In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3815
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
B ENJAMIN O CHOA-Z ARATE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04 CR 40093—Joe Billy McDade, Judge.
____________
A RGUED O CTOBER 31, 2007—D ECIDED S EPTEMBER 2, 2008
____________
Before EASTERBROOK, Chief Judge, and BAUER and
WILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. In the fall of 2004, Benjamin
Ochoa-Zarate left California on an ill-fated cross-country
drive with $1 million worth of methamphetamine con-
cealed in a spare tire. A jury believed he knew the drugs
were there and convicted him of conspiring to distribute
the drugs. Ochoa-Zarate maintains that two events
during his trial warrant a new trial. First, during his
2 No. 06-3815
rebuttal closing argument, the prosecutor argued that as
of the last day of trial, unlike his co-defendant who had
pled guilty, Ochoa-Zarate had failed to take responsibility
for his actions. We agree that a jury may have taken this
comparison as a comment on Ochoa-Zarate’s decision to
exercise his right to go to trial. Next, Ochoa-Zarate takes
issue with the prosecutor’s question to the trooper who
arrested Ochoa-Zarate that asked whether, based on his
training and experience, it was uncommon to find drugs
after persons had consented to search. This testimony is
of questionable relevance and probably not the subject
of lay testimony. Nonetheless, in light of the weight of the
evidence of Ochoa-Zarate’s guilt, we affirm his convictions.
I. BACKGROUND
Benjamin Ochoa-Zarate worked for a small bakery in
Stockton, California. His cousin, Bryan Castaneda, owned
the bakery with Roger Bailey. With the bakery not return-
ing the profits he had hoped, Bailey decided to supple-
ment his income by entering the illegal drug business. He
contacted Jose Castaneda, his partner’s brother, as Jose
had served time in prison on drug charges. Sometime in
the fall of 2004, Jose told Bailey he had a deal in the works
and asked Bailey if he was interested in driving to New
York. Bailey told him that he was.
Around that same time, Ochoa-Zarate drove to Mexico
in a car he borrowed from Bryan Castaneda. Ochoa-Zarate
returned on October 4, 2004. The next day, he, Jose, and
Bailey left the bakery together and made several stops.
First, Jose and Ochoa-Zarate deposited $600 into Ochoa-
No. 06-3815 3
Zarate’s bank account to pay for a rental vehicle. Next,
Bailey drove the men to Hertz, and Ochoa-Zarate rented
a minivan, listing himself and Bailey as drivers. Bailey
had second thoughts later in the day, though, and told
Jose he could not go through with the plan.
After obtaining a new cell phone and stopping by the
bakery to tell Bryan Castaneda he was going on vacation,
Ochoa-Zarate proceeded to drive east alone. By October 7,
Ochoa-Zarate had made it to western Illinois, and it
was there that Illinois State Trooper Clint Thulen pulled
Ochoa-Zarate over for a traffic infraction. Ochoa-Zarate
gave the trooper his California driver’s license, an I-94
form indicating he had entered the United States from
Mexico on October 4, and the rental agreement. The
agreement stated that the minivan had been rented on
October 5 and was due back in Stockton, California on
October 12, 2004.
Ochoa-Zarate’s conduct after the stop made Trooper
Thulen suspicious. When asked where he was going,
Ochoa-Zarate said he was heading to visit his sister in
Chicago for about ten days. He was unable, however, to
answer where in Chicago she lived. He also did not
know his sister’s telephone number and claimed that
when he arrived in Chicago, he would call his brother in
California to get the information. The trooper noticed that
a ten-day stay in Chicago would make the rental overdue
and that the small duffel bag of clothing in the minivan
did not seem adequate for a ten-day stay. He also
observed Ochoa-Zarate’s hands and body shaking, even
though he smiled broadly and acted jovial. Trooper Thulen
4 No. 06-3815
returned Ochoa-Zarate’s documents and said he was free
to leave, and he then asked Ochoa-Zarate whether he was
willing to answer more questions. Ochoa-Zarate agreed
and signed a written consent authorizing search of the
minivan.
With the help of a canine and a density meter, Trooper
Thulen found six bags of methamphetamine and coffee
grounds hidden inside the minivan’s spare tire. The drugs
had a street value of about $1 million. After being placed
under arrest, Ochoa-Zarate complained of chest pains, and
an ambulance took him to the hospital. Doctors deter-
mined he was not having a heart attack and discharged
him to law enforcement agents. He then waived his
Miranda rights.
