FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10362
Plaintiff-Appellee, D.C. No.
v. CR 07-01773-CKJ-
ALEJANDRO SEPULVEDA-BARRAZA, JJM
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted
November 1, 2010—San Francisco, California
Filed March 3, 2011
Before: Ronald M. Gould and Sandra S. Ikuta,
Circuit Judges, and James C. Mahan, District Judge.*
Opinion by Judge Ikuta
*The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
3043
3046 UNITED STATES v. SEPULVEDA-BARRAZA
COUNSEL
Robert L. Miskell (argued) and Joshua C. Mellor, United
States Department of Justice, Tucson, Arizona, for plaintiff-
appellee United States of America.
Daniel L. Kaplan, Federal Public Defender’s Office, Phoenix,
Arizona, for defendant-appellant Alejandro Sepulveda-
Barraza.
OPINION
IKUTA, Circuit Judge:
Alejandro Sepulveda-Barraza appeals his conviction for
importation of cocaine and possession with the intent to dis-
tribute, claiming that the district court erred in admitting
expert testimony regarding the structure and operations of
drug-trafficking organizations and drug couriers, including
testimony that drugs are rarely smuggled by unknowing couri-
ers. We hold that the district court did not abuse its discretion
in admitting this testimony, because it was relevant, proba-
tive, and not unduly prejudicial in light of Sepulveda-
Barraza’s defense theory that he did not know that he was
transporting drugs.
I
On September 11, 2007, Sepulveda-Barraza was stopped
by government inspectors at a port of entry in Nogales, Ari-
zona. He claimed that he was driving across the border to run
errands at Wal-Mart, but was only carrying $21 in United
UNITED STATES v. SEPULVEDA-BARRAZA 3047
States currency. Because he seemed a “little nervous” and a
“little too friendly,” an inspector referred him for secondary
inspection. At secondary inspection, officers discovered
eleven packages of cocaine hidden in the seats of his vehicle.
A grand jury indicted Sepulveda-Barraza on one count of
importation of cocaine in violation of 21 U.S.C. §§ 952(a) and
960(a)(1), (b)(1)(B)(ii) and one count of possession with
intent to distribute cocaine in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A)(ii)(II). The first trial ended in a dead-
locked jury and mistrial. Before the second trial, defense
counsel filed a notice that he intended to call an expert wit-
ness, retired FBI Special Agent Erik Godtlibsen, to testify that
drug trafficking organizations sometimes use unknowing cou-
riers (known as “blind mules”) to smuggle drugs across the
border. The government then filed a notice of its intent to call
Immigration and Customs Enforcement (“ICE”) Supervisory
Special Agent Juan Bortfeld to provide expert testimony
regarding the control of drug couriers by drug trafficking
organizations, the street value of the cocaine found in
Sepulveda-Barraza’s vehicle, and the implausibility that drug
traffickers would entrust valuable drug loads to an unknowing
individual.
Defense counsel filed a motion in limine to exclude Bort-
feld’s testimony regarding these issues, but the district court
denied the motion in reliance on our decision in United States
v. Murillo, 255 F.3d 1169, 1176-78 (9th Cir. 2001), overruled
on other grounds by Muehler v. Mena, 544 U.S. 93 (2005). In
Murillo, we held that expert testimony on the operation and
structure of drug trafficking organizations, including testi-
mony about “typical travel itineraries of drug couriers,” how
“drug traffickers do not entrust large quantities of drugs to
people who are unaware that they are transporting them,” and
“the value of the drugs” found in a courier’s car, Murillo, 255
F.3d at 1176, is admissible when relevant, probative, and not
unfairly prejudicial, id. at 1177-78. Accordingly, the district
3048 UNITED STATES v. SEPULVEDA-BARRAZA
court ruled that the government could testify regarding the
matters allowed by Murillo.
