United States v. Jason Holmes

751 F.3d 846, 2014 WL 1876127
CourtCourt of Appeals for the Eighth Circuit
DecidedMay 12, 2014
Docket13-1660, 13-1661
StatusPublished
Cited by36 cases

This text of 751 F.3d 846 (United States v. Jason Holmes) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jason Holmes, 751 F.3d 846, 2014 WL 1876127 (8th Cir. 2014).

Opinions

BENTON, Circuit Judge.

A jury convicted Jason Lee Holmes and Juan Antonio Castaneda Rendon of conspiracy to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. They appeal, arguing that the district court1 erred in admitting expert testimony on narco-saints. Holmes also argues that a limiting instruction should have been given on the narco-saint testimony, that there was insufficient evidence to sustain his conviction, and that the district court committed sentencing errors. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

As the first witness, the government called Robert R. Almonte, the United States Marshall for the Western District of Texas, as an expert, on the iconography of the Mexican drug underworld. He linked to drug trafficking several images and shrines in the home of Rendon and Christian Maldonado, a co-conspirator. Almonte’s testimony focused on images of Jesús Malverde, a “narco-saint” hailed as a “Mexican Robin Hood.” Almonte also testified that Malverde is a patron saint of the poor, noting that many not associated with drug trafficking have statues of Malverde. Almonte concluded that a statue is only one indication of drug activity.

Holmes and Rendon attack Almonte’s testimony, arguing that the testimony was (a) given by an unqualified expert, (b) unreliable, (c) irrelevant, (d) unfairly prejudicial, and (e) improper “drug courier” profile evidence. This court reviews the district court’s decision to admit expert testimony for abuse of discretion, according it substantial deference. United States v. Roach, 644 F.3d 763, 763-64 (8th Cir.2011).

Almonte was properly qualified. A witness may be qualified by knowledge, skill, experience, training, or education. Fed.R.Evid. 702. For about a decade, Almonte studied the iconography of the Mexican drug underworld. He observed icons in hundreds of narcotics cases and traveled to numerous Mexican shrines. Almonte [850]*850has self-published materials on the subject and has conducted law-enforcement trainings on recognizing it. The defendants emphasize Almonte’s lack of formal education about narco-saint iconography, but that is not required under Rule 702. In drug cases, courts frequently admit expert testimony relating to the modus operandi of drug dealers, where the expert witness is a law-enforcement officer whose only qualification is experience in the field. See, e.g., United States v. Schwarck, 719 F.3d 921, 923-24 (8th Cir.2013); United States v. Molina, 172 F.3d 1048, 1056 (8th Cir.1999).

Holmes and Rendon challenge the reliability of Almonte’s testimony, arguing that his methodology has an impermissibly high rate of error. In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court made trial judges the gatekeepers to exclude unreliable scientific testimony. In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Court stated that this gatekeeper function applies to all expert testimony, not just testimony based in science. Daubert established a non-exclusive checklist for trial courts to use in assessing the reliability of expert testimony. See 509 U.S. at 592-94, 113 S.Ct. 2786. The checklist includes: (1) whether the theory or technique can and has been tested, (2) whether it has been subjected to peer review, (3) whether there is a high known or potential rate of error, and (4) whether the theory or technique enjoys general acceptance within a relevant scientific community. Id. In Kumho Tire, the Court explained that, depending upon “the particular circumstances of the particular case at issue,” these factors might apply in assessing the reliability of nonscientific expert testimony. 526 U.S. at 150, 119 S.Ct. 1167. Holmes and Rendon focus on the third Daubert factor, asserting that Almonte’s testimony is unreliable because he acknowledged a high rate of error because many not associated with drug trafficking have statues of Malverde.

Holmes and Rendon misread Kumho Tire and exaggerate the importance of error rates in non-scientific evidence. Almonte’s testimony is non-scientific evidence, and not all of the Daubert factors necessarily apply. Kumho Tire, 526 U.S. at 150, 119 S.Ct. 1167. Expert testimony must rest on reliable principles and methods, but the “relevant reliability concerns may focus upon personal knowledge or experience” rather than scientific foundations. Id. This court has repeatedly approved of law enforcement officials testifying as experts on the modus operandi of drug dealers. See, e.g., Schwarck, 719 F.3d at 923; Molina, 172 F.3d at 1056 (“A district court has discretion to allow law enforcement officials to testify as experts concerning the modus operandi of drug dealers in areas concerning activities which are not something with which most jurors are familiar.”). Law-enforcement officers may testify about the drug trafficking connection of otherwise innocuous household items. United States v. Jeanetta, 533 F.3d 651, 657 (8th Cir.2008). In Jeanetta, an officer testified as an expert about the significance of Ziploc bags in the drug trade. Although most users of Ziploc bags are not drug dealers, the bags have drug-trade application. Similarly, even if many with Malverde statues are not affiliated with the drug trade, narco-saint iconography may be an indicator of drug trafficking. The reliability of such evidence comes not from scientific foundations but from Almonte’s personal knowledge and experience. Kumho Tire, 526 U.S. at 150, 119 S.Ct. 1167. The district court did not abuse its discretion in finding Almonte’s expert testimony reliable.

[851]*851Holmes and Rendon assert that Almonte’s testimony was irrelevant and unfairly prejudicial. This court has approved as relevant and helpful expert testimony on the modus operandi of drug dealers. Schwarck, 719 F.3d at 923-24; Molina, 172 F.3d at 1056-57. The standard for relevancy is low. Evidence should be admitted if it has any tendency to make a fact of consequence more or less probable. Fed.R.Evid. 401. In this case, where the government must prove a drug-trafficking conspiracy, drug iconography in the defendant’s home is highly relevant. Holmes and Rendon believe that the evidence was unfairly prejudicial because it encouraged guilt from improper reasoning, but Almonte testified that the iconography alone does not indicate drug trafficking activity. The district court properly balanced the probative value of the evidence against its prejudicial effect.

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751 F.3d 846, 2014 WL 1876127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jason-holmes-ca8-2014.