United States v. Rodriguez-Flores , 907 F.3d 1309 ( 2018 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS November 5, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2039
(D.C. No. 2:16-CR-00580-RB-2)
MIGUEL ANGEL RODRIGUEZ- (D. N.M.)
FLORES,
Defendant - Appellant.
–––––––––––––––––––––––––––––––––––
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2136
(D.C. No. 2:16-CR-00580-RB-1)
JOSE REMBERTO GUZMAN- (D. N.M.)
DOMINGUEZ,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. Nos. 2:16-CR-00580-RB-1 & 2:16-CR-00580-RB-2)
_________________________________
Howard A. Pincus, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with him on the briefs), Denver, Colorado for Defendant-Appellant Miguel
Angel Rodriguez-Flores.
Todd A. Coberly, Coberly & Martinez, LLLP, Santa Fe, New Mexico for Defendant-
Appellant Jose Remberto Guzman-Dominguez.
Richard C. Williams, Assistant United States Attorney (James D. Tierney, Acting United
States Attorney, with him on the briefs), Las Cruces, New Mexico for Plaintiff-Appellee.
_________________________________
Before LUCERO, HARTZ, and HOLMES, Circuit Judges.
_________________________________
HARTZ, Circuit Judge.
_________________________________
Defendants Jose Remberto Guzman-Dominguez and Miguel Angel Rodriguez-
Flores were arrested at a state port of entry after an inspector found cocaine and heroin in
their truck (a tractor-trailer). The truck contained a large quantity of legitimate cargo
(chemical cleaner), but four boxes containing the drugs, weighing more than 115 pounds,
were concealed behind that cargo. After a joint trial in the United States District Court
for the District of New Mexico, Defendants were convicted on all three counts of the
indictment against them: (1) conspiracy to distribute at least five kilograms of cocaine
and at least one kilogram of heroin, see 21 U.S.C. § 846; (2) possession with intent to
distribute at least five kilograms of cocaine, see id. §§841(a)(1) and (b)(1)(A); and (3)
possession with intent to distribute at least one kilogram of heroin, see id. The chief issue
at trial was whether Defendants knew of the contraband in the truck. Both had denied
knowledge in statements to law-enforcement officers after their arrests. Guzman-
Dominguez repeated the denial of knowledge in his trial testimony. Rodriguez-Flores did
not testify.
On appeal Rodriguez-Flores challenges the sufficiency of the evidence that he
knew of the contraband in the truck, and both Defendants challenge the unobjected-to
admission of a statement by an expert witness that he did not believe persons transporting
2
drugs who denied knowledge of the drugs. But the evidence was more than sufficient for
a reasonable juror to infer beyond a reasonable doubt that Rodriguez-Flores was involved
in the drug offenses. And on plain-error review of the admission of the expert testimony,
we hold that Defendants have not shown the prejudice necessary to require reversal.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. SUFFICIENCY OF THE EVIDENCE AGAINST RODRIGUEZ-
FLORES
We review de novo the sufficiency of evidence for a criminal conviction, viewing
“the evidence in the light most favorable to the verdict to ascertain whether any rational
trier of fact could have found the defendant guilty beyond a reasonable doubt.” United
States v. Smith, 641 F.3d 1200, 1204–05 (10th Cir. 2011). In making this determination,
we cannot weigh conflicting evidence or consider the credibility of witnesses, but instead
we defer to the jury’s resolution of these matters. See United States v. Brooks, 438 F.3d
1231, 1236 (10th Cir. 2006). And “rather than examining the evidence in bits and pieces,
we evaluate the sufficiency of the evidence by considering the collective inferences to be
drawn from the evidence as a whole.” Id. (brackets and internal quotation marks
omitted).
Rodriguez-Flores challenges the sufficiency of the evidence against him. “To
obtain a conviction for conspiracy, the government must prove that (1) there was an
agreement to violate the law; (2) Defendant knew the essential objectives of the
conspiracy; (3) Defendant knowingly and voluntarily took part in the conspiracy; and (4)
the coconspirators were interdependent.” United States v. Pulido-Jacobo, 377 F.3d 1124,
3
1129 (10th Cir. 2004) (emphasis added) (internal quotation marks omitted). To prove the
two counts of possession with intent to distribute, “the government must show that [1] the
defendant possessed the controlled substance; [2] knew that he had it; and [3] possessed it
with the intent to distribute it.” Id. at 1131 (emphasis added) (internal quotation marks
omitted).
Rodriguez-Flores does not challenge the sufficiency of the evidence on most of the
elements of the three offenses. He limits his argument to the sufficiency of the evidence
that he knew about the drug cargo. That is, he does not argue that even if he knew about
the drugs, he was innocent of the charges.
We reject the challenge. As we proceed to explain, there is compelling evidence
that the drugs were added to the cargo after Defendants picked up the chemical cleaner,
that Defendants were together and controlled the truck from the time of that pick-up until
their arrests a few hours later, and that they were close associates who were working
together in the venture.
