Case o' The Week: "Opened Door" Closes Door on Defense Challenge - Sepulveda-Barraza and Drug Courier Experts

What happens when the defense "opens the door" to the relevance of drug courier testimony?

A federal drug courier "expert" strolls on through . . . United States v. Sepulveda-Barraza, 2011 WL 723108 (9th Cir. Mar. 3, 2011), decision available here.


Players: Hard-fought appeal by D. Az. AFPD Dan Kaplan. Decision by Judge Ikuta.

Facts: Sepulveda-Barraza was stopped at the border and referred to secondary inspection. Id. at *1. Eleven packages of cocaine were found in his car. Id. Sepulveda-Barraza hung his first jury trial; at the retrial the defense noticed its intent to call a retired FBI Special Agent as an expert. Id. This expert would testify that drug trafficking organizations sometimes use unknowing couriers (“blind mules) to smuggle drugs across the border.

The government then noticed its intent to call an ICE expert, to testify about the control of drug couriers by drug trafficking organizations, the street value of the cocaine found, and the “implausibility that drug traffickers would entrust valuable drug loads to an unknowing individual.” Id.

The defense moved in limine to exclude the testimony of the government expert; that motion was denied. Id. Sepulveda-Barraza was convicted at trial and received a sentence of 120 months. Id. at *2.

Issue(s): “According to Sepulveda-Barraza, United States v. Vallejo established the per se rule that the government may not introduce expert testimony describing the ‘general structure and operations of drug trafficking organizations’ because the introduction of such testimony inevitably creates the implication that the defendant ‘had knowledge of how the entire organization operated, and thus knew he was carrying the drugs.’ 237 F.3d 1008, 1012, 1017 (9th Cir. 2001), amended by 246 F.3d 1150 (9th Cir. 2001). Moreover, Sepulveda-Barraza urges us to extend the rationale of Vallejo, and hold that an expert’s testimony that a drug trafficking operation is unlikely to use an unknowing drug courier is always inadmissible in a non-complex case such as this one.” Id. at *3.

Held: “We disagree. First, neither Vallejo nor its progeny supports the establishment of a per se rule that expert testimony regarding the operation and structure of drug trafficking organizations or the modus operandi of couriers involved in drug trafficking organizations is inadmissible.” Id.

“[ ] Sepulveda-Barraza makes the further argument that we should extend our existing case law to create a rule that testimony about the use of unknowing couriers is per se inadmissible in a non-complex drug trafficking case. We decline this invitation. Testimony regarding the use of unknowing couriers by drug trafficking organizations is not different in kind than testimony about drug trafficking operations generally. Accordingly, for the reasons explained above, such evidence is likewise admissible under the broad, case-by-case standard of Rule 403.” Id. at *4.

“In sum, expert testimony on drug trafficking organizations and the behavior of unknowing couriers is admissible when relevant, probative of a defendant's knowledge, and not unfairly prejudicial under the standard set forth in the Federal Rules of Evidence.” Id.

Of Note: The defendant in this case didn’t object to the testimony of the government’s expert at trial. On appeal, does the Ninth review the defense challenge under the abuse-of-discretion standard, or under the (nearly impossible) “plain error” standard triggered when there is a failure to object? The defense argued the former, because Sepulveda-Barraza had litigated this motion in limine and had no obligation to renew his motion at trial.

“We agree,” writes Judge Ikuta. Id. at *2. “Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” Id.

How to Use: When you read that the defense called an expert on retrial, the immediate fear is that dreaded “open the door” rationale. Sure enough, Judge Ikuta explains that “Sepulveda-Barraza opened the door to [the government expert’s] testimony by noticing his intent to call [a defense expert] to testify that ‘drug cartels’ sometimes use ‘blind mule’ couriers to smuggle drugs across the border and then eliciting such testimony at trial.” Id. at *5.

Note this key fact – Sepulveda-Barraza may not control when government’s expert isn’t simply rebutting a defense expert.

For Further Reading: That “open door” concept (otherwise known as “conditional relevance”) is tricky and dangerous stuff, found nowhere in the actual rules of evidence. For a discussion of open doors in the context of FRE 608 – and Chief Judge Kozinski’s critique of the concept – see the May 2009 blog on United States v. Osazuwa, available here.


"Open Door" image from http://jantiff-stocks.deviantart.com/art/The-Open-Door-124136267


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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