United States v. Ramos , 71 F. App'x 334 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 4, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 01-21250
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIO A. RAMOS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-457-4
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Julio A. Ramos appeals his jury trial convictions of
conspiracy to possess cocaine and marijuana with intent to
distribute and possession of cocaine with intent to distribute.
Ramos contends that he is entitled to reversal because, pursuant to
Daubert, the district court rejected his proffer of expert
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
testimony that a voice on an inculpatory audiotape was not that of
Ramos.1
This court “review[s] the district court’s determination of
admissibility of expert testimony under Daubert for abuse of
discretion.”2 If we find an abuse of discretion, we “review the
error under the harmless error doctrine, affirming the judgment[]
unless the ruling affected substantial rights of the complaining
party.”3 A qualified person may testify as an expert “if (1) the
testimony is based upon sufficient facts or data, (2) the testimony
is the product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to the
facts of the case.”4 Daubert holds that Rule 702 imposes a special
obligation upon the district court to “ensure that any and all
scientific testimony or evidence admitted is not only relevant, but
reliable.”5 The proponent must prove reliability by a
preponderance of the evidence.6
1
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579(1993).
2
Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir.
2002).
3
Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th
Cir. 2003).
4
FED. R. EVID. 702.
5
509 U.S. at 589.
6
Moore v. Ashland Chem. Co., 151 F.3d 269, 276 (5th Cir.
1998) (en banc).
2
The district court excluded the testimony of Ramos’s expert
because Ramos failed to show that it passed muster under Rule 702
and the criteria in Daubert.7 The district court’s decision to
exclude the testimony was not based on an erroneous interpretation
of Rule 702 or Daubert, or on a clearly erroneous assessment of the
expert’s proposed testimony. Accordingly, the ruling did not
constitute an abuse of discretion.
Assuming arguendo that there was error, Ramos still is not
entitled to relief because exclusion of the expert’s testimony did
not affect his substantial rights. By his expert’s testimony,
Ramos sought to challenge only the admissibility of one tape that
contained his voice; Ramos did not challenge the admissibility of
the other tapes that contained his voice or of the tapes that
contained voices of other coconspirators talking about Ramos’s
involvement in the conspiracy. Without any reliance on the one
challenged tape, the Government presented overwhelming evidence of
Ramos’s guilt.8
Ramos also contends, for the first time on appeal, that he is
entitled to reversal because he was denied his Sixth Amendment
7
See 509 U.S. at 592-95.
8
Cf. United States v. Washington, 44 F.3d 1271, 1283 (5th
Cir. 1995) (“[E]ven if admitting any or all of the questioned
opinion testimony had been error, reversal would not be
required.... [T]he government presented overwhelming evidence
establishing Washington’s guilt; thus any error that the court may
have made in admitting those snippets of opinion was harmless.”).
3
right to present a defense. The Eighth Circuit rejected a similar
challenge in United States v. Bahena after concluding that the
Daubert rule is not arbitrary and the application of Daubert in
that case was not “disproportionate to its purpose, in the sense
that it might [have] unreasonably restrict[ed] the defendant’s
right to present evidence in his own defense.”9 The same is true
in Ramos’s case. Accordingly, Ramos’s Sixth Amendment rights were
not violated by the district court’s Daubert ruling.
AFFIRMED.
9
223 F.3d 797, 808-10 (8th Cir. 2000).
4