A. The Evidence
1. The Arrests
On November 14, 2015, at 12:29 a.m., Guzman-Dominguez drove his commercial
truck into the state port of entry on Interstate 10 near Lordsburg, New Mexico.
Rodriguez-Flores was his sole passenger. Inspector Jesus Salcedo was assigned to do
level 1 inspections, which involve examining paperwork, the truck, and the cargo.
Salcedo testified that as he was examining the underside of the vehicle, Guzman-
Dominguez was unusually chatty. Guzman-Dominguez told the inspector that he had just
4
installed new brakes, but Salcedo, a former mechanic, testified that there were no new
brakes.
When Salcedo searched the cargo area of the truck, he saw 17 four-foot-by-four-
foot totes (plastic containers inside metal cages) filled with liquid chemical cleaner. Each
tote weighed about 2400 pounds. According to the bill of lading, signed by Rodriguez-
Flores but given to Salcedo by Guzman-Dominguez, the totes had been picked up the
previous day from Mirachem, an industrial-cleaner manufacturer in Phoenix, Arizona.
Climbing into the truck and over the totes, Salcedo discovered four cardboard boxes,
which were unaccounted for in the bill of lading. One box was open, and he saw green
saran-wrapped bundles inside. From his training he believed the boxes contained
narcotics, so he returned to his booth to report the discovery. (It was later determined
that the boxes contained 47.9 kilograms of cocaine and 5.24 kilograms of heroin.)
Two New Mexico State Police officers who had arrest power arrived and arrested
Defendants. Defendants were not interviewed, however, until after the arrival at 4:35
a.m. of Agents Antonio Palomares and Johnathan Butler with the Investigations Bureau
of the New Mexico State Police. The agents began recorded interviews with Guzman-
Dominguez at 5:23 a.m. and with Rodriguez-Flores about 6 a.m. Two investigators with
the Department of Homeland Security (DHS)—Task Force Officer Jose Lopez and
Special Agent William Shafer—arrived about 9:00 a.m. They interviewed Guzman-
Dominguez at 10:30 a.m. and Rodriguez-Flores at 11 a.m.
5
2. The relationship between Defendants
Defendants were not mere acquaintances, nor did they have a typical employer-
employee relationship. Their friendship and association were described in Guzman-
Dominguez’s trial testimony and Rodriguez-Flores’s statements to law-enforcement
officers after his arrest. The two men had known each other since they were children in
El Salvador. A few months before their arrests, they had reconnected through Facebook
after 15 years without seeing one another. Rodriguez-Flores, who had been struggling
financially while living in California, began working with Guzman-Dominguez in June
2015 so that he could learn the business of commercial driving and get his commercial
driver’s license. Guzman-Dominguez’s trucking business was based in Las Vegas,
Nevada; but he kept his truck in Phoenix, Arizona, because more loads were available
there. While the two men worked together, they slept in the two beds in the sleeper
compartment of the truck; they “practically lived in the truck.” R., Vol. XI at 85–86.
Guzman-Dominguez paid Rodriguez-Flores between $150 and $400 per week, depending
on how much he made. The justification for Rodriguez-Flores’s compensation was that
his English was superior to Guzman-Dominguez’s, so he could communicate better with
brokers and shippers. The two planned to go into business together once Rodriguez-
Flores got his commercial license as two drivers can make more money than one. During
his trial testimony, Guzman-Dominguez referred to Rodriguez-Flores as his “partner.”
Defendants traveled together even when they were not working. In early
November, Guzman-Dominguez received a phone call from his sister in El Salvador,
saying that their father had suffered a heart attack. Rodriguez-Flores was with him when
6
he received the call. When Guzman-Dominguez said that he would be going to El
Salvador to see his father for a few days, Rodriguez-Flores offered to keep him company
on the trip, saying he wanted to see his family in El Salvador, where he had not been for
15 years. Defendants traveled by plane to El Salvador together, spent five days with their
respective families, and then reunited for the flight home. While in El Salvador,
Guzman-Dominguez had a toothache, but a dentist was not able to treat it while he was
there because his blood sugar was too elevated (he has diabetes). After returning to
Phoenix, Guzman-Dominguez drove his car to Nogales, Mexico, to see a dentist, who
also could not operate on the tooth but gave him some antibiotics. Rodrigues-Flores
accompanied him.
3. Getting the job to haul the chemicals
While in Nogales, Guzman-Dominguez attempted to obtain a contract to haul a
load of cargo. On November 12 he used a broker service connecting drivers to cargo to
search for a load he could pick up in Phoenix, but he could not come to an agreement
with the broker. He continued his search the next morning.
On November 13 at 7:07 a.m., Rodriguez-Flores told a cousin in a Facebook chat
that he would be going to Michigan and Quebec. But Guzman-Dominguez had not yet
booked a shipping contract. A search of his computer showed that at 8:09 a.m. he
conducted a search on the broker-service website that led to his booking the load from
Mirachem in Phoenix to Crystal Clean in Fairless Hills, Pennsylvania.