At trial, retired Special Agent Godtlibsen (the defense
expert) testified that he recalled two instances in which
unknowing drivers had been used by drug traffickers. In both
instances, the drivers crossed the border each day to go to
work, and parked their vehicles in the same location each
time. Godtlibsen testified that traffickers would have to spend
a substantial amount of time profiling an unknowing driver to
ensure that the driver would travel to a known location where
the traffickers could retrieve their drugs. He also stated that
the traffickers would not put drugs in a car unless they knew
where they could retrieve the drugs, and concluded that the
use of unknowing couriers was “rare.”
Bortfeld (the government’s expert) first testified regarding
the basis of his knowledge, experience, and background,
including his experience as an undercover drug courier trans-
porting and delivering drugs to various locations, the roles
within a drug trafficking organization, and fees paid for trans-
porting drugs. Bortfeld then testified regarding the implausi-
bility of Sepulveda-Barraza’s alleged lack of knowledge that
the drugs were in his car. Bortfeld explained that drug traf-
fickers want to maintain control of the drugs they are trans-
porting, and that they would need to know who was
transporting the drugs and when they could be retrieved. Fur-
ther, he testified that drug traffickers do not typically use
unknowing drivers to transport drugs, and that he knew of
only one occasion in which an unwitting courier was used.
Finally, Bortfeld testified that the cocaine in Sepulveda-
Barraza’s car had a value of between $154,000 and $183,000
in the Tucson area. Defense counsel did not object to Bort-
feld’s testimony during direct examination. During redirect,
the prosecutor asked Agent Bortfeld whether, given that the
drugs being smuggled were worth hundreds of thousands of
dollars, a drug trafficker was likely to use an unknowing drug
courier in order to avoid paying a fee to a courier who under-
UNITED STATES v. SEPULVEDA-BARRAZA 3049
stood the risks. Defense counsel objected to the question as
“beyond the scope,” but the court overruled the objection.
Bortfeld testified that “when the value of the narcotics or the
drugs are in the hundred thousand dollar range or above, the
cost of a driver is minimal” and so “there’s an inherent benefit
to making the payment” and having a reliable means of smug-
gling the load to the intended destination.
At the end of the second trial, the jury convicted
Sepulveda-Barraza on both counts, and the district court sen-
tenced him to 120 months of incarceration and 60 months of
supervised release.
II
[1] On appeal, Sepulveda-Barraza argues that the district
court abused its discretion in admitting Bortfeld’s testimony.
Before reaching this issue, we must determine whether to
review the district court’s admission of Bortfeld’s testimony
for abuse of discretion or plain error. Sepulveda-Barraza
argues that he objected to Bortfeld’s testimony in his motion
in limine, and had no obligation to renew his objection at trial.
We agree. “Once the court makes a definitive ruling on the
record admitting or excluding evidence, either at or before
trial, a party need not renew an objection or offer of proof to
preserve a claim of error for appeal.” Fed. R. of Evid. 103(a).
A district court’s decision that the probative value of evidence
exceeds its potential for unfair prejudice, and the court’s deci-
sion to admit that evidence, are reviewed for abuse of discre-
tion. United States v. Curtin, 489 F.3d 935, 943 (9th Cir.
2007) (en banc).
[2] We next turn to the question of whether the district
court erred in allowing Bortfeld’s testimony. According to
Sepulveda-Barraza, United States v. Vallejo established the
per se rule that the government may not introduce expert testi-
mony describing the “general structure and operations of drug
trafficking organizations” because the introduction of such
3050 UNITED STATES v. SEPULVEDA-BARRAZA
testimony inevitably creates the implication that the defendant
“had knowledge of how the entire organization operated, and
thus knew he was carrying the drugs.” 237 F.3d 1008, 1012,
1017 (9th Cir. 2001), amended by 246 F.3d 1150 (9th Cir.
2001). Moreover, Sepulveda-Barraza urges us to extend the
rationale of Vallejo, and hold that an expert’s testimony that
a drug trafficking operation is unlikely to use an unknowing
drug courier is always inadmissible in a non-complex case
such as this one. Because Bortfeld’s testimony addressed both
issues, Sepulveda-Barraza argues, the district court abused its
discretion in admitting it.
