex The error testimony. follow from testimony on the ultimate issue of pert added). Morales, (emphasis Id. at 1038 “plain” was under Campos’s knowledge charged willfully the defendant was 704(b). The fact that similar testimo making bookkeeping false entries. See criminal case held complex in a ny an 108 F.3d at 1034. Morales wanted Rule 403 not lessen admissible under does testify that her “un- accounting expert to of the error in this case. “plainness” accounting principles” was derstanding of If whenever this court rules it did then This court conclud- “weak.” Id. un is admissible one case that the district court in Morales erred ed evidence, it der one rule of can never be barring under Rule in a “plain error” to admit similar evidence 704(b) because: rule case under different different if [the] That is not what is meant Even believed evidence.5 A that Morales had a weak “plain” “plain” or “obvious” error.. error (and clear-cut, grasp bookkeeping knowledge that “is so so means error Therefore, provides part not even an issue at trial. 3. Rule 403 that relevant "evi- may probative if its value dence be excluded reference to this evidence in Castro has no danger substantially outweighed by the alleged bearing on whether an error in the prejudice....” unfair Fed.R.Evid. R. 403. admissibility plain of such evidence would be any or obvious under rule of evidence. court, support ruling, 4. The Cordoba of its Castro, cited United States (9th Cir.1992). distinguished is to be 5.This observation complex drug Castro was , majority’s observation that the law does involving multiple conspiracy individuals case require judge to a trial determine many seemingly innocuous activities. As evidence in the case before it is inadmissible noted, parenthetically the Cordoba court multiple Majori- under rules of evidence. See "experts Castro cocaine, amount of testified that the agree majority ty Op. at 712. I with the dollars, valued in the millions of judge inadmissible once a trial rules evidence would not have been entrusted to an unknow- evidence, is no need Cordoba, under one rule of "there (quoting ing dupe.” Castro, at 229 evi- 1111). [the court to determine whether [the] 972 F.2d at But in Castro the evidentiary predicate stan- dence] satisfies appeal sufficiency issue on was the evidence, pertaining to” another evidence. admissibility dards rule not the of this evi- admissibility dence. The of this evidence was Id. contrary), there was evidence to the their concealment.” 115 F.3d at 715. still have had to draw its jury would own “[T]he Government did not police ask the predicate testimony inference from that expert about either Webb’s intent or factual question- to answer the ultimate knowledge, hypothetical or a defendant’s willfully whether Morales made false en- knowledge.” intent or Id. at 716 (empha- added). Moreover, tries. Morales could have had a weak sis “expert admit- grasp bookkeeping principles and still ted [on that cross-examination] he had no knowingly made false entries information that Webb knew weapon charged. was in engine compartment.” Id. at circumstances, 715. “Under these it was Id. jury left to the to decide whether Webb Here, if Agent believed Dar- gun knew the was hidden in the car.” Id. expert it testimony, necessarily vas’s had hand, On the to conclude that couri- other Webb stated that it —as er would be an transporting precisely pounds abuse of discretion permit marijuana “prosecutor marijuana about the to ask an expert’s opinion as —knew Agent hypothetical the van. Darvas further cemented whether a defendant in a inevitability hypothetical scenario, of this conclusion factual testi- indistin- fying “nobody guishable in their right mind defendant facts court, would entrust that the case amount had the intent before (cit- somebody necessary for they doesn’t know what are conviction.” Id. at 716 Thus, doing.” testimony ing this square- Boyd, falls States v. (D.C.Cir.1995) added)). ly within the rule in It (emphasis Morales: consti- That testimony precisely tutes to a what “predicate happened this matter,” necessarily which case. The Agent leads to the asked Dar- “Now, vas: your opinion conclusion that the defendant had the ... req- would a Morales, uisite mens rea. trafficking organization See 108 F.3d at trafficking such, 1038. As quantity marijuana, it is inadmissible under 151 pounds, entrust 704(b). it to Rule a courier that not does know what he which, or transporting?” she is To Agent inadmissibility Agent Darvas’s no, Darvas “In my opinion, testified: they testimony “plain” is even more under our would ... nobody right in their mind Webb, decision in United States v. entrust that amount of (9th Cir.1997). Webb, police offi- somebody they that doesn’t know what are cer typical people testified “it is Thus, doing.” Agent Darvas to a testified weapons engine conceal compart- hypothetical scenario that factually was ments of their ... police cars because “indistinguishable from the defendant and seldom search there ... ... if discov- And, the facts” in if this case. his testimo- ered, it is easier to claim that did not believed, ny followfed],” “necessarily was weapon.” know about the Id. at 713. The Morales, 108 F.3d at that Campos challenged defendant the admissibility of knew about the in the van. The testimony under Rule Webb inadmissibility of this under concluded that the officer’s 704(b) patently is therefore clear. admissible operandi” “modus evidence. In See 115 F.3d at 715-16. ruling, sharp so Webb drew a distinction Thus, expert testimony between “describes Darvas’s on the a typical situation” criminal involving knowledge con- ultimate issue of is inadmissible expert testimony duct and that attests to under Rule precisely for the same knowledge hypothetical of a defendant. reason that the polygrapher’s testimony See id. at 716. “The majority [in Webb was inadmissible. As the opinion ] typical way testified about a people principled conceal states: is no “[T]here distinction weapons in typical cars and the ... Campos’ reasons for between the

