FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50391
Plaintiff-Appellee,
v. D.C. No.
3:08-cr-03326-JM-1
BRAD RAY SANTINI,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Argued and Submitted
June 6, 2011—Pasadena, California
Filed September 8, 2011
Before: Betty B. Fletcher and N. Randy Smith,
Circuit Judges, and James S. Gwin, District Judge.*
Per Curiam Opinion
*The Honorable James S. Gwin, District Judge for the U.S. District
Court for Northern Ohio, Cleveland, sitting by designation.
17093
UNITED STATES v. SANTINI 17095
COUNSEL
Zandra L. Lopez, Federal Defenders of San Diego, Inc., San
Diego, California, for appellant Brad Ray Santini.
17096 UNITED STATES v. SANTINI
Laura E. Duffy, United States Attorney for the Southern Dis-
trict of California; Bruce R. Castetter and Lawrence E. Spong,
Assistant United States Attorneys, San Diego, California, for
appellee United States of America.
OPINION
PER CURIAM:
Brad Ray Santini appeals his conviction for one count of
importation of marijuana, in violation of 21 U.S.C. §§ 952
and 960, and one count of possession of marijuana with intent
to distribute, in violation of 21 U.S.C. § 841(a)(1). Santini
argues that: (1) the district court erroneously instructed the
jury on reasonable doubt; (2) the district court abused its dis-
cretion by permitting the government to introduce, through its
expert witness, evidence of Santini’s previous “law enforce-
ment contacts” and personal marijuana use; and (3) the prose-
cutor committed misconduct by making certain statements
during closing argument. We conclude that it was an abuse of
discretion to allow the government to introduce evidence of
Santini’s prior “law enforcement contacts.” Because this error
was not harmless, we VACATE Santini’s conviction and
REMAND to the district court for a new trial. We decline to
address Santini’s other arguments.
On September 7, 2008, Santini attempted to cross the bor-
der from Mexico into the United States. An inspection of his
vehicle revealed twenty-eight kilograms of marijuana hidden
in the rear seat and spare tire. Santini’s defense at trial was
that someone else had placed the marijuana in his car without
his knowledge. The defense claimed that Santini may have
been tricked, arguing that he was easy to manipulate due to
a traumatic brain injury he had suffered in 2005. Dr. Dean
Delis, a clinical psychologist, testified that Santini had suf-
fered “a severe traumatic brain injury” and that tests showed
UNITED STATES v. SANTINI 17097
Santini “has permanent cognitive deficits” as a result. Dr.
Delis explained that Santini’s type of injury can cause diffi-
culty with “social perception of other people.”
The government sought to rebut this testimony by present-
ing its own expert, psychiatrist Dr. Mark Kalish. Dr. Kalish
testified that his evaluation did not show that Santini’s brain
injury made him more vulnerable to manipulation. Dr. Kalish
based this opinion in part on Santini’s “rap sheet.” Dr. Kalish
explained that the rap sheet showed “extensive prior contacts
with law enforcement” before the 2005 accident and that if
the charges against Santini were related to his injury, one
would not expect to see “similar behavior” before the acci-
dent. The defense objected to the admission of Dr. Kalish’s
testimony regarding the rap sheet and now challenges that tes-
timony on appeal.
We “review[ ] a district court’s admission of evidence,
including the decision that probative value exceeds unfair
prejudice, for an abuse of discretion.” United States v. Cherer,
513 F.3d 1150, 1157 (9th Cir. 2008). “Harmless errors do not
warrant reversal.” Id. The government argues that Santini’s
criminal history was either admissible as evidence of his
“state of mind” under Federal Rule of Evidence 404(b) or
could be introduced as the basis for Dr. Kalish’s opinion
under Federal Rule of Evidence 703.
[1] Rule 404(b) “permits evidence of prior wrongs or acts
to show proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.”
United States v. Romero, 282 F.3d 683, 688 (9th Cir. 2002).
The Ninth Circuit uses a four-part test to determine the admis-
sibility of evidence pursuant to Rule 404(b):
Such evidence may be admitted if: (1) the evidence
tends to prove a material point; (2) the other act is
not too remote in time; (3) the evidence is sufficient
to support a finding that defendant committed the
17098 UNITED STATES v. SANTINI
other act; and (4) (in certain cases) the act is similar
to the offense charged.
Id. (internal quotation marks omitted). The evidence regard-
ing Santini’s criminal history is inadmissible because it fails
the third and fourth prongs of this test.
[2] Under the third prong, evidence can be admitted “if
there is sufficient evidence to support a finding by the jury
that the defendant committed the similar act.” Huddleston v.