[3] We disagree. First, neither Vallejo nor its progeny sup-
ports the establishment of a per se rule that expert testimony
regarding the operation and structure of drug trafficking orga-
nizations or the modus operandi of couriers involved in drug
trafficking organizations is inadmissible. Indeed, such a rule
would be inconsistent with the case-by-case approach man-
dated by Federal Rule of Evidence 403. See United States v.
Hinkson, 585 F.3d 1247, 1267 (9th Cir. 2009) (en banc)
(observing that “the considerations arising under Rule 403 are
susceptible only to case-by-case determinations” (internal
quotation marks omitted)). We rejected a similar argument in
United States v. Valencia-Amezcua, 278 F.3d 901 (9th Cir.
2002). In that case, the defendant (like Sepulveda-Barraza)
argued that Vallejo “requires in every case the exclusion of
expert testimony on the structure of drug organizations where,
as here, the defendant is not charged with conspiracy.” Id. at
909. In declining to accept this argument, we noted that Val-
lejo cannot “reasonably be read so broadly,” because we must
independently determine whether the expert testimony is rele-
vant and probative on a case-by-case basis. Id. at 909 n.5.
[4] Contrary to Sepulveda-Barraza’s argument, Vallejo
merely held, consistent with long-established precedent, that
a district court abuses its discretion by admitting evidence that
has no relevance to any matter to be proved at trial. In Vallejo,
the defendant was arrested at the border when forty kilograms
UNITED STATES v. SEPULVEDA-BARRAZA 3051
of marijuana were found hidden in his car and was charged
with importing and possession with intent to distribute mari-
juana. 237 F.3d at 1012-13. At trial, the government intro-
duced “[e]xpert testimony regarding the structure of drug
trafficking organizations and the wages earned by drug couri-
ers.” Id. at 1013. However, “the Government never articulated
—either in its briefs or at oral argument—how the testimony
was relevant to Vallejo’s particular case.” Id. at 1015-16.
Instead, the government explained that it routinely introduced
this information in order to rebut a defendant’s claim that the
lack of fingerprints on the drug packages showed that the
defendant was unaware of the presence of the drugs. Id. at
1016. Vallejo, however, had not made this fingerprint argu-
ment. Id. Moreover, while the expert’s testimony was not rel-
evant to Vallejo’s case, it was prejudicial because “the
implication of [the government expert’s] testimony was that
Vallejo had knowledge of how the entire organization operat-
ed.” Id. at 1017. Given that the expert testimony lacked any
probative value, we held that the district court abused its dis-
cretion in admitting that testimony. Id. We reached a similar
conclusion in subsequent cases considering expert testimony
on drug trafficking operations. See United States v. Pineda-
Torres, 287 F.3d 860, 864 (9th Cir. 2002) (where government
did not articulate a theory of relevance for the testimony about
the structure and operations of drug organizations, the district
court abused its discretion in admitting that testimony);
United States v. Varela-Rivera, 279 F.3d 1174, 1179 (9th Cir.
2002) (same). In other words, neither Vallejo nor its progeny
creates a per se rule of inadmissibility.
[5] As noted above, Sepulveda-Barraza makes the further
argument that we should extend our existing case law to
create a rule that testimony about the use of unknowing couri-
ers is per se inadmissible in a non-complex drug trafficking
case. We decline this invitation. Testimony regarding the use
of unknowing couriers by drug trafficking organizations is not
different in kind than testimony about drug trafficking opera-
tions generally. Accordingly, for the reasons explained above,
3052 UNITED STATES v. SEPULVEDA-BARRAZA
such evidence is likewise admissible under the broad, case-
by-case standard of Rule 403. In fact, we upheld the admis-
sion of testimony regarding the modus operandi of drug couri-
ers in Murillo, a non-complex case. See United States v.
McGowan, 274 F.3d 1251, 1254-55 (9th Cir. 2001) (charac-
terizing Murillo as “a non-complex, non-conspiracy case”).
While Sepulveda-Barraza argues that Murillo upheld the
admissibility of drug courier modus operandi only because the
defendant had argued in his defense at trial that no finger-
prints were found on the drug packages, Murillo imposed no
such limitation on the scope of its holding. 255 F.3d at
1176-77.