In the later interview, Ochoa-Zarate asked the agents
how much prison time he would receive, and he also said
he did not know the drugs were in the minivan. He told
the agents that when Bailey heard Ochoa-Zarate planned
to visit friends in New York, Bailey suggested he save
money by renting a vehicle for Bailey, dropping it off in
Chicago, and then flying to New York from there. Ochoa-
Zarate said he was to call Bailey when he arrived in
Chicago and that Bailey or one of Bailey’s friends would
pick him up and take him to the airport before driving
the vehicle back to California.
The agents asked Ochoa-Zarate whom he planned to
visit in New York, and Ochoa-Zarate responded that it
was someone with the last name of “Barragan” but that he
could not recall the person’s first name. Later, toward the
end of the interview, Ochoa-Zarate told the agents that
No. 06-3815 5
he would be meeting “Javier Barragan,” describing him
as a pastor in New York whom he had met during a re-
treat in California. When asked for his address, Ochoa-
Zarate said he did not know the address but that he had
the telephone number somewhere. He further explained
that his plan was to fly to New York to surprise Barragan
and then to stay there for two weeks to look for a job. He
also said that his fingerprints might be on the minivan’s
spare tire because he had asked Bailey how to change
the spare before leaving.
Ochoa-Zarate then told the agents that he wanted to
cooperate. He gave them a telephone number that he
said belonged to Bailey. When Ochoa-Zarate called the
number, however, Jose Castenada—not Bailey—answered.
Agents believed that Ochoa-Zarate was alerting Jose
Castenada that he had been arrested, as he said that he
had been stopped, he asked about Jose’s mother’s health
out of context, and he responded to a question about
his well-being by saying “until I can walk tall.”
At trial, Bryan Castaneda testified that Ochoa-Zarate did
not have a sister that lived in Chicago. Bailey testified
that he had never discussed the spare tire with Ochoa-
Zarate and that he did not even know where it was located
in the minivan. He also said that the two had never
discussed the possibility that Ochoa-Zarate would drop
off the vehicle in Chicago before flying to New York.
A jury found Ochoa-Zarate guilty of conspiring to
distribute methamphetamine in violation of 21 U.S.C. § 846
and possessing methamphetamine with the intent to
distribute it in violation of 18 U.S.C. § 841(a)(1). The dis-
6 No. 06-3815
trict court sentenced him to 144 months’ imprisonment
on each count, to run concurrently, and five years of
supervised release. He now appeals.
II. ANALYSIS
A. Prosecution Closing Argument
Ochoa-Zarate maintains that the district court should
have granted a mistrial in light of statements the prosecu-
tor made during his rebuttal closing argument, a decision
we review for an abuse of discretion. See United States v.
Aldaco, 201 F.3d 979, 987 (7th Cir. 2000). A superseding
indictment charged Bailey and Ochoa-Zarate with conspir-
ing to distribute methamphetamine and possessing
methamphetamine with the intent to distribute it. Bailey
subsequently pled guilty and testified at Ochoa-Zarate’s
trial, acknowledging during his testimony that he had
pled guilty and had not yet been sentenced. Ochoa-Zarate,
however, exercised his right not to take the stand.
The comments that Ochoa-Zarate challenges came
during the government’s rebuttal closing argument. In his
own closing, Ochoa-Zarate’s counsel argued that Bailey’s
testimony about Ochoa-Zarate’s involvement should not
be believed, emphasizing that Bailey received a plea offer
from the government but had not yet been sentenced. The
prosecutor began his rebuttal by responding to the de-
fense’s argument that Jose Castaneda had engineered
the drug deal by arguing that Ochoa-Zarate had tipped
him off several times after Ochoa-Zarate said he would
call Bailey. The prosecutor then said:
No. 06-3815 7
Let’s talk about Roger Bailey for a minute. Roger
Bailey got a sweetheart deal, that’s what they want
you to believe, he got a sweetheart deal. You saw
the penalties we had up on the screen. Roger Bailey
is looking at five to 40 years in prison. Does that
sound like a sweetheart deal to you?
Would he come in here and lie when he is looking
at five to 40 anyway? And what happens if he lies?
He loses that sweetheart deal of five to 40 years
and gets ten to life plus the potential for perjury
charge.
You want to judge the credibility of Roger Bailey?
Judge the credibility of Roger Bailey. You saw him
sitting on the stand. He told you the truth. He told
you what he remembers and he told you the truth.