After securing the load, Defendants drove back to Phoenix to retrieve the truck.
The truck had been kept at Vasquez Diesel, which repairs trucks and rents parking spaces
7
for them. When Defendants arrived, they discovered that a battery had died, so they had
to purchase a new one and have it installed. Running a bit late for their pickup,
Defendants arrived at Mirachem shortly after 3:00 p.m. on the 13th. Mirachem’s
warehouse shipping manager John Markovci estimated that it would have taken about 15
minutes to load the totes of cleaning products into the trailer.
Markovci testified that it would be nearly impossible for someone to place four
cardboard boxes in the truck during the loading at Mirachem without being noticed, and
he was surprised when he heard that the drugs had been found with Mirachem’s product
because nothing like that had happened in the past. Although he did not specifically
remember loading the cargo on November 13, 2015, Markovci said that only he and
Anthony Oliver loaded trucks for Mirachem at that time. Markovci testified that he was
not a drug trafficker and had never loaded illegal drugs into a commercial vehicle at
Mirachem. Anthony Oliver similarly testified that he did not specifically remember
loading any vehicles on that date, but he was not a drug trafficker and had never loaded
illegal contraband into a commercial vehicle.
Similarly, the hub manager for Crystal Clean testified that in November 2015 only
he and six others worked at the warehouse that would offload trucks. They had to wear
distinctive protective equipment and no one else would be allowed in the area. Also, the
only person unloading the truck would be the forklift operator, so it would be unusual and
readily noticed if someone was carrying smaller boxes off a truck.
After the legitimate cargo was loaded on the truck, a Mirachem employee gave
Guzman-Dominguez a bill of lading describing the cargo and a commercial seal. Once
8
the seal is placed on the trailer doors, the cargo area cannot be opened without breaking
the seal, and the seal cannot be refastened. Thus, an unbroken seal shows the recipient
that the cargo has not been tampered with on the trip. But although Guzmán-Rodriguez
admitted that he went to the trailer after the cargo was loaded and affixed a strap to hold
the cargo in place and closed the trailer door, he did not put on the seal. Sergeant Terri
Gomez, the officer who arrested Guzman-Dominguez, saw the unbroken seal in the
passenger area of the truck, where Rodriguez-Flores would have been riding, and found it
unusual that it was not used to seal the trailer. She testified, “[W]hen a seal is given to a
driver, almost always, the seal is placed on the trailer.” R., Vol. VIII at 160. 1 The seal in
the truck was a light one. She explained that a heavy seal was unnecessary because the
size and weight of the totes would make it difficult for a thief to remove them from the
truck, and a lighter seal is the normal practice with such cargo.
Instead of a seal, there was a padlock on the truck. When Inspector Salcedo asked
Guzman-Dominguez to open the lock, he fumbled with several keys on a ring, tried a
few, stated the keys were in the truck, walked halfway to the cabin of the truck, and then
finally returned, saying the key had been on the ring all along. Salcedo found this
unusual as truckers are generally eager to be back on the road and hence are prepared for
inspections.
1
Rodriguez-Flores points out that Sgt. Gomez testified that in general there is nothing
suspicious about a commercial truck not having a commercial seal while traveling on the
highway. Her point, though, was that if the shipper provides a seal (as was the situation
here), it is highly unusual not to have it put on.
9
Although Guzman-Dominguez told DHS agent Lopez that the reason he did not
put the seal on the truck was that he had forgotten to do so, his explanation at trial was
that it is the shipper’s responsibility to place the seal on the truck, and that some
companies do not attach the seal or require that it be attached. He instead set the seal
with the bill of lading in the window of the vehicle, which is his custom. He
acknowledged that he did not expect someone to steal the cargo due to its size and
weight, but he insisted that even if the seal had been placed on the cargo doors, truckers
would still use a padlock “for our own safety” because this particular seal could be easily
broken and someone could go into the trailer. R., Vol. XI at 73. Rodriguez-Flores
provided the state police investigators with a puzzling explanation for the padlock:
“[W]e don’t know what we’re carrying. So, we just, we just lock it.” Gov’t Ex. 26A at
12–13.
Joseph Montoya, a special agent with the Drug Enforcement Administration
(DEA), testified as an expert witness for the government. He said that drug traffickers
typically avoid attaching the seal at the time it is provided by the shipper because it will
need to be broken when drugs are loaded in with the legitimate cargo. Instead, they
generally wait to attach the seal until after they drop off the illegal contraband so that
when the legitimate load is delivered, the seal will be unbroken. To protect against theft
of the drugs, however, they commonly use a padlock.
4. The departure from Phoenix
Because Defendants arrived at Mirachem shortly after 3:00 p.m., and it would
normally take about 15 minutes to load the cargo, they likely left Mirachem by 3:30 p.m.
