UNITED STATES COURT OF APPEALS
Filed 8/26/96
TENTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
v. ) No. 95-2254
) (D.C. No. 95-086)
DULCES CARDENAS-TARANGO, ) (D. of New Mexico)
)
Defendant-Appellant. )
ORDER AND JUDGMENT *
Before TACHA, REAVLEY ** and LUCERO, Circuit Judges.
A jury found Cardenas guilty of possession with intent to
distribute not less than 50 kilograms of marijuana. 21 U.S.C. §§
2, 841(a)(1) and 841(b)(1)(D). He was sentenced to 27 months of
imprisonment and three years of supervised release. Cardenas
appeals two evidentiary issues from his trial. We will affirm.
Through a series of fortuitous events federal border patrol
officers discovered that Cardenas and an unidentified passenger
*
This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable Thomas M. Reavley, United States Court of
Appeals, Fifth Circuit, sitting by designation.
in Cardenas’s truck were in a “lead” vehicle attempting to thwart
border agents and transport 50 kilograms of marijuana west. The
marijuana was contained in a second vehicle, following Cardenas
at some distance. Apparently a common practice, the idea was for
the two automobiles to travel together with the drugs in the
second vehicle. If they approached an active border patrol
station, the first vehicle would warn the second vehicle either
by returning to a fixed point or by contacting the other vehicle
by radio or phone. Shortly after Cardenas and his passenger
successfully passed through the border checkpoint, a truck driver
notified border patrol agents at the checkpoint that a maroon
vehicle had turned around on the freeway. Believing that this
may be a vehicle attempting to avoid the checkpoint, several
agents went to investigate. After searching unsuccessfully for
the maroon car, the border agents discovered that Cardenas’s
vehicle had turned around on the freeway sometime after passing
through the checkpoint. Suspicious of Cardenas’s actions, an
agent in an unmarked car followed Cardenas. Cardenas briefly
pulled into a rest area, and when he exited, a Maroon car was
following him. By the time Cardenas and the maroon car were
stopped, Cardenas’s passenger was nowhere to be found.
At trial the driver of the maroon vehicle fingered Cardenas
and the unidentified passenger as the men who had promised to pay
him $1000 to drive the vehicle. Cardenas, however, contended
that his passenger had asked him for a ride, and that he had no
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knowledge of the existence of the maroon vehicle which had been
following him. Cardenas testified that the reason he had turned
around after passing through the border station was that the
passenger had been ill during the trip, and that after passing
through the border checkpoint the passenger had expressed a
desire to return to El Paso, Texas. The jury chose not to
believe Cardenas.
Cardenas appeals two evidentiary rulings. He asserts that
both were crucial to his defense, that is, that the passenger,
and not Cardenas was the mastermind behind the smuggling of the
marijuana. We review the trial court’s evidentiary rulings for
an abuse of discretion. United States v. Gonzales-Acosta , 989
F.2d 384, 388-89 (10th Cir.1993). We will address each
evidentiary ruling in turn.
Cardenas attempted to illustrate that he was poor and that
he did not have sufficient funds to be a drug “kingpin” involved
in the transportation of approximately $85,000 in marijuana. To
support this contention, Cardenas offered a photograph of the
exterior of his home, testimony from his landlord concerning the
amount of rent he paid, and his delay in making those rent
payments. However, when Cardenas attempted to introduce
photographs of the interior of his apartment, the court sustained
the government’s objection. The district court determined that
the photographs were more prejudicial than their limited
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probative value. Fed. R. Crim. Evid. 403. As the district court
pointed out, this may very well have been Cardenas’s first drug
transaction. Nevertheless, to the extent that it is relevant,
the district court did not abuse its discretion in refusing to
admit those photographs.
Next, Cardenas asserts that the trial court erred in not
permitting his “cultural expert” to testify. Cardenas called
Felipe Peralta to the stand to testify concerning the behavior of
“poor Mexicans” when confronted by police. The evidence appears
to have been offered to explain Cardenas’s exchange with officers
just before he was arrested. During that exchange, Cardenas
appeared “nervous” and he apparently changed his story several
times. The district court excluded the expert’s testimony under
Rule 403. We note that it does not take a cultural expert to
explain to a jury that an individual may act nervous when he
speaks with an officer, or that some individuals may attempt to
give an answer that they believe the officer desires to hear.
This is even more true when a defendant takes the stand and has
the ability to explain why he acted this way to the jury.
“[W]here as here expert testimony is offered on an issue that a
jury is capable of assessing for itself, it is plainly within the
trial court’s discretion to rule that testimony inadmissible
because it would not even marginally ‘assist the trier of fact’ .
. . .” Thompson v. State Farm Fire and Cas. Co. , 34 F.3d 932, 941
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(10th Cir. 1994). A “cultural expert” offers little aid to the
jury’s decision regarding Cardenas’s credibility in this case,
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therefore, the district court did not abuse its discretion in
excluding the evidence.
AFFIRMED.
Entered for the Court
Thomas M. Reavley
Circuit Judge
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