United States of America v. Figueroa-Lopez
125 F.3d 1241 (9th Cir. 1997)

TROTT, Circuit Judge:


Raul Figueroa-Lopez ("Lopez") appeals his jury conviction and sentence for possession of cocaine with intent to distribute, in violation of 21 U.S.C. 841(a)(1). Lopez contends that the district court erred by: 1) admitting damaging opinion testimony from law-enforcement officers, who the Government did not qualify as experts, that Lopez's behavior was consistent with that of an experienced drug trafficker;


I. The Underlying Offense

At the end of May 1994, federal agents arrested Darryl Storm. Storm and others were charged with conspiracy to distribute cocaine and marijuana, and with money laundering.

Storm agreed to cooperate with the government and provided agents with a list of names of narcotics traffickers known to him. This list included Lopez, although at that time Storm only knew him as "Raul." At the instruction of DEA Agent Sam Larsen, Storm contacted Lopez to explore whether Lopez would sell him some narcotics. Storm met with Lopez on February 1, 1995. Agents attempted to record this meeting, but the audiotape malfunctioned. According to Storm, Storm told Lopez that he wanted to buy 5-10 kilograms of cocaine.

On March 24, 1995, Storm taped a telephone conversation with Lopez, during which Lopez offered to sell Storm ten kilograms of cocaine for $ 170,000. Lopez and Storm used oblique terminology borrowed from the construction industry to refer to the type, quantity, and price of the drugs.

On March 27, 1995, Storm again met with Lopez. This meeting was not recorded because the recording device malfunctioned again. Lopez gave Storm a sample of cocaine.

During the next month, Storm and Lopez spoke by telephone several times about the impending cocaine deal. These conversations were recorded. On May 25, 1995, Storm called Lopez and arranged to meet later that day to complete the cocaine transaction. Before meeting with Storm, Lopez drove in circles around the parking lot in a Monte Carlo. Storm and Lopez then met in the parking lot. Lopez drove away from Storm and parked next to a silver Nissan Sentra. Lopez entered the Nissan, bent down for several minutes, and then returned to the Monte Carlo.

Lopez returned to Storm's location and showed Storm a kilogram package of cocaine. Storm gave the arrest signal, and agents arrested Lopez. In the Monte Carlo, the agents found the keys to the Nissan and one kilogram of cocaine on the floor below the front seat. In the Nissan, the agents found nine kilograms of cocaine concealed in the car's door panels.

II. The Trial

A. Opinion Testimony

Throughout the trial, the Government presented opinion testimony by law-enforcement witnesses as to how Lopez's conduct, as observed by the agents, conformed to the methods and techniques of experienced drug dealers. Lopez objected to this testimony, claiming that it was "improper opinion testimony," hearsay, lacking foundation, and speculative. He also argued that it was improper expert testimony because the Government had not given prior notice as required by Federal Rule of Criminal Procedure 16(a)(1)(E). The district court overruled all of Lopez's objections and admitted the testimony as lay opinion testimony, presumably pursuant to Federal Rule of Evidence 701. The court ruled that the testimony regarding the way Lopez was driving - from which the agent inferred that Lopez was behaving as an "experienced narcotics trafficker" - was admissible notwithstanding Lopez's objections because the officer was a "percipient witness."

The court also overruled without explanation Lopez's objections to Agent Larsen's testimony that: 1) Lopez's actions were "countersurveillance" and "a common practice for narcotics dealers"; and 2) the use of a rental car was "indicative of an experienced narcotics trafficker." In response to Lopez's objection to an agent's opinion as to the street value of the cocaine found in the Nissan, the district court stated that "the Court has repeated over and over that the witness is giving testimony relating to matters in which he has participated and which he personally observed, and his testimony may incorporate his knowledge and his observations, so on that basis, it will be admitted." Agents repeatedly referred to Lopez's actions as consistent with an "experienced narcotics trafficker." The prosecution relied on this testimony in its closing arguments.

B. Lopez's Testimony

Lopez testified at trial that, before his arrest on May 25, 1995, he worked as a forklift operator for $ 10 per hour. He had never been arrested or convicted of any offense. He was 26 years old. In late 1993 or early 1994, Lopez was introduced to an "auto salesman," Tony Sagoo, who took Lopez to an auto auction. Later that day, Lopez gave Sagoo $ 5,000 to purchase a minivan they had seen. Lopez borrowed much of this money from family members.

Sagoo was unable to purchase the minivan, but he failed to return the $ 5,000 over the next several months. Sagoo introduced Lopez to Storm and told Lopez that Storm would re-pay the debt. Lopez was "shocked" by Storm's suggestion that they engage in a narcotics transaction as a way to repay the debt. Initially, Lopez refused Storm's suggestions. Eventually, however, Lopez felt pressured and realized that the only way he would get his $ 5,000 was to complete the drug deal. He therefore agreed to sell cocaine to Storm.

