USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1264
UNITED STATES OF AMERICA,
Appellee,
v.
HECTOR JULIO FELIX MONTAS,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Coffin and Campbell, Senior Circuit Judges.
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Rafael F. Castro Lang for appellant.
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Esther Castro Schmidt, Assistant United States Attorney, with
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whom Guillermo Gil, United States Attorney, and Jose A. Quiles-
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Espinosa, Senior Litigation Counsel, were on brief for appellee.
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December 7, 1994
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COFFIN, Senior Circuit Judge. Hector Julio Felix Montas
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appeals his conviction after jury trial for possession with
intent to distribute cocaine. He raises three issues: the
sufficiency of the evidence to support the jury verdict, the
appropriateness of the district judge's conduct during the trial,
and the admission of expert testimony concerning the use of false
names by airplane drug couriers. While we are given pause by
some aspects of the case, we conclude that there is no reversible
error.
Background
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On June 30, 1993, a dog used by a United States Customs K-9
unit detected drugs in two suitcases checked onto a flight from
San Juan, Puerto Rico, to New York City. The two bags had been
checked in the name of Miguel Rivera ("Rivera") and bore
identification tags with Rivera's name written by hand. Customs
inspectors located a third bag checked in Rivera's name, but no
cocaine was detected therein. This third bag also had an
identification tag affixed to it, which bore the handwritten name
of Pedro Felix followed by defendant's address. All three bags
had consecutive claim tag numbers. Airline records indicated
that Felix and Rivera had purchased their tickets, checked in,
and checked their bags, at the same time. They also had been
assigned adjacent seats on the flight.1
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1 In its brief the government misleadingly asserts that "the
name of Miguel Rivera appeared on all three" bags. By failing to
explain what only a close reading of the trial transcript reveals
-- that the airline placed tags with Rivera's computer-printed
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name on the bags -- the government implies the existence of a
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Upon detection of the presence of drugs, Customs inspectors
rushed to the flight gate to locate Rivera and Felix. Though
many of the passengers already had boarded, they found defendant
in the gate area and asked to see his ticket and boarding pass.
Defendant showed them these documents, which were in the name of
"Felix, P.," and they detained him. Defendant asked why he was
being held and was told "because the dog has detected the odor of
narcotics on your bags." Supervisory Customs Inspector Irizarry
went to search the plane for Rivera, telling Inspector Ramos to
stay and watch defendant closely because he thought he looked
nervous and was getting ready to throw away something he had in
his pants pocket. This prediction proved prescient, for, after
watching defendant take his hands in and out of his pockets
several times, Ramos observed what he described as a crumpled
piece of paper fall from defendant's back. Ramos said,
"something fell from you." Defendant replied: "Not me. That's
not mine." Ramos picked up the crumpled papers and discovered
that they were the claim checks for the three pieces of luggage,
two of which contained the cocaine. Defendant was taken into
custody, where he was found to be in possession of a Dominican
Republic passport and other identification in the name of Hector
Julio Felix Montas.
There is conflicting evidence on what happened next. The
government contends that Irizarry and another Customs official
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stronger connection among the bags, and of the defendant to them,
than is warranted.
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entered the plane and determined that no passenger named Rivera
was aboard. Defendant argues that Rivera was on the plane when
it took off and disembarked with the other passengers in New
York, noting that this theory finds support in testimony by DEA
Agent Ivan Rios at a preliminary hearing. Rios, who arrived on
the scene after defendant was detained, testified that Customs
officials told him that Rivera had taken off on the flight. He
also testified that, by the time authorities were contacted in
New York, the passengers already had disembarked. In any event,
no Rivera was ever apprehended.
The jury convicted defendant of the single count with which
he was charged, possession with intent to distribute cocaine.
Discussion
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We address the three claims of error in turn.
I. Sufficiency of the Evidence
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In assessing the sufficiency of the evidence to support the
jury's guilty verdict, we read the record and draw all reasonable
inferences therefrom in the light most favorable to the
prosecution. United States v. Loder, 23 F.3d 586, 589 (1st Cir.