10
But they did not depart Phoenix for another four hours. At 4:14 p.m. Defendants filled
their truck with fuel at the Flying J, a truckstop in Phoenix, as shown by a receipt found
in the truck that matches Flying J’s records. In his state-police interview Rodriguez-
Flores said that after loading the truck at Mirachem they returned to Vazquez Diesel
(which is only a couple blocks from the Flying J), “ate and then . . . hit the road.” R, Vol.
IX at 100–01. He did not mention any delay after picking up the load, and he stated that
the only time the truck was left alone was while he and Guzman-Dominguez ate. In his
DHS interview Rodriguez-Flores said that after getting the load they took about an hour
to return to Vasquez Diesel and get something to eat before leaving Phoenix. Guzman-
Dominguez testified that Defendants were together all day and that after they left
Mirachem no one else had access to the trailer. He also said that while they were eating
at the truck stop they kept their eyes on the truck.
Electronic data indicated that Defendants’ departure from Phoenix was much more
than an hour after fueling. Records of the cell-phone providers for phones of both
Guzman-Dominguez and Rodriguez-Flores indicated that they were still in Phoenix at
7:36 p.m. And data retrieved from a GPS device found on the dash of the cab of the
truck shows that it was at Vazquez Diesel at 2:35 p.m. and 7:40 p.m.
At trial Guzman-Dominguez accounted for the three and a half hours between
fueling the truck and leaving Phoenix by explaining that Defendants heard a tire
thumping while at Vazquez Diesel, so they had the tire and the kingpin (which connects
the tractor to the trailer) repaired there before departing. He testified that they left after
7:00 p.m. He said that he had told the New Mexico State Police about the tire and
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kingpin repairs in his postarrest interview. New Mexico State Police Agent Antonio
Palomares admitted this, but he testified that Guzman-Dominguez was vague about when
these repairs were actually completed and was clear that they left Phoenix shortly after
eating and refueling. 2 In addition, Guzman-Dominguez testified that they ate at the
Flying J at 4:30 p.m. and then at Vasquez Diesel about 7:30 p.m. while waiting for the
repairs. But in a postarrest interview he had stated that he had not eaten since 4:30 p.m.
2
The relevant portion of the interview is as follows:
PALOMARES OK . . . so . . . You arrived [in Phoenix] on November eleventh (11th)
...
GUZMAN Mh hmm.
PALOMARES . . . so . . . You loaded the truck there . . .
GUZMAN The truck there . . . I pay for a place where
I park it . . . [Voices Overlap]
PALOMARES . . . [Voices Overlap] . . . Like a storage . . . or what? . . .
GUZMAN No . . . It is a mechanical shop where one
does repairs . . . and all . . . And I park it
there . . . I pay by month . . .
PALOMARES And they did some repairs? . . .
GUZMAN . . . uh . . . They changed a tire . . . and they
welded a part that goes in . . . in the fifth
wheel the kingpin . . .
PALOMARES OK . . . so . . . You arrived on the eleventh
(11th) . . . and then . . .
EXTREMELY LOUD
BACKGROUND NOISE
PALOMARES . . . You say that you went to Mexico . . . or
to . . . [Unintelligible] . . . El Salvador . . .
GUZMAN No . . . I came from El Salvador and I went
to Mexico to see my doctor because I had
problems with my sugar . . . I have a molar
that has been hurting me . . .
R., Vol. III at 51 (ellipses in original transcript).
12
Guzman-Dominguez also testified that while driving between Phoenix and
Lordsburg they made only two short stops to use the restroom and to place a padlock on
the cargo doors of the truck. He said that Rodriguez-Flores put the lock on the doors at
his direction after he noticed the lock on the floor of the cab.
The trip from Phoenix to the Lordsburg port of entry takes about four and a half
hours. Because Defendants arrived at the port of entry at 12:29 a.m., they could not have
left Phoenix much before 8 p.m., almost four hours after fueling at the Flying J, if they
made only two brief stops on the way.
5. Defendants’ offer to make a controlled delivery
During interviews after their arrests, both Defendants denied knowledge of the
drugs and offered to help law enforcement find the true drug traffickers by performing a
“controlled delivery” in which they would drive the truck with the drugs to its
destination. But the offer was not accepted. In opening statements and closing argument
at trial, defense counsel pointed to the offers as evidence that Defendants were unwitting
couriers, who were unaware that they were transporting drugs. DEA Agent Montoya,
testifying as an expert witness, said that while the DEA may execute controlled deliveries
to get to higher-ups in a drug organization, he would never do a controlled delivery if the
couriers denied knowledge of the drugs because law enforcement needs the couriers to
make contact with the organization, which is not possible if they claim ignorance. State
police agent Palomares testified that by the time DHS agents arrived, too much time had
elapsed to do a controlled delivery. DHS agent Schaefer said that they did not proceed
with a controlled delivery because the officers did not believe Defendants.
