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‘Nix Improper Profiling in Drug Cases,’ says the Fifth Circuit

By FRED A. SIMPSON

In United States v. Mendoza-Medina, __ F.3d ___ (5th Cir. 2003) Sept. 10, 2003, the Fifth circuit admonished district courts to be more discreet in drug cases and put a damper on prosecutors who use expert witness testimony to prove to the jury that defendants are in fact guilty of drug trafficking.
Although the Fifth Circuit affirmed the trial court in this particular case by finding multiple harmless errors, the appellate court used this opportunity to caution lower courts that a certain type of expert opinion testimony “comes unacceptably close to the use of evidentiary profiles.”
Charges in this case included conspiracy and intent to distribute marijuana worth about $135,000. The contraband was transported in a tractor-trailer along with legitimate cargo. A drug-detecting dog alerted authorities to the contraband when the truck was inspected near the U.S.-Mexico border.
The truck driver had his wife and children with him. When the driver consented to an interview, he told DEA agents that his employer asked him to pick up the marijuana in Laredo and drop it off at Dallas while on the way to New York. Agents learned that the accused began working two months earlier for an employer who had a prior drug trafficking conviction.
At trial, a DEA agent was qualified as an expert. The agent described how marijuana was cultivated and packaged, and also how drug traffickers recruit their mules, testifying that Laredo truck drivers were susceptible to the fast money available from this activity. Drivers were normally limited to small loads until they proved they were reliable and trustworthy. Drivers were given bigger loads, such as here, only after proving themselves as competent mules. The DEA expert also suggested that drivers traveled with their families under the mistaken idea that law enforcers would not be suspicious.
The expert then testified about the bad history of the driver’s employer, giving details of a prior drug traffic conviction, and he opined that the driver lied about certain aspects of his working relationship with his employer.
In its “harmless error” evidentiary review, the Fifth Circuit applied the heightened abuse of discretion standard applicable to criminal cases.
The defense argued that the DEA expert’s testimony crossed the line from permissible expert testimony to impermissible opinion testimony about whether the accused driver knew the drugs were in his truck, and that the prosecution improperly used this expert testimony as substantive evidence in opening and closing arguments. The defense also argued that the expert testimony conveyed hearsay and improperly referenced prior bad acts.
The prosecution argued that the DEA expert never specifically identified the driver’s conduct with that of a drug courier, nor did the expert testimony broach the subject of whether the driver actually knew he was transporting drugs. Furthermore, the other evidence was strong enough, and the court’s jury instructions cured any flaws in the use of expert testimony.
The Fifth Circuit then reviewed other cases where similar expert testimony was found prejudicial and an abuse of discretion. Testimony was error in those cases because it produced forbidden expert opinion on the ultimate legal issue concerning knowledge of the contraband being transported.
In this case, the district court definitely abused its discretion in allowing the DEA expert testimony to come in as it did, but the other evidence before the jury was so substantial that the error was harmless.
Another error claimed, but not preserved at trial, was also considered on appeal: that of the double-hearsay by the DEA expert who repeated what the inspectors learned at the scene of the driver’s apprehension. However, under the “plain error” standard of review, that improper hearsay was found not to affect the fairness, integrity, or public reputation of the proceeding.
The final point on review concerned a “deliberate ignorance” jury instruction given by the trial court sua sponte, something that is rarely done. In order for the instruction to be properly given, the evidence at trial must raise two inferences: (1) that the defendant was subjectively aware of a high probability of the existence of the illegal conduct; and (2) the defendant purposely contrived to avoid learning of the illegal conduct. To the contrary, when there are two versions of the facts, one which suggests the defendant had knowledge, and one which suggests the defendant was only negligent or stupid, the deliberate ignorance instruction is not appropriate. In this case, the instruction was error because the evidence did not justify its use. However, due to the substantial evidence of the driver’s actual knowledge that he was transporting contraband, the error was harmless.

Fred Simpson is a partner in the Houston Litigation Section of Jackson Walker L.L.P.

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