United States v. Mendoza

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS June 1, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee, No. 05-2054 v. D. New M exico JA IM E M EN D O ZA , (D.C. No. CR-04-236-WJ)

Defendant - Appellant.

OR D ER AND JUDGM ENT *

Before O’BRIEN, B AL DOC K , and M cCO NNELL, Circuit Judges.

Jaime M endoza was convicted by a jury of (1) conspiracy to possess with

intent to distribute and distribution of more than five kilograms of cocaine and (2)

distribution of more than 500 grams of cocaine. He was sentenced to 293 months

imprisonment. M endoza says the district court erred in admitting expert

testimony, denying disclosure of the identities of two confidential informants and

admitting testimony concerning threats he made to tw o government w itnesses.

W e affirm.

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I. Factual Background

On M arch 19, 2002, Nina Valdez was arrested in Albuquerque, New

M exico, after selling 294.4 grams of crack cocaine to an undercover officer. Law

enforcement officers asked Valdez to cooperate and identify the source of the

crack cocaine. Valdez identified the source as “Rob.” 1 The officers asked her to

arrange a meeting with “Rob” so they could arrest him. She called Robert Beal.

During the conversation, Beal asked, “A re w e in trouble?” (R. Vol. VII at 799.)

Valdez said, “Yeah,” which she knew Beal would understand to mean she had

been arrested. (R. Vol. VIII at 988.) Upon receiving the Valdez call, Beal tried

to contact Charles Britt, another dealer who sold to Valdez. Subsequently, Beal

discarded the cellphone he used to contact Valdez. 2

About four months later (July 2002), after learning she w as facing ten years

to life imprisonment (even after entering into a plea agreement), Valdez decided

to cooperate w ith the government. She identified Beal as her source of supply

and provided a telephone number for him. Telephone records showed the number

was subscribed under one of Beal’s aliases. 3 After obtaining a picture of Beal,

1 Valdez testified she did not tell the officers her source of supply was “Rob” but rather an officer suggested her source was “Richard” and she went along with it. 2 Beal testified that when a customer is arrested, drug dealers immediately discard the telephone they use to contact the customer to prevent detection. 3 Beal had several cellphone numbers; most were subscribed under an alias or girlfriend’s name. He testified drug dealers often place their cellphone

-2- officers began searching for him.

In late October 2002, the officers discovered Beal’s address and obtained a

search warrant for his residence. They executed the warrant on October 28, 2002.

Because the front door was fortified and the residence had surveillance cameras,

the officers used a ruse to lure Beal outside. Several officers, acting undercover,

ran over his mailbox. They then knocked on his front door, asking him to come

outside to assess the damage. Once he was outside, the officers identified

themselves. Beal, armed with a loaded pistol, started to flee. The officers tackled

and arrested him.

During the search of Beal’s home, officers found an empty wrapper for a

kilogram of cocaine and 1,362 grams of “fresh[ly] cook[ed]” crack cocaine on the

kitchen table. (R. Vol. VI at 337.) Officers also found 89 grams of crack cocaine

in the master bedroom and study, three firearms and $2,100 in cash. Beal had a

safe in a bedroom, two big screen televisions, stereo equipment, a telescope, and a

Pow er Point projector. The officers asked Beal if he would cooperate and

identify his source of supply; he refused.

About two hours after the officers began searching Beal’s residence,

Angela Harvey, Beal’s fiancee, arrived home. She began cooperating

immediately. She identified Beal’s source of supply as “Jaime” and provided a

telephone number. She also told them where Beal would meet M endoza to

numbers under different names to avoid detection.

-3- purchase cocaine (RG Residence). The officers subpoenaed the telephone records

and learned the number was subscribed to Carla Clifton, with M endoza as an

authorized user. They also set up surveillance at the RG Residence. The

telephone records showed M endoza attempted to contact Beal six times on the

night of B eal’s arrest and seven times the next day. On October 30, 2002, two

days after Beal’s arrest, Clifton called to disconnect the phone number; it was

disconnected on November 7, 2002.

In December 2002, Beal began cooperating with the government and

identified M endoza as his source of supply. Based on information Beal provided,

officers began surveillance at the home of M endoza’s parents (M P Residence).

Surveillance at this location was difficult, however, because the house was

located in a heavy drug-trafficking neighborhood and individuals w ould whistle

or otherw ise alert the neighborhood if they saw a police officer in the area.

Nevertheless, during one surveillance, Special Agent M arcus W est of the Drug

Enforcement Administration (DEA) observed M endoza standing in the front yard

of the M P Residence with twelve to fifteen other individuals. W est saw two or

three vehicles drive up on the wrong side of the curb to speak with M endoza.

M endoza leaned in and spoke with the individuals betw een one and two minutes.

In February 2003, Agent W est interviewed Clifton who said she had

obtained a cellphone for M endoza (later denied). After she changed her story,

W est served Clifton with a grand jury subpoena to testify about the use of the

-4- telephone with that number. Thereafter, W est observed Clifton’s unoccupied

vehicle parked in front of the M P Residence. He then saw M endoza’s vehicle

pull up next to it. Clifton exited M endoza’s car, looked around and then quickly

entered her vehicle. Clifton drove off with M endoza following her. Clifton was

eventually convicted of perjury concerning the telephone number.

Fitzgerald Younger was on probation for trafficking cocaine in July 2001.

On M ay 12, 2003, officers arrested him for violating his probation. Younger

cooperated immediately, naming M endoza as Beal’s source of supply.

In February 2004, officers discovered where M endoza was residing in

Albuquerque and obtained a warrant for his arrest. On February 11, 2004, Agent

W est and DEA Special Agent Joe M ata followed M endoza’s vehicle to a gas

station. W hen he entered the station they arrested him and drove him back to his

residence. There, Agent W est told M endoza he had been watching him. M endoza

replied, “I have been watching you. I know that you drive a silver vehicle.” (R.

Vol. VI at 404.) He also stated he knew W est had a wife and son and had

observed W est at a local shopping mall. M endoza also told W est “he was

stressed out and that he was tired of looking over his shoulder, glad that it was

over.” (Id. at 406.)

After M endoza’s arrest, officers executed a search warrant at his residence

where they uncovered several drug ledgers in the master bedroom. They also

found a M ay 6, 1999 purchase and sales agreement for M endoza’s vehicle, a 1997

-5- Chevy Tahoe. The agreement revealed M endoza made a $4,000 cash down

payment and received a $9,750 credit on a trade-in towards the purchase price of

$26,950. The monthly payments were approximately $400-$500.

Officers also seized several letters. One letter was written to “Chili Boy”

and was signed “Love, your boy J.” (Id. at 424.) This letter stated in relevant

part:

But it’s not the same anymore. Don’t really have anyone I can trust. Shit been fucked up . . . for your boy, too. They made that girl go to court and tried to make her flip on me. She handled it, I guess, ’cause I ain’t heard shit since then. But you know how those fags work. They still might try some shit.

(Id.) Another letter from “your boy J.” to “Chili” stated: “They came and got

him. M an, this is some crazy shit going on out here. You wouldn’t believe it, but

I hope you put the w ord out. ’Cause, man, this fools [sic] won’t leave me the

fuck alone. W hat I got is to handle it.” (Id. at 428.) Along with these letters,

officers found a letter, dated M ay 15, 2003, written to “Jaime” from “Donny

Chavez, aka Chili” and an envelope addressed to Jaime M endoza from Donny

Chavez. (Id. at 426-27.)