According to Lopez, when Storm asked Lopez for a sample of cocaine, Lopez contacted a friend named "Manny," whom he had met five to six years before in a bar. Lopez got the cocaine from Manny and gave Storm a sample.

Storm continued to pressure Lopez to conduct the transaction, and Lopez acted as a middleman between Storm and Manny. According to Lopez, Manny arranged all the details of the transaction, including the meeting place, the use of two cars, the secret panels, and the price of the ten kilograms.


The district court overruled Lopez's hearsay and relevance objections to the out-of-court statements of Sagoo and his mother. Lopez requested and submitted a limiting instruction to advise the jury that all of this testimony was not admissible for the truth of the matters asserted. The district court refused to give this or any other limiting instruction.


I. The Law-Enforcement Opinion Testimony

A. The Error

Lopez contends that the district court abused its discretion by admitting without a proper foundation opinion testimony of law-enforcement officers that Lopez's actions were consistent with those of an experienced drug trafficker. Specifically, Lopez contends that the testimony improperly "profiled" him as a drug trafficker and was not the proper subject of lay opinion testimony.

As detailed above, at numerous points throughout Lopez's trial, law-enforcement officers testified:

. that Lopez was engaging in countersurveillance driving;

. that certain terms used by Lopez and informant Storm were code words for a drug deal, a common practice of narcotics dealers;

. that Lopez's use of a rental car was consistent with the practices of an experienced drug trafficker;

. that the manner of hiding the cocaine was consistent with the practices of experienced drug traffickers; and

. that the large quantity and high purity of the cocaine indicated that Lopez was close to the source of the cocaine.

Lopez vigorously objected throughout this testimony.

A district court's evidentiary rulings during trial are reviewed for an abuse of discretion. United States v. Sarno, 73 F.3d 1470, 1488 (9th Cir. 1995), cert. denied, 135 L. Ed. 2d 1073, 116 S. Ct. 2555 (1996).

If "specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue," a qualified expert witness may provide opinion testimony on the issue in question. Fed. R. Evid. 702. The rule recognizes that an intelligent evaluation of the facts by a trier of fact is "often difficult or impossible without the application of some . . . specialized knowledge." Fed. R. Evid. 702 (advisory comm. n.). In this light, we have held that "drug enforcement experts may testify that a defendant's activities were consistent with a common criminal modus operandi." United States v. Webb, 115 F.3d 711, 713-14 (9th Cir. 1997) (emphasis added) (citing cases). This testimony "helps the jury to understand complex criminal activities, and alerts it to the possibility that combinations of seemingly innocuous events may indicate criminal behavior." United States v. Johnson, 735 F.2d 1200, 1202 (9th Cir. 1994). "Further, we even allow modus operandi expert testimony in cases that are not complex." Webb, 115 F.3d at 714 (internal quotation and citation omitted).

The testimony in the instant case is similar to expert testimony properly admitted in other drug cases. See, e.g., United States v. Cordoba, 104 F.3d 225, 229-30, amended, 1997 WL 54578 (9th Cir. 1997) (allowing expert testimony that a sophisticated drug dealer would not entrust large quantities of cocaine to an unknowing dupe); United States v. Espinosa, 827 F.2d 604, 611-12 (9th Cir. 1987) (allowing expert testimony regarding the use of apartments as "stash pads" for drugs and money); United States v. Patterson, 819 F.2d 1495, 1507 (9th Cir. 1987) (allowing expert testimony on how criminal narcotics conspiracies operate); United States v. Maher, 645 F.2d 780, 783 (9th Cir. 1981) (per curiam) (permitting expert testimony that defendant's actions were consistent with the modus operandi of persons transporting drugs and engaging in countersurveillance).

In the above cases, the testimony was necessary to inform the jury of the techniques employed by drug dealers in their illegal trade, techniques with which an ordinary juror would most probably be unfamiliar. Thus, the testimony in the instant case could have been admitted as expert opinion testimony to inform the jury about the methods and techniques used by experienced drug dealers, if the law-enforcement agents had been called as experts and properly qualified as such pursuant to Rule 104 of the Federal Rules of Evidence. In fact, Special Agent Larsen began his testimony with a recitation of his extensive training and experience with the DEA. It appears virtually certain that had the Government opted to do so, Larsen could have been formally qualified as an expert witness on the dispositive issue of whether Lopez's behavior suggested that he was an "experienced" - as contrasted with a fledgling - drug trafficker. However, this routine process did not occur. The testimony was neither offered nor admitted as expert testimony, but rather as lay opinion testimony. The Government concedes that it made no effort properly to qualify the witnesses as having the knowledge, experience, training, or education to render their testimony admissible under Rule 702.

The Government contends that "the same analysis applies whether the witness is testifying as an expert or as a lay witness." In support of its argument, the Government relies primarily on two cases, United States v. Fleishman, 684 F.2d 1329, 1335-36 (9th Cir. 1982), and United States v. VonWillie, 59 F.3d 922, 929 (9th Cir. 1995). The Government's reliance is misplaced.

