United States v. Leonardo Muro ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4021
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEONARDO CHAVARRIA MURO,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Asheville. Martin K. Reidinger, District Judge. (1:17-cr-00124-MR-WCM-1)
Submitted: July 31, 2019 Decided: August 19, 2019
Before NIEMEYER and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Anthony Martinez, Federal Public Defender, Ann L. Hester, Assistant Federal Public
Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, Amy
E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leonardo Chavarria Muro appeals his conviction for distribution and possession
with intent to distribute at least 50 grams of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(viii) (2012). Muro argues on appeal that the district court abused
its discretion by accepting into evidence a transcription and translation prepared by a
witness who was not proffered as an expert under Rule 702 of the Federal Rules of
Evidence. We affirm the district court’s judgment.
Assuming without deciding that Muro’s objection at trial preserved the issue he
seeks to raise on appeal, we review the district court’s evidentiary ruling for an abuse of
discretion and “will only overturn a ruling that is arbitrary and irrational.” United States
v. Farrell, 921 F.3d 116, 143 (4th Cir. 2019) (alteration and internal quotation marks
omitted). “A court has abused its discretion if its decision is guided by erroneous legal
principles or rests upon a clearly erroneous factual finding.” United States v. Johnson, 617
F.3d 286, 292 (4th Cir. 2010) (internal quotation marks omitted). We will not vacate a
conviction under this standard, however, if an error was harmless. United States v.
Sutherland, 921 F.3d 421, 429 (4th Cir. 2019). “In order to find a district court’s error
harmless, we need only be able to say with fair assurance, after pondering all that happened
without stripping the erroneous action from the whole, that the judgment was not
substantially swayed by the error.” Johnson, 617 F.3d at 292 (internal quotation marks
omitted).
Rule 701 of the Federal Rules of Evidence governs lay opinion evidence and
authorizes a witness “not testifying as an expert” to present opinion evidence that is:
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“(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the
witness’s testimony or to determining a fact in issue; and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid.
701. In contrast, Rule 702 of the Federal Rules of Evidence provides that “[a] witness who
is qualified as an expert by knowledge, skill, experience, training, or education may testify
in the form of an opinion” if (1) the expert’s specialized knowledge will help the jury to
understand the evidence or determine a fact in issue; (2) the testimony is based on sufficient
facts or data; (3) the testimony is the product of reliable principles and methods; which
(4) the expert reliably applied to the facts of the case. Fed. R. Evid. 702.
“[T]he line between lay opinion testimony under Rule 701 and expert testimony
under Rule 702 is a fine one, [and] the guiding principle in distinguishing lay from expert
opinion is that lay testimony must be based on personal knowledge.” Farrell, 921 F.3d at
143 (internal quotation marks omitted). Courts must also consider “whether the proposed
testimony relies on some specialized knowledge or skill or education that is not in the
possession of the jurors.” Id. at 143-44 (internal quotation marks omitted).
Thus, in undertaking its gatekeeper role to ensure that evidence is reliable under
Rule 702, a district court “must decide whether the expert has ‘sufficient specialized
knowledge to assist the jurors in deciding the particular issues in the case.’” Belk, Inc. v.
Meyer Corp., U.S., 679 F.3d 146, 162 (4th Cir. 2012) (quoting Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 156, (1999)). In making this decision, the court should
“consider the proposed expert’s full range of experience and training.” United States v.
Pansier, 576 F.3d 726, 737 (7th Cir. 2009). “[A] witness’ qualifications to render an expert
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opinion are . . . liberally judged by Rule 702.” Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir.
1993). If the district court erroneously admits opinion testimony under Rule 701, the error
is harmless if the witness could have been offered as an expert under Rule 702 in the first
instance. See United States v. Perkins, 470 F.3d 150, 156-57 (4th Cir. 2006) (applying
plain error review, no error where witnesses could have been offered as experts based on
their experience and training); see also United States v. Figueroa-Lopez, 125 F.3d 1241,
1246-47 (9th Cir. 1997) (holding that, although it was error for district court to admit
opinion testimony under Rule 701, error was harmless because witnesses could have been
qualified as experts under Rule 702).
We find that any error in the admission of the witness’ opinion here was harmless.
Assuming that the government should have proffered the witness as an expert, we find that
she would have qualified as an expert under Rule 702 in the first instance. Although the
witness is not a federally certified interpreter, the lack of formal certification by a
professional organization—although relevant to her expertise—is not dispositive; Rule 702
“does not require any particular imprimatur.” United States v. Gutierrez, 757 F.3d 785,
788 (8th Cir. 2014); see United States v. Barker, 553 F.2d 1013, 1024 (6th Cir. 1977) (“An
expert need not have certificates of training, nor memberships in professional
organizations.”).
The witness here is a native Spanish speaker, growing up in a Spanish-speaking
family. Although she does not hold a degree in Spanish, she took Spanish classes in school,
spoke Spanish at home, and used Spanish daily in her years of work with Homeland
Security along the Mexican border. The witness testified that she is “very much proficient”
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with Spanish and that her “many years on the Mexican border” allowed her to “pick[] up
quite a bit on the slang,” such that she can “translate quite easily” and understand and speak
with Spanish speakers of Mexican heritage. (J.A. 234). ∗ The witness testified to her
methodology, stating that she listened to the recording of the controlled drug purchase,
which was conducted in Spanish; transcribed the audio in Spanish; and then translated it
into English, preparing a written chart identifying the speakers and the text of their
conversation in both languages. Muro does not allege that the witness’ methodology was
flawed or that her translation was inaccurate in any way. Based on these facts, we conclude
that the witness was qualified to provide her expert opinion under Rule 702 and that any
error by the district court was harmless.
Accordingly, we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED
∗
Citations to “J.A.” refer to the joint appendix filed by the parties in this appeal.
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