Officers also uncovered a witness list from Clifton’s perjury trial, which

included Beal and Harvey, and Clifton’s presentence investigation report. They

found booking sheets from the Bernalillo County Detention Center for Beal and a

W estern Union receipt showing M endoza sent money to Beal in New York in

-6- April 2001. 4 They further seized M endoza’s cellphone, which was subscribed

under a different name, and a Beretta pistol in a jacket in a bedroom closet.

M endoza told W est he obtained this firearm for protection because he was “tired

of looking behind him, looking over his shoulder, and that people thought he was

snitching or telling on them.” (Id. at 448.)

Officers discovered M endoza’s W -2 forms for 1999-2002 and paycheck

stubs from 1998-2003. The paycheck stubs (issued mainly from various roofing

companies) showed M endoza earned about $349 per month. In M endoza’s garage

was a red M ustang convertible in the process of being up-graded with new paint,

rims and tires. M endoza also had a big screen television.

After informing M endoza of his M iranda rights, M endoza agreed to speak

with Agent W est. He denied knowing Beal and also told W est the police needed

to leave Clifton alone.

II. Procedural Background

On February 10, 2004, M endoza w as indicted for conspiracy to possess

with intent to distribute and distribution of more than five kilograms of cocaine in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (Count I) and distribution of

more than 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)

4 In December 2000, Beal attempted to leave the drug trade and moved to New York for eight to nine months. M endoza wired Beal approximately $2,600 over the period of his stay in New York.

-7- (Count II). 5 M endoza proceeded to trial on the theory he was not Beal’s source of

supply but rather a drug user who purchased drugs from Beal. He also suggested

Danny M ontoya (another known drug dealer) was Beal’s source of supply.

At trial, the government called several witnesses seeking to establish

M endoza as Beal’s source of supply.

Robert Beal’s testimony

Beal began selling rock-size quantities of crack cocaine in 1994, when he

was fourteen-years-old. At that time, his source of supply was Rondale Gaskin,

also known as M ook. In M ay or June 1996, Beal met M endoza through mutual

friends. M endoza offered to supply crack cocaine to Beal at a cheaper price. In

late 1996/early 1997, Beal accepted M endoza’s offer and purchased nine ounces

of crack cocaine. For the next four to five months, until Beal learned to cook

powder cocaine into crack cocaine, Beal continued to buy crack from M endoza.

In 1998, Beal began buying an average of one kilogram of pow der cocaine

per w eek from Mendoza and this continued until his arrest in October 2002. He

paid approximately $17,000 per kilogram. Once he had the cocaine, he would

convert it into crack cocaine and sell it for approximately $400 an ounce. Beal

sold the crack cocaine to various individuals, including Valdez, who would then

5 Count I was based on M endoza’s cocaine sales to Beal from October/November 1996 to O ctober 28, 2002, the date of Beal’s arrest. Count II was based on the empty wrapper found on Beal’s kitchen table; the wrapper had contained cocaine purchased from M endoza.

-8- re-sell it.

Beal and M endoza arranged the buys over their cellphones and made their

exchanges in front of either the RG or M P Residence. Beal would park his car on

one side of the street and M endoza would park on the other side. Beal would then

enter M endoza’s vehicle. They would talk for a few minutes and Beal would give

M endoza money in exchange for cocaine. Beal would leave M endoza’s vehicle

with the cocaine tucked in his waistband and drive away in his vehicle.

M endoza once told Beal he earned $1,000-2,000 on every kilogram of

cocaine he sold to Beal. Beal made over $3-4 million selling drugs. He used this

money to promote concerts and buy real estate. 6 M endoza advised Beal to stash

his money rather than purchase real estate because these purchases would draw

attention to both of them.

Beal never sold crack cocaine to M endoza. M endoza used ecstasy and

marijuana. Beal would supply M endoza with marijuana purchased from Valdez.

On the day of V aldez’s arrest, Beal did not try to contact M endoza because

M endoza and Valdez did not know each other well and Valdez was not

M endoza’s customer.

On the day before his arrest, Beal obtained a kilogram of cocaine from

M endoza. The empty wrapper found at his residence had held that cocaine. Beal

6 At the time of his arrest, Beal owned an apartment complex, a condominium and his house.

-9- also testified the crack cocaine Valdez attempted to sell to an undercover officer

on the date of her arrest was made from cocaine he purchased from M endoza.

Yvonne Gillam’s testimony

Yvonne Gillam began dating Beal in late 1997. She moved in with him in

February/M arch 1998. After moving in, she learned he sold drugs. M endoza was

Beal’s source of supply. She saw Beal leave several times saying he had to “pick

up a package from Jaime” or “meet someone and do some business.” (R. Vol. VI

at 460.) W hen he did so, he always took money and returned home w ith a brick

of cocaine. She accompanied Beal to meet M endoza three times. Normally, she

would stay in the car but, on one occasion she accompanied Beal to a house and

went inside. She stayed in the living room while Beal and M endoza went to a

different room for twenty to thirty minutes. W hen M endoza and Beal returned,

Beal and Gillam left and went straight home. At home, she saw that Beal had a

package of cocaine. She ended her relationship with Beal in early 1999 and has

not spoken with him since.

On cross-examination, Gillam admitted she had helped Beal count his drug

money. After she was subpoenaed and cooperated, government agents informed

her she would not be charged for her association with Beal.

Angela Harvey’s testimony

Harvey, Robert’s fiancee, testified M endoza was Beal’s source of supply,

which was consistent with her statement to officers when she arrived home on the

-10- day of Beal’s arrest (before she knew Beal had been arrested). She met Beal in

January 2002, learned he sold crack cocaine in February/M arch 2002, and moved

in with him in April 2002. She accompanied Beal several times when he met

M endoza. They would park in front of the RG Residence. W hen M endoza

arrived, B eal w ould exit his vehicle and enter M endoza’s vehicle or the two

would enter the house. W hen Beal returned to the car, he would take a brick of

cocaine from under his shirt and place it under the seat. Harvey also recalled

M endoza coming to Beal’s house to collect money. A few days later, M endoza

called Beal and Beal met him. Harvey later observed Beal cooking powder

cocaine into crack cocaine. She also testified that the day before Beal’s arrest, he

met w ith M endoza.

On cross-examination, Harvey admitted that since Beal’s arrest, she had

daily contact with him, either in person or over the telephone. Beal discussed his

decision to cooperate with the government. Once he decided to cooperate, she

informed him for the first time she had already cooperated with agents on the day

of his arrest. The government provided Harvey use immunity for her testimony;

this immunity did not cover perjury.

Fitzgerald Younger’s testimony

Younger had known Beal for almost fifteen years and Britt for ten to twelve

years. He sold cocaine or crack cocaine “every now and then” for about a year

and a half. (R. Vol. IX at 1163.) H e obtained the drugs from either Beal or B ritt.

-11- However, his main role was courier, i.e., Beal and Britt paid him to run errands.

