F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 8, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 05-4093
(D. Ct. No. 2:04-CR-410-02-DB)
MARCOS ANTONIO REYEZ, (D. Utah)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, BALDOCK, and KELLY, Circuit Judges.
Following a jury trial, Defendant-Appellant Marcos Antonio Reyez was convicted
of possession with intent to distribute methamphetamine in violation of 21 U.S.C.
§ 841(a)(1) and sentenced to 188 months’ imprisonment. Mr. Reyez challenges his
conviction on the ground that the District Court improperly admitted expert testimony
relating to his state of mind. We have jurisdiction under 28 U.S.C. § 1291 and we
AFFIRM.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
I. BACKGROUND
On May 31, 2004, Utah Highway Patrol Trooper Ryan Bauer observed a white
Jeep Cherokee traveling seventy-two miles per hour in a sixty-five mile per hour zone.
After Trooper Bauer pulled over the Jeep, he approached the passenger’s side of the
vehicle to avoid oncoming traffic near the driver. He explained to Mr. Reyez, the
passenger, and Jose Garcia, the driver, that he pulled them over for speeding. Mr. Garcia
handed over his driver’s license, which had been issued by the state of Nebraska. He
stated that the two men were traveling from California to Nebraska to visit relatives for a
couple of days.
During the traffic stop, Trooper Bauer smelled what he described as an
“overwhelming” odor of motor oil—a smell that, based on his experience, indicated
mechanical problems with the vehicle or that the oil was being used to mask the scent of
drugs. When he asked Mr. Garcia about the smell and whether he was having trouble
with the Jeep, Mr. Garcia indicated the vehicle was fine and that he did not notice the
smell. Trooper Bauer also noticed that both Mr. Garcia and Mr. Reyez were shaking
badly and that neither man would make eye contact with him.
Trooper Bauer verified the legitimacy of Mr. Garcia’s driver’s license and issued
him a warning ticket for speeding. The trooper then asked Mr. Garcia to step out of the
Jeep and walk toward the rear of the vehicle. After making additional inquiries about the
smell of oil, Trooper Bauer asked Mr. Garcia if he could look in the vehicle. Mr. Garcia
opened the hatchback and began showing Trooper Bauer some of the contents in the rear
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of the vehicle. Trooper Bauer noticed, however, that Mr. Garcia made a special effort to
avoid showing him one box by pushing it between a speaker and the backseat. Trooper
Bauer also noticed two opened containers of laundry detergent. He found the latter
suspicious since there were only two passengers and a few articles of clothing strewn
around the vehicle. He also knew, based on his experience, that laundry detergent was
sometimes used to mask the scent of drugs. Trooper Bauer then asked for permission to
search the Jeep, and Mr. Garcia consented.
Trooper Bauer ordered the men to stand near the front of the Jeep next to a large
construction barrel. The trooper then conducted a dog sniff of the vehicle while Mr.
Garcia and Mr. Reyez conversed and paced at the front of the vehicle. The dog alerted to
the box wedged between the speaker and the backseat. Trooper Bauer opened the box
and discovered two packages wrapped in black electrical tape. The trooper cut into one
of the packages and found that it contained layers of tape, oil, plastic wrap, and mustard.
The last layer was a vacuum-sealed package containing a substance he recognized as
methamphetamine.
The trooper called for backup and asked Mr. Garcia to come over to the rear of the
Jeep so he could be taken into custody. He then ordered Mr. Garcia to put his hands on
his head; after Trooper Bauer repeated his request several times, Mr. Garcia acquiesced.
As Mr. Garcia was being handcuffed, Mr. Reyez began to approach the trooper and Mr.
Garcia. Trooper Bauer ordered Mr. Reyez to return to the front of the vehicle, but he
continued on his path. Trooper Bauer repeated the order and pulled his pepper spray from
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his belt. Still not heeding the trooper’s warnings, Mr. Reyez walked to the rear of the
Jeep and peered into the open hatchback where the drugs were visible. After the trooper
threatened to deploy his dog, Mr. Reyez finally retreated to the front of the Jeep. Trooper
Bauer ordered Mr. Reyez to get to his knees.
