U.S. vs. Sepulveda-Barraza, No. 09-10362 (3-3-11) (Ikuta with Gould and Mahan).

[Ed. note: this case is from our office].

The defense in this border drug case was that the defendant was a "blind mule" who did not know drugs were in the car. He had been charged with importation of cocaine and possession with intent to distribute, but not conspiracy. The government, however, brought in an expert in drug traffickers to explain the implausibility of the defense theory, especially since drug traffickers want to know where the drugs are and how to retrieve them, especially for the amount at issue here (valued over $150,000). The defense had filed an in limine motion to preclude the government's expert, which was denied. The 9th first found that the defense had preserved the issue through the in limine motion. Turning to the merits, the 9th rejected defense arguments that U.S. vs. Vallejo had set a per se rule that expert testimony was precluded absent a conspiracy charge. 237 F.3d 1008 (9th Cir. 2001), amended by 246 F.3d 1150 (9th Cir. 2001). The 9th stated that this was an overbroad reading. Vallejo, explains the panel, held that the district court abuses its discretion if the evidence has no relevance. In Vallejo, the testimony by a trafficking expert had no relevance to the importation of the 40 kgs of marijuana hidden in a car. There is no per se rule about admissibility. In fact, the evidence is admissible where relevant, probative of defendant's knowledge, and not unfairly prejudicial. The court did not abuse its discretion in admitting it here, given the defense, and the issue of knowledge.

Reeb v. Thomas, No. 09-35815 (3-3-11) (Ezra, US D.J., D. Hi, with O'Scannlain and Tallman).

The 9th holds that a district court does not have jurisdiction to review BOP's residential drug abuse program for individual determinations. The district court, under the APA, can review agency's actions but withdraws jurisdiction where a statute precludes jurisdiction or the agency action is committed to agency discretion by law. Here, the APA does not apply to BOP's individual decisions. The court can review allegations that BOP action is contrary to federal law, violates the Constitution, or exceeds statutory authority; it cannot decide the individual decision by BOP to remove the petitioner from the program for being disruptive.