Beal initially obtained drugs from Rondale Gaskin. However, when Gaskin’s

supply became insufficient, Beal began obtaining drugs from M endoza. Younger

accompanied Beal on ten to fifteen meetings with M endoza. They would meet

M endoza either at the RG Residence or M P Residence. Beal would place money

under his shirt or in his w aistband, enter M endoza’s vehicle and return with

cocaine under his shirt. After Beal’s arrest, Younger ran into M endoza who asked

whether he believed Beal was “going to stay strong and basically stand his ground

and not say anything about this.” (Id. at 1181.) Younger told M endoza he did not

think Beal would implicate them. Younger identified Danny M ontoya as Britt’s

source of supply.

Nina Valdez’s testimony

Valdez began selling crack cocaine in 1996 when she was dating W ayne

Caan, also a drug dealer. She initially obtained crack cocaine from Caan, who

purchased it from Rondale Gaskin. In 1995, Valdez met Beal through Caan.

Three years later, she began purchasing crack cocaine from Beal for resale. She

also purchased crack cocaine from Britt. W hen Valdez was arrested for

trafficking crack cocaine, her source of supply was Beal.

Valdez first saw M endoza in 1999. Beal asked her for a ride to the RG

Residence. She agreed and parked on the street. M endoza arrived with two other

males. They all went inside the house while Valdez waited in the car. Five

-12- minutes later, Beal came outside and entered her vehicle. She did not notice

whether Beal had anything with him when he entered the house or when he

returned to her vehicle. She saw Beal and M endoza together two other times.

Once, Beal called Valdez to obtain marijuana. They met at a park, where Beal

entered her vehicle. She gave him the marijuana and, as Beal left the vehicle,

M endoza approached. Beal immediately went to M endoza and began talking with

him. Valdez sat in her car. On the other occasion, she saw Beal and M endoza

together at a concert. She never asked Beal about his source of supply; that was

not something an individual would ask his/her drug source.

Rita Garcia’s testimony

From 1993-2000, Rita Garcia resided with her mother and brother at the

RG Residence. She knew M endoza as her brother’s friend for nine or ten years.

She was also friends with Beal. In summer 2003, M endoza told her he needed a

picture of Beal for his lawyer. Although M endoza was acting “shady” and it

“seemed weird that [M endoza] asked me for a picture of [Beal],” she gave him

one. (R. Vol. VIII at 943.) M endoza came to the RG Residence numerous times

but rarely went inside the house; normally he stayed inside his vehicle and waited

for her brother to come outside. She also saw M endoza meeting people, including

Beal, in front of the house. Beal would approach M endoza in his vehicle and talk

with him, but she never saw Beal enter M endoza’s vehicle.

-13- M endoza’s Evidence

Beal, Younger and Valdez all agreed to cooperate w ith the government in

the hopes of obtaining lower sentences. The jury was informed of the terms of

their cooperation and plea agreements and M endoza cross-examined them

extensively about their motives for testifying. M endoza also called two witnesses

in an attempt to establish he was a drug user, not a drug dealer, as evidenced by

his financial situation.

M onique Olquin’s testimony

Olquin, the mother of M endoza’s son, dated M endoza from 1999-2001,

while he was living with Daphne Iverson. She believed M endoza started having a

drug problem in 2001. He became less affectionate, his attitude changed, he did

not keep up his appearance, he slept more, lost weight, and his eyes were dilated

and glassy. She helped him financially by paying, among other things, his truck

payment.

Doris Andrus’ testimony

Andrus w as the real estate agent who assisted M endoza and Iverson in

purchasing their home in 2003. She was also Clifton’s grandmother and was

admittedly unhappy with the government for prosecuting Clifton for perjury.

M endoza and Iverson purchased the home for $112,000, putting down $6-7,000.

The monthly payments were $758. She counseled M endoza to get a better paying

job and Iverson to get a job. Contrary to Olquin’s testimony, Andrus felt

-14- M endoza was well-kept and dependable.

The Verdict

The jury found M endoza guilty of both counts of the indictment. On

January 24, 2005, M endoza was sentenced to a total of 293 months imprisonment.

This appeal followed.

III. Discussion

M endoza argues the district court erred in (1) admitting expert testimony,

(2) not requiring disclosure of the identities of two confidential informants and

(3) admitting testimony that he threatened two government witnesses. He asserts

the errors were not harmless and rendered his trial fundamentally unfair. If the

errors were individually harmless, he claims their cumulative effect requires

reversal.

A. Expert Testimony

Prior to trial, the government filed a Notice of Intention to O ffer Expert

Testimony. It sought to call Agent W est to testify concerning (1) the methods

and practices commonly used in narcotics investigations, (2) the distribution,

transportation, packaging and communication methods employed by those

involved in drug trafficking, (3) the organization of distribution cells, (4) the

security measures used by those involved in drug trafficking, (5) the value of the

controlled substances involved in the case and (6) the meaning of drug

terminology. M endoza objected, claiming W est’s testimony was unreliable and

-15- would not assist the jury as required by Rule 702 of the Federal Rules of

Evidence. He also claimed its prejudicial effect would substantially outweigh its

probative value under Rule 403 of the Federal Rules of Evidence. 7

The district court did not rule on the admissibility of A gent West’s

testimony until W est was on the stand. W est stated his experience and duties, but

before he could answ er the first case-related question, M endoza objected to his

testimony. M endoza did not challenge West’s qualifications, but claimed it was

improper for W est to stamp every aspect of the government’s case as drug-

trafficking. He also objected on relevance and reliability grounds. The court

overruled the objections, gave M endoza a standing objection and permitted W est

to continue his testimony.

W est’s initial testimony discussed (1) the types of informants and their

importance in a drug investigation, (2) the types of drug dealers/sources of

supply, (3) the financial difference between a crack dealer and a crack

user/addict, (4) drug costs in New M exico, (5) the methods drug dealers use to

conceal their identities and avoid detection, i.e., placing their cellphones, utilities

and vehicles in other people’s names, and (6) the characteristics of a drug deal.

W est then proceeded to describe his investigation of the case, beginning with

7 Because his original objections (Doc. 49) were not included in the record, we glean M endoza’s objections to the government’s Notice of Intention to Offer Expert Testimony from his “Reply to U nited States’ Response to Defendant’s Objections to Government’s Notice to Offer Expert Testimony.”

-16- Valdez’s arrest. He also testified about Beal’s arrest and the search of Beal’s

residence. Finally, W est described his efforts to locate M endoza, M endoza’s

arrest and the search of M endoza’s residence. During his description of the items

found in M endoza’s residence, W est offered his expert opinion that four pieces of

paper found in a bedroom were drug ledgers. He also defined the word “flip,”

which was contained in one of the letters found in M endoza’s home.

On appeal, M endoza abandons his objection that Agent W est’s testimony

was irrelevant and unreliable. Instead, he argues the testimony was admitted in

violation of Rule 704(b) of the Federal Rules of Evidence, which prohibits an

expert from stating an opinion as to whether a defendant had the requisite mental

state. He concedes W est never expressly offered such an opinion, but claims the

practical effect of W est’s testimony was exactly that – M endoza was a drug dealer

and a fortiori had the intent to distribute drugs. That is so, he claims, because

W est w as permitted to offer expert opinions on matters closely associated with his

fact testimony and even if W est’s testimony did not violate Rule 704(b), his

testimony as both an expert and fact witness was extremely prejudicial and

admission of his testimony violated Rule 403.

