UNITED STATES of America, Plaintiff-Appellee, v. Marty WEBB, Defendant-Appellant

115 F.3d 711, 97 Cal. Daily Op. Serv. 4327, 97 Daily Journal DAR 7237, 46 Fed. R. Serv. 1243, 1997 U.S. App. LEXIS 13417, 1997 WL 304755

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 9, 1997
• Docket: 96-50160
• Status: Published

Opinions

TROTT, Circuit Judge.

I. OVERVIEW

Marty Webb appeals his conviction following a jury trial for possession of ammunition by a felon in violation of 18 U.S.C. § 922(g)(1). The sole issue on appeal is whether the district court abused its discretion by admitting police expert testimony regarding the reasons criminals conceal weapons in the engine compartments of then-cars. Because the expert testimony in this ease is proper expert testimony regarding criminal modus operandi, we affirm.

II. BACKGROUND

On October 17, 1995, Los Angeles law enforcement officers executed a search warrant for Webb’s person and vehicle. Informants had told the officers that Webb was dealing cocaine and that he was carrying a firearm. Webb had a reputation for being armed and violent. During the search, the officers found a loaded semiautomatic pistol wrapped in a shirt and concealed in the car’s engine compartment. There were no fingerprints on the weapon.

Because Webb had three prior felony convictions, the Government charged him with being a felon in possession of ammunition.¹ Prior to trial, the Government informed Webb’s attorney that it intended to introduce expert testimony regarding the reasons people typically hide guns in the engine compartments of cars. The Government proffered that the police expert’s testimony would establish that people typically conceal weapons in the engine compartment of a car for two reasons: 1) so that they have ready access to the gun, but police do not easily discover it; and 2) so that they can disclaim knowledge of the weapon if police do discover it. Webb objected to this proposed testimony on the grounds that it was inadmissible reputation evidence, that it was irrelevant, and that it was more prejudicial than probative.

At trial, Webb’s main defense was that he did not know the gun was in his car. Over Webb’s objection, the district court allowed the police expert to testify that:

• it is typical for people to conceal weapons in the engine compartments of their cars;

• people typically conceal weapons in the engine compartments because police seldom search there;

• people typically conceal weapons in their cars so that the weapons are easily accessible, as compared with storing the weapons at home; and

• people typically store weapons in the engine compartments rather than the passenger compartments because, if discovered, it is easier to claim that they did not know about the weapon.

The expert used the term “people” rather than “criminals” in an effort to mitigate any potential prejudice/ He did not offer an opinion as to whether Webb knew the weapon was in his car.

The jury returned a guilty verdict.

III. STANDARD OF REVIEW

We review a district court’s decision to admit expert opinion testimony for abuse of discretion. United States v. VonWillie, 59 F.3d 922, 928 (9th Cir.1995).

IV. DISCUSSION

Webb claims that the expert’s testimony should have been excluded because: 1) it was improper and unduly prejudicial modus oper-andi evidence; 2) it was similar to drug courier profile evidence; 3) it consisted of opinions on the ultimate issue in the case-Webb’s knowledge of the gun’s presence; and 4) it was unreliable expert testimony prohibited by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). As discussed below, these claims are meritless.

A. Probative Value and Prejudicial Effect

If “specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue,” a qualified expert witness may provide opinion testimony on the issue in question. Fed.R.Evid. 702. The expert testimony that people conceal firearms in the engine compartment of their cars to avoid arrest and prosecution was relevant to and probative of Webb’s knowledge of the gun’s presence. Moreover, the testimony explained evidence about the gun’s whereabouts that easily could have been beyond the knowledge of an average juror. The question therefore becomes whether the testimony’s possible prejudicial effect substantially outweighed its probative value. Fed.R.Evid. 403.

In analogous cases, we have held that drug-enforcement experts may testify that a defendant’s activities were consistent with a common criminal modus operandi. See United States v. Johnson, 735 F.2d 1200, 1202 (9th Cir.1984) (“[Government agents or similar persons may testify as to the general practices of criminals to establish the defendants’ modus operandi.”). This testimony “helps the jury to understand complex criminal activities, and alerts it to the possibility that combinations of seemingly innocuous events may indicate criminal behavior.” Id. Further, we even allow modus operandi expert testimony in cases that are not “complex.” United States v. Gil, 58 F.3d 1414, 1422 (9th Cir.) (rejecting defendants’ contentions that the “modus operandi testimony was more prejudicial than probative because the activities described are not complex ones requiring expert explanation”), cert. denied, — U.S. -, 116 S.Ct. 430, 133 L.Ed.2d 345 (1995).