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1994). We must affirm if, based on the evidence viewed in this
way, a rational fact finder could have found defendant guilty
beyond a reasonable doubt. Id.
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The evidence adduced at trial was sufficient to sustain the
verdict. Though the bags containing cocaine were checked to
Rivera and bore identification labels with Rivera's hand-written
name, the record shows that defendant was linked to these bags in
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several ways. First, he possessed the claim checks for the bags,
making reasonable the inference that he planned to pick them up
upon arrival in New York. Possession of such claim checks,
because they "represent [the] legal right to reclaim the
luggage," is sufficient to show constructive possession over the
luggage itself. United States v. Ocampo-Guarin, 968 F.2d 1406,
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1410 (1st Cir. 1992). Second, when he was detained, he
intentionally threw away the claim checks. Such evidence is
highly probative that he was conscious of his own guilt. Third,
defendant and Rivera bought their tickets together, checked in
together, and checked their bags together. This could show
nothing more than that the two men were co-travellers, but, when
taken together with the other evidence, it also supports the
inference that either Rivera never existed and defendant created
his persona as part of a scheme to avoid detection, or that the
two men were cohorts in a smuggling endeavor. In any event,
based on the totality of the evidence, a rational jury could find
defendant guilty beyond a reasonable doubt.
Defendant argues that all of this evidence is perfectly
consistent with innocence. He submits that he possessed the
claim checks for the bags containing cocaine only because the
airline clipped both his and Rivera's checks onto his ticket
jacket, as the airline representative testified is sometimes done
when two passengers check in together. He points out that he
threw away the checks only after being told that the odor of
narcotics was detected in "his" bags. He says he then realized
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for the first time that Rivera's bags must have contained
narcotics. Throwing away the checks, he contends, was simply a
natural human reaction to avoid the erroneous conclusion that he
was involved. He also stresses that the handwritten
identifications tags showed that the cocaine-filled bags were
Rivera's and the unoffending bag was his.
This argument fails for two basic reasons. First, even
assuming the plausibility of defendant's explanations, it is not
a prerequisite of conviction that the prosecution adduce evidence
to preclude "every reasonable hypothesis of innocence." United
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States v. Gonzalez-Torres, 980 F.2d 788, 790 (1st Cir. 1992).
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Moreover, defendant made this same argument -- that the evidence
showed nothing more than that he was an innocent co-traveller
with Rivera -- to the jury. Because there was sufficient
evidence to make reasonable a finding of guilt, the jury was
entitled to discredit his theory of innocence. See, e.g., id.
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II. The Judge's Conduct
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Defendant next urges us to reverse because, he asserts, the
district judge became "a partisan of the government's case," thus
depriving him of a fair trial. See, e.g., United States v.
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Wilensky, 757 F.2d 594, 598 (3d Cir. 1985) (criminal trial unfair
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when "the judge's role loses its color of neutrality and tends to
accentuate and emphasize the prosecutor's case"), cited in United
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States v. Corgain, 5 F.3d 5, 9 (1st Cir. 1993). The judge's
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allegedly improper conduct consists of questioning a prosecution
witness and admonishing the prosecutor on her trial strategy in a
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manner reflecting adversely on defendant's case. We have
reviewed these matters, as well as the entire record, and find no
conduct by the judge warranting reversal.
The role of a federal trial judge, of course, is not limited
to that of a "mere umpire." United States v. Polito, 856 F.2d
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414, 418 (1st Cir. 1988). Instead, the judge "is the governor of
the trial for assuring its proper conduct." Desjardins v. Van
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Buren Community Hosp., 969 F.2d 1280, 1281 (1st Cir. 1992) (per
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curiam) (quoting Quercia v. United States, 289 U.S. 466, 469
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(1933)). In the exercise of this power, a trial judge has
"the prerogative, and at times the duty, of eliciting facts
he deems necessary to the clear presentation of issues. To
this end he may examine witnesses who testify, so long as he
preserves an attitude of impartiality and guards against
giving the jury the impression that the court believes the
defendant is guilty."