M endoza argues the aura of expertise conferred upon W est created a risk of

prejudice because the jury could infer that his opinion about the criminal nature

of M endoza’s actions was based on knowledge of M endoza beyond the evidence

at trial. M endoza also claims W est’s dual roles as expert and fact witness

-17- inhibited cross-examination. He claims any line of questioning he pursued with

W est on cross-examination was hampered by W est’s freedom to retreat to his

training and experience, which in turn bolstered his direct examination testimony.

He further claims W est’s testimony as both an expert and fact witness led to jury

confusion because W est oscillated between his dual roles.

W e review a district court’s admission of evidence, including expert

testimony, for abuse of discretion. United States v. Wood, 207 F.3d 1222, 1235

(10th Cir. 2000). However, we apply plain error analysis when the defendant

fails to state the specific ground for objection to the admission of the evidence

and such ground is not apparent from the context in which the objection is made.

F ED . R. E VID . 103(a)(1), (d). Here, M endoza did not specifically object to W est’s

testimony under Rule 704(b) in either his written or oral objections. M endoza

admits as much but claims his objections clearly stated the concern that W est’s

testimony would state an opinion that M endoza had the mental state or intent to

conspire to distribute drugs and to distribute drugs to Beal. M endoza did not

raise a proper objection, but we need not dwell on the standards of plain error

review because the district court did not abuse its discretion in permitting the

testimony.

M endoza complains about several aspects of W est’s testimony to illustrate

his Rule 704(b) and Rule 403 arguments. W est testified about the financial

difference between crack cocaine dealers and crack cocaine users/addicts, saying

-18- crack users/addicts are categorically broke and homeless because they use their

money to buy drugs w hereas dealers do not spend their money on drugs but sell

drugs to make money. They may also invest it in legitimate businesses. But, he

continued, not all dealers have a lot of money because some are not responsible

and may “blow their money” by going to strip clubs, throwing elaborate parties

and putting it into their vehicles, “maybe buy new rims, new tires for their cars.”

(R. Vol. VI at 310-11.) Later, when discussing the items found in M endoza’s

home, W est presented a photograph of a vintage M ustang convertible found in the

garage that “appeared to be going through an upgrade stage of paint and different

rims and tires.” (Id. at 447.) M endoza claims this linking of expert opinion about

the spending habits of drug dealers immediately followed by specific testimony

about his lifestyle improperly tagged him as a dealer – he was not broke, lived

modestly and had a vehicle with new rims and tires.

M endoza’s second example is to the same effect. W est testified about the

methods drug dealers use to communicate and the characteristics of a drug deal.

W est stated drug deals are “typically quick.” (Id. at 309.) They usually begin

with a telephone call between the seller and buyer to arrange a meeting place.

Once they meet, the seller and buyer have a brief conversation and complete the

transaction. Later W est described his observations during the surveillance of the

M P Residence. He stated several cars stopped in front of the residence and their

drivers spoke briefly with M endoza. W est was able to ensure his testimony

-19- concerning M endoza’s conversations with those drivers conformed to his expert

opinion describing the characteristics of a drug deal.

The next example is W est’s expert opinion testimony that four scraps of

paper found in M endoza’s bedroom containing scribbled initials and various

numerical figures were drug ledgers used to record the amounts people owed for

drugs. He then testified as a fact witness that these ledgers belonged to M endoza

thereby improperly suggesting to the jury that M endoza had the intent to

distribute drugs and in fact distributed them.

W est also testified concerning the seizure of M endoza’s cellphone. W hen

asked w hy he had obtained the subscriber information for the phone, W est

responded: “Again, I wanted to show that tools of the trade for a drug dealer, that

they obtain cellphones and put them in other people’s names to avoid detection.”

(Id. at 445.) M endoza argues this testimony, which w as cloaked in expert

testimony, identified him as a drug dealer and left no room for the jury to

deliberate on the matter.

Lastly, M endoza challenges W est’s testimony concerning the letters found

in M endoza’s home, in particular, his testimony concerning the meaning of the

word “flip” found in a letter attributed to M endoza. The following colloquy

occurred:

Q. [B]ased on your training and experience as a drug enforcement agent, what does [flip] mean? . . . .

-20- A. “Flip” means to have someone cooperate. If I wanted to flip you, I w ould try to make you cooperate with me, come and help me out . . ..

Q. . . . In terms of working with . . . informants, how does . . . the term “flip,” apply to them? W hat do you try to do? W hat does that mean?

A. Try to get them to cooperate w ith us, for law enforcement.

Q. But for what purpose?

A. For infiltrating or investigating drug organizations.

Q. And who are you going to try to investigate once you get

somebody to flip?

A. The drug source of supply, the target of investigation.

(Id. at 425-26.) M endoza claims that by introducing a letter in which he

expressed concern that law enforcement officers would attempt to have an

individual “flip” on him, followed by W est’s expert opinion that the definition of

“flip” is to identify the source of supply, the government conveyed to the jury that

M endoza was concerned an associate would identify him as the source of supply.

Thus, M endoza asserts W est was allowed to give an improper expert opinion on

the ultimate issue of fact in the case – that M endoza was a source of supply. In

short, M endoza complains that West would testify as an expert about a dealer’s

profile and then conveniently testify to investigative facts that placed M endoza

squarely in the profile. He claims it was a set up he w as powerless to counter,

prejudicing his defense and ultimately unfair.

-21- Predictably, the government has a different take on the evidence. The

government claims W est’s testimony did not violate Rule 704(b) because W est’s

expert testimony helped the jury understand the drug distribution business

generally and the significance of some of the evidence introduced at trial. It

stresses that W est’s testimony did not express an opinion of ultimate fact –

M endoza had the intent to distribute cocaine. M oreover, it never asked W est

whether hypothetical facts mirroring the facts of the case indicated an intent to

distribute. To the extent the district court erred in admitting W est’s testimony,

the government claims the error was harmless. It asserts there was overwhelming

evidence M endoza was a drug dealer, not a drug user. Four lay witnesses, Beal,

Gillam, Harvey, and Younger, all testified M endoza supplied Beal with powder

cocaine for years. M oreover, the court instructed the jury it could accept or reject

W est’s opinions.

Rule 702 governs the admission of expert testimony:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a w itness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

M endoza does not challenge W est’s expert testimony under Rule 702 and rightly

so. W e have consistently allowed law enforcement agents to provide expert

-22- testimony concerning the drug trade under Rule 702. See, e.g., United States v.

Quintana, 70 F.3d 1167, 1170-71 (10th Cir. 1995) (meaning of drug code); United

States v. Sturmoski, 971 F.2d 452, 459 (10th Cir. 1992) (tools of the drug trade);

United States v. M cDonald, 933 F.2d 1519, 1520-23 (10th Cir. 1991)

(significance of quantity of cocaine, tools of drug trade and use of food stamps to

purchase crack cocaine); United States v. Harris, 903 F.2d 770, 775-76 (10th Cir.

1990) (drug records). M endoza’s arguments are limited to Rules 704(b) and 403.

Rule 704 provides:

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

“Rule 704(b) only prevents experts from expressly stating the final conclusion or

inference as to a defendant’s actual mental state. The rule does not prevent the

expert from testifying to facts or opinions from which the jury could conclude or

infer the defendant had the requisite mental state.” United States v. Richard, 969

F.2d 849, 854-55 (10th Cir. 1992).

