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-TUC-
ALEJANDRO SEPULVEDA-BARRAZA, CKJ
Defendant-Appellant. ORDER AND
AMENDED
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
Amended July 15, 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.
9659
9662 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.
ORDER
The opinion filed March 3, 2011, and published at 634 F.3d
1075 (9th Cir. 2011) is superseded by the amended opinion
below.
With these amendments, the panel has voted to deny
Appellant’s Petition for Panel Rehearing filed on May 18,
2011. Judges Gould and Ikuta have voted to deny the en banc
petition, and Judge Mahan so recommends.
The full court has been advised of the Petition for Rehear-
ing En Banc and no Judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.
The Petition for Rehearing and the Petition for Rehearing
En Banc are DENIED. No further petitions for rehearing shall
be entertained.
UNITED STATES v. SEPULVEDA-BARRAZA 9663
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 unknowing drug courier
modus operandi, including testimony that drugs are rarely
smuggled by unknowing couriers. We hold that the district
court did not abuse its discretion in admitting this testimony,
because it was relevant, probative, and not unduly prejudicial
in light of Sepulveda-Barraza’s defense theory that he did not
know that he was transporting drugs, and because he opened
the door to the testimony by providing notice that he intended
to call an expert witness to testify that drug trafficking organi-
zations sometimes utilize unknowing couriers to smuggle
drugs across the border.
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
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-
9664 UNITED STATES v. SEPULVEDA-BARRAZA
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
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
UNITED STATES v. SEPULVEDA-BARRAZA 9665
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 relation-
ship between drug traffickers and drug couriers, different
methods of transporting drugs, and fees paid for transporting
drugs. Bortfeld then testified regarding the implausibility of
Sepulveda-Barraza’s alleged lack of knowledge that the drugs
were in his car. Bortfeld explained that drug traffickers want
to maintain control of the drugs they are transporting, and that
they would need to know who was transporting the drugs and
when they could be retrieved. Further, 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 Bortfeld’s testimony during direct examina-
tion.
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 understood 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 hav-
ing a reliable means of smuggling 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-
9666 UNITED STATES v. SEPULVEDA-BARRAZA
tenced him to 120 months of incarceration and 60 months of
supervised release.
II
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 admit-
ting 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. Evid. 103(a). A district
court’s decision that the probative value of evidence exceeds
its potential for unfair prejudice, and the court’s decision to
admit that evidence, are reviewed for abuse of discretion.
United States v. Curtin, 489 F.3d 935, 943 (9th Cir. 2007) (en
banc).
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
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
UNITED STATES v. SEPULVEDA-BARRAZA 9667
issues, Sepulveda-Barraza argues, the district court abused its
discretion in admitting it.
We disagree. First, Agent Bortfeld’s testimony pertained
primarily to the modus operandi of drug couriers, which falls
outside the scope of Vallejo. See 246 F.3d at 1150 n.3
(expressly stating that the court was “not address[ing] the
admissibility of [unknowing courier] testimony” because Val-
lejo “does not involve the Government’s use of ‘unknowing
courier’ testimony, in which a law enforcement official testi-
fies that certain drug traffickers do not entrust large quantities
of drugs to unknowing transporters”).
[1] Second, testimony on the structure and operations of
drug trafficking organizations is admissible under certain cir-
cumstances, such as when a defendant opens the door to such
evidence. See, e.g., United States v. Pineda-Torres, 287 F.3d
860, 865 (9th Cir. 2002) (“We have held that limited drug
structure testimony is admissible in drug importation cases
when the defense opens the door by introducing evidence that
the government did not attempt to lift fingerprints.”). Neither
Vallejo nor its progeny supports the establishment of a per se
rule that expert testimony regarding the operation and struc-
ture of drug trafficking organizations or the modus operandi
of couriers involved in drug trafficking organizations is inad-
missible. Indeed, such a rule would be inconsistent with the
case-by-case approach mandated 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 aris-
ing under Rule 403 are susceptible only to case-by-case deter-
minations” (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 argu-
ment, we noted that Vallejo cannot “reasonably be read so
9668 UNITED STATES v. SEPULVEDA-BARRAZA
broadly,” because we must independently determine whether
the expert testimony is relevant and probative on a case-by-
case basis. Id. at 909 n.5.
