Modus operandi expert testimony that inter alia fulfils the requirements of Federal Rule of Evidence 702 may be admitted, rules Ninth Circuit

Expert testimony of a law enforcement officer that besides being relevant, reflects on the modus operandi of the illegal importation of marijuana, and which does not pose an undue risk either of confusing the jury or creating unfair bias can be admitted in consonance with Federal Rule of Evidence 403 ruled the Ninth Circuit in United States of America v. Lorenzo Osvaldo Gonzalez- Robles 2015 U.S. App. LEXIS 4132 in appeal while affirming the decision of the United States District Court for the Central District of California.

 A strong case was instituted against Lorenzo Gonzalez-Robles in the District Court for the Central District of California subsequent to his arrest on a ‘panga’ boat laden with marijuana. He admitted that he knew of the presence of marijuana from the time he boarded the boat, and also declared that he was a mechanic in need of money. Further, an expert witness, Special Agent LeVan also testified that it is typical of the panga crews to take within their folds a mechanic who is paid up to $10,000, and that marijuana smugglers never take on passengers who have no role to play in the smuggling.

This expert testimony was admitted by the district court which eventually paved the road for the defendant’s conviction on the grounds of conspiracy to import marijuana, 21 U.S.C. § 963, importation of marijuana, 21 U.S.C. §§ 952(a)960(a)(1)(b)(1)(G), possession with intent to distribute marijuana, 21 U.S.C. §§ 841(a)(1)(b)(1)(A)(vii), and possession with intent to distribute marijuana on board a vessel, 46 U.S.C. § 70503(a)(1).

Gonzalez appealed his convictions and sentences, inter alia the improper admission of expert testimony before the United States Court of Appeals for the Ninth Circuit.

During a pre-trial hearing on motions in limine, before allowing Special Agent LeVan to give expert testimony, the judge of the district court,

  • acknowledged the topics of Agent LeVan’s proposed testimony,
  • acknowledged his CV,
  • appreciated the fact that “modus operandi” testimony was acceptable,
  • cited Ninth Circuit case law to support this finding,
  • acknowledged that Rule 702 requires an expert to be qualified and the testimony to aid the jury, and
  • concluded that “it would appear that Agent LeVan can testify.”

 The Ninth Circuit accordingly held that the district court had appropriately performed its gatekeeper functions under Federal Rule of Evidence 702.

 The Ninth Circuit also found that Agent LeVan’s modus operandi testimony had satisfied the reliability requirements of Rule 702 and in so holding it relied on its decision in United States v. Valencia-Amezcua [278 F.3d 901, 909 (9th Cir. 2002)] and United States v. Kearns [61 F.3d 1422, 1427 (9th Cir. 1995)] where it had held time and again that law enforcement are empowered to give modus operandi testimony in drug smuggling and conspiracy cases. Moreover, Agent LeVan was qualified, and his testimony was grounded in specialized knowledge.

Agent LeVan’s testimony addressed Gonzalez’s mental state but he “never directly commented on the defendant’s mental state.” Moreover, the district court had ruled that the jury could have accepted his testimony and still inferred that what the defendant had done was out of character. In this regard the Appellate Court did not find Agent LeVan’s testimony to be in contravention with Federal Rule of Evidence 704(b) although it had dealt with Gonzalez’s mental state.

The expert witness did not allude at any specific statements, arguments, or information from other sources, but merely made general declarations about panga boat smuggling. The Ninth Circuit further noted that the testimony of the expert witness did not feed or direct others’ statements or assertions in violation of the Confrontation Clause. Citing its observation in United States v. Gomez [725 F.3d 1121, 1129-30 (9th Cir. 2013)], the Appellate Court held that an expert witness’s reliance on evidence that would be barred by Crawford. . . only becomes a problem “where the witness is used as little more than a conduit or transmitter for testimonial hearsay.”

Accordingly, the Ninth Circuit did not find the district court guilty of abusing its discretion in admitting the modus operandi expert testimony and thereby affirmed its decision.