As M endoza concedes, W est never expressly opined that M endoza had the

requisite intent to distribute cocaine. Rather, he claims that by testifying (1)

-23- concerning the difference between drug dealers and users, (2) the ways in which

drug dealers dispose of their money, (3) the characteristics of a drug deal, (4) that

the scraps of paper found in M endoza’s residence were drug ledgers, (5) that he

subpoenaed M endoza’s cellphone subscriber information because cellphones are

tools of the trade for drug dealers and are placed under different people’s names

to avoid detection, and (6) that the meaning of the word “flip” is to identify the

source of supply, W est improperly stated an inference or conclusion as to

M endoza’s mental state, i.e., that he was a drug dealer with the intent to distribute

drugs. W e disagree.

In Richard, Officer Danner, who arranged for the sale of 300 pounds of

marijuana to Bernaugh, testified as an expert that the defendants assisted

Bernaugh in the deal. Based on his experience, he stated a drug dealer will not

invite individuals w ho are not aw are of the nature of the transaction to participate

in a drug deal. The defendants argued that by identifying the role each of them

performed, Danner stated an inference that each knowingly participated in the

charged offenses in violation of Rule 704(b). W e rejected this argument:

W hile [Danner’s] remarks may have implied a belief that the [defendants] were in fact aware of the nature of the transaction, Danner did not expressly draw that conclusion or inference for the jury. Hence, the testimony was not prohibited by Rule 704(b), and the district court did not err in admitting it.

969 F.2d at 855; see also U nited States v. Orr, 68 F.3d 1247, 1252 (10th Cir.

1995) (concluding no plain error occurred in admitting expert’s testimony;

-24- “[a]lthough the jury could have inferred defendant’s criminal intent from [the

expert’s] statements, [the expert] did not testify that defendant had the requisite

criminal intent for fraud”).

In comparison, in Wood, Dr. W ood was tried for first-degree murder and

the lesser-included offenses of second-degree murder and involuntary

manslaughter based on his treatment of patient Dykes. An expert opined that the

manner of Dyke’s death was homicide, which he defined as w hen the death is

caused at the hands of another person and gave as an example facts similar to

those presented in the case. He also opined that Dr. W ood’s actions were reckless

and fraught with the perils of causing death. Dr. W ood appealed, arguing the

expert’s testimony violated Rule 704(b). W e agreed:

[The expert’s testimony] expressly draw[s] the conclusion or inference that Dr. W ood acted with the necessary mens rea when he caused Dyke’s death. The district court instructed the jury that to convict Dr. W ood on charges of first or second-degree murder, it was required to find that he possessed the specific intent to cause harm or death to Dykes. By his testimony that Dr. W ood’s actions caused Dykes’s death, Dykes’s death was a homicide, and a homicide involves the intentional taking of a person’s life, [the expert] expressly inferred that Dr. W ood acted with specific intent to kill Dykes.

Similarly, [the expert’s] testimony that Dr. W ood’s actions were reckless specifically describes the mens rea for involuntary manslaughter. . . . Therefore, [the expert’s] testimony [did] not merely provide the facts or opinions from which the jury could conclude or infer the defendant had the requisite mental state. If believed, his testimony necessarily dictates the final conclusion that Dr. W ood possessed the requisite mens rea for involuntary manslaughter. This intrusion into the province of the jury is

-25- precisely the sort of testimony Rule 704(b) is designed to prevent.

207 F.3d at 1236 (quotations and citations omitted); see also United States v.

Dennison, 937 F.2d 559, 565 (10th Cir. 1991) (holding trial court properly

excluded expert testimony that a hypothetical person suffering from the same

mental disorder as defendant could not form the specific intent to commit assault

because the necessary inference from the testimony was that defendant did not

have the capacity to form specific intent and this inference is for the jury to

make). 8

Here, Agent W est’s challenged testimony constitutes “facts or opinions

from which the jury could conclude or infer [M endoza] had the requisite mental

state,” Richard, 969 F.2d at 854-55; it did not expressly make that inference or

conclusion for the jury as the expert did in Wood. M oreover, unlike in Dennison,

the government did not provide W est a hypothetical question containing facts

mirroring the case facts and ask whether the facts constituted an intent to

8 The D.C. Circuit has also held that a prosecutor cannot make an end run around Rule 704(b) by posing an intent question to an expert in the form of a hypothetical question containing facts mirroring the facts in the case. See United States v. Boyd, 55 F.3d 667, 671-72 (D .C. Cir. 1995); but see United States v. M iller, 395 F.3d 452, 455-56 (D.C. Cir.) (concluding no plain error occurred when prosecutor asked expert whether a hypothetical set of facts mirroring the facts of the case was consistent with the sale of drugs w here expert repeatedly stated he had no personal knowledge of the case against the defendant), cert. denied, 545 U.S. 1101 (2005). The Seventh and Ninth Circuits have taken a more lenient view on the use of hypotheticals, allowing them if the expert does not directly comm ent on the defendant’s mental state. See United States v. Younger, 398 F.3d 1179, 1190 (9th Cir. 2005); United States v. Romero, 189 F.3d 576, 586 (7th Cir. 1999); United States v. Brown, 7 F.3d 648, 653 (7th Cir. 1993).

-26- distribute. Rather, the government initially asked W est general questions

concerning the drug trade and then moved into his investigation of M endoza.

W hile some of W est’s opinions mentioned facts of this case, in particular, his

opinion that drug dealers often blow their money on (among other things) buying

new rims and tires for their vehicles, they did not make the ultimate inference or

conclusion for the jury that M endoza had the intent to distribute drugs. W est’s

testimony left for the jury the duty to link his expert testimony to the facts and

draw the inference or conclusion that M endoza had the requisite mens rea. His

testimony did not violate Rule 704(b).

Nor did it violate Rule 403, which permits relevant evidence to be excluded

“if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury . . . .” In support of his

Rule 403 argument, M endoza relies on United States v. Dukagjini, 326 F.3d 45

(2d Cir. 2003). There, the government called a D EA agent, who was also the case

agent, to testify as an expert concerning the use of code words in narcotics

conversations and the meaning of various code words used in recorded

conversations between the defendants and others. During his testimony, the agent

interpreted certain drug jargon but also explained other statements. The latter

testimony appeared to have been based primarily on his familiarity with the

specifics of the case rather than on his general expertise in the drug trade. The

defendants challenged the testimony, claiming the agent’s dual roles as expert and

-27- case agent allowed him to serve as a summary witness, improperly testifying as

an expert about the general meaning of conversations and the facts of the case.

The Second Circuit found that the use of a case agent as an expert increases

the likelihood that inadmissible and prejudicial testimony will be proffered, in

particular, when the expert goes beyond his expertise and summarizes his beliefs

about the defendant’s conduct based upon his knowledge of the case. Id. at 53-

54. In such circumstances, the risk of prejudice is three-fold: (1) the jury may

infer the agent’s opinion testimony about the defendant’s activity is based on

knowledge of the defendant beyond the evidence at trial, (2) the defendant’s

ability to cross-examine the expert/fact witness may be inhibited because a failed

attempt to impeach the witness as an expert may effectively bolster his credibility

as a fact witness, and (3) the expert may stray from the scope of his expertise and

act as a summary witness w hich usurps the role of the jury and creates jury

confusion as to whether the witness is relying on his general experience and

reliable methodology or improperly on what he has learned of the case. Id. at 53-

55. Despite these risks, however, the Second Circuit did not categorically

prohibit the use of case agents as experts. Id. at 56. Rather, it cautioned trial

courts to vigilantly ensure a case agent’s expert testimony is reliable and its

probativeness is not substantially outw eighed by its prejudicial effect. Id.