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 of
marijuana were found hidden in his car and was charged with
importing and possession with intent to distribute marijuana.
237 F.3d at 1012-13. At trial, the government introduced
“[e]xpert testimony regarding the structure of drug trafficking
organizations and the wages earned by drug couriers.” Id. at
1013. However, “the Government never articulated—either in
its briefs or at oral argument—how the testimony was rele-
vant to Vallejo’s particular case.” Id. at 1015-16. Instead, the
government explained that it routinely introduced this infor-
mation 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. Val-
lejo, however, had not made this fingerprint argument. Id.
Moreover, while the expert’s testimony was not relevant 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 operated.” Id. at
1017. Given that the expert testimony lacked any probative
value, we held that the district court abused its discretion in
admitting that testimony. Id. Although the government did not
argue that the expert testimony was relevant to show Vallejo’s
knowledge, we observed that even if the government had
made such an argument, “the district court should properly
have excluded [the testimony] under Rule 403 of the Federal
Rules of Evidence,” id. at 1016, because the implication of
that testimony “was that Vallejo had knowledge of how the
entire organization operated, and thus knew he was carrying
the drugs.” Id. at 1017. We reasoned that this prejudicial
effect would have outweighed any probative value because
UNITED STATES v. SEPULVEDA-BARRAZA 9669
the government’s expert testimony “was not relevant to the
Government’s case against Vallejo,” and was not “needed to
assist the jury’s understanding.” Id.
[2] In subsequent cases we have noted the admissibility of
unknowing drug courier modus operandi testimony, see
Murillo, 255 F.3d at 1177-78; see also Pineda-Torres, 287
F.3d at 864-65. We have also held inadmissible under Rule
403 expert testimony on the structure and operations of drug
trafficking organizations, but we have done so by engaging in
fact-specific inquiries into the circumstances of each case. See
Pineda-Torres, 287 F.3d at 864-65; see also United States v.
Varela-Rivera, 279 F.3d 1174, 1179 (9th Cir. 2002); United
States v. McGowan, 274 F.3d 1251, 1254-55 (9th Cir. 2001).
In other words, neither Vallejo nor its progeny created a per
se rule of inadmissibility.
[3] 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 a
subset of testimony about drug trafficking operations gener-
ally. Accordingly, for the reasons explained above, such evi-
dence is admissible under the broad, case-by-case standard of
Rule 403. See, e.g., United States v. Campos, 217 F.3d 707,
712-13 (9th Cir. 2000); United States v. Cordoba, 104 F.3d
225, 229-30 (9th Cir. 1997). In fact, we upheld the admission
of testimony regarding the modus operandi of drug couriers
in Murillo, a non-complex case. See McGowan, 274 F.3d at
1254-55 (characterizing Murillo as “a non-complex, non-
conspiracy case”). While Sepulveda-Barraza argues that
Murillo upheld the admissibility of drug courier modus ope-
randi only because the defendant had argued in his defense at
trial that no fingerprints were found on the drug packages,
Murillo imposed no such limitation on the scope of its hold-
ing. 255 F.3d at 1176-77.
9670 UNITED STATES v. SEPULVEDA-BARRAZA
[4] 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 id.; Cordoba, 104 F.3d at 229-30 (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.
[5] 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
Sepulveda-Barraza provided notice that he would call an
expert to testify regarding drug trafficking organizations’ use
of unknowing couriers, Bortfeld’s testimony made it less
probable that Sepulveda-Barraza was acting as an unknowing
courier, and therefore the evidence was relevant. See id. at
1177-78. To the extent Bortfeld’s testimony regarding his
background and experience investigating drug trafficking
organizations touched on the structure and operations of drug
trafficking organizations, it was also relevant to establish that
his expert opinion “rests on a reliable foundation and is rele-
vant 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.
UNITED STATES v. SEPULVEDA-BARRAZA 9671
[6] 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. 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 organization; Bortfeld
“did not extrapolate the various roles individuals might play
in hypothetical drug trafficking organizations, nor did he
imply that [the defendant] participated in a large-scale opera-
tion.” 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 smuggle drugs across
the border and then eliciting such testimony at trial. Indeed,
the close similarity between Agent Godtlibsen’s testimony
and Agent Bortfeld’s testimony further undercuts Sepulveda-
Barraza’s claim of unfair prejudice.
[7] 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
(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.