In Gil, the district court permitted the Government to offer expert testimony that drug traffickers often employ counter-surveillance driving techniques, register cars in others’ names, deliver narcotics and cash in public parking lots, and frequently use pagers and public telephones. Id. at 1421-22. Noting a long line of cases allowing modus operandi testimony, we held that the admission of this testimony was not an abuse of discretion. Id. at 1422; see also United States v. Espinosa, 827 F.2d 604, 611-12 (9th Cir.1987) (allowing expert testimony regarding the use of apartments as “stash pads” for drugs and money); United States v. Patterson, 819 F.2d 1495, 1507 (9th Cir.1987) (allowing expert testimony on how criminal narcotics conspiracies operate); United States v. Maher, 645 F.2d 780, 783 (9th Cir.1981) (per curiam) (permitting expert testimony that defendant’s actions were consistent with the modus operandi of persons transporting drugs and engaging in counter-surveillance); cf. United States v. Boykin, 986 F.2d 270, 275 (8th Cir.1993) (allowing testimony that “the type of firearms found in [the defendant’s] home, their location, and the fact that they were loaded was significant to their usefulness and availability for use in connection with a drug business”).

The above cases are analogous to the instant case. In the drug cases, the testimony was necessary to inform the jury of the techniques employed by drug dealers in their illegal trade. Here, the expert testimony similarly was necessary to inform the jury that concealment of weapons in the engine compartment of a car: 1) indicates an intention on the part of the person who put them there to avoid detection; and 2) does not necessarily indicate that the occupant of the ear did not know of the weapon’s presence.

The expert’s testimony in the instant case is also similar to the expert testimony consistently admitted in drug trials to rebut lack of knowledge claims. For example, in United States v. Castro, 972 F.2d 1107, 1111 (9th Cir.1992), an expert testified that millions of dollars worth of cocaine “would have never been entrusted to an unknowing dupe.” Here, as in Castro, the expert’s testimony rebutted the defendant’s lack of knowledge claim.

The necessity of this expert testimony was apparent from the very beginning of Webb’s trial. Webb’s attorney stated in her opening statement:

So what is the focus of this case, and what are we asking you to pay close attention to? Whether or not the government will be able to prove to you beyond a reasonable doubt that Marty Webb knew that the gun that was hidden in this shirt, hidden under the hood of the car, was there, that he knew it was there, and that it was his gun, that he possessed that gun. That’s the key question in this case....

[The Government] will not be able to prove to you, ladies and gentlemen, that he knew that that gun was hidden in that car and that he intentionally and knowingly possessed that gun.

The Government therefore properly used the expert’s testimony to rebut Webb’s lack of knowledge claim.

Significantly, the expert was particularly qualified to give such an opinion. He testified that, in his nineteen years as a police officer, he had training and experience in the way that guns are concealed in cars. While working in the county jail for a period of one year, the officer talked to 50 to 60 inmates per day about how and why criminals conceal weapons. Thus, the officer’s experience qualified him to render an opinion regarding one of the most important concerns faced by police officers-where, how, and why criminals conceal their weapons.

In addition, the trial court and the Government took steps to mitigate the testimony’s potential prejudicial effect. The Government focused its questions on the practices of “persons” rather than criminals or gang members. Moreover, even if the jury drew the adverse inference that Webb was a criminal, that inference would not prejudice him because the jury already knew that Webb was a criminal: Webb had stipulated that he had been convicted of three prior felonies.

In light of the above, the district court properly determined that the testimony’s prejudicial effect did not substantially outweigh its probative value.

B. Drug-Courier Profile Evidence

Webb also argues that the expert testimony was similar to inadmissible drug courier profile testimony. A drug courier profile is:

a somewhat informal compilation of characteristics believed to be typical of persons unlawfully carrying narcotics.... These profiles are commonly used by agents as a basis for reasonable suspicion to stop and question a suspect or to form probable cause.