The concerns in Dukagjini are well taken and expressed. W e agree.

However, like the Second Circuit, we decline to adopt a per se rule prohibiting

-28- the use of case agents as experts, but leave it to the trial judge who is attuned to

the dynamics of the trial, to make the necessary 403 determination. W e find no

abuse of that discretion here. But even if we did the error w as harmless.

Beal, Gillam, Harvey and Younger all testified that M endoza was Beal’s

source of supply. W hile Beal, Younger and Harvey may have had self-serving

motives in testifying, Gillam did not and in fact, she had not seen Beal for over

four years. Additionally, although Harvey was provided use immunity from the

government, her testimony was consistent with the statements she made to agents

when she arrived home on the day of Beal’s arrest and before she learned Beal

had been arrested. M oreover, the jury was aware of the terms of Beal’s and

Younger’s plea agreements and their motives in testifying. In addition to these

witnesses, the government presented evidence showing Beal and M endoza were in

almost constant contact with each other on their cellphones and M endoza’s

lifestyle was inconsistent with his legitimate income. Furthermore, the jury was

informed of the statements M endoza made to Agent W est on the day of his arrest

and the threats he made to Beal while incarcerated at the same facility (which

were properly admitted.) See infra Issue C. The substantial evidence supporting

the jury’s verdict renders harmless any error which may have occurred in

allow ing W est to testify as both an expert and fact witness.

B. Confidential Informants

Prior to trial, M endoza moved for the disclosure of the identities of two

-29- confidential informants, referred to herein as C1 and C2, claiming their testimony

supported his defense that he was not Beal’s source of supply. The government

objected claiming the informants did not possess exculpatory information and

M endoza had failed to show a sufficient need for disclosure other than pure

speculation. In the alternative to denying disclosure, the government claimed the

court should hold an in camera hearing to determine the necessity for disclosure.

See G aines v. Hess, 662 F.2d 1364, 1369 (10th Cir. 1981) (stating in camera

hearing is appropriate procedural vehicle for determining whether disclosure is

required) .

The district court held a hearing on M endoza’s motion. At the hearing, the

government called Agent W est, who had interviewed both confidential

informants, and testified as follows: H e met w ith C1 on September 3, 2002, a

month before Beal’s arrest. C1 was a documented DEA informant but received

no remuneration for his/her services. C1 said Beal and Britt were multi-pound

crack cocaine dealers in Albuquerque. C1 did not know M endoza or have any

information concerning Beal and Britt’s sources of supply. However, C1

participated in a conversation with Beal and Britt in w hich they discussed the loss

of their cocaine supply source. Beal told C1 he could not reach the source of

supply and believed the source had either been arrested or stopped selling

cocaine. Because he could not contact the source, Beal asked C1 to sell him a

couple of kilograms of cocaine. C1 could not recall when this conversation took

-30- place or provide a time frame. C1 also stated Beal and Britt would go back and

forth between different sources of supply depending on whether the source had

drugs.

W est interviewed C2 on M arch 27, 2003, after he/she was arrested. C2

created fictitious identification documents for the individuals within Beal’s drug

organization and named some of these individuals during the interview. C2 also

informed W est that in the early stages of the organization, Beal and Britt obtained

crack cocaine from Donnell and Rondale Gaskin. However, it was not too long

before they found powder cocaine suppliers which would allow them to make

crack cocaine. C2 did not know these suppliers or M endoza.

After the evidentiary hearing, the court denied M endoza’s m otion. As to

C1, it found he/she did not know M endoza or Beal’s source of supply. Although

it recognized C1 had heard Beal say he believed his source of supply had been

arrested sometime prior to September 2, 2002, and M endoza was not arrested

until February 2004, the court nevertheless concluded M endoza’s claim (that C1’s

testimony established M endoza was not Beal’s source of supply) was speculative.

It also noted B eal would be the subject of cross-examination at trial. W ith regard

to C2, the court found he/she did not know M endoza, was not a participant in any

of the crimes charged against M endoza and it was pure speculation he/she had any

relevant information helpful to M endoza.

M endoza claims the court erred in denying the disclosure of C1 and C2 and

-31- the error was not harmless. He asserts C1’s testimony concerning his/her

conversation with Beal and Britt would have buttressed his theory that Beal and

Britt had the same source of supply. It also would have shown he w as not Beal’s

source of supply because he and Beal were in contact from the time of the

conversation until Beal’s arrest. 9 As to C2’s testimony, M endoza argues it would

have established M endoza was not a part of Beal’s drug organization because C2

did not know M endoza despite his/her extensive knowledge of the organization.

Thus, M endoza claims both informants’ testimony would have established

reasonable doubt he was Beal’s source of supply.

The government claims the court did not abuse its discretion in denying the

disclosure of C1 and C2’s identities. It points out that neither C1 nor C2 knew

M endoza, knew who supplied Beal with cocaine, or participated in or witnessed

the crimes to which M endoza was charged. Therefore, neither informant could

testify that M endoza was not Beal’s source of supply. It further claims Beal’s

9 In an attempt to show Beal was not referring to M endoza in his conversation with C1 because Beal and M endoza were in constant phone contact, defense counsel cross-examined W est concerning Beal and M endoza’s phone contacts. W est testified he obtained Beal and M endoza’s cellphone records and determined the number of times they contacted each other. Although defense counsel suggested there were 1,500 contacts from 2000 to early November 2002, W est could not recall the number of contacts or the time period and defense counsel did not provide any documentary evidence supporting this number or time period. W est also could not recall whether there were any months in w hich there was no contact between Beal and M endoza but stated there were periods of days in w hich there were no contacts. W ith the aid of M endoza’s telephone records, W est was able to testify that M endoza had contact with Beal on September 2 and 5, 2002, and several times on September 6, 2002.

-32- comm ent to C1 that he could not reach his source of supply during a time when he

may have been in regular contact with M endoza had little exculpatory value and

its usefulness to the defense was speculative. 10

The government has the privilege to withhold from disclosure the identities

of persons who provide law enforcement officers with information concerning

violations of the law. Rovario v. United States, 353 U.S. 53, 59 (1957). The

privilege’s purpose is to further and protect the public interest in effective law

enforcement. Id. It recognizes citizens’ obligation to inform law enforcement

officials w hen they know a crime has been committed and encourages them to

perform that obligation by preserving their anonymity. Id. However, the

privilege is not unlimited. Id. at 60. W here the disclosure of an informer’s

identity is relevant and helpful to an accused’s defense or essential to a fair

determination of a cause, the privilege gives way and disclosure is required. Id.

at 60-61.

There is no fixed rule as to when disclosure of an informer’s identity is

10 Alternatively, the government argues that if we have any doubt as to C1 or C2’s potential testimony, we should remand to the district court for an in camera proceeding pursuant to Gaines. Because the record adequately discloses C1 and C2’s potential testimony, we find a remand unnecessary. See United States v. M oralez, 908 F.2d 565, 568-69 (10th Cir. 1990) (remanding for in camera hearing where record was insufficient to determine the informer’s degree of involvement and whether disclosure was essential to a fair determination of the case); Gaines, 662 F.2d at 1368-69 (remanding for in camera hearing to determine w hether informant could provide potentially significant exculpatory testimony).