In Fleishman, a DEA agent testified as a lay witness that the defendant was acting as a "lookout." Fleishman, 684 F.2d at 1335. A thorough foundation was laid that the agent had extensive training and experience in recognizing whether a person was performing countersurveillance. Id. On appeal, the Government argued that the agent's testimony was permissible lay witness testimony under Federal Rule of Evidence 701. The court never directly addressed this argument, stating rather that "whether lay or expert," the testimony was admissible. Id. at 1335.

In VonWillie, an agent testified "as a lay witness about the nexus between drug trafficking and the possession of weapons." VonWillie, 59 F.3d at 929. Specifically, he testified that in his experience with the Drug Enforcement Bureau, (1) it was common for drug traffickers to possess and use weapons in order to protect their drugs and to intimidate buyers; (2) the MK-11, one of the guns found in VonWillie's bedroom, was a particularly intimidating gun and he knew of drug dealers who used that specific weapon; and (3) drug traffickers commonly kept a weapon near their drugs. Id. The court concluded that "these observations are common enough and require such a limited amount of expertise, if any, that they can, indeed, be deemed lay witness opinion." Id.

Fleishman and VonWillie remain good law, but both are distinguishable from the instant case. First, Lopez's case involved several agents testifying that Lopez's actions "were consistent with those of an experienced narcotics trafficker." In fact, Agent Larsen alone testified more than seven times to this effect as to various aspects of Lopez's activity. In Fleishman and VonWillie, only one agent gave an opinion on very limited issues.

Second, the agents' observations in the instant case are not "common enough" to "require such a limited amount of expertise." VonWillie, 59 F.3d at 929. Here, the agents testified that the following behaviors were consistent with an experienced drug trafficker: 1) countersurveillance driving; 2) use of code words to refer to drug quantities and prices; 3) use of a third-person lookout when attending a narcotics meeting; 4) use of a rental car to make the drug delivery; 5) hiding the cocaine in the door panels of a car; and 6) dealing in large amounts of very pure cocaine. These "observations" require demonstrable expertise; in fact, several times, the Government instructed the witness to answer questions "based upon your training and experience." Additionally, one agent testified that his familiarity with the fact that narcotics traffickers sometimes speak in code is based upon the training that he had at the DEA Academy.

However, part of the testimony in this case does provide us with a clear example of when a witness may give his lay opinion as to the implications of his observations. INS Special Agent Rapp testified that the movements of the Monte Carlo were "suspicious." Under VonWillie and Fleishman, such testimony related to matters "common enough" to qualify as lay opinion testimony.

The Government's argument simply blurs the distinction between Federal Rules of Evidence 701 and 702. Lay witness testimony is governed by Rule 701, which limits opinions to those "rationally based on the perception of the witness." Rule 702, on the other hand, governs admission of expert opinion testimony concerning "specialized knowledge." The testimony in this case is precisely the type of "specialized knowledge" governed by Rule 702. A holding to the contrary would encourage the Government to offer all kinds of specialized opinions without pausing first properly to establish the required qualifications of their witnesses. The mere percipience of a witness to the facts on which he wishes to tender an opinion does not trump Rule 702. Otherwise, a layperson witnessing the removal of a bullet from a heart during an autopsy could opine as to the cause of the decedent's death. Surely a civilian bystander, or for that matter a raw DEA recruit would not be allowed to interpret for the jury Lopez's behavior in the parking lot on May 25, 1995 as that of an "experienced" trafficker merely because that person was an eyewitness to the same.

In addition, the Government's argument subverts the requirements of Federal Rule of Criminal Procedure 16(a)(1)(E). Rule 16 requires the Government to "disclose to the defendant a written summary of [expert] testimony the government intends to use . . . during its case in chief." The Rule "is intended to minimize surprise that often results from unexpected testimony, reduce the need for continuances, and to provide the opponent with a fair opportunity to test the merit of the expert's testimony through focused cross-examination." Fed. R. Evid. 16(a)(1)(E) (advisory committee's note).

In sum, rather than testimony "based on the perceptions of the witness" - as the district court described it when overruling Lopez's objections - the bulk of the above opinion testimony is properly characterized as testimony based on the perceptions, education, training, and experience of the witness. It requires precisely the type of "specialized knowledge" of law enforcement governed by Rule 702. Trial courts must ensure that experts are qualified to render their opinions and that the opinions will assist the trier of fact. This careful analysis was absent in this case. See also Webb, 115 F.3d at 714 (recognizing that "the expert was particularly qualified" to give his opinion). As judges who have heard such testimony many times, we must not forget that our familiarity with it does not bring it within Rule 701, especially given the purpose of Rule 16(a)(1)(E)


Rule 701 was amended effective December 1, 2000 to exclude limit admissibility under Rule 701 to opinions or inferences "not based o scientific, technical, or other specialized knowledge within the scope of Rule 702." How specialized is "specialized"? It may require a large number of decisions to give reasonable definition to the boundary between Rules 701 and 702.


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