FILED
NOT FOR PUBLICATION MAY 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10536
Plaintiff - Appellee, D.C. No. 2:10-cr-01257-GMS-1
v.
MEMORANDUM *
MARCO VENEGAS-REYNOSO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted March 14, 2013
San Francisco, California
Before: FISHER and NGUYEN, Circuit Judges, and GARBIS, Senior District
Judge.**
Marco Venegas-Reynoso (“Reynoso”) appeals his convictions for
possession with intent to distribute and importation of cocaine into the United
States. At trial, the primary issue before the jury was whether Reynoso knew the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Marvin J. Garbis, Senior United States District Judge for
the District of Maryland, sitting by designation.
vehicle he drove into the United States had a large amount of cocaine hidden
within it or whether he was simply an unknowing drug courier, commonly referred
to as a “blind mule.” Reynoso contends the district court erred in (1) admitting the
government’s expert witness testimony on the “structure and operations of drug
trafficking organizations” in contravention of our holding in United States v.
Vallejo, 237 F.3d 1008, opinion amended on denial of reh’g, 246 F.3d 1150 (9th
Cir. 2001); (2) admitting the government’s expert witness testimony on the non-
use of blind mules by drug traffickers over Reynoso’s Federal Rule of Evidence
704(b) objection; (3) denying his motion for a new trial based on newly discovered
evidence of a criminal complaint involving a blind mule scheme (the Chavez
complaint); and (4) failing to find that the government committed a Brady
violation warranting a new trial by not disclosing the Chavez complaint. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review a district court’s evidentiary decisions for an abuse of discretion.
United States v. Varela-Rivera, 279 F.3d 1174, 1178 (9th Cir. 2002). The district
court did not abuse its discretion in concluding that the expert’s testimony relating
to the structure and operations of drug trafficking organizations complied with
Federal Rules of Evidence 401 and 403. We rejected the argument that Vallejo and
its progeny created a per se rule of inadmissibility as to this type of testimony in
2
United States v. Sepulveda-Barraza, 645 F.3d 1066, 1070-72 (9th Cir. 2011).1 The
testimony was probative and not unfairly prejudicial because it “went right to the
heart of [Reynoso’s] defense that he was simply an unknowing courier,” United
States v. Murillo, 255 F.3d 1169, 1177 (9th Cir. 2001), overruled on other grounds
as recognized in United States v. Mendez, 476 F.3d 1077, 1080 (9th Cir. 2007),
and provided support for the expert’s opinion regarding the non-use of blind mules
by drug traffickers. See Sepulveda-Barraza, 645 F.3d at 1072.
With respect to the explicit portions of the expert’s testimony relating to the
non-use of blind mules by drug traffickers, we have some concerns that this
testimony ventured close to drawing, in effect, the ultimate conclusion for the jury
that Reynoso had knowledge of the cocaine in violation of Federal Rule of
Evidence 704(b). However, in United States v. Murillo, we approved under Rule
704(b) the admission of expert testimony by a law enforcement official as to the
non-use of blind mules where the expert limited the testimony to his personal
experience with drug traffickers and an explanation, based on his experience, of
why drug traffickers would not use blind mules. 255 F.3d at 1178. In light of our
1
Unlike the testimony at issue in Vallejo and related cases, the testimony of
the government’s expert related primarily to the modus operandi of drug couriers
involved with drug trafficking organizations. See United States v. Murillo, 255
F.3d 1169, 1177-78 (9th Cir. 2001) (distinguishing drug courier modus operandi
testimony from testimony at issue in Vallejo).
3
decision in Murillo, we cannot say the district court’s decision to permit blind mule
expert testimony was “illogical, implausible, or without support in inferences that
may be drawn from the record.” United States v. Hinkson, 585 F.3d 124, 1263 (9th
Cir. 2009) (en banc).
Even if we were to hold that the district court did err in this respect, the error
would be harmless in light of the other evidence presented showing guilt. This
included evidence that the border patrol officials found over a million dollars’
worth of cocaine hidden in a spare tire mounted under the truck driven by Reynoso
in a manner that rendered removal of the tire by officials particularly difficult and
that Reynoso did not appear surprised when confronted with information as to the
discovered drugs.
We affirm the district court’s denial of Reynoso’s Federal Rule of Criminal
Procedure 33 motion for a new trial based on newly discovered evidence of the
Chavez complaint, in which the government charged individuals with importing
marijuana through the use of blind mules. We review the district court’s decision
for an abuse of discretion. Hinkson, 585 F.3d at 1263. The district court correctly
concluded that, assuming the Chavez complaint constituted “newly discovered
evidence” within the meaning of Rule 33, it did not warrant a new trial under the
test articulated in United States v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005).
4
At most, the Chavez complaint would merely impeach the government’s expert by
showing a situation, albeit vastly different from Reynoso’s case,2 in which the
government accused drug traffickers of importing contraband through blind mules.
By no means would this impeachment evidence render the expert’s direct
testimony “totally incredible.” See United States v. Davis, 960 F.2d 820, 825 (9th
Cir. 1992).
The district court did not plainly err by failing to find that the government’s
non-disclosure of the Chavez complaint constituted a Brady violation warranting a
new trial.3 The government only has a Brady obligation to disclose exculpatory
information in its “possession.” See United States v. Price, 566 F.3d 900, 908 (9th
Cir. 2009). There is no evidence suggesting that the prosecution, or any agents
involved in Reynoso’s prosecution, had actual or constructive knowledge of the
unrelated out-of-district Chavez case at any time before Reynoso filed his new trial
motion or that any agent involved in Reynoso’s prosecution – in the district of
Arizona – was also involved in the Chavez case in the district of Texas. See
generally United States v. Bryan, 868 F.2d 1032, 1036-37 (9th Cir. 1989).
2
The Chavez complaint contains allegations of a sophisticated marijuana
smuggling scheme.
3
Reynoso did not present his Brady claim to the district court. Thus, we
may only review for plain error under Federal Rule of Criminal Procedure 52(b).
5
Moreover, the Chavez complaint was filed on July 1, 2011, after the conclusion of
Reynoso’s trial. Hence, the only information that could have been provided to the
defense at the time of trial by an “all knowing” prosecutor would have been that in
another district, the government was investigating a tip of a drug importation
scheme involving blind mules in circumstances substantially different from those
presented in Reynoso’s case.4
Finally, we believe it is unlikely that going forward the government will
present expert testimony from law enforcement officials to the effect that drug
traffickers do not, and would not ever, utilize blind mules to import large quantities
of drugs into the United States. In view of the Chavez complaint