United States v. Zeny Mabasa Ordonez

FILED
NOT FOR PUBLICATION JUL 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10215
Plaintiff - Appellee, D.C. No. 1:07-cr-00517-DAE-6
v.
MEMORANDUM *
ZENY MABASA ORDONEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Submitted June 14, 2012 **
Honolulu, Hawaii
Before: SCHROEDER, CALLAHAN, and N.R. SMITH, Circuit Judges.
Zeny Mabasa Ordonez appeals her conviction for (1) conspiracy to distribute
and possess with intent to distribute fifty grams or more of methamphetamine in
violation of 21 U.S.C. §§ 846 and 841(a)(1); and (2) possession with intent to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
distribute fifty grams or more of methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
Ordonez argues that the district court abused its discretion and violated
Federal Rules of Evidence 401 and 403 by admitting expert testimony that drug
traffickers do not use unknowing couriers. However, “expert testimony on drug
trafficking organizations and the behavior of unknowing couriers is admissible
when relevant, probative of a defendant’s knowledge, and not unfairly prejudicial
under the standard set forth in the Federal Rules of Evidence.” United States v.
Sepulveda-Barraza, 645 F.3d 1066, 1072 (9th Cir. 2011). Here, the district court
did not abuse its discretion by admitting the expert testimony, because its
determination was not “illogical, implausible, or without support in inferences that
may be drawn from the facts in the record . . . .” United States v. Hinkson, 585
F.3d 1247, 1262 n.21 (9th Cir. 2009) (en banc). The expert testimony was relevant
and probative of Ordonez’s knowledge of the drugs, because the “expert testimony
went right to the heart of [Ordonez’s] defense that [s]he was simply an unknowing
courier.” United States v. Murillo, 255 F.3d 1169, 1177 (9th Cir. 2001), overruled
on other grounds by Muehler v. Mena, 544 U.S. 93 (2005). The testimony was not
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unfairly prejudicial in light of Ordonez’s efforts to discount the drug traffickers’
testimony that she knew she was transporting drugs.
Ordonez’s arguments supporting her assertion that the district court abused
its discretion fail. First, “expert testimony on the modus operandi of drug
trafficking organizations is inadmissible in cases where . . . the defendant is not
charged with conspiracy to distribute drugs.” United States v. Varela-Rivera, 279
F.3d 1174, 1179 (9th Cir. 2002). However, here, Ordonez was charged with
conspiracy to distribute drugs. Second, expert testimony is admissible in non-
complex drug trafficking cases. Sepulveda-Barraza, 645 F.3d at 1072. Third, a
defendant need not “open the door” to expert testimony by doing more than
arguing that he or she lacked knowledge of the drugs. See id. (holding that expert
testimony regarding the behavior of unknowing couriers is admissible if “relevant,
probative of a defendant’s knowledge, and not unfairly prejudicial” based on a
case-by-case analysis). Fourth, the admissibility of expert testimony regarding the
modus operandi of drug traffickers does not require that the offense involve a large
quantity or value of drugs. See Murillo, 255 F.3d at 1176–78. But even if our
circuit required a large quantity or value of drugs, the drug amount at issue here
was sufficiently large to meet such a requirement.
AFFIRMED.
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