Caseflicks

Court of Appeals for the Ninth Circuit • 1990

United States v. Jaime Leon Gomez-Norena

908 F.2d 497 | 30 Fed. R. Serv. 888 | 1990 U.S. App. LEXIS 11588 | 1990 WL 94811

Full access

Unlock the video and quiz

The written brief is free to read below. Subscribe to watch the video explainer and take the quiz.

Create an account Log in

Takeaway

In short, this case shows that unpreserved evidentiary objections receive only plain-error review, and that profile evidence offered solely to explain an investigation, as well as expert testimony about facts consistent with drug distribution, may be admitted without proving the defendant's actual mental state.

Background

Jaime Leon Gomez-Norena arrived at Los Angeles International Airport on a flight from Bogota, Colombia, intending to remain in the United States for about three hours before continuing to Sydney, Australia. Customs Inspector Sergio Espinoza considered Gomez to fit a drug-courier profile: Gomez had started in Medellin, paid cash for his ticket, was a young and inexperienced international traveler, held an Australian visa but no United States visa, and had checked a single bag. Espinoza told other inspectors to watch Gomez.

At a second inspection station, Inspector Harold Little searched Gomez's carry-on bag and suitcase. Gomez said he owned and packed the suitcase, but Little found it unusually heavy and detected signs of a hidden lining. An x-ray revealed a double compartment. Inspectors drilled into the suitcase and found approximately two kilograms of cocaine. After his arrest and Miranda warnings in Spanish, Gomez told a DEA agent that a stranger in Bogota had paid him $1,000 to take the suitcase to Sydney and that he did not know the suitcase contained drugs.

A jury convicted Gomez of possession of cocaine with intent to distribute under 21 U.S.C. § 841(a)(1). On appeal, he challenged the admission of drug-courier-profile testimony and a DEA agent's expert testimony that the quantity and circumstances of the cocaine were consistent with possession for distribution.

Issues

Issue #1

Whether the district court plainly erred by admitting testimony that Gomez fit a drug-courier profile.

Holding

No. Gomez did not preserve a Rule 403 objection, and admission of the profile testimony for the limited purpose of providing background and explaining the inspectors' actions was not plain error.

Reasoning

Gomez objected at trial on hearsay and Rule 404(b) character-evidence grounds, but he did not object under Rule 403 on the ground of unfair prejudice. Federal Rule of Evidence 103(a)(1) requires a timely, specific objection, and an objection on the wrong ground does not preserve a different evidentiary theory for appeal. The trial court's grant of a continuing objection did not cure the omission because it extended only to the particular Rule 404(b) objection Gomez had made.

Because the Rule 403 claim was unpreserved, the court reviewed only for plain error: a highly prejudicial error affecting substantial rights. The court recognized the serious risk that a drug-courier profile might be used improperly as substantive proof that a defendant is guilty. Such profiles are investigative tools rather than evidence of guilt.

That risk was sufficiently reduced here because the government offered Inspector Espinoza's statements to explain how and why the other customs inspectors came to focus on Gomez, not to establish that profile characteristics proved Gomez possessed cocaine. The district judge twice instructed the jury that it could consider the testimony only as background bearing on the inspectors' state of mind and subsequent actions. The court presumed the jury followed those clear limiting instructions, so the ruling did not amount to plain error. The court expressly left open whether admitting similar background evidence over a properly preserved Rule 403 objection could be an abuse of discretion.

Issue #2

Whether the district court plainly erred under Federal Rule of Evidence 704(b) by allowing the DEA agent to testify that the cocaine was possessed with intent to distribute.

Holding

No. The agent's testimony addressed whether the quantity and circumstances were consistent with distribution, not Gomez's actual mental state.

Reasoning

Gomez did not object to the expert testimony in the district court, so the court again applied plain-error review rather than the ordinary review for manifest error in admitting expert evidence.

Rule 704(b) bars an expert in a criminal case from stating an opinion that the defendant did or did not possess the mental state that constitutes an element of the offense. But the rule does not prevent an expert from explaining that particular objective facts are consistent with distribution rather than personal use.

The DEA agent relied on the large quantity of cocaine, its concealment in a suitcase's hidden compartment, and its origin. His testimony paralleled testimony approved in United States v. Kinsey: possession of a large amount of cocaine is indicative of drug distribution. He did not testify that Gomez himself actually intended to distribute cocaine or otherwise state an opinion about what Gomez thought. Therefore, the testimony did not violate Rule 704(b), much less constitute plain error.