-33- required. Id. at 62. Rather, the court must balance the public’s interest in

protecting the flow of information against a defendant’s right to prepare a

defense, considering the particular circumstances of each case, including “the

crime charged, the possible defenses, the possible significance of the informer’s

testimony, and other relevant factors.” Id. “[M ]ere speculation about the

usefulness of an informer’s testimony is not sufficient.” United States v. Scafe,

822 F.2d 928, 933 (10th Cir. 1987). Disclosure is not required where the

information sought from the informer would be merely cumulative or where the

informant is not a participant in or a witness to the crime charged. M oralez, 908

F.2d at 567.

A defendant seeking disclosure of a confidential informer’s identity bears

the burden of showing a need for such disclosure. United States v. M artinez, 979

F.2d 1424, 1426 (10th Cir. 1992). W e review the district court’s decision

denying disclosure for an abuse of discretion. Id. at 1425-26. W e find no such

abuse here.

C1 did not know M endoza or who served as Beal and Britt’s source of

supply. He/she also did not participate in or witness the crimes charged. W e

recognize C1 w as present during a conversation in which Beal stated he could not

reach the source of supply and believed the source had either been arrested or

ceased selling drugs. However, C1 could not recall when this conversation took

place or even provide a time frame. W hile defense counsel suggested to Agent

-34- W est there was never a month that went by between 2000 and November 2002

where M endoza and Beal were not in contact, he did not substantiate this

information with documentary evidence. 11 The only period of time in which

M endoza was able to show that he and Beal were in contact was September 2-6,

2002. However, it is pure speculation on M endoza’s part that the conversation

between Beal, Britt and C1 took place around September 3, 2002, the date C1 was

interviewed. Indeed, it is unlikely the conversation took place during that period

because if it had, it seems C1 w ould have been able to recall when the

conversation took place or at least provided a time frame. Further, Beal merely

told C1 he believed his source may have been arrested or stopped selling cocaine.

Again, it is mere speculation that Beal was not referring to M endoza because

M endoza was not arrested until February 2004.

W ith regards to C2, United States v. Halbert is instructive. 668 F.2d 489

11 At trial, the government called Elizabeth Eller, an intelligence research specialist for the D EA, who performed an analysis of M endoza and Beal’s telephone records. She compared the number of calls between M endoza’s telephone number and four different cellphone numbers used by Beal between September 8, 2001 (the date M endoza’s number was activated), and November 7, 2002 (the date M endoza’s number w as canceled). Based on her testimony, there was a total of 377 calls between M endoza and Beal from September 8, 2001, to M arch 28, 2002, and August 2, 2002, to O ctober 29, 2002. Therefore, contrary to defense counsel’s assertion at the disclosure hearing, the telephone records did not cover a two year period and the number of contacts was not 1,500. M oreover, unless Beal or M endoza had another telephone number, there was a period of time (M arch 29, 2002 - August 1, 2002) where there was no contact between M endoza and Beal, which contradicts defense counsel’s suggestion that there was never a month where Beal and M endoza were not in contact.

-35- (10th Cir. 1982). There, Halbert and Green were accused of helping Cox rob a

bank. Prior to trial, Halbert moved for disclosure of the identity of a confidential

informant who had called law enforcement officials stating he had heard on the

streets that Cox was involved in the robbery. This information led to the

investigation of Cox and Green. Green implicated H albert. The district court

denied Halbert’s motion for disclosure. Halbert proceeded to trial, where he

presented an alibi defense, alleging he was at a sales meeting at the time of the

robbery and his supervisor could verify his alibi. Although his supervisor

testified H albert was not at the meeting, the supervisor and another witness

testified they called Halbert’s apartment on the day and time of the robbery and

spoke with him. The jury convicted Halbert. On appeal, Halbert argued the

district court erred in denying his request for the confidential informant’s

identity. He claimed disclosure was required because the fact the informant did

not mention Halbert was exculpatory. W e affirmed, finding disclosure was not

required because the confidential informant was not a participant in or witness to

the robbery and Halbert could only speculate as to the informant’s testimony. Id.

at 496. W e further found the fact the informant had apparently not heard H albert

was involved in the robbery had little or no exculpatory value because the

informant was not an eyewitness and only learned of Cox’s involvement through

gossip. Id. M oreover, Halbert was able to present his alibi defense through other

witnesses who claimed to have first-hand knowledge of the relevant events. Id.

-36- Similarly, the mere fact C2 had knowledge of Beal’s organization but did

not name M endoza is not exculpatory. M oreover, C2 did not know M endoza, did

not participate in or witness the crimes charged and did not know who supplied

Beal w ith cocaine after Beal stopped purchasing crack cocaine from the Gaskins.

Therefore, he/she would not have been helpful to M endoza’s defense.

The district court did not abuse its discretion in denying the disclosure of

C1 and C2.

C. Threat Evidence

On the afternoon of the second day of trial, the government learned

M endoza had threatened Beal and had made a threatening gesture towards him

while both were being detained at the Bernalillo County Detention Center for

M endoza’s trial. The government sought to question Beal concerning the incident

and add M arshall Dean, an inmate transport officer who observed the threatening

gesture, as a witness. It claimed such evidence was admissible to show

M endoza’s consciousness of guilt. M endoza objected, arguing the evidence was

not probative of guilt because an innocent person w ould also be upset at a witness

who falsely accused him of a crime and therefore its probative value was

substantially outweighed by its prejudicial effect under Rule 403 of the Federal

Rules of Evidence. 12 Conducting the R ule 403 balancing test, the district court

12 when Beal needed to be moved from the Sandoval County Jail, the government specifically requested he not be moved to Torrance County, where it believed Mendoza was being detained. While Mendoza was in fact being detained in Torrance County, his

-37- found the threat evidence was more probative than prejudicial and overruled

M endoza’s objection. 13

Beal testified M endoza called him a “snitch” and a “bitch” and asked him

why he was doing this. (R. Vol. VII at 811.) He told Beal not to go through with

it and he would take care of him financially. M endoza also made a gesture with

his hands which indicated he was going “to get [Beal], kill [Beal].” (Id. at 812.)

Dean testified he observed this gesture while he was taking M endoza out of his

cell to transport him to court for trial. The gesture involved M endoza placing his

finger on his lips and then taking his thumb and running it across his neck. Based

on his training and experience, Dean interpreted the gesture to mean “stay quiet

or die.” (R. Vol. IX at 1222.)

Beal was not the only witness who was threatened by M endoza. During her

testimony, over M endoza’s objection, Valdez recounted a run-in with M endoza in

prison in April/M ay 2004. Valdez was sitting inside a prison classroom; M endoza

counsel had requested he be moved to Bernallilo County Detention Center, which is closer M endoza also questioned why he and Beal were detained at the same facility and suggested the government created the situation to see how he would act in violation of his M iranda rights. However, there was no evidence supporting this theory. Indeed, to Albuquerque, so he could meet with him during trial. Therefore, it was M endoza’s counsel’s actions which resulted in M endoza and Beal being housed in the same facility. The district court also correctly concluded M iranda did not apply because M endoza’s threats and gesture to Beal were voluntary and not made during the course of custodial interrogation. M iranda v. Arizona, 384 U.S. 436, 444 (1966). 13 The court did allow M endoza the opportunity to interview Dean outside the presence of the jury prior to Dean testifying.

