Opinion
CR-21-00443-001-TUC-JCH (LAB)
11-08-2022
United States of America, Plaintiff, v. Beatriz Armenta Kortright, Defendant.
ORDER
HONORABLE JOHN C, HINDERAKER, UNITED STATES DISTRICT JUDGE
Trial is set to begin January 17, 2023. (Doc. 55.) Before the Court are pretrial motions filed by the parties including: (1) Defendant's Motion in Limine Re: Profile Evidence ("Defendant's Motion") (Doc. 49); and (2) Government's Motion in Limine to Preclude Defense Introduction of Prior Hearsay Statements Made by the Defendant ("Government's Motion") (Doc. 50). On October 28, 2022, the Court held a Motions Hearing. (Hr'g Tr. at 1:7, USA v. Beatriz Armenta Kortright, 4:21-cr-00443-001-TUC-JCH (October 28, 2022) ("Hr'g Tr."). At that time, the Court heard argument and took the Motions under advisement. (See id.) For the following reasons, the Court grants in part and denies in part Defendant's Motion (Doc. 49) and grants the Government's Motion (Doc. 50).
On September 13, 2022, the Court issued a scheduling order and directed the parties to file their responsive memorandum to the pending motions in limine on or before September 27, 2022. (See Doc. 55.) On September 26, 2022, the Government filed a response in opposition to Defendant's Motion. (Doc. 56.) Defendant did not file a response to the Government's Motion.
I. Allegations
Defendant Beatriz Armenta Kortright is charged with Conspiracy to Possess with Intent to Distribute Heroin and Methamphetamine, Possession with Intent to Distribute Heroin, Possession with Intent to Distribute Methamphetamine, Conspiracy to Import Heroin and Methamphetamine, Importation of Heroin, and Importation of Methamphetamine in violation of 21 U.S.C. §§ 846, 841, 963, and 952. (Doc. 1.) On January 11, 2021, Defendant presented herself for entry into the United States at the DeConcini Port of Entry in Nogales, Arizona. (Id.) She was the driver, sole occupant, and owner of a 2017 Mitsubishi Mirage. (Id.) Border Patrol agents referred Defendant to secondary inspection where an x-ray indicated anomalies within the vehicle. (Id.) A subsequent search revealed 28 packages hidden in the vehicle's firewall, dash, both rear quarter panels, and hatchback area. (Id.) The contents tested positive for methamphetamine, weighing 11.84 kilograms, and heroin, weighing 3.24 kilograms. (Id.) After waiving her Miranda rights, Defendant denied knowledge of the drugs and indicated she had recently loaned her vehicle to her boyfriend Martin Leyva-Garcia whom she was visiting in Mexico. (Id.) Defendant further indicated she had known her boyfriend for eight or nine years, and that he was recently incarcerated for drug smuggling. (Id.)
II. Analysis
A. Defendant's Motion (Doc. 49)
Under Rule 702, the government must demonstrate that a proposed expert witness is qualified to render an opinion, the proposed testimony is reliable, and that the testimony "will help the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. A district court has discretion to exclude even relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403.
On July 29, 2022, the Government gave notice of Expert Witnesses, (Docs. 45, 46), including Special Agent Anthony Caruso. Special Agent Caruso is expected to offer testimony on "how drug trafficking organizations are typically structured, how these organizations are similar to a business in that they have a product which needs a supply chain to be distributed, [and] how the organizations use individual couriers to transport controlled substances." (Id. at 1.) The Court understands Defendant's Motion to argue that drug-courier profile evidence is inadmissible as substantive evidence of her guilt and prejudicial under both Federal Rules of Evidence 703 and 403. (Doc. 49 at 4.) Defendant seeks to preclude expert testimony demonstrating that "defendant by her actions, by her words, by her locale, by her previous border crossings[,] and by the claimed vehicle anomalies [are] consistent with a drug courier." Id. Defendant further contends that her "defense in this case is mere presence, good character[,] and a complete lack of knowledge that her vehicle contained drugs." Id. In other words, although Defendant willingly crossed the border, she will claim she was unaware of the drugs inside her vehicle, i.e., an unknowing courier. (Id.; Hr'g Tr. at 7:18-9:25.)
