United States v. Teresa Maria Campos

Opinion by Judge THOMAS; Partial Concurrence and Partial Dissent by Judge PREGERSON.

THOMAS, Circuit Judge:

This appeal presents the question of whether unstipulated polygraph evidence concerning the defendant’s mental state is admissible under Federal Rule of Evidence 704(b) when it involves the ultimate issue of mens rea. We' conclude that it is not and affirm the judgment of conviction.

I

Teresa Maria Campos entered the United States at the San Ysidro Port of Entry in a white van. Upon inquiry at primary inspection, Campos denied that she was bringing anything back into the United States and stated that the van belonged to her' boyfriend, Jose Antonio Lopez. The INS inspector observed that Campos appeared extremely nervous, with her hands gripped tightly on the steering wheel, and noticed the presence of a “space discrepancy” in the ceiling of the van. Based on these and other observations, Campos was referred to secondary inspection.

At secondary inspection, Campos told a second customs inspector that she was carrying alcohol, soap and medicine into the United States, but described Jose Antonio Lopez, the alleged owner of the van, as merely a friend. After Campos complied with his request to disembark from the van, the INS inspector searched the van and discovered eighty-nine packages — or 151 pounds — of marijuana in a ceiling compartment above the passenger side seat. Campos was arrested.

A federal grand jury subsequently charged Campos in a two count indictment with the importation and possession of marijuana with intent to distribute in violation of 21 U.S.C. §§ 952, 960 and 841(a)(1).

Prior to trial, Campos underwent a polygraph test. During the polygraph examination, the examiner asked Campos two relevant questions:

Q.33: When you were driving the van on the twenty-fifth of January, did you know there were drugs in the van? Answer: No.

Q.35: Before crossing the border on the twenty-fifth of January, did you know that there were drugs in the van? Answer: No.

The polygraph examiner concluded that “[c]oncerning the relevant questions # 33 and # 35 examinee’s responses were not typical of those associated with deception.”

Campos sought admission of this polygraph evidence. In a pre-trial ruling, however, the district court precluded its admission pursuant to Fed.R.Evid. 704(b) and refused to conduct a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), to determine the admissibility of the polygraph results as scientific evidence under Fed.R.Evid. 702. In another pre-trial ruling, the court agreed to admit government expert testimony regarding the value of the marijuana seized from Campos, the structure of drug smuggling organizations, and that drug traffickers would not entrust “unknowing couriers” with large quantities of narcotics.

At trial, Campos claimed that she did not know that the van contained any marijuana and that she had gone to Tijuana, Mexico, only for a medical examination and to attend a party. After a two-day jury trial, a jury found Campos guilty on both counts. The district court sentenced Campos to 27 months in custody, a $200 penalty assessment and three years of supervised release.

II

The district court did not improperly exclude the polygraph evidence tendered by Campos pursuant to Rule 704(b), nor did it err in declining to conduct a Daubert hearing. We review a district court’s decision to admit or exclude expert testimony for an abuse of discretion. See United States v. Morales, 108 F.3d 1031, 1035 (9th Cir.1997) (en banc); United States v. Cordoba, 104 F.3d 225, 229 (9th Cir.1997). A district court abuses its discretion when it bases its decision on an erroneous view of the law or a clearly erroneous assessment of the facts. See Morales, 108 F.3d at 1035.

As originally envisioned, Federal Rule of Evidence 704 was intended to “specifically abohsh[ ]” the prohibition “against allowing witnesses to express opinions upon ultimate issues.” Fed.R.Evid. 704 advisory committee’s notes. The rule, as adopted, consisted entirely of a version of the current subdivision (a), which deems “otherwise admissible” opinion testimony “not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Fed.R.Evid. 704(a); Wright & Gold, Federal Practice and Procedure: Evidence § 6281 (1997). In abandoning the general rule against “ultimate issue” testimony, the Advisory Committee dismissed as “empty rhetoric” the rationale that ultimate issue testimony would “usurp[ ] the province of the jury.” Adv. Ctte. Note to Rule 704 (citation omitted).

