Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding D.C. No. CR 07-01773-CKJ Argued and Submitted November 1, 2010-San Francisco, California
The opinion of the court was delivered by: Ikuta, Circuit Judge
Before: Ronald M. Gould and Sandra S. Ikuta,
Circuit Judges, and James C. Mahan, District Judge.*
*The Honorable James C. Mahan, United States District Judge for the District of Nevada, sitting by designation.
Alejandro Sepulveda-Barraza appeals his conviction for importation of cocaine and possession with the intent to distribute, claiming that the district court erred in admitting expert testimony regarding the structure and operations of drug-trafficking organizations and drug couriers, including testimony that drugs are rarely smuggled by unknowing couriers. We hold that the district court did not abuse its discretion in admitting this testimony, because it was relevant, probative, and not unduly prejudicial in light of SepulvedaBarraza's defense theory that he did not know that he was transporting drugs.
On September 11, 2007, Sepulveda-Barraza was stopped by government inspectors at a port of entry in Nogales, Arizona. He claimed that he was driving across the border to run errands at Wal-Mart, but was only carrying $21 in United States currency. Because he seemed a "little nervous" and a "little too friendly," an inspector referred him for secondary inspection. At secondary inspection, officers discovered eleven packages of cocaine hidden in the seats of his vehicle.
A grand jury indicted Sepulveda-Barraza on one count of importation of cocaine in violation of 21 U.S.C. §§ 952(a) and 960(a)(1), (b)(1)(B)(ii) and one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii)(II). The first trial ended in a deadlocked jury and mistrial. Before the second trial, defense counsel filed a notice that he intended to call an expert witness, retired FBI Special Agent Erik Godtlibsen, to testify that drug trafficking organizations sometimes use unknowing couriers (known as "blind mules") to smuggle drugs across the border. The government then filed a notice of its intent to call Immigration and Customs Enforcement ("ICE") Supervisory Special Agent Juan Bortfeld to provide expert testimony regarding the control of drug couriers by drug trafficking organizations, the street value of the cocaine found in Sepulveda-Barraza's vehicle, and the implausibility that drug traffickers would entrust valuable drug loads to an unknowing individual.
Defense counsel filed a motion in limine to exclude Bortfeld's testimony regarding these issues, but the district court denied the motion in reliance on our decision in United States v. Murillo, 255 F.3d 1169, 1176-78 (9th Cir. 2001), overruled on other grounds by Muehler v. Mena, 544 U.S. 93 (2005). In Murillo, we held that expert testimony on the operation and structure of drug trafficking organizations, including testimony about "typical travel itineraries of drug couriers," how "drug traffickers do not entrust large quantities of drugs to people who are unaware that they are transporting them," and "the value of the drugs" found in a courier's car, Murillo, 255 F.3d at 1176, is admissible when relevant, probative, and not unfairly prejudicial, id. at 1177-78. Accordingly, the district court ruled that the government could testify regarding the matters allowed by Murillo.
At trial, retired Special Agent Godtlibsen (the defense expert) testified that he recalled two instances in which unknowing drivers had been used by drug traffickers. In both instances, the drivers crossed the border each day to go to work, and parked their vehicles in the same location each time. Godtlibsen testified that traffickers would have to spend a substantial amount of time profiling an unknowing driver to ensure that the driver would travel to a known location where the traffickers could retrieve their drugs. He also stated that the traffickers ...