i. Unknowing Drug Courier Modus Operandi Evidence
Expert testimony on drug trafficking organizations ("DTOs") is admissible when it is relevant, probative of a defendant's knowledge, and not unfairly prejudicial. United States v. Sepulveda-Barraza, 645 F.3d 1066, 1072 (9th Cir. 2011) (internal citations and quotations omitted). Such inquiry is fact-intensive and turns on the nature of the proposed testimony. See id. For example, expert testimony on the structure and modus operandi of drug trafficking organizations may violate Federal Rules of Evidence 401 and 403 in nonconspiracy importation cases. See United States v. Pineda-Torres, 287 F.3d 860 (9th Cir. 2002); United States v. Varela-Rivera, 279 F.3d 1174 (9th Cir. 2002); United States v. Vallejo, 237 F.3d 1008 (9th Cir. 2001), as amended 246 F.3d 1150 (9th Cir. 2001); United States v. McGowan, 274 F.3d 1251 (9th Cir. 2001). Vallejo and Pineda-Torres are illustrative of this principle. Both cases involved defendants driving a car from Mexico into the United States, and the only issue in both trials was whether the defendant knew there were drugs in the car. Vallejo, 237 F.3d at 1017; see also Pineda-Torres, 287 F.3d at 863. In both trials, an expert testified as to how DTOs divided responsibilities among its members. Vallejo, 237 F.3d at 1013-14; Pineda-Torres, 287 F.3d at 863-64. And in both cases, the government failed to establish a connection between the defendant and a DTO. Vallejo, 237 F.3d at 1013-14; Pineda-Torres, 287 F.3d at 864. Thus, the expert's "testimony about the structure of drug trafficking organizations attribute[d] knowledge to the defendant by attempting to connect him to an international drug conspiracy and thus implie[d] that the defendant participated in a large-scale operation[,]" which render[ed] the testimony unfairly prejudicial. Pineda-Torres, 287 F.3d at 865 (internal citation and quotation omitted).
By contrast, expert testimony involving unknowing drug courier modus operandi may be admissible to show drug traffickers do not routinely entrust large and valuable drug quantities to unaware transporters. See United States v. Gomez, 725 F.3d 1121, 1128-29 (9th Cir. 2013) (finding testimony from the Government's expert witness "that drugtrafficking organizations do not use unknowing drug couriers" to be "probative and relevant, and . . . not unduly prejudicial."); see also United States v. Murillo, 255 F.3d 1169, 1176-77 (9th Cir. 2001) (finding unknowing drug courier expert testimony admissible in a drug possession case involving over $1,000,000.00 worth of methamphetamine and cocaine to undercut defense that Defendant was "simply an unknowing courier."), overruled in part on other grounds by United States v. Mendez, 476 F.3d 1077 (9th Cir. 2007).
At the Motions Hearing, the Government asserted Special Agent Caruso will testify inter alia to the DTO's operational framework and the use of trusted individuals to avoid law enforcement and conceal drug importation. (Hr'g Tr. at 3:13-6:25.) The Court shared its concerns that some of the proposed testimony could run afoul of both Vallejo and Pineda-Torres. Also troublesome is the Government's failure to reference any specific evidence that established a connection between Defendant and a DTO. At this point, however, the Government has charged Defendant with both Conspiracy to Possess with Intent to Distribute Heroin and Methamphetamine and Conspiracy to Import Heroin and Methamphetamine. This distinguishes the instant case from the non-conspiracy cases in both Vallejo and Pineda-Torres.
The Government also argues that testimony involving the drug's quantity and related value is circumstantial evidence of Defendant's knowledge of the drugs found in her vehicle. (Doc. 56 at 2.) Because Defendant asserts that she was an unknowing courier, testimony from Special Agent Caruso regarding the value of drugs discovered and that "drug traffickers do not entrust large quantities of drugs to unknowing transporters" is relevant and admissible to rebut Defendant's defense. See Murillo, 255 F.3d at 1177-78. Defendant concedes that this is proper expert testimony. (See Hr'g Tr. at 9:21-10:2.)
Accordingly, if Special Agent Caruso is deemed qualified under FRE 702 and provides proper foundation, he may testify regarding: (1) the quantity and value of the methamphetamine and heroin; (2) the amounts of drugs seized are consistent with distribution rather than personal use; (3) how drug trafficking organizations normally recruit and use transporters to smuggle narcotics from Mexico into southern Arizona; and (4) why drug trafficking organizations use hired drug couriers and do not normally use unknowing couriers to rebut any unknowing courier defense asserted by Defendant. Testimony regarding the structure of the drug trafficking organization, or positions and roles therein, may be permitted; the Court reserves ruling on this issue until trial. Lastly, all testimony is limited to the Special Agent's own personal training and experience, and not as to Defendant or Defendant's case.