United States v. Paz Uribe, 891 F.2d 396, 400-401 (1st Cir. 1989)
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(quoting Llach v. United States, 739 F.2d 1322, 1329-1330 (8th
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Cir. 1984)). An appellate court, when asked to reverse because
of asserted improper conduct by a trial judge, must "consider
isolated incidents in light of the entire transcript so as to
`guard against magnification on appeal of instances which were of
little importance in their setting.'" Aggarwal v. Ponce School
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of Medicine, 837 F.2d 17, 22 (1st Cir. 1988) (quoting Glasser v.
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United States, 315 U.S. 60, 83 (1942)).
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Preliminarily, we note that defense counsel never objected
to any of the court's conduct about which he now complains. We
therefore review the issue for plain error only. Fed. R. Crim.
P. 52(b); United States v. Gonzalez-Torres, 980 F.2d 788, 791
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(1st Cir. 1992). To satisfy this standard, defendant must show
that there was error, that it was clear or obvious, and that it
affected a substantial right. United States v. Olano, 113 S. Ct.
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1770, 1776-78 (1993). "[E]rror rises to this level only when it
is `so shocking that [it] seriously affect[ed] the fundamental
fairness and basic integrity of the proceedings conducted
below.'" United States v. Ortiz, 23 F.3d 21, 26 (1st Cir. 1994)
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(quoting United States v. Olivo-Infante, 938 F.2d 1406, 1412 (1st
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Cir. 1991)) (internal quotations omitted).
The first alleged impropriety concerns the court's
questioning of a prosecution witness during her cross-
examination. Sandra Roman, who worked for the airline as a
ticket agent at the San Juan airport, testified that she sold two
tickets in the names of Miguel Rivera and Pedro Felix, and
checked in three bags under Rivera's name, at 5:45 in the morning
of the flight. On cross-examination, defense counsel tried to
advance the theory that Rivera was allowed to take off on the
flight to New York and disembark there. He handed Roman a
document captioned "passenger list" and asked whether "the names
that you find here would be the names of the passengers on that
particular flight?" Roman replied in an ambiguous manner2 and
the court asked whether the people on the "passenger list"
actually boarded the plane. Roman answered: "This is not my
area, okay? So I am not very expert on the information in this
list. I really work at the counter, so I work with the
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2 The transcript shows she answered by stating "aha."
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reservation, not with the list." When defense counsel persisted
in inquiring further about the list, the court finally asked
Roman: "Do you know whether that list means that all the persons
boarded the plane?" Roman replied:
I am not sure. Okay, there is a list that says -- what is
called the on list. That is the one that all the passengers
are on board, and it doesn't look -- I don't think it's this
one. There is another list with all the reservations that
we have for the flight. So I'm not sure which one is this
one, if this is the on list, what we call the on list, or
the list of all the people that had reserved for that
flight.
Defense counsel continued to cross-examine Roman,
successfully eliciting that, when two passengers check in
together with luggage, sometimes both of their baggage claim
checks are clipped to one passenger's ticket jacket. This
testimony was obviously helpful to defendant because it made
plausible his assertion that he possessed the incriminating claim
checks simply due to the innocent fact of his having checked in
with Rivera. The prosecution tried to discredit this theory on
redirect by suggesting that, since the bags were checked in
Rivera's name, the baggage claim checks would have been clipped
to his ticket jacket, not defendant's. On recross-examination,
the defense rebutted this suggestion by eliciting that baggage
checks may be clipped to one of the passenger's ticket jackets
regardless of which passenger actually checked the bags. The
judge then asked Roman:
THE COURT: When somebody goes to the counter to buy a
ticket or two tickets or three tickets, do
you need to have the physical presence of the
two or three persons there, or can the one
person buy the three tickets?
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THE WITNESS: One person can buy however number [of]
ticket[s] he wants.
THE COURT: And I can go with my wife, for example, and
say "Here I am to check in." My wife may be
in the bathroom or buying something and I can
check in and you don't see her face
physically, correct?
THE WITNESS: No.