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6. Other expert testimony
Agent Montoya testified that the cocaine, if sold in bulk in Arizona at the time of
the arrest, would have been worth approximately $1,197,500, and the heroin in bulk in
Arizona would have been worth $220,080. Because the price of narcotics increases as
the drugs move across the country to the northeast and are cut (that is, diluted with other
substances, such as caffeine) and distributed, their value rises significantly. Once cut and
sold on the street in Philadelphia, near the destination of the legitimate cargo, the cocaine
would have been worth about $9,580,000 and the heroin would have been worth up to
$2,620,000.
Montoya explained that it is unusual for drug organizations to use unwitting
couriers to transport very valuable drugs because drug organizations want to be sure
where the drugs are going and an unwitting courier might make a detour or break down.
He said that unwitting couriers are used only with small amounts of marijuana in vehicles
crossing the US/Mexico border. The one “true blue” unwitting courier he had
encountered was the wife of a man who was knowingly transporting an ounce of cocaine
across the border. With a large quantity of valuable drugs, he testified, it was likely that
the transporter not only knew of the drugs but had been transporting drugs long enough to
gain the trust of the drug organization to handle valuable contraband. 3 Montoya added
3
In response, Defendants called as an expert witness Robert Alvarez, a private
investigator who had retired after a career as an investigator with the United States
Customs Service and the Department of Homeland Security. Before permitting him to
testify as an expert, the district court noted that “in spite of a very impressive resume and
lots of great service, [he] hasn’t ever worked a case such as this, nor has he worked in
14
that with a load of the size carried by Defendants, drug organizations monitor the trip by
using a GPS, making telephone calls, or having another person in the organization follow
in a different vehicle or ride along with the load to make sure the vehicle gets through.
The drug monitor is usually higher in the organization than the driver and sends updates,
generally through cell phones, to the drug organization so that it knows that the drugs
have made it through certain checkpoints.
There were at least four cell phones found in the cab of the truck. Montoya
testified that drug traffickers typically have several cell phones to conduct their drug
operations, keeping them separate from personal cell phones.
B. Analysis
Rodriguez-Flores’s challenge to the sufficiency of the evidence against him
borders on the frivolous. We need not recite every item of incriminating evidence.
This is not the typical case of a passenger in a vehicle where there is no evidence of when
the contraband was put in the vehicle or of where the passenger was at that time. Here,
drug trafficking investigations in 13 years.” R., Vol. XI at 141. Alvarez testified that
unwitting couriers would be useful to drug-trafficking organizations because they would
not be able to reveal higher-ups in the organization, would not appear nervous when
stopped by law enforcement, and would not be paid extra for transporting the cargo. On
cross-examination, however, he conceded that in his experience unwitting couriers had
been used only at the international border, which is a lot harder to cross with contraband
than an interstate border. And on direct examination when asked if he had seen the use of
unwitting couriers with commercial vehicles the only example he gave seemed
unresponsive: he spoke of a DEA raid near the border where employees of a legitimate
company were loading drugs into a commercial truck. Perhaps he misunderstood the
question.
15
there is no dispute that the drugs were not in the trailer when the truck arrived at
Mirachem. Thus, the possibilities are quite limited.
One possibility is that the Mirachem employees added the drugs to the legitimate
cargo. The only two men who might have loaded the chemical cleaners, however, denied
having added the drugs and no one else could have entered the trailer without their
knowledge. The jury could have believed them based solely on their demeanor while
testifying. But the suggestion that they added the drugs to the trailer is highly
questionable on its face. First, they would need to be sure that their co-conspirators at
Crystal Clean in Pennsylvania would be the ones unloading the trailer upon its arrival.
Again, the jury could reasonably have believed the Crystal Clean witness who indicated
the unlikelihood of that happening. More importantly, it is hard to believe that a
Mirachem employee who added the drugs to the legitimate cargo would not protect the
multimillion-dollar investment by adding a seal (and a padlock) to prevent entry into the
trailer (not only by burglars but also by the driver and passenger in the vehicle) before its
arrival at its destination. After all, this theory exculpates Defendants only if they were
not in on the conspiracy and therefore could not be trusted by the true culprits. This
theory also requires believing that someone at Mirachem had been storing four boxes
containing more than 115 pounds of drugs at the facility so that they could be quickly
loaded when the trucker arrived. Is the theory that everyone at Mirachem was in on the
conspiracy?
A second possibility is that somebody else entered the trailer without Defendants’
knowledge and inserted the boxes of drugs. But this theory also makes no sense. (How
16
could that other person have any confidence that the valuable cargo would safely reach
the desired destination?) And besides, Defendants said that they were with the truck at
all times between loading up at Mirachem and their arrival at the port of entry. Guzman-
Dominguez testified at trial that even as they ate dinner at the truck stop, they kept their
eyes on the truck.
The only remaining possibility is that the drugs were loaded into the trailer with
the knowledge and assistance of at least one Defendant. The evidence at trial clearly
established that there was ample opportunity for this to occur. Cell-phone records and
GPS data showed that Defendants did not leave Phoenix for another four hours after
picking up the legitimate cargo. And this possibility explains why Defendants would put
a padlock on the trailer (to protect the drugs) but not a seal (which would need to be
broken to later remove the drugs, thereby signaling to the recipient of the legitimate cargo
that there may have been tampering with the cargo in transit).