And here was the question that was posed to him.
“Mr. Bailey, are you a felon?” Answer: “Yes, I am.”
And that’s the difference between Roger Bailey and
this defendant, and I mentioned it in opening
statement that this case was about this defendant
failing to take responsibility for his own actions.
Roger Bailey’s at least taken responsibility for his
own actions. As of today, this defendant still has
not.
(Emphasis added.) At that point, Ochoa-Zarate’s counsel
objected and said he would like to be heard at sidebar at
a later time. The district court overruled the objection, and
the prosecutor continued with his rebuttal argument.
After its completion, Ochoa-Zarate’s counsel asked the
district court to declare a mistrial, arguing that the words
underlined above invited the jury to draw an adverse
8 No. 06-3815
inference from Ochoa-Zarate’s decision to exercise his
constitutional right to a jury trial. The district court
denied the motion, ruling that the argument was not
improper because Ochoa-Zarate arguably lied to law
enforcement officials after he was stopped. The district
court also concluded that even if the argument was im-
proper, it was harmless.
On appeal, Ochoa-Zarate maintains that the prosecutor’s
comments violated his Fifth Amendment right to refrain
from testifying at trial and his Sixth Amendment right
to take his case to trial. The Fifth Amendment prohibits
the government from “treat[ing] a defendant’s exercise
of his right to remain silent at trial as substantive evid-
ence of guilt.” United States v. Robinson, 485 U.S. 25, 34
(1988); see also Portuondo v. Agard, 529 U.S. 61, 69 (2000);
United States v. Willis, 523 F.3d 762, 773 (7th Cir. 2008). The
government does not dispute that it also could not use
Ochoa-Zarate’s exercise of his right to take his case to
trial as evidence that he was guilty. Cf. United States v.
Smith, 934 F.2d 270, 275 (11th Cir. 1991) (finding improper
a prosecutor’s statement in closing argument that defen-
dant “has not taken responsibility for his actions” because
he declined to plead guilty while his co-defendants had
done so).
That is not to say that the law prohibits all prosecutorial
comments that make reference to a defendant’s constitu-
tional rights. When, for example, “the prosecutor’s refer-
ence to the defendant’s opportunity to testify is a fair
response to a claim made by defendant or his counsel, . . .
there is no violation of the privilege.” Robinson, 485 U.S.
No. 06-3815 9
at 32. To determine whether a prosecutor’s remarks are
improper, we look to whether, when viewing the remarks
in context: (1) it was the prosecutor’s “manifest intention”
to use the defendant’s exercise of his right as evidence
of guilt; or (2) “the remark was of such a character that
the jury would ‘naturally and necessarily’ treat it as
such.” Willis, 523 F.3d at 773 (citations omitted).
We agree with the government that there is no evid-
ence here that the prosecutor manifestly intended to use
Ochoa-Zarate’s decisions to plead not guilty and remain
silent during trial as substantive evidence of his guilt.
Whether the jury would “naturally and necessarily” treat
the prosecutor’s remarks this way is a closer call.
Had the prosecutor responded to the attack on Bailey’s
credibility with only the first three paragraphs of the
rebuttal argument that we quoted, the resolution of this
issue would be easier. A prosecutor can certainly respond
to an attack on a witness’s credibility by arguing that the
jury should decide whether to believe the witness based
on what it observed at trial. See United States v. Johnson,
437 F.3d 665, 673-74 (7th Cir. 2006).
Here, however, the argument continued in a manner
which suggested that Ochoa-Zarate’s exercise of his right
to take his case to trial evidenced his guilt. Immediately
after pointing out that Bailey had taken the stand and
acknowledged he was a felon, the prosecutor compared
Bailey to Ochoa-Zarate, saying, “And that’s the difference
between Roger Bailey and this defendant . . . Roger Bailey’s
at least taken responsibility for his own actions. As of
today this defendant still has not.” The government
10 No. 06-3815
maintains on appeal that its failure-to-take-responsibility
comments referred to Ochoa-Zarate’s lies to law enforce-
ment officials the day he was stopped, and perhaps that
was the prosecutor’s intention. But the statement that
Ochoa-Zarate had not taken responsibility “as of to-
day”—the last day of trial—does not sound like it was
directed at what Ochoa-Zarate said the day of his arrest;
indeed, the prosecutor had not been discussing those
statements when he made the challenged remarks.