[6] In sum, expert testimony on drug trafficking organiza-
tions and the behavior of unknowing couriers is admissible
when relevant, probative of a defendant’s knowledge, and not
unfairly prejudicial under the standard set forth in the Federal
Rules of Evidence. See Murillo, 225 F.3d at 1176-77; United
States v. Cordoba, 104 F.3d 225, 229-30 (9th Cir. 1997) (cit-
ing United States v. Lim, 984 F.2d 331, 334-35 (9th Cir.
1993)). Although our deference to the district court’s broad
discretion has limits, see Vallejo, 237 F.3d at 1017, we con-
sider a district court’s rulings on a case-by-case basis, not pur-
suant to per se rules, Hinkson, 585 F.3d at 1267.
III
We now turn to the question of whether the district court
abused its discretion in determining that Agent Bortfeld’s
expert testimony was relevant, probative, and not unduly prej-
udicial.
[7] Here Agent Bortfeld’s expert opinion that the drugs in
Sepulveda-Barraza’s car were worth over $150,000, and that
drug trafficking organizations do not normally use unwitting
couriers due to the value of the drugs involved, “went right to
the heart of [Sepulveda-Barraza’s] defense that he was simply
an unknowing courier.” Murillo, 255 F.3d. at 1177. Because
UNITED STATES v. SEPULVEDA-BARRAZA 3053
the government had to prove that Sepulveda-Barraza knew
that the car he was driving contained drugs, Bortfeld’s testi-
mony made Sepulveda-Barraza’s knowledge more probable
than it would be without the evidence, and therefore the evi-
dence was relevant. See id. at 1177-78. Bortfeld’s testimony
regarding his background and experience investigating drug
trafficking organizations was also relevant to establish that his
expert opinion “rests on a reliable foundation and is relevant
to the task at hand.” Daubert v. Merrell Dow Pharms., 509
U.S. 579, 597 (1993). Therefore, the district court did not
abuse its discretion in concluding that Bortfeld’s expert testi-
mony was relevant and probative.
[8] Nor did the district court abuse its discretion in ruling
that the probative value of the evidence was not “substantially
outweighed by the danger of unfair prejudice.” Fed. R. of
Evid. 403; see United States v. Ramirez-Robles, 386 F.3d
1234, 1246 (9th Cir. 2004). Unlike the expert testimony at
issue in Vallejo, 237 F.3d at 1017, the government did not
introduce Bortfeld’s testimony to insinuate that Sepulveda-
Barraza was connected to a large drug trafficking organiza-
tion; Bortfeld “did not extrapolate the various roles individu-
als might play in hypothetical drug trafficking organizations,
nor did he imply that [the defendant] participated in a large-
scale operation.” Murillo, 255 F.3d at 1177. Moreover,
Sepulveda-Barraza opened the door to such testimony by
noticing his intent to call Agent Godtlibsen to testify that
“drug cartels” sometimes use “blind mule” couriers to smug-
gle drugs across the border and then eliciting such testimony
at trial. Indeed, the close similarity between Agent Godtlib-
sen’s testimony and Agent Bortfeld’s testimony further under-
cuts Sepulveda-Barraza’s claim of unfair prejudice.
[9] Accordingly, we conclude that Bortfeld’s testimony
was properly admitted because it was relevant, probative, and
not unduly prejudicial. See Fed. R. Evid. 402, 403. Indeed,
based on our examination of the totality of the “surrounding
facts, circumstances, and issues,” Hinkson, 585 F.3d at 1267
3054 UNITED STATES v. SEPULVEDA-BARRAZA
(quoting R.B. Matthews, Inc. v. Transamerica Transp. Serv.,
Inc., 945 F.2d 269, 272 (9th Cir. 1991)), the district court’s
decision to admit Bortfeld’s testimony was not “illogical,
implausible, or without support in inferences that may be
drawn from facts in the record.” Id. at 1251. Therefore, the
district court did not abuse its discretion in ruling that the tes-
timony was admissible.
AFFIRMED.