Rodriguez-Flores is correct that some of the evidence was more incriminating
against Guzman-Dominguez. The experienced commercial driver would better
understand the role of the seal and why it should not be applied until the contraband had
been delivered. The extra cell phones, which can suggest and corroborate drug
trafficking, may have all been under the control of Guzman-Dominguez. And the expert
testimony regarding the implausibility of unwitting couriers, although directed at both
men, may have greater force with respect to the person in charge. But once it is
established that Guzman-Dominguez was knowingly transporting the drugs, the guilt of
Rodriguez-Flores readily follows. Given the very close relationship between the two
17
Defendants—including Guzman-Dominguez’s purportedly paying his longtime friend for
performing minimal services—one can readily infer that Guzman-Dominguez would not
engage in such a risky criminal venture without informing his partner. And, in fact,
Guzman-Dominguez testified that the two of them were together from the time they
picked up the totes until their arrests. 4 Rodriguez-Flores’s guilty knowledge is confirmed
by his false statements to both state-police and DHS agents that the two men left Phoenix
about an hour after picking up their cargo, thereby concealing that they had plenty of time
to add contraband to the load.
The authority relied on by Rodriguez-Flores is inapposite. In United States v.
Samaria, 239 F.3d 228, 231–33, 239 (2d Cir. 2001), overruled on other grounds by
United States v. Hueso, 546 F.3d 174, 180 n.2 (2d Cir. 2008), the Second Circuit held
that the defendant, who claimed to be a “gypsy cab driver,” was not in constructive
possession of boxes placed in his car by a passenger. But the facts in that case are
distinguishable from the facts here on many grounds, including that the government
presented no evidence that the defendant knew the alleged co-conspirators any more than
a typical cab driver would know a customer. See id. at 232–23.
Another case relied on by Rodriguez-Flores is United States v. Rahseparian, 231
F.3d 1257 (10th Cir. 2000), which overturned a conviction for conspiracy. He cites it for
4
Cell-phone records admitted at trial indicated that there was a nine-second call from
Rodriguez-Flores to Guzman-Dominguez at about 4:26 p.m. and a 34-second return call
from Guzman-Dominguez about 3 1/2 minutes later. But Guzman-Dominguez suggested
during cross-examination by counsel for Rodriguez-Flores that one of them was fueling
the truck while the other was inside paying the bill.
18
the proposition that false exculpatory stories cannot be used as direct evidence of guilt
but only as circumstantial proof of consciousness of guilt. See id. at 1263.
Circumstantial evidence can, however, be compelling, and we did not adopt a rigid rule
that displaces the well-settled standard for reviewing sufficiency of the evidence. Rather,
what we said was a commonsense proposition based on the specific context of that case.
In Rahseparian the defendant had deposited checks on behalf of two sons who were
engaged in a mail-fraud scheme. The only evidence of his knowledge of this scheme was
his false statement to investigators about how he handled the funds. See id. at 1260–61.
But his false statement was made a year and a half after the fraudulent scheme had ended
and it was clear from the investigators’ inquiries that his sons were suspected of criminal
activity. See id. at 1264. As we said in reversing the conviction, the defendant “would
understandably wish to protect [his sons].” Id. The context here is markedly different.
Even without Rodriguez-Flores’s false statement, there is highly probative evidence of
his knowledge of the contraband in the truck—it was added between the time that the two
men left Mirachem and the time they were arrested, during which period they were
always together and were away from the truck only while eating. In this context the most
plausible explanation for Rodriguez-Flores’s lie was to conceal from the investigators
that Defendants had loaded the contraband into the truck before departing Phoenix.
Finally, Rodriguez-Flores points to United States v. Ramirez, 176 F.3d 1179,
1180–81 (9th Cir. 1999), which rejected the government’s argument that it would be
reasonable to infer (beyond a reasonable doubt) that a passenger in a vehicle driven by a
friend into the United States from Mexico carrying $37,000 worth of marijuana was
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himself entrusted with the marijuana. But Rodriguez-Flores was hardly just a friend
going along for the ride. A much more pertinent case is our decision in Pulido-Jacobo,
377 F.3d at 1130, where the vehicle contained marijuana worth between $248,000 and
$2.1 million. We said that “[g]iven the substantial value of this contraband, a rational
jury could conclude that it would not likely be placed in a car without the knowledge of
its occupants.” Id. Although the defendant-passenger in that case shared driving duties
with his father, see id., in this case Rodriguez-Flores was in business with the driver,
even being referred to as his “partner.”
We reject Rodriguez-Flores’s challenge to the sufficiency of the evidence against
him.