718 Here, guilt is Campos’s of the evidence physiologi- her regarding expert polygraph “overwhelming.” dur- posed “substantial” or questions far from responses cal fact, and the conclusion the the district court described ing the examination In testimony that she did from that thin.” The “very case as government’s significant that the van contained “know” was whether only dispute issue Op. at marijuana.” Majority amount And the the van. knew about dis- principled “there is no Similarly, explicitly estab- only direct evidence expert Agent Darvas’s between tinction” Dar- knowledge Agent is lishing Campos’s transporting courier that a circum- testimony. Under such vas’s marijuana would pounds 151 precisely stances, doubt that the there can be little trans- he or she was drugs know about Agent Darvas’s testimo- admitting error in right in his because no trafficker porting signifi- “manifestly erroneous” and ny is drugs that amount entrust mind would the outcome of the district cantly “affected courier and the unknowing drug to an at Hankey, 203 F.3d proceedings.” court testimony that Cam- from that conclusion record, the evidence in 1167. Given carrying pounds 151 drug courier pos as a ... fair assurance say, “one cannot drugs marijuana knew about substantially judgment was not tes- excluded polygrapher’s Both the van. v. swayed by the error.” Kotteakos Unit- testi- Darvas’s admitted timony Agent 750, 764-75, States, 66 S.Ct. ed 328 U.S. necessarily lead to the conclusion mony (1946). Thus, 1239, “it is 90 L.Ed. 1557 or did not know Campos either did [Campos’s] impossible to conclude marijuana in the van. about the Id. rights were not affected.” substantial admitting of the error “plainness” The testimony on the ultimate Darvas’s Testimony Expert Is B. Ultimate Issue light clear in of United is even more issue Operandi” Evidence “Modus Not (9th Cir.1995). 49 F.3d 502 Wang, v. explic we “we now make Wang, stated: “ may testify ... agents ‘[Government it, would be for the practice the better criminals to general practices as to the argu ... questions to ask prosecutor not operan- modus establish defendants’ intent and for a district ably bearing on ” Gil, v. 58 F.3d di.’ United States admissible.” court not to find such answers (9th Cir.1995) (quoting 1422 United States offered Expert Id. at 504. (9th Johnson, 735 F.2d 1202 Cir. v. whether the defendant Alonso, 1984)); v. see also United States constituting an ele the mental state “had Cir.1995) (9th (holding 1541 is inadmissible charged” ment of the crime ex permitted is war Id. error under ... conduct plain “how otherwise innocent where the admission rants reversal in fact be consistent with or even might Id. “manifestly erroneous.” evidence is conduct”). criminal Such tes indicative of Kinsey, F.2d v. (citing United States “ ‘helps timony is admissible because (9th Cir.1988); United States complex criminal ac jury to understand F.2d Cir. Espinosa, 827 tivities, possibility and to alert it to the 1987)). evidence” “quantity Where seemingly that combinations of innocuous guilt defendant’s is “sub pointing to the ” may indicate criminal behavior.’ events stantial,” “manifestly is not then the error Johnson, F.3d at 714 (quoting (citing Kinsey, 843 erroneous.” id. See added). 1202) (emphasis at For the evi (stating that because drug conspiracy in criminal example, “guilt was so the defendant’s dence of cases, operandi” “modus convincing any er overwhelming and how the crim permitted explain often detective’s] ror the admission of [the interrelate. of the defendants inal actions beyond testimony would be harmless Patterson, doubt”)). See, States v. e.g., United reasonable Cir.1987). Similarly, tor asked about the “knowledge” F.2d of a drug operandi” testimony may in a expert “modus courier factual situation indistinguish- explain the that be used able from Campos’s. Agent And Darvas employ often counter- “drug traffickers testified to that knowledge. That is not driving techniques, register Webb, operandi” surveillance “modus testimony under names, 715-16, in make cars others’ narcotics and see F.3d at and is inadmissible lots, in public parking cash and Wang, deliveries evidence under see 49 F.3d at 504. frequently pagers public use tele- Gil, 1422; also, phones.” 58 F.3d at see Agent C. Darvas’s Ultimate Issue Tes-