-38- was in the prison yard for recreation. Valdez looked out the window and saw

M endoza. He looked at her and looked upset. He pointed at her and mouthed

something she could not understand. She interpreted these actions as M endoza

threatening her.

M endoza claims the court committed reversible error in allowing Beal,

Dean and Valdez to testify as to their interpretations of M endoza’s mouthed

words and gestures. He claims the mouthed words and gestures w ere too vague to

be admissible as probative evidence of guilt because they were just as probative

of innocence. He claims an innocent person wrongly accused would be just as, if

not more, likely to become angry upon seeing his accuser than a person who

knows himself to be guilty. M oreover, given that the evidence did not involve

words expressing a clear threat to intimidate a witness, M endoza claims there is

no negative inference to be drawn from it. M endoza further claims the error in

admitting this evidence affected the trial’s outcome. He claims the evidence of

guilt was not overwhelming given the witnesses’ motives in testifying which

undermined their credibility.

The government argues the court did not abuse its discretion in admitting

the threat evidence. It claims the evidence was highly probative of M endoza’s

consciousness of guilt and therefore relevant. Contrary to M endoza’s claim that

his threats tended only to prove he was angry because he was being falsely

accused, the government asserts the w eight of authority is that a defendant’s

-39- threats against a cooperating witness tend to prove the defendant is conscious of

his guilt. It also points out that the meaning of M endoza’s mouthed words and

gestures w as not ambiguous to Beal, Dean or Valdez and each was allowed to

testify about his or her perceptions. M oreover, both Beal and Dean demonstrated

to the jury the gesture M endoza made to Beal so the jury could ascertain the

accuracy of their interpretations of the gesture. Further, the government claims

M endoza’s gesture to Beal was not ambiguous as it was an obvious threat to kill

Beal if he testified.

W e review a district court’s evidentiary rulings for an abuse of discretion.

United States v. Knox, 124 F.3d 1360, 1363 (10th Cir. 1997). Because evidence

that a defendant has threatened a cooperating witness constitutes evidence of

“other crimes, wrongs, or acts,” we evaluate the admissibility of such evidence

under Rule 404(b) of the Federal Rules of Evidence. See United States v.

Esparsen, 930 F.2d 1461, 1475-76 & nn.15-16 (10th Cir. 1991) (stating Rule

404(b) applies to conduct occurring before and after the charged conduct). 14

Rule 404(b) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .

14 Both the district court and the parties erroneously believed Rule 404(b) did not apply to the threat evidence.

-40- “The list of proper purposes is illustrative, not exhaustive, and Rule 404(b) is

considered to be an inclusive rule, admitting all evidence of other crimes or acts

except that which tends to prove only criminal disposition.” United States v. Tan,

254 F.3d 1204, 1208 (10th Cir. 2001) (quotations omitted). “To determine if the

admission of Rule 404(b) evidence was proper, we apply a four-part test which

requires that: (1) the evidence was offered for a proper purpose under Fed. R.

Evid. 404(b); (2) the evidence was relevant under Fed. R. Evid. 401; (3) the

probative value of the evidence was not substantially outweighed by its potential

for unfair prejudice under Fed. R. Evid. 403; and (4) the district court, upon

request, instructed the jury to consider the evidence only for the purpose for

which it was admitted.” United States v. Wilson, 107 F.3d 774, 782 (10th Cir.

1997) (citing Huddleston v. United States, 485 U.S. 681, 691-92 (1988)).

Evidence is relevant under Rule 401 if it has “any tendency to make the existence

of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” F ED . R. E VID .

401.

The four requirements for admissibility of Rule 404(b) evidence are met in

this case. First, M endoza’s threats to Beal and Valdez were not admitted to prove

his criminal disposition. Rather, they were offered to prove his consciousness of

guilt, which is encapsulated in Rule 404(b)’s motive, intent and knowledge

language. See Esparsen, 930 F.2d at 1476 n.16.

-41- Second, the evidence was relevant under Rule 401. “Evidence of threats to a

prosecution witness is admissible as showing consciousness of guilt if a direct

connection is established between the defendant and the threat . . . .” United States

v. Smith, 629 F.2d 650, 651 (10th Cir. 1980). Here, M endoza himself made the

threats to the cooperating witnesses. Contrary to M endoza’s arguments, the threats

were not ambiguous. Beal testified M endoza called him a “snitch” and “bitch” and

asked him why he w as doing this. W hether Beal heard these words, read M endoza’s

lips or a combination of both occurred is unclear. However, the jury was aware of

this and heard testimony concerning the conditions under which Beal and M endoza

conversed. M oreover, the more damning evidence, M endoza’s gesture to Beal, was

witnessed by both Beal and Dean. Their opinions as to this gesture’s meaning were

admissible under Rule 701 of the Federal Rules of Evidence. 15 See United States v.

Garcia, 994 F.2d 1499, 1506-07 (10th Cir. 1993) (explaining the requirements for

lay witness testimony in the form of opinions and inferences under Rule 701). And,

because the gesture was demonstrated for the jury, the jury was allowed to reject or

accept their interpretations. W ith regard to Valdez’s testimony, she described for

15 Rule 701 provides:

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

-42- the jury what she observed (that M endoza was upset, mouthing something to her and

pointing at her) and had first-hand knowledge of the events to which she testified.

Therefore, her opinion that M endoza was threatening her was admissible under Rule

701. Again, the jury was allowed to accept or reject her opinion.

Third, the district court expressly weighed the probative value of the threat

evidence against the potential for unfair prejudice under Rule 403 and concluded the

former substantially outweighed the latter. District courts are afforded broad

discretion in Rule 403 balancing decisions. United States v. Cherry, 433 F.3d 698,

702 (10th Cir. 2005), cert. denied, 126 S.Ct. 1930 (2006). We see no reason to

disturb the court’s Rule 403 decision.

Lastly, M endoza did not request a limiting instruction. In fact, in the

proposed jury instructions, the court included a Rule 404(b) instruction but both

parties agreed it was not applicable to the threat evidence. W hile the parties w ere

mistaken, see supra n.14, the fact remains M endoza never asked the court to instruct

the jury on the proper use of the threat evidence.

W e find no error in the district court’s admission of the threat evidence.

D. Cumulative Error

To the extent we find individual errors harmless, M endoza claims the

cumulative effect of those errors substantially affected his trial’s outcome. The

cumulative error analysis’ purpose is to address the possibility that “[t]he

cumulative effect of two or more individually harmless errors has the potential to

-43- prejudice a defendant to the same extent as a single reversible error.” United States

v. Rosario Fuentez, 231 F.3d 700, 709 (10th Cir. 2000).

A cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless. Unless an aggregate harmlessness determination can be made, collective error will mandate reversal, just as surely as will individual error that cannot be considered harmless. The harmlessness of cumulative error is determined by conducting the same inquiry as for individual error--courts look to see whether the defendant’s substantial rights were affected.

United States v. Rivera, 900 F.2d 1462, 1470 (10th Cir. 1990). However,

“[c]umulative-error analysis should evaluate only the effect of matters determined to

be error, not the cumulative effect of non-errors.” Id. at 1471.

The only potential error (which is assumed only) in this case was the

admission of W est as both an expert and fact witness. There is no cumulate effect.

A FFIRME D.

ENTERED FOR THE COURT

Terrence L. O’Brien Circuit Judge

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