Congress subsequently enacted the Insanity Defense Reform Act of 1984, which amended Rule 704 to add subdivision (b).¹ See Pub.L. No. 98-473, §§ 401-106, 98 Stat.1937, 2057-68 (1984). Federal Rule of Evidence 704(b) provides a limited exception in criminal cases to the general rule that experts may testify as to their opinions on ultimate issues to be decided by the trier of fact. It states:

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Congress added this provision out of a desire to “eliminate the confusing spectacle of competing expert witnesses testifying to directly contradictory conclusions as to the ultimate legal issue to be found by the trier of fact.” S.Rep. No. 98-225 at 230-31 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3412-13 (“S.Rep.98-225”). Thus, with respect to a criminal defendant’s mental state, Congress confirmed that “the jury is the lie detector.” United States v. Barnard, 490 F.2d 907, 912 (9th Cir.1973) (emphasis added).

While Congress primarily targeted subdivision (b) towards limiting the use of psychiatric expert testimony on whether a defendant is sane or insane, our holding in Morales made clear that Rule 704(b) is not limited in “its reach to psychiatrists and other mental health experts,” but rather, extends to all expert witnesses. Morales, 108 F.3d at 1036; see also S. Rep. 98-225 at 230-31. Moreover, the rationale for precluding ultimate opinion testimony applies to both the insanity defense and “to any ultimate mental state of the defendant that is relevant to the legal conclusion sought to be proven,” such as premeditation in a homicide case or lack of predisposition in an entrapment case. S. Rep. 98-225 at 231. In light of Morales, Rule 704(b) clearly applies to expert polygraph testimony on ultimate issues.

Applying this rule to the facts here, it is clear that the district court did not abuse its .discretion by excluding the testimony of the polygraph examiner. To convict Campos of importation and possession of marijuana with intent to distribute, the government had to prove that Campos knowingly and intentionally imported and possessed marijuana. See 21 U.S.C. §§ 841(a)(1) & 960. The district court would therefore have had to conclude that the examiner “would have stated an opinion or drawn an inference which would necessarily compel the conclusion” that Campos did not know that she possessed the marijuana and intentionally imported it into the United States. Morales, 108 F.3d at 1037.

During the motions hearing, the court inquired whether the polygraph' examiner was “going to testify that — that she was asked whether or not she knew the drugs were in the van and she gave an answer, and in his opinion, that answer was truthful.” Campos’ counsel replied in the affirmative. Based on this response, the district court determined that the examiner’s testimony would fall within 704(b)’s rule.

Such testimony falls squarely within the scope of Rule 704(b). “A prohibited ‘opinion or inference’ under Rule 704(b) is testimony from which it necessarily follows, if the testimony is credited, that the defendant did or did not possess the requisite mens rea.” Morales, 108 F.3d at 1037. The polygraph examiner’s testimony that Campos was truthful in stating that she did not know that she was transporting marijuana leaves no room for inference, but rather, compels the conclusion that she did not possess the requisite knowledge.² Compare id. (even if jury believed testimony of defendant’s accounting expert that defendant had a weak grasp of bookkeeping knowledge, “the jury would still have had to draw its own inference from that predicate testimony to answer the ultimate factual question”).

Campos’ contention that her polygraph examiner would testify only to Campos’ physiological responses to the polygraph examination and not reach an ultimate issue is of no account. Polygraph tests require the examiner to measure and interpret a set of “physiological correlates of anxiety” and, as described by a four-member plurality of the Supreme Court, to “offer[ ] an opinion to the jury about whether the witness — often, as in this case, the accused — was deceptive in answering questions about the very matters at issue in the trial.” United States v. Scheffer, 523 U.S. 303, 313, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). There is no principled distinction in this case — as elicited in the dialogue between the district court and Campos’ counsel — between the testimony of Campos’ polygraph expert regarding her physiological responses to the questions posed during the examination and the conclusion from that testimony that she did not “know” that the van contained a significant amount of marijuana.