II. EXPERT TESTIMONY ON CREDIBILITY
Both Defendants challenge the admission of a statement by expert witness Agent
Joseph Montoya that they contend expressed an opinion on their credibility. At trial,
Defendants did not object to the testimony or request a limiting or corrective instruction
(although the district court at the end of trial gave the standard instruction that the jurors
are the sole judges of the credibility of witnesses). Because the challenge was not
preserved below, we review only for plain error. See United States v. Bagby, 696 F.3d
1074, 1084 (10th Cir. 2012). “Plain error is (1) error, (2) that is plain, which (3) affects
substantial rights, and which (4) seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (internal quotation marks omitted).
Montoya’s challenged statement was made at the end of the following exchange
during his direct testimony:
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Q: During the course of your career at DEA, approximately how many drug
traffickers have you debriefed?
A. That would be hundreds of drug traffickers.
Q. And during those debriefings, did any of these drug traffickers ever tell
you things that were not true?
A. Yes.
Q. In your professional experience, was it common or uncommon for drug
traffickers to tell you things that weren’t true?
A. It was common.
Q. Okay. And have you been involved in cases in which people who were
found transporting drugs claimed to have no knowledge of those drugs?
A. Yes.
Q. Did you generally believe these people were telling the truth when they
told you they didn’t know about the drugs they were transporting?
A. No.
R., Vol. X at 256 (emphasis added).
Under Fed. R. Evid. 702(a) a qualified expert may provide opinion testimony if it
“will help the trier of fact to understand the evidence or to determine a fact in issue.” But
“the credibility of another is not an appropriate subject for expert opinion testimony.”
United States v. Hill, 749 F.3d 1250, 1260 (10th Cir. 2014). This limitation applies not
only to the credibility of trial witnesses but also of out-of-court declarants. See id. at
1261. And the prohibition applies not only when the expert expresses an opinion about
specific persons but also when the opinion concerns a class of persons that includes
persons whose credibility is at issue in the trial. See United States v. Benally, 541 F.3d
990, 993 (10th Cir. 2008) (affirming the exclusion of expert testimony on the frequency
of false confessions and the investigation techniques known to cause them).
We therefore agree with Defendants that it was clearly error to permit Montoya to
testify to his opinion that drug couriers who deny knowledge of the drugs are lying. See
Hill, 749 F.3d at 1258 (admission of opinion testimony on credibility of defendant was
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error that was plain). We are not persuaded by the government’s arguments to the
contrary. First, it argues:
Testimony by an expert about his experience with organizations using
unwitting couriers requires that expert to describe the circumstances in
which law enforcement, himself included, believed that couriers were in
fact unwitting. Such an expert would be unable to put this testimony into
context, though, if prohibited from commenting on the occasions when law
enforcement, himself included, did not believe that couriers were unwitting.
No. 17-2136 Appellee’s Answer Br. at 18. In our view, however, an expression of expert
opinion regarding credibility was wholly unnecessary to put anything in context.
Next the government claims that the testimony was necessary to rebut Defendants’
implication that law enforcement should have used them to make a controlled delivery –
that is, allow them to continue their journey to see who would pick up the drugs. But
Montoya’s explanation for why it is inappropriate to pursue a controlled delivery by
purportedly unwitting couriers was not based on any assessment of credibility:
Q: Would you ever do a controlled delivery if the courier or couriers denied
knowledge of the drugs?
A. No, I would never do that.
Q. Why not?
A. Because you have to -- our -- one of the first things we do when we
attempt to do a controlled delivery is we have full cooperation of the
defendant and we usually immediately make tape-recorded telephonic
contact with the organization to get the ball moving on the controlled
delivery. . . .
R., Vol. X at 284.
To obtain relief, however, Defendants must also establish the third component of
plain-error review— an infringement of their substantial rights. “To show that an error
affected his substantial rights, [a defendant] must establish a reasonable probability that,
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but for the error claimed, the result of the proceeding would have been different.” United
States v. Uscanga-Mora, 562 F.3d 1289, 1295 (10th Cir. 2009) (internal quotation marks
omitted).
Defendants argue that little prejudice was required to change the verdict because
the evidence against them was weak. Rodriguez-Flores also argues that the challenged
testimony undermined his central defense, that he did not know of the drugs, by
impermissibly impugning his out-of-court statements. Guzman-Dominguez adds that
cross-examination of Montoya did not cure the error of admitting this testimony, because
it did not reveal a lack of foundation for the testimony or Montoya’s lack of specialized
knowledge of credibility. He also complains that there was no specific curative jury
instruction, but only generalized instructions that the jury alone determines credibility.
These arguments could carry the day in other circumstances. But not here.
Several considerations lead us to that conclusion: (1) Montoya did not present himself as
an expert on indicia of truth-telling; (2) the incriminatory gist of the challenged statement
was presented to the jury through other testimony that was not challenged at trial and is
not challenged on appeal; and (3) the evidence against Defendants was very strong.