To be sure, the prosecutor’s comments did not go as
far as some others in cases where courts have found that
a prosecutor’s comments impermissibly suggested that a
defendant’s exercise of his right to trial demonstrated
his guilt. See People v. Rodgers, 756 P.2d 980, 982 (Colo.
1988) (“Juries are very controversial entities. As far as
attorneys, some attorneys at least, there is a feeling which
I will share with you that if you are innocent—rather, if
you are guilty, you would want to request a jury because
they just may not convict you and if you are innocent you
never want to request a jury because they just might
convict you.”); People v. Herrero, 756 N.E.2d 234, 245 (Ill.
App. Ct. 2001) (“[N]ow they wanted a jury trial and you
have to ask yourselves why do they want a jury trial . . . .
These individuals are gamblers, they live on the edge, they
hope that they can get one of you to be suckered in, one
of you to believe that they are not guilty . . . .”); Villarreal
v. State, 860 S.W.2d 647, 649 (Tex. App. 1993) (“This man
[ ] made a conscious decision to rape a ten-year-old child.
But he didn’t do it just once. He forced her to have to
come into this courtroom in front of a bunch of strang-
No. 06-3815 11
ers.”). But the prosecutor’s remarks here nonetheless
focused on Ochoa-Zarate’s “failure to take responsibility”
as of the last day of trial, and the prosecutor did not
attempt to clear things up after the defense objection.
Instead, after the objection, the prosecutor’s next state-
ments addressed a different topic—why Ochoa-Zarate
would consent to the search of his minivan.1
The next question is whether Ochoa-Zarate’s conviction
can stand in light of the improper comments during
rebuttal. Even if a prosecutor’s comments implicate a
specific trial right, we will uphold the conviction if the
government proves beyond a reasonable doubt that the
defendant would have been convicted absent the com-
ments. United States v. Wesley, 422 F.3d 509, 515 (7th Cir.
2005). Although we apply a different standard to prosecu-
torial comments that are merely improper but do not
violate a specific trial right, United States v. Cotnam, 88
F.3d 497-98 (7th Cir. 1996), the government does not dis-
pute that if the comments were improper, the harmless-
beyond-a-reasonable-doubt standard applies.
We find that the government has met this burden. The
government presented uncontested evidence of numerous
lies and inconsistencies that Ochoa-Zarate told to the
trooper who stopped his minivan and later to the investi-
1
We also note that although the prosecutor said in the rebuttal,
“and I mentioned it in opening argument to you that this case
was about this defendant failing to take responsibility for his
own actions,” the prosecutor hadn’t made a similar statement
in his opening.
12 No. 06-3815
gating agents. Ochoa-Zarate told the trooper he was
headed to visit his sister in Chicago for ten days, but he
did not have a sister in Chicago. His only sister lived in
Sacramento at the time. He also said he did not have
his sister’s address or telephone number, even though
he had at least thirty-seven other telephone numbers
with him in the minivan and claimed that he planned to
stay with her for ten days.
Perhaps realizing that his story of visiting a sister
in Chicago for ten days did not add up, Ochoa-Zarate told
a completely different story later in the day when ques-
tioned by different agents. During the subsequent inter-
view, Ochoa-Zarate said that he planned to drive the
rental vehicle to Chicago, drop it off with Bailey’s people
there, and then fly to New York. Bailey, however, testified
that they had never had any discussions along those lines.
In addition, when Ochoa-Zarate offered to cooperate and
told agents he would give them Bailey’s number, the
number Ochoa-Zarate supplied was actually for Jose
Castenada, the person who had set up the whole plan.
There was also the physical evidence: Ochoa-Zarate’s
fingerprints were found on the spare tire. Unprompted,
he told an agent that his fingerprints might be on the
spare tire because Bailey had demonstrated how to
change the tire before he left California. But Bailey said
that never happened, and that he had no idea where
the spare was in the minivan.
There were other things as well. After the trooper found
drugs hidden in the minivan’s spare tire, Ochoa-Zarate
asked how much time he would receive. He also could
No. 06-3815 13
not supply the address, and at first, even the first name,
of the friend he said he was visiting in New York. This
claim of a plan to travel all the way across the country to
surprise a friend whose contact information he did not
have with an unannounced two-week stay is certainly
questionable.