Nor did the district court err in failing to conduct a Daubert hearing to determine whether the polygraph evidence was admissible under Rule 702.³ If evidence is inadmissible by application of one evidentiary rule, there is no need for a court to determine whether it satisfies predicate evidentiary standards pertaining to another rule. See United States v. Marshall, 526 F.2d 1349, 1360 (9th Cir.1975). By properly determining that the evidence was not admissible under Rule 704(b), the court obviated the need to conduct an evidentiary analysis under Rule 702 or Rule 403.

Ill

Campos also argues that the district court erred by admitting testimony by a government expert that marijuana trafficking organizations do not use “unknowing couriers.” Before the district court, she argued in a motion in limine that the testimony constituted improper “drug courier profile” evidence. We review this issue for an abuse of discretion. See United States v. Beltran-Rios, 878 F.2d 1208, 1210 (9th Cir.1989). Because “testimony that drug traffickers do not entrust large quantities of drugs to unknowing transporters is not drug courier profile testimony,” Cordoba, 104 F.3d at 229-30, the district court did not abuse its discretion in admitting it.

On appeal, Campos also argues that the testimony was also improperly admitted as “ultimate issue” testimony under Rule 704(b). Because Campos failed to raise a specific objection to the testimony at trial based on Rule 704(b), we review the district court’s decision in this respect only for plain error affecting substantial rights.⁴ See State of Arizona v. Elmer, 21 F.3d 331, 334 (9th Cir.1994); United States v. Muniz, 684 F.2d 634, 640 (9th Cir.1982); Fed.R.Crim.P. 52(b).

In order to constitute “plain error,” the error must be “plain” or clear on its face under current law and must affect a substantial right. See United States v. Olano, 507 U.S. 725, 782-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Although we have not yet approved of the use of such expert testimony in non-complex cases, we have not disapproved of it. Thus, because such evidence may be admitted in complex cases, see Cordoba, 104 F.3d at 230, the district court did not plainly err in admitting it here, see United States v. Webb, 115 F.3d 711, 720-22 (9th Cir.1997) (Jenkins, J. concurring). We do not reach the question of whether such expert testimony would be admissible in a non-complex case over a proper objection made to the trial court.

IV

The district court correctly denied Campos’ Rule 29 motion for acquittal, a decision we review de novo. See U.S. v. Hernandez, 105 F.3d 1330, 1332 (9th Cir.1997). The government presented sufficient evidence from which a rational trier of fact could have concluded beyond a reasonable doubt that Campos knowingly and intentionally imported and possessed 151 pounds of marijuana with intent to distribute. Thus, the motion was properly denied.

AFFIRMED

1 . "The Insanity Defense Reform Act was passed in the wake of John Hinckley's acquittal of charges arising from his actions in shooting President Ronald Reagan and Press Secretary James Brady." United States v. Cameron, 907 F.2d 1051, 1061 (11th Cir.1990). Along with amending Rule 704(b), the Act altered the test for insanity and placed upon the defendant the burden of proving insanity by clear and convincing evidence. See Charles A. Wright & Victor J. Gold, at § 6281; see generally 18 U.S.C. § 17.

2 . Our holding does not have the effect of excluding all polygraph evidence, because polygraph evidence relating to collateral issues will continue to be potentially admissible. See Cordoba, 104 F.3d at 228-29; see also United States v. Posado, 57 F.3d 428, 431 (5th Cir.1995) (polygraph questions relating to propriety of search resulting in charges for possession of marijuana in violation of § 841(a)(1)).

3 . We discuss this issue more thoroughly in a companion case. United States v. Benavidez-Benavidez, 217 F.3d 720, 723 (9th Cir.2000). In Benavidez-Benavidez, we hold that our decision in Cordoba does not "mandate a. new seriatim formalistic inquiry, requiring the district court to conduct a Daubert hearing in every case." Id. at 724. Rather, the district court may choose to admit or exclude evidence based on a choice of several evidentiary grounds.

4 . Campos’ objection to the admission of Customs Agent Darvas’ testimony based on her contention that it was improper drug courier profile evidence does not encompass an objection to the testimony based on Rule 704(b), but rather, implicates Rule 403. The exclusion of drug courier profile evidence is premised on the concern that "the use of such profiles is of limited probative value and is extremely prejudicial.” Beltran-Rios, 878 F.2d at 1210.