Sunday, September 06, 2020

Case o' The Week: If not found we can rely, reverse conviction and re-try! - Valencia-Lopez, FRE 702, Daubert, and gov't "expert" reliability

Pick a peck of pot and peppers . . . .


and try the case again.

 United States v. Valencia-Lopez, 2020 WL 4814139 (9th Cir. Aug. 19, 2020), decision available here.

Players: Decision by Judge Bennett, joined by Judge Hawkins. Dissent by Judge Owens. 

 Admirable win and very important FRE 702 victory for D. Arizona AFPD J. Ryan Moore.

Facts: Valencia-Lopez was stopped at the border when he drove a commercial truck into the US. Id. at *1. Hidden among the cargo of bell peppers was 6,000 kilos of marijuana. Id. Valencia-Lopez explained that he was seized at gunpoint in Mexico, told to drive (re-loaded) truck across the border, and that he and his family would be killed if he did not comply. Id. at *2. 

  The government noticed ICE “Expert” Hall for trial, who was provisionally allowed over the defense’s pretrial objection. Id. 

  At trial, the district court denied the defense’s renewed objection, and refused defense voire dire. Id. The court made no reliability findings. ICE “Expert” Hall testified that the likelihood that a drug trafficking organization would trust a large load to a threatened driver was “[a]lmost nil, almost none.” Id. 

  Valenicia-Lopez also testified, and was convicted. Id. at *3.

 Issue(s): “Valencia-Lopez argues that the district court abused its discretion by admitting Agent Hall's testimony without adequately performing its gatekeeping role under Daubert and [FRE] 702. . . . Valencia-Lopez does not challenge the district court’s finding that Agent Hall's testimony was relevant. We thus look only to whether the district court appropriately determined that the testimony was reliable.” Id.

 Held: “It did not.” Id. at *4.

  “The issue is not whether Agent Hall had knowledge and experience sufficient to allow him to testify as an expert on the modus operandi of drug cartels. He did. Nor is the issue whether he had sufficient ‘background for his opinions.’ Rather, the issue is whether he provided a reliable basis for his opinion that the likelihood of drug cartels using coerced couriers is ‘[a]lmost nil, almost none.’ As explained above, he did not.” Id. at *6.

  “We . . . vacate Valencia-Lopez's convictions and remand for a new trial.” Id. at *8.

 Of Note: Valencia-Lopez is an extraordinary “experts” decision. The opinion confirms what we’ve been shouting since the Daubert Trilogy hit: “qualifications ain’t reliability.” 

  In fact, Judge Bennett goes so far as to emphasize that this core reliability finding is arguably more important when dealing with cop experts, such as this case: “Daubert and Kumho Tire may be harder to apply when the expert testimony is ‘experience-based’ rather than ‘science-based.’ But any such difficulty cannot simply lead to a ‘that goes to weight, not admissibility’ default, as here. Indeed, we see a strong argument that reliability becomes more, not less, important when the ‘experience based’ expert opinion is perhaps not subject to routine testing, error rate, or peer review type analysis, like science-based expert testimony. The Supreme Court has made it abundantly clear that reliability is the lynchpin—the flexibility afforded to the gatekeeper goes to how to determine reliability, not whether to determine reliability.” Id. at *4.

  Valencia-Lopez is a thoughtful, well-supported opinion, and one of the most important FRE 702 decisions in years: a must read.

 How to Use: Judge Bennett gives a big thumbs-up to Daubert voir dire at trial. Id. at *5 & n.6. The Ninth doesn’t (yet) hold whether a district court must hold an evidentiary hearing or permit voir dire. Id. The Court does, however, give a hearty nod of approval to trial voir dire as “a recommended method for the district court to conduct a reliability determination.” Id. 

  D.J.’s routinely dodge pretrial Daubert pretrial evidentiary hearings or trial voir dire of government “experts.” Use Valencia-Lopez to advocate for these critical gatekeeping procedures.                                           

For Further Reading: It was a week of very different memos, in Washington D.C.

Last week, thirty-two black, D.C. AUSAs signed a ten-page memo sent to U.S. Attorney Michael Sherwin, seeking changes to increase fairness and minimize nonlegal influences and biases. See Washington Post Article here

By contrast, a very different OMB memo last week conveys President Trump’s direction to federal agencies to “cease and desist” funding for certain types of race and diversity training. See ABC news article here. 


Image of bell peppers and marijuana from


Steven Kalar, Federal Public Defender N.D. Cal. Website at



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