United States v. Lui, 941 F.2d 844, 847 (9th Cir.1991) (citations and internal quotations omitted). We have held that drug-courier profile evidence is inherently prejudicial and thus that it is admissible only in two circumstances: 1) “to establish modus operandi, but only in exceptional, complex cases;” or 2) “to rebut ’ specific attempts by the defense to suggest innocence based on the particular characteristics described in the profile.” United States v. Lim, 984 F.2d 331, 335 (9th Cir.1993) (citation and internal quotation omitted).

More recently, however, we have rejected the argument that modus operandi expert testimony raises concerns similar to those raised by drug-profile testimony. Gil, 58 F.3d at 1422. In Gil, we rejected the drug profile evidence comparison “because we have consistently held ‘that government agents or similar persons may testify as to the general practices of criminals to establish the defendants’ modus operandi.’ ” Id. (quoting Johnson, 735 F.2d at 1202) (emphasis added)..

Further, in United States v. Taren-Palma, 997 F.2d 525, 534-535 (9th Cir.1993), we upheld admission of expert testimony regarding the use of guns in narcotics transactions because the fact that the defendant was carrying a gun was not innocuous. We distinguished Lim and Lui by noting that in those cases, the inadmissible drug courier profile evidence involved innocuous bits of evidence, such as engaging in domestic travel without carrying drugs. 997 F.2d at 535. Here, like in Taren-Palma, the fact that Webb had a gun concealed under the hood of his car was by no means innocuous.

In addition, unlike Lim and Lui none of the expert testimony in this case was admitted to demonstrate that Webb was guilty because he fit the characteristics of a certain drug-courier profile. Instead, the expert testimony was properly admitted to assist the jury in understanding the reasons why a person would eonceal a weapon in the engine compartment of a car.

C. Webb’s State of Mind

Webb next argues that the expert testimony was inadmissible because it constitutes testimony on his state of mind, in violation of Federal Rule of Evidence 704(b). Rule 704(b) prohibits an expert from stating his opinion on the ultimate issue of whether a defendant had the particular mental state at issue.

The expert in this case described a typical situation, and never offered any opinion about whether Webb knew the weapon was hidden in his car. The expert testified about a typical way people conceal weapons in cars and the typical reasons for their concealment. In fact, on cross-examination, the expert admitted that he had no information that Webb knew the weapon was in the engine compartment. Under these circumstances, it was left to the jury to determine whether Webb knew the gun was hidden in the car. Thus, the expert did not give an impermissible opinion under Rule 704(b). See United States v. Lockett, 919 F.2d 585, 590 (9th Cir.1990) (allowing expert testimony that “merely described a typical cocaine packaging operation. The jury was left to determine, on its own, whether there was a cocaine distribution operation in the present case, and whether Lockett’s presence was an exception to the general practice of cocaine packaging operations.”).

Webb relies on United States v. Boyd, 55 F.3d 667, 671 (D.C.Cir.1995). In Boyd, the D.C. Circuit held that the district court abused its discretion in allowing the prosecutor to ask an expert’s opinion as to whether a hypothetical defendant in a hypothetical factual scenario, indistinguishable from the defendant and facts in the ease before the court, had the intent necessary for conviction. In the instant ease, however, the Government did not ask the police expert about either Webb’s intent or knowledge, or a hypothetical defendant’s intent or knowledge. Thus, Boyd does not support Webb’s position.

D. Daubert

Finally, Webb argues that the Supreme Court’s decision in Daubert, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, governs the admission of expert testimony regarding the modus operandi of criminals, and that the district court therefore abused its discretion by failing to follow the Daubert procedures for admitting such testimony. Because the expert testimony in this case constitutes specialized knowledge of law enforcement, not scientific knowledge, the Daubert standards for admission simply do not apply. United States v. Cordoba, 104 F.3d 225 (9th Cir.1997), as amended, Feb. 11, 1997.

V. CONCLUSION

The expert testimony in this ease was proper modus operandi testimony. Because the district court did not abuse its discretion in admitting the testimony, we affirm Webb’s conviction.

AFFIRMED.

1 . The government had sufficient evidence to establish the requisite interstate commerce nexus for the ammunition found in the gun, but not for the gun itself.