In addition, Ochoa-Zarate’s counsel reminded the jury
in his closing argument that the government bore the
burden of proving guilt beyond a reasonable doubt and
that Ochoa-Zarate was not required to provide any evi-
dence at all. And during the rebuttal, the prosecutor said,
“Defense counsel’s correct, the government does have
the burden[; t]he defendant is presumed innocent.” The
court’s instructions reiterated these points and also told
the jury that its obligation was to decide the facts from
the evidence, and that the lawyers’ comments in opening
statements and closing arguments were not evidence. We
presume that the jury followed the court’s instructions,
“absent evidence of an ‘overwhelming probability’ that
it was unable to do so.” United States v. Serfling, 504 F.3d
672, 677 (7th Cir. 2007) (quoting United States v. James, 487
F.3d 518, 524 (7th Cir. 2007)).
An immediate curative instruction from the court would
have given us further comfort, and it is true that none
was given here. Cf. id. (“Prompted by Serfling’s timely
objection, the district court immediately halted the pros-
ecutor’s improper line of questioning and issued a
curative instruction to the jury, the substance of which
the court repeated during its final jury instructions.”); see
also United States v. Young, 470 U.S. 1, 13-14 (1985) (noting
14 No. 06-3815
benefit of immediate curative instructions). Perhaps that’s
because Ochoa-Zarate did not request one. Considering
the prosecutor’s brief comments in the context of the
record as a whole, we conclude that they do not require
a new trial.
B. Admission of Trooper’s Testimony
Ochoa-Zarate also argues that he should receive a new
trial because the district court allowed Trooper Thulen to
testify that based on his training and experience, it is not
uncommon for a driver of a vehicle to consent to a search
of a vehicle where drugs are ultimately found. We review
a district court’s decision to admit evidence for an abuse
of discretion. United States v. Conn, 297 F.3d 548, 553 (7th
Cir. 2002).
During its redirect examination of Trooper Thulen, the
prosecutor asked whether there had ever been a time
when a person consented to a search and later admitted
knowing drugs were in the vehicle. The defense objected
to the question as irrelevant, among other things, and the
district court held a lengthy sidebar. During the sidebar,
Ochoa-Zarate’s counsel further argued that the proposed
testimony constituted expert testimony for which he
had not received notice and that a question directed to
knowledge should not be allowed. The government offered
to rephrase the question in a manner that did not specifi-
cally ask about a person’s knowledge. Ultimately, the
court sustained the defense’s objection to any questions
as to why a defendant would consent in such a situation.
It ruled, however, that it would allow the prosecutor to
No. 06-3815 15
ask a question phrased as: “Based on your experience, is
it uncommon for a driver to consent to search of an auto-
mobile that ultimately resulted in the presence of drugs?”
Back again before the jury, the prosecutor’s examination
of Thulen concluded with the following exchange:
Q. Trooper Thulen, based on your training and
experience, is it uncommon for a driver of a
vehicle to give consent to search the vehicle
where drugs are ultimately found in that
vehicle?
A. No, sir, it is not uncommon.
This question was not exactly the question the district
court had said it would allow during the sidebar. Instead,
in front of the jury, the posed question asked the trooper
to testify in part based on his “training.” Seizing on this
discrepancy, Ochoa-Zarate maintains that the trooper’s
response to the question before the jury constituted expert
testimony for which he had not received proper notice. See
Fed. R. Crim. P. 16(a)(1)(G) (stating that at defendant’s
request, government must provide written summary of
expert testimony it intends to use, including bases and
reasons for those opinions).
Although Ochoa-Zarate’s brief focuses principally on
whether the testimony was expert (rather than lay) testi-
mony, a threshold question is whether the testimony was
relevant. Federal Rule of Evidence 401 defines “relevant
evidence” as “evidence having any tendency to make the
existence of any fact that is of consequence to the deter-
mination of the action more probable or less probable
16 No. 06-3815
than it would be without the evidence.” One fact of
consequence at trial was whether Ochoa-Zarate knew the
drugs were in the minivan. But the government agrees
that the testimony suggested nothing about Ochoa-
Zarate’s knowledge of the drugs, so we can eliminate
that possible basis. The district court also did not rest on
that rationale, instead ultimately allowing the testimony
because it wanted the jury to know that the trooper was
not doing anything unreasonable when he searched the
vehicle even though he had received consent.