Later, during oral argument outside the jury's presence on
the defense motion for a judgment of acquittal, the court made
certain statements that defendant argues show the court's bias in
favor of the prosecution. In essence, the court chided the
prosecutor for failing to produce the "on list" to which Ms.
Roman referred, and for failing to have someone from the airline
testify that no one named Rivera ever turned in a boarding pass.
The court explained that it thought this evidence was crucial
because "it is entirely possible that [Rivera is] a no[n] entity.
It's entirely possible that somebody bought a ticket in his name
not to use it." The prosecutor responded that she had called a
Customs inspector who testified that no Miguel Rivera ever
checked in at the gate.
THE COURT: I understand he said that. But the truth of
the matter is that it would have looked
better if someone from American Airlines
would have come to verify that same fact. . .
. I do think your case contains elements
enough for it to go before the jury. . . .
But the truth of the matter is that you are
missing a very important element, extremely
important. Don't be surprised if you get a
defendant's verdict in this case.
MS. CASTRO: Okay. Thank you, your Honor.
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THE COURT: As a matter of fact, you want me to tell you,
I don't think Miguel Rivera was ever at the
airport, but that's besides the point.
We find the court's questions concerning the "passenger
list" to have been entirely appropriate. The defense tried to
prove that Rivera must have boarded the plane because his name
was on the list. By its questions, the court elicited that the
list under review may not have been the "on list," i.e., the list
of passengers who actually boarded, but rather, only a list of
those who had made a reservation for the flight. Thus, the
effect of the court's questioning was to clarify the true
significance of the document for the jury, which is, of course,
entirely proper. See, e.g., Corgain, 5 F.3d at 9; Paz Uribe, 891
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F.2d at 401. No judicial bias inheres in the fact that the
premise of defendant's theory, that Rivera's name on the list
meant he boarded the plane, was shown to be more dubious than the
defense wanted the jury to believe.
With the benefit of hindsight, we could take issue with the
court's questions regarding the possibility of checking in for
other passengers in their absence. After all, neither side had
broached this topic with Roman,3 so it is difficult to see what
confusion or ambiguity in the mind of the jury required
clarification. Further, the testimony the judge elicited
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3 The prosecutor may have attempted to make this point when
one of the customs inspectors testified earlier that day. She
asked him whether either Rivera or Felix could have checked the
bags. The court sustained defense counsel's objection, stating:
"We have to wait for the American Airlines person." The
prosecutor never took up the issue when Roman later testified.
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apparently did little more than highlight the possibility that
Rivera was never at the airport. It showed that it was possible
for the defendant, acting alone, to have bought the two tickets,
checked in for himself and Rivera, and checked in the three
pieces of luggage under Rivera's name -- a theory that, as we
know from the judge's later comments, he himself believed.
While this testimony perhaps more properly would have been
elicited by the prosecutor than the judge, we do not think
defendant's right to a fundamentally fair trial was affected.
First, the fact that it is possible to buy tickets and check in
for another passenger is collateral to the ultimate determination
of defendant's guilt or innocence. Second, in eliciting this
testimony, the judge did not expressly display an attitude of
partiality or tip his hand to the jury concerning his belief
about Rivera's existence or defendant's guilt or innocence. See
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Paz Uribe, 891 F.2d at 400-401. Nor do we think there was a
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significant risk that the jury perceived any partiality based on
the fact of asking these questions. If any such risk existed, it
was ameliorated by the court's instruction to the jury, at the
beginning of the trial, that "[n]othing that I may say, nothing
that I may do, is intended by me as indicating what your verdict
should be." As already noted, the judge's comment that he did
not believe Rivera was ever at the airport took place outside the
jurors' presence and thus could not possibly have affected their
verdict. Further, in the context of the court's overall
supervision of the trial, the challenged conduct amounted to very
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little. See Polito, 856 F.2d at 418. The judge's few questions
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on this score were not the type of serious departure from the
wide boundaries of the judicial role that requires reversal, and
certainly not where there was no objection below.