Trooper Bauer returned his attention to Mr. Garcia, who had not yet been
handcuffed fully. But before the trooper could lock the handcuffs, Mr. Garcia threw his
hands in the air and ran toward the driver’s door of the Jeep. Mr. Reyez then rose from
his knees and ran to the passenger door. Both men got inside the vehicle with Trooper
Bauer chasing after Mr. Garcia. The trooper climbed onto the running board and reached
into the window to grab Mr. Garcia, who had already started the Jeep and began pulling
away. Trooper Bauer jumped off, and the two men drove away with the hatchback still
open. The drugs that had been sitting on the rear of the vehicle fell off onto the road.
Tests later determined that the Jeep contained 2.369 kilograms of methamphetamine.
A chase followed. After approximately twenty minutes and after reaching speeds
of ninety miles per hour, another officer was able to spike the Jeep’s tires. Undeterred,
Mr. Garcia continued driving until the rubber fell loose from the tires’ rims. Once the
damaged vehicle slowed to about twenty miles per hour, it veered across a median, went
down a dirt embankment, and crashed through a fence into a field. With the vehicle still
moving, both Mr. Garcia and Mr. Reyez jumped out and ran from the officers. Mr. Reyez
was caught and arrested; Mr. Garcia was never located.
During Mr. Reyez’s trial for possession with intent to distribute methamphetamine,
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the Government—over Mr. Reyez’s objection—elicited expert testimony from Trooper
Bauer and Agent Brent Dunlap, an investigator for the Utah Department of Public Safety
who had interviewed Mr. Reyez after his arrest, relating to whether Mr. Reyez knew that
the Jeep contained methamphetamine. Mr. Reyez was convicted, and he now appeals the
admission of that expert testimony.
II. DISCUSSION
A. Standard of Review
We review a district court’s decision to admit expert testimony for an abuse of
discretion. United States v. Dazey, 403 F.3d 1147, 1171 (10th Cir. 2005). Decisions that
are “arbitrary, capricious, whimsical, or manifestly unreasonable” constitute an abuse of
discretion. United States v. Hernandez-Herrera, 952 F.2d 342, 343 (10th Cir. 1991).
Even if we conclude that the court abused its discretion, however, reversal is not
warranted if the error is harmless—that is, if it did not have “a substantial influence on
the outcome or leaves one in grave doubt as to whether it had such effect.” United States
v. Turner, 285 F.3d 909, 914 (10th Cir. 2002) (alteration omitted).
B. Merits
To obtain a conviction for possession of methamphetamine with intent to distribute
under 21 U.S.C. § 841(a)(1), the Government must prove beyond a reasonable doubt that
Mr. Reyez (1) possessed methamphetamine; (2) knew he possessed methamphetamine;
and (3) intended to distribute methamphetamine. See United States v. Harris, 369 F.3d
1157, 1163 (10th Cir. 2004). In this case, the Government elicited expert testimony from
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Trooper Bauer and Agent Dunlap related to the second element—whether Mr. Reyez
knew the Jeep contained methamphetamine. The following colloquy took place between
the Government and Trooper Bauer:
Q: Now, based upon your training and experience, where people have not
had knowledge, have they tended to follow your commands or do they
disregard your commands?
A: Those who tend to show the innocent behavior when we are trying to
make a determination on charges and so forth, and in reviewing this case in
my mind over and over again, that is one of the things I keep coming back
to, is the fact that at the moment that I tried to take the driver into custody,
Mr. Reyez made a concerted effort to come back and disobey my
commands, and then following that, the fact that he disobeyed my
commands later and also continued to run.
Later, the Government asked Agent Dunlap:
Q: Based upon the questions that you posed to the defendant, did you
develop some factors that would cause you to believe that the defendant
knew the methamphetamine was located in the vehicle prior to the stop?
After an objection was overruled, the question was repeated and answered:
Q: What overt acts did you observe from the defendant that would cause
you to believe that he had knowledge that the drugs were in the car?
A: Prior to his interview I did watch the videotape that Trooper Bauer had
taken of the traffic stop. In just watching him interfere with Trooper Bauer
during the arrest and trying to distract Trooper Bauer, and just his reaction
when he was told that there were drugs in the vehicle and how he was
curious and just not very excited about it and defensive about it. The fact
that he was also fleeing kind of led me to believe that he had knowledge of
it.