The Government indicated a willingness to introduce a limiting jury instruction regarding their expert testimony. (Hr'g Tr. at 15:23.) The parties are encouraged to meet and confer to draft a limiting jury instruction. The Court will give a limiting instruction if Defendant requests one.
ii. Drug-Courier Profile Evidence
Generally, drug-courier profile evidence is inadmissible as "inherently prejudicial because of the potential it has for including innocent citizens as profiled drug couriers and because simply matching a defendant to a drug profile may unfairly suggest to the jury that otherwise innocuous conduct or events demonstrate criminal activity." United States v. Espinoza-Valdez, 889 F.3d 654, 658 n. 5 (9th Cir. 2018). Drug-courier profile evidence may be admitted for two limited purposes including: (1) to establish modus operandi, but only in exceptional, complex cases, or (2) to rebut specific attempts by the defense to suggest innocence based on particular characteristics described in a profile. Id. at 658 n. 5. "A drug expert's testimony cannot substitute for witnesses who actually observed or participated in the illegal activity." Id. at 659. In other words, it is improper to allow an expert to describe the drug trafficking organization's structure and a drug scout profile used by the organization, and then link a defendant to that profile. Id.
Although Special Agent Caruso will speak to "how the organizations use individual couriers to transport controlled substances," he will not speak to any specific characteristics or profile traits exhibited by Defendant, or typical of persons unlawfully carrying narcotics, nor will the Government elicit testimony from Agent Caruso specific to Defendant's particular traits or mannerisms on the incident date. (Hr'g Tr. at 13:20-14:10.) As explained above, the proffered testimony includes a DTO's modus operandi to use knowing drug couriers. (Doc. 56 at 1.) Such proposed testimony is not drug courier profile evidence. See Murillo, 255 F.3d at 1176 ("[]defining drug courier profile evidence as 'a somewhat informal compilation of characteristics believed to be typical of persons unlawfully carrying narcotics'[]") (internal quotations and citations omitted); United States v. Cordoba, 104 F.3d 225, 230 (9th Cir. 1997) (".testimony that drug traffickers do not entrust large quantities of drugs to unknowing transporters is not drug courier profile testimony").
Because the Government has not indicated an intent to elicit such profile evidence from their expert, Defendant's Motion is granted in part. To be clear, law enforcement witnesses from the incident date, rather than the expert, will be allowed to testify to their own observations that may bear on Defendant's actions and words.
B. Government's Motion (Doc. 50)
A defendant's self-serving statements to law enforcement are inadmissible hearsay. "Self-inculpatory statements, when offered by the government, are admissions by a partyopponent and are not therefore hearsay, see Fed.R.Evid. 801(d)(2), but the non-self-inculpatory statements are inadmissible hearsay." United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000). If exculpatory statements were admitted at trial, a defendant would be able to place his exculpatory statements before the jury without subjecting herself to crossexamination, precisely what the hearsay rule forbids. United States v. Fernandez, 839 F.2d 639, 640 (9th Cir. 1998) (internal quotations omitted).
Defendant's self-serving statements made to Border Patrol agents are inadmissible hearsay, unless offered by a party opponent under Rule 801(d). The Government requests that the Court preclude the Defendant from discussing her own self-serving, out-of-court statements-through other witnesses, audio recordings, transcripts, or any other means- during trial. (Doc. 50.) Defendant was apprehended at the DeConcini Port of Entry, where she waived her Miranda rights and gave both self-inculpatory and non-self-inculpatory statements. Id. at 2. Defendant did not file a response to the Government's Motion. At the Motions Hearing, however, Defendant indicated that she would testify at trial and that she would not elicit her statements through the Government's witnesses, therefore, she did not oppose the Government's Motion. (Hr'g Tr. at 2:2-2:13.) Thus, the Court grants the Government's Motion and precludes such statements on direct or cross examination of any witness during trial.
III. Order
Accordingly, IT IS ORDERED:
1. GRANTING IN PART AND DENYING IN PART Defendant's Motion in Limine Re: Profile Evidence (Doc. 49), subject to the Government establishing the qualifications and reliability of the expert/expert testimony at trial and the specifications indicated herein; and 2. GRANTING Government's Motion in Limine to Preclude Defense Introduction of Prior Hearsay Statements Made by the Defendant (Doc. 50).