To begin our analysis, it is useful to review the basis for our prohibition on expert
testimony regarding veracity. We have said that such expert testimony is improper
because it “(1) usurps a critical function of the jury; (2) is not helpful to the jury, which
can make its own determination of credibility; and (3) when provided by impressively
qualified experts on the credibility of other witnesses is prejudicial and unduly influences
the jury.” Hill, 749 F.3d at 1258. (internal quotation marks omitted). When we say that a
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jury “can make its own determination of credibility,” we are recognizing that the life
experiences of 12 adults is our time-tested traditional mechanism for assessing whether
demeanor, manner of speaking, internal contradictions, inconsistencies with other
evidence, etc., indicate that a person is fabricating a story. Perhaps someone with special
training in psychology can perform that task better than other people, but we are skeptical
that such a person can really improve upon a jury’s assessment, and we are concerned
that a jury may be “unduly influence[d]” by such a purported expert. Id.
Our opinion in Hill provides a classic example of improper expert testimony. The
expert witness in that case was an FBI Special Agent who had taken “two specialized
courses in interrogation and interviews,” part of which was “psychological,” so that he
could “identify . . . deception in statements and truths in statements.” Id. at 1255
(internal quotation marks omitted). This training included assessing “responses that
occur naturally, that’s a psychological thing that happens, that we do not control.” Id. at
1256 (internal quotation marks omitted).
Hill did recognize, however, that sometimes even psychological testimony can be
helpful to the jury, and therefore admissible, as when experts talk about mental or
personality disorders (such as ones causing individuals to tell false stories, even false
confessions) that jurors could not be expected to be familiar with. See id. at 1262. And,
of course, there is no limitation on expert-opinion testimony that does no more than
indicate that a witness’s version of events was not true.
In this case, Montoya did not suggest that he had any expertise in psychology. It
is clear from his testimony, and would have been clear to the jury, that his opinion that
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couriers denying knowledge are lying was based solely on his experience showing that
couriers—at least those transporting large, valuable quantities of drugs within the United
States—know about their cargo. For example, Montoya had the following exchange on
direct examination:
Q. During your career, how many cases have you worked on that involved
unwitting couriers?
A. As far as that I’ve worked?
Q. You, personally.
A. I’ve had obviously people who have claimed to have been unwitting, but
through the investigation they’re found not to be.
R., Vol. X at 258. He determined that the couriers’ claims were untrue by investigating
the facts, not by assessing the couriers’ manner of speaking, etc. Defendants did not
challenge at trial, and do not challenge on appeal, the admissibility of this expert-opinion
testimony. The inference that a denial of knowledge in the circumstances is not credible
is not based on any deference to some purported expertise of Montoya (who never
claimed such expertise) in assessing credibility. And it is such a strong and natural
inference that the jury was highly likely to draw the inference without Montoya’s
improper opinion testimony on credibility. See also Pulido-Jacobo, 377 F.3d at 1130
(“Given the substantial value of this contraband [between $248,000 and $2.1 million], a
rational jury could conclude that it would not likely be placed in a car without the
knowledge of its occupants.”). Say, a physiologist testified that no human could run as
far and as fast as witness A claimed to have run and then improperly added, “I don’t
believe witness A’s statement that he ran so far so fast.” The quoted statement would add
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virtually nothing to the weight of the testimony. We note that during closing argument
the prosecutor made no mention of Montoya’s credibility opinion.
Moreover, other testimony at trial differed from Montoya’s challenged statement
only in that it was directed specifically at Defendants’ credibility, as opposed to
“unwitting” couriers in general; and the admissibility of that testimony is sufficiently
apparent that Defendants have not challenged it on appeal. See United States v. Schene,
543 F.3d 627, 640–41 (10th Cir. 2008) (admission of testimony similar to challenged
testimony undermined argument that admission of challenged testimony violated
substantial rights). DHS Special Agent William Shafer discussed his interviews of
Defendants in his direct testimony. The relevant portion was as follows:
Q. . . . Why was a controlled delivery not conducted in the case of the -- Mr.
Guzmán and Mr. Rodriguez?
A. Whenever we respond to a duty call, we interview the suspects independently.
And based on the responses and what we determined would be the credibility of
the suspects, we make a decision. And at that time, we did not believe the
credibility of either of the stories.
R., Vol. X at 217–218. If the jury is going to defer to any law-enforcement officers
regarding Defendants’ credibility, surely they would give greater weight to the
assessment of the officers on the scene than to the assessment of someone who was not
there and claimed no psychological expertise.
Further, the other evidence of knowledge was not weak, but very strong. The
drugs were almost certainly placed in the truck after Defendants picked up their
legitimate cargo and while they admittedly were together and had control of the vehicle.
Defendants have not persuaded us that the challenged testimony affected the verdict.
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In short, Defendants have not shown that the admission of Montoya’s statement
affected their substantial rights at trial, and they are therefore not entitled to relief on this
ground.
III. CONCLUSION
We AFFIRM Defendants’ convictions. We GRANT the government’s
unopposed motion to supplement the record.
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