Finally, defendant complains that, by pointing out the
failure to show conclusively that no Rivera was aboard, the court
gave the prosecutor a suggestion of valuable trial strategy at a
time when she still could have used it to her benefit. But this
argument ignores that the court expressly ruled that it would not
allow the government to re-open its case to correct the
deficiency. There was, in fact, no further evidence offered by
the prosecution and thus no prejudice to the defendant.
III. Admission of Expert Testimony
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The defendant also asserts that the court erred in admitting
certain expert testimony under Fed. R. Evid. 702 because it
concerned a subject within an average juror's understanding. The
testimony was given by the government's case agent, DEA Agent
Rios. We reproduce it in its entirety.
Q. Based on your experience, was it unusual that this
person who has been detained as Pedro Felix was
carrying a passport identifying himself with another
name?
Mr. Castro Lang: Objection, your Honor. Leading,
number one. Second, it's
requesting the witness to speculate
about matters that are not in
evidence.
The Court: Let me say this: You can rephrase
the question.
Q: Have you participated in many airport cases?
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A: Yes, ma'am.
Q. Have you participated in cases where suitcases are
involved containing narcotics?
A. Yes, Ma'am.
Mr. Castro Lang: Objection, Your Honor.
The Court: Grounds?
Mr. Castro Lang: We are dealing with this
interception. Were they
interceptions that were unrelated
to this case? If that's the
situation, I object.
The Court: Overruled.
Q. And in these situations where you have intervened with
individuals who had narcotics in their suitcases, what
has been your experience as to the names on the
suitcases and the names on the individuals?
Mr. Castro Lang: Objection, your Honor.
The Court: Overruled.
A. My experience has been that possibly 99 percent of the
previous cases I've had as a special agent of the Drug
Enforcement Administration, cases related to airport
seizures like this particular one, have been that the
person is travelling under an assumed name.
Q. By "travelling under an assumed name," what do you mean
by this?
A. They use a different name in their flight ticket in
order to avoid -- a different name in the flight ticket
in comparison to the name that is the real name. For
instance, in an ID -- they will use an ID if they have
one, Okay? And they will place a different name in the
flight ticket which would in turn put a different name
also in the claim tags and also in the claim checks.
Q. Are you telling us that there would be one name on the
suitcases --
A. Correct[], different from his real name, in order to
avoid any kind of linking between that particular
suitcase, the name on that particular suitcase, to his
real person, to his real name.
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Q. And why would he want to avoid that?
A. Well, that's obvious right there. Because if you are
ever caught with a controlled substance in a particular
suitcase and you get asked your name, you show a
different ID to the name on the label, and in that way
you will try to avoid being caught.
On summation, the prosecutor emphasized the similarity
between defendant's conduct and the conduct that Rios attributed
to "99 percent" of the drug smugglers caught in his previous
cases:
And then you remember the testimony of the case agent
in this case, Mr. Ivan Rios. He told you he's been --
he's intervened in many airport cases involving
suitcases. He also told you, ladies and gentlemen,
that in 99 percent of the cases in which he's
intervened, the person is travelling under an assumed
name, like the defendant here, P. Felix, when in fact
his name is Hector Julio Felix Montas.
And he also told you that besides travelling under an
assumed name, like the defendant here, based on his
experience, the names that appear on the suitcases do not
correspond to the name of the person arrested.
And I said, "Well, isn't that unusual? Why is that,
Mr. Rios?" And he said, "No, that's not unusual.
That's very common. Because in case the person is
arrested, he doesn't want his name on those suitcases.
He doesn't want to be connected to those suitcases."
We have quoted the record so extensively to show that, while
defense counsel objected to Agent Rios's testimony, he did so
only on the grounds of leading, speculation, and -- as best we
can understand his last objection -- relevance. At no time did
he object to this testimony on the basis either that it was not a
proper subject of expert testimony under Fed. R. Evid. 702 or
that it was unfairly prejudicial under Fed. R. Evid. 403. No
objection of any kind was registered to the prosecutor's argument
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on summation. Thus, we review these matters for plain error
only. See United States v. Castiello, 915 F.2d 1, 3-4 (1st Cir.
