Argued and Submitted July 10, 2013 —Pasadena, California
Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, Senior District Judge, Presiding D.C. No. 3:10-cr-04587-W-1
Harini P. Raghupathi, Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.
Kyle W. Hoffman (argued), David P. Curnow, and Bruce R. Castetter, Chief, Assistant United States Attorneys, Appellate Section, Criminal Division, and Laura E. Duffy, United States Attorney, San Diego, California, for Plaintiff-Appellee.
Before: Susan P. Graber, Johnnie B. Rawlinson, and Paul J. Watford, Circuit Judges.
The panel affirmed a jury conviction of importation of methamphetamine in a case in which the defendant claimed ignorance of the presence of the drugs in his car.
The panel held the district court did not violate Miranda by admitting the defendant's post-arrest statement that he feared for his family's safety, where the statement, an explanation for why he refused to talk to the arresting agent, was voluntary and arguably inconsistent with his trial testimony, and where the prosecution used the statement only as impeachment during rebuttal.
The panel rejected the defendant's contention that the district court committed reversible error under Fed.R.Evid. 704(b) and 403, or the Confrontation Clause, by admitting a special agent's expert testimony that drug-trafficking organizations do not use unknowing drug couriers.
The panel held that the prosecutor's statement during closing argument that it was the jury's "duty" to say the defendant is guilty did not amount to error, where that statement came immediately after the prosecutor's statement that the government has the burden of proof beyond a reasonable doubt.
Dissenting, Judge Watford wrote that under United States v. Bushyhead, 270 F.3d 905 (9th Cir. 2001), the defendant's statement that he could not speak to officers because his "family will get killed" should have been excluded, even as impeachment evidence.
GRABER, Circuit Judge
Defendant Cesar Gomez appeals his conviction on one count of importation of methamphetamine, in violation of 21 U.S.C. §§ 952 and 960, after he was caught crossing the border with methamphetamine in his car. Defendant claimed ignorance of the presence of drugs in his car, but the jury convicted him. On appeal, Defendant argues that the prosecution's introduction of a post-arrest statement violated Miranda v. Arizona, 384 U.S. 436 (1966); that the admission of an expert witness' testimony violated the Federal Rules of Evidence and the Confrontation Clause; and that the prosecutor's closing argument amounted to prosecutorial misconduct. We disagree and, accordingly, affirm.
FACTUAL AND PROCEDURAL HISTORY
Defendant attempted to cross the United States-Mexico border as the sole occupant of a Toyota Camry. Border officials discovered, hidden in the gas tank, 15 packages containing several kilograms of methamphetamine. After the officials informed Defendant of his Miranda rights, the following exchange occurred:
[Agent Steven Fuentes]: Okay, do you understand your rights, yes or no?
Fuentes: 'kay. Do you want to speak with us and say your story?
[5 second pause]
Gomez: Uhmm. Mmm, I can't talk.
Fuentes: Uh, no, you can't—why can't you talk? Just—what?
Gomez: Because, no.
Fuentes: You don't, don't want to talk?
Gomez: No, it's that no, I can't talk. It . . . it's my ...