U.S. v. Santini, No. 10-50391 (9-8-11) (Per curiam with B. Fletcher, N. Smith, and Gwin, D.J.) The 9th reverses importation and possession with intent convictions and remands for a new trial. The defendant at trial argued that a traumatic brain injury made him easy to manipulate and he was unaware of the marijuana placed in his car. The government mental health expert opined that the defendant knew what he was doing, and that his prior "extensive contacts" with the police showed a similar behavior and behavior that predated the injury. On appeal, the 9th found that this was FRE 404(b) and 702 error. The prior contacts were not similar (simple possession, indecent exposure) and the reliability is questionable. Moreover, the expert strayed from his expertise in opining on a rap sheet, which he admitted was confusing. This testimony was also more prejudicial than probative. The error was prejudicial.
Congratulations to Zandra Lopez of the Federal Defenders of San Diego.