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1990); United States v. Gonzalez-Sanchez, 825 F.2d 572, 583 n.27
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(1st Cir. 1987) ("Without a timely objection stating the specific
grounds therefor, our review is limited to plain error.").
The initial test for determining the admissibility of expert
testimony is laid out in Fed. R. Evid. 702. Under Rule 702, an
expert may testify concerning "scientific, technical, or other
specialized knowledge" if it "will assist the trier of fact to
understand the evidence or to determine a fact in issue." As the
Advisory Note to the Rule states:
There is no more certain test for determining when experts
may be used than the common sense inquiry whether the
untrained layman would be qualified to determine
intelligently and to the best degree the particular issue
without enlightenment from those having a specialized
understanding of the subject involved in the dispute.
Fed. R. Evid. 702 advisory committee's note (quoting Ladd, Expert
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Testimony, 5 Vand. L. Rev. 414, 418 (1952)); United States v.
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Lamattina, 889 F.2d 1191, 1194 (1st Cir. 1989). A district
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judge, who sees and hears the challenged evidence first hand in
the context of the overall trial, enjoys broad discretion in
determining the admissibility of expert testimony; an appellate
court will overturn such a determination only if it represents a
manifest abuse of discretion. United States v. Echeverri, 982
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F.2d 675, 680 (1st Cir. 1993).
Even if admissible under Rule 702, expert testimony still
may be excluded under Fed. R. Evid. 403 if its probative value is
substantially outweighed by the risk of unfair prejudice it
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creates. See Castiello, 915 F.2d at 3-4; United States v.
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Hensel, 699 F.2d 18, 38 (1st Cir. 1983). Accord United States v.
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Castillo, 924 F.2d 1227, 1232 n.9 (2d Cir. 1991). The 403
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inquiry also is left to the sound discretion of the trial court,
an appellate court substituting its judgment "only rarely -- and
in extraordinarily compelling circumstances." Newell Puerto
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Rico, Ltd. v. Rubbermaid Inc., 20 F.3d 15, 21 (1st Cir. 1994)
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(quoting Freeman v. Package Machinery Co., 865 F.2d 1331, 1340
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(1st Cir. 1988)) (internal quotation omitted).
We have admitted expert testimony regarding the operation of
criminal schemes and activities in a variety of contexts, finding
such testimony helpful to juries in understanding some obscure or
complex aspect of the crime. See Echeverri, 982 F.2d at 680
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(expert may "identify an otherwise inscrutable document as a drug
ledger and explain its contents"); Castiello, 915 F.2d at 3
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(statement phrased in drug world jargon "was not so readily
comprehensible to the layman that it could not bear elucidation
by a law enforcement agent knowledgeable in the ways of the drug
world"); United States v. Angiulo, 897 F.2d 1169, 1189 (1st Cir.
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1990) (expert testimony that defendants played certain roles in
criminal activities is helpful to jury because of the crime
family's "extensive criminal organization . . ., the complexity
of the interrelationships within the organization, and the use of
criminal jargon by defendants in their conversations");
Lamattina, 889 F.2d at 1194 (expert may translate the meaning of
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jargon used in conversation related to a loansharking transaction
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that jury "would probably have been at a loss to understand");
United States v. Ladd, 885 F.2d 954, 959-60 (1st Cir. 1989)
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(expert may testify that type of packaging and number of packages
of drugs is consistent with distributive intent, not personal
use, because "jurors are not expected to be familiar with the . .
. workings of the heroin community"); United States v. Angiulo,
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847 F.2d 956, 973-75 (1st Cir. 1988) (expert testimony that
defendants were close associates of organized crime family
assisted jury in light of family's complex structure); United
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States v. Rivera Rodriguez, 808 F.2d 886, 888 (1st Cir. 1986) (to
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help jurors understand the significance of an instrument called a
"sifter-grinder" found in defendant's possession, expert may
testify that it is used to adulterate cocaine); Hensel, 699 F.2d
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at 38 (since "smuggling tons of marijuana is a complex matter,"
expert testimony about drug smugglers' methods would help the
jury understand the evidence).