Alonso, (reviewing 48 F.3d at 1541 numer- timony Did Not the “Assist Trier of holding). ous cases so Fact” case, Campos day trip In this took a suggests expert’s Common sense that an Tijuana, Mexico and was arrested at a “specialized knowledge” is not needed port entry of States-Mexican when glean “assist the trier of fact” to from the agents pounds customs discovered 151 presented evidence in this the case infer- in ceiling compart- hidden the Campos may ence that have known about the van driving. ment of she was Under marijuana. the Fed.R.Evid. 702. Under Gil, expert operandi” Webb and “modus evidence, rules expert’s the testimo- testimony explain how admissible. ny conveys is not admissible unless “sci- Campos’s “seemingly innocuous” conduct entific, technical, or specialized other day on the of her arrest arguably could knowledge [that] will assist the trier of fact suggest her role as a “mule” in a drug to understand the evidence or to deter- Thus, trafficking organization. ” in mine a fact issue.... Fed.R.Evid. jury properly Agent heard Darvas’s 702; see also Daubert v. Merrell Dow (1) Pharmaceuticals, 579, 592, U.S. (2) $120,000; had a street value (1993) (inter- S.Ct. 125 L.Ed.2d 469 “marijuana drug trafficking organizations, preting requiring judges Rule 702 as trial ... particularly those involved in] “gatekeepers” to serve as to all smuggling transportation drugs] or the [of require- to ensure it meets these States,” from Mexico to the United often ments). only “job human use “mules” whose is to Here, Agent car, truck, Darvas testified his

drive the or the or whatever the “expert” opinion drug courier’s knowl- happens vehicle to be” across the border. much, more, if edge was based as on a operandi” testimony Such “modus certain- common sense review of the facts than on ly possibility alerted the “specialized knowledge” his as a law en- Campos’s day on the conduct her arrest forcement officer. When asked “what “may indicate criminal behavior.” Agent opinion,” [was] basis for his at 714. initially responded: Darvas effectively But when Agent Darvas testi- Campos’s knowledge fied to of the 151 You have to think about the value that is car, pounds marijuana in the van in because contained the amount of mon- “nobody right ey product their mind would entrust that’s invested into the that’s somebody product, that amount of in the car. It’s a tradeable doing,” something readily money, that doesn’t know what are that’s worth case, operandi” many, many his was not “modus of dol- thousands merely person evidence. did not money. His lars worth And this across general responsible getting describe terms how a traf- that is the border for that mari- ficking organization works. Darvas is accountable juana way essentially testified that knew much the same person driving in the van. the car is accountable for drugs prosecu- about operandi” “modus tute admissible car until it reaches marijuana in the or ex- merely it did not describe because its destination. Campos’s in- general terms how plain to talk number of occasions I’ve had a arrest day on the of her nocuous conduct organizations to individuals Rather, activity. may suggest criminal marijuana across border— smuggle in- to the criminal Agent Darvas testified business, that’s their liveli- their that’s in a situa- hypothetical of a defendant tent to me that explained it’s been hood—and indistinguishable factually that was tion entrust right in their mind would nobody believed, If his Campos. that of somebody amount of testimony necessarily lead the con- doing. know what are that doesn’t the mari- knew about clude may misrepresent the amount They in the van. estab- juana secreted Under car, they may misre- in the sometimes is precedent, the error lished Ninth Circuit type drug that’s in the present admitting plain this evidence was car, the vehicle that’s but the driver of Campos’s substantial clearly affected the border with—with crossing ... integrity rights and “the fairness [and] in it what’s in the car be- drugs knows Olano, 507 judicial proceedings.” way organization cause that’s 736,113 Accordingly, I S.Ct. U.S. functions; that’s their livelihood. and re- Campos’s reverse conviction Agent simply why There is no reason mand for new trial. permitted Darvas should have been to of- expert opinion fer his as to whether Cam- in the van.

pos knew about prosecutor just easily could made points closing argument.

these same his

Expert only admissible be-

cause it is needed to “assist the trier complex criminal understanding

fact” understanding or in how seem- activities America, UNITED STATES of combine to result ingly innocuous actions Plaintiff-Appellee, activity. 115 F.3d at criminal See (Jenkins, J., concurring); 717-21 see also Gil, every F.3d at 1422. To assert that BENAVIDEZ-BENAVIDEZ, A. Juan involving single arrest —even one

border Defendant-Appellant. relatively transporting defendant small No. 99-10270. a com- amount —constitutes plex justifying criminal case the admission Appeals, United States Court of of such ultimate issue Ninth Circuit. exception means that has swallowed the rule. Argued and March Submitted 28, 2000 Filed June III. sum, plainly the trial erred in judge Darvas’s testimo- admitting

ny concerning the ultimate issue of Cam- This violated

pos’s knowledge. that the

Rule for the same reasons

polygrapher’s proferred violated 704(b). Moreover, Agent Darvas’s

testimony concerning knowledge

drug couriers in this case did not consti-

Case Details

Case Name: United States v. Teresa Maria Campos

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 28, 2000

Citation: 217 F.3d 707

Docket Number: 97-50635

Court Abbreviation: 9th Cir.