Mr. Reyez argues that Trooper Bauer’s and Agent Dunlap’s expert testimony
violated Fed. R. Evid. 704(b), which states:
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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.
The Rule does not preclude expert testimony on “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, 855 (10th Cir. 1992). Rather, the Rule only prohibits an “expert[]
from expressly stating the final conclusion or inference as to a defendant’s actual mental
state.” Id. at 854; see also United States v. Dunn, 846 F.2d 761, 762 (D.C. Cir. 1988) (“It
is only as to the last step in the inferential process—a conclusion as to the defendant’s
actual mental state—that Rule 704(b) commands the expert to be silent.”); United States
v. Foster, 939 F.2d 445, 454 (7th Cir. 1991) (testimony that “merely assist[s] the jury in
coming to a conclusion as to [the defendant’s] mental state [and does] not make that
conclusion for [the jury]” is permissible under Rule 704(b)).
Put another way, “[a] prohibited ‘opinion or inference’ under Rule 704(b) is testimony
from which it necessarily follows, if the testimony is credited, that the defendant did or
did not possess the requisite mens rea.” United States v. Morales, 108 F.3d 1031, 1037
(9th Cir. 1997).
Given this standard, Agent Dunlap’s statement that Mr. Reyez’s behavior “led me
to believe that [Mr. Reyez] had knowledge” of the presence of methamphetamine in the
Jeep clearly runs afoul of Rule 704(b). Such testimony “expressly stat[es] the final
conclusion or inference as to a defendant’s actual mental state,” see Richard, 969 F.2d at
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854. The District Court therefore abused its discretion in admitting the opinion.
In contrast to Agent Dunlap’s statement, Trooper Bauer’s testimony does not so
clearly implicate Rule 704(b). Nevertheless, that the trooper’s answer is not a model of
clarity does not shield it from the constraints of the Rule. Because Trooper Bauer
prefaced his comments about Mr. Reyez’s non-cooperation with the statement that
“[t]hose who tend to show innocent behavior when we are trying to make a determination
on charges and so forth . . .”, we cannot say that the statement is a simple recitation that
Mr. Reyez actively disobeyed his commands during the traffic stop and ensuing chase
rather than an improper opinion as to Mr. Reyez’s mens rea.
We need not, however, decide this precise issue because even assuming the
District Court abused its discretion in permitting Trooper Bauer’s testimony as well as
Agent Dunlap’s testimony, we find such error to be harmless. Indeed, a review of the
entire record shows that the Government presented a compelling case against Mr. Reyez,
even in the absence of the testimony. Trooper Bauer testified about the overwhelming
odor of oil in the Jeep, which to him possibly indicated the presence of drugs. The jury
was permitted to smell the opened package of methamphetamine to determine for
themselves the strength of the scent. The import of such evidence is that the jury could
infer that Mr. Reyez actually could detect the odor—although he denied he could smell it
during his post-arrest interview—and also knew it was being used to mask the scent of
the methamphetamine. In addition, testimony at trial showed that Mr. Reyez was shaking
and refused to make eye contact with Trooper Bauer, that Mr. Reyez and Mr. Garcia were
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taking a four-day drive from California to Nebraska to visit relatives for only a couple of
days, that despite such a long journey the men had no luggage, and that despite the
absence of luggage or many clothes the men were carrying two open containers of
detergent—another agent used to mask the smell of drugs. Moreover, the jury was shown
the video recording of the stop, in which Mr. Garcia and Mr. Reyez are shown to be
engaging in a conversation just minutes before they ran back into the vehicle and sped
away. The video also details Mr. Reyez’s repeated noncompliance with Trooper Bauer’s
orders, interference with Mr. Garcia’s arrest, and flight from pursuing officers—all
conduct that indicates Mr. Reyez was fully aware of the packages of methamphetamine in
the rear of the Jeep. We therefore affirm the conviction despite the District Court’s error
because the error did not substantially influence the jury’s verdict. See Turner, 285 F.3d
at 914.
III. CONCLUSION
For the foregoing reasons, we AFFIRM.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Chief Circuit Judge
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