This case is distinguishable. Unlike those cases, here the
expert testified about matters that were readily intelligible.
We believe that an average juror can assess intelligently whether
an inference of guilt should be drawn from defendant's travelling
under the name of "P. Felix" without expert testimony that
airline drug smugglers check their bags and buy their tickets
under false names to avoid detection. Cf. United States v.
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Weiner, 3 F.3d 17, 21-22 (1st Cir. 1993) (error to admit expert
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testimony of "a routine inference that the jury could draw on its
own"). Indeed, in a telling slip of the tongue, the expert
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himself belied the claim: when asked why smugglers would use
false names, he responded, "Well, that's obvious . . . . to avoid
being caught." Expert testimony on a subject that is well within
the bounds of a jury's ordinary experience generally has little
probative value. On the other hand, the risk of unfair prejudice
is real. By appearing to put the expert's stamp of approval on
the government's theory, such testimony might unduly influence
the jury's own assessment of the inference that is being urged.4
See Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1055 (4th Cir.
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1986) (expert testimony is unfairly prejudicial "when the
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4 Defendant relies heavily on language in two Second Circuit
decisions that seemed to extend the limits imposed by Rules 702
and 403. In Castillo, 924 F.2d at 1234, the court declared:
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"[W]e take serious issue with the Government's use of an expert
witness to propound the impermissible theory that appellants'
guilt could be inferred from the behavior of unrelated persons."
Accord United States v. Cruz, 981 F.2d 659, 663 (2d Cir. 1992)
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("[G]uilt may not be inferred from the conduct of unrelated
persons.").
This pronouncement seems to us too broad to be workable. By
definition, even the most acceptable expert testimony concerning
the modus operandi of a criminal scheme distills a pattern from
the behavior of unrelated persons. In fact, in more recent cases
the Second Circuit itself has stressed the narrower grounds of
decision in Castillo and Cruz, namely that experts "`cannot be
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used solely to bolster the credibility of the government's fact-
witnesses by mirroring their version of events,'" and that, while
the operations of drug dealers is a proper subject for expert
testimony, such operations normally must have "esoteric aspects
reasonably perceived as beyond the ken of the jury." United
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States v. Tapia-Ortiz, 23 F.3d 738, 740 (2d Cir. 1994) (quoting
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Cruz, 981 F.2d at 664 and citing Castillo, 924 F.2d at 1232); see
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also United States v. Taylor, 18 F.3d 55, 59 (2d Cir. 1994)
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(stressing that "[e]xpert testimony may be used `on some
occasions to explain even non-esoteric matters, when the defense
seeks to discredit the government's version of events as
improbable,'" quoting Cruz, 981 F.2d at 664).
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evaluation of the commonplace by an expert witness might supplant
a jury's independent exercise of common sense").
As we have noted, the trial court enjoys vast discretion in
deciding whether to admit expert testimony under Rules 702 and
403. We believe that this evidence was on the very margin of --
and probably beyond -- what is acceptable. But as also noted,
Rules 702 and 403 were not raised as grounds of objection below.
We conclude that admitting this testimony was not plain error.
See Olano, 113 S. Ct. at 1776-78 (plain error requires error that
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was clear or obvious and affected a substantial right). First,
we find the relevant inquiries -- was the jury competent to
assess the evidence intelligently without the expert testimony,
what is the probative weight of the testimony, what are the risks
of prejudice, and which is greater -- to be subtle rather than
obvious and clear. Indeed, for this reason it is particularly
important for counsel to call to the trial court's attention the
bases of such evidentiary challenges so that the court has the
opportunity to carefully consider them. Second, without
minimizing the risks associated with this testimony, we cannot
say that its admission was "`so shocking that [it] seriously
affect[ed] the fundamental fairness and basic integrity of the
proceedings conducted below.'" Ortiz, 23 F.3d at 26. The
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admission of this evidence, therefore, does not require reversal
in this case.
Affirmed.
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