United States, 485 U.S. 681, 685 (1988). Here, there must
have been sufficient evidence to support a finding by the jury
that Santini had extensive law enforcement contacts. But the
only evidence presented by the government was Dr. Kalish’s
testimony that he had reviewed Santini’s “rap sheet.” Dr. Kal-
ish admitted on cross-examination that he found the rap sheet
hard to understand, and his report relaying the information
contained in the rap sheet did not distinguish among arrests,
convictions, or other “contacts” with law enforcement. The
rap sheet itself was not admitted into the record or examined
by the district court. The defense also argued that this particu-
lar rap sheet was unreliable because it listed multiple allega-
tions arising from the same incident as separate contacts. We
conclude that the testimony of a psychiatrist relating disputed
information contained in a rap sheet, which was neither
admitted into the record nor examined by the district court,
was not evidence that could support a finding by the jury that
Santini had “extensive” law enforcement contacts. Dr. Kal-
ish’s testimony on this matter was, thus, not admissible under
Rule 404(b).
[3] Dr. Kalish’s testimony also fails the fourth prong of our
Rule 404(b) test. Dr. Kalish testified that Santini’s criminal
history was significant because it was “similar behavior” to
the charged conduct. This is therefore a case that would trig-
ger the fourth prong of the test and require that the prior “act
is similar to the offense charged.” Romero, 282 F.3d at 688.
Santini’s prior convictions, however, were for simple posses-
UNITED STATES v. SANTINI 17099
sion; other contacts included arrests for indecent exposure and
assault. This conduct is not similar to the importation of mari-
juana and thus lacks probative value.
The government also argues that Santini’s criminal history
could be disclosed to the jury as the basis for Dr. Kalish’s
expert opinion pursuant to Rule 703. Rule 703 provides:
The facts or data in the particular case upon which
an expert bases an opinion or inference may be those
perceived by or made known to the expert at or
before the hearing. If of a type reasonably relied
upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts or
data need not be admissible in evidence in order for
the opinion or inference to be admitted. Facts or data
that are otherwise inadmissible shall not be disclosed
to the jury by the proponent of the opinion or infer-
ence unless the court determines that their probative
value in assisting the jury to evaluate the expert’s
opinion substantially outweighs their prejudicial
effect.
Fed. R. Evid. 703.
[4] This argument fails for two reasons. First, expert testi-
mony must satisfy the requirements of Rule 702, which pro-
vides that an expert’s opinion must be “based upon sufficient
facts or data.” Fed. R. Evid. 702. For the reasons outlined
above, the rap sheet was not sufficient to form the basis of Dr.
Kalish’s opinion that Santini had engaged in “similar” crimi-
nal behavior prior to his brain injury. An expert in one field
(Dr. Kalish was a psychiatrist) cannot express an opinion rely-
ing on data that requires expertise in another field (here, a rap
sheet that would require interpretation by an expert in law
enforcement record-keeping). See, e.g., United States v.
Chang, 207 F.3d 1169, 1171-74 (9th Cir. 2000) (affirming the
exclusion of an international finance expert’s testimony
17100 UNITED STATES v. SANTINI
because he lacked expertise in identifying counterfeit securi-
ties).
Second, the statement that Santini had “extensive” prior
law enforcement contacts was far more prejudicial than it was
probative in assisting the jury to evaluate Dr. Kalish’s opin-
ion. Although the district court instructed Dr. Kalish to use
general language in an attempt to “sanitize” the criminal his-
tory, simply referring to Santini’s prior contacts as “exten-
sive” prevented the jury from evaluating whether those
contacts were in fact similar to the charged conduct. At the
same time, Dr. Kalish’s testimony was highly prejudicial,
inviting the jury to infer that prior to his 2005 accident Santini
imported or distributed drugs.
[5] Dr. Kalish’s testimony regarding Santini’s criminal his-
tory was thus not admissible under either Rule 404(b) or Rule
703. It was an abuse of discretion for the district court to
allow this testimony.
[6] This error was harmful. “An error is harmless if it is
more probable than not that the error did not materially affect
the verdict.” United States v. Liera, 585 F.3d 1237, 1244 (9th
Cir. 2009) (internal quotation marks omitted).
[7] Here, the logical inference for a juror to draw from Dr.
Kalish’s testimony was that Santini may have imported drugs
prior to his 2005 brain injury; in actuality, Santini’s prior con-
victions were for simple possession, and his other contacts
were for indecent exposure, traffic offenses, and assault.
Although the district court provided a limiting instruction cau-
tioning the jury that “[t]he testimony of Dr. Kalish regarding
law enforcement contacts prior to November 2005 may not be
considered by you as evidence of bad character or any predis-
position to engage in wrongful acts,” that instruction did not
cure the error. The jury was told to use the testimony to evalu-
ate Dr. Kalish’s opinion that Santini’s brain injury did not
play a role in the charged conduct, and, as Dr. Kalish admit-
UNITED STATES v. SANTINI 17101
ted, that opinion depended in part on the similarity of San-
tini’s prior behavior.
[8] Furthermore, the prosecution relied on Dr. Kalish’s tes-
timony in closing argument, emphasizing that the defense the-
ory was “blown completely out of the water because prior to
the accident, [Santini] had law enforcement contacts.” We
conclude that it is more probable than not that this error mate-
rially affected the verdict.
We therefore VACATE Santini’s conviction and
REMAND for a new trial.