On appeal, the government maintains that the testi-
mony “enhanced the trooper’s credibility by helping to
explain why his actions were reasonable.” That argument
might hold water if the court was considering whether
to grant a motion by Ochoa-Zarate to suppress the evi-
dence on the basis that his consent was involuntary. But
Ochoa-Zarate admits (and even emphasizes) that he
voluntarily consented to the search, so we do not see
how this testimony was relevant on the basis argued by
the government here. Cf. United States v. Gastiaburo, 16
F.3d 582, 588-89 (4th Cir. 1994) (affirming, without dis-
cussing relevancy, admission of officer’s testimony that
it is not uncommon for person transporting controlled
substances to grant consent to law enforcement officers
to search their possessions or their persons).
In any event, the primary dispute on appeal is over
whether the evidence was expert or lay testimony. Trooper
Thulen responded to a question that asked him to testify
based on his “training and experience.” Federal Rule of
Evidence 702 provides:
No. 06-3815 17
If scientific, technical, or other specialized knowl-
edge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experi-
ence, training, or education, may testify thereto in
the form of an opinion or otherwise, if (1) the
testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable princi-
ples and methods, and (3) the witness has applied
the principles and methods reliably to the facts of
the case.
When the lay testimony rule (Rule 701) was amended in
2000, the Advisory Committee wrote that the amend-
ment was made “to eliminate the risk that the reliability
requirements set forth in Rule 702 will be evaded through
the simple expedient of proferring an expert in lay wit-
ness clothing.” So we are careful to examine whether
“although ostensibly couched as a matter of [the agent’s]
direct observation,” testimony by a law enforcement agent
is in reality expert testimony. United States v. Oriedo, 498
F.3d 593, 603 (7th Cir. 2007).
Here, the government maintains that Trooper Thulen
merely testified to what he saw with his own eyes during
his previous consent searches. Ochoa-Zarate, however,
emphasizes that the question posed to the trooper asked
him to answer based not just on his personal observation,
but also on the basis of his “training.” Adding the “train-
ing” qualification tended to make the question sound as
though it asked for a response based on information
broader than merely what the trooper had observed with
18 No. 06-3815
his own eyes. See United States v. Garcia, 413 F.3d 201, 216
(2d Cir. 2005); United States v. Lopez-Moreno, 420 F.3d 420,
439 (5th Cir. 2005) (King, J., concurring); Conn, 297 F.3d
at 553-55. Although the question the district court told
the government it would allow did not include the
word “training,” Ochoa-Zarate did not object when the
prosecutor asked the question before the jury, which
could have rectified the situation.
At any rate, we do not find an error requiring reversal
here in this case. See Oriedo, 498 F.3d at 604 (applying
harmless error test to claim that court erroneously ad-
mitted expert testimony that was not disclosed to the
defense). The testimony here was brief, the district court
did not allow the prosecutor to ask whether any search-
consenting drivers typically know that their vehicles
contain contraband, and, as we have already discussed, the
evidence against Ochoa-Zarate was overwhelming.
The challenged testimony, in contrast, was no more
significant than testimony to which we attributed no
reversible error in a factually similar case, United States v.
Navarro, 90 F.3d 1245 (7th Cir. 1996). There, the prosecutor
asked a DEA agent whether it was common, given the
number of cases he had handled, to find drugs after
someone had given consent to search. Id. at 1261. The
agent responded that it was common and had happened
in his experience many times. The prosecutor then asked
the agent to give his opinion as to why an individual would
consent knowing that drugs were present. The agent
answered that Hispanics from outside the United States
grant permission more readily than most people because
of “the way the police work in other countries.” On appeal,
No. 06-3815 19
the defendant did not challenge the agent’s testimony that
he commonly found drugs during consent searches and
instead challenged only the agent’s opinion, and we
characterized even the officer’s opinion testimony as “of
little significance” and found no reversible error. Id.
at 1263.
Ochoa-Zarate also had the opportunity to cross-examine
the trooper on the basis of his conclusion, even though
he chose not to do so. Cf. United States v. Pree, 408 F.3d
855, 870-71 (7th Cir. 2005). The government had repre-
sented to the court and defense counsel that Trooper
Thulen had stopped thousands of people on the high-
way, had made fifty major drug seizures, and had re-
ceived consent to search in over half those cases, so Ochoa-
Zarate had information to cross-examine the trooper on
this point had he chosen to do so. Any error in admitting
Trooper Thulen’s testimony does not require a new trial.
Finally, we note that in light of the weight of the evidence
of Ochoa-Zarate’s guilt, the combination of the prosecu-
tor’s comments in rebuttal and the admission of the
challenged testimony do not warrant a new trial.
III. CONCLUSION
The judgment of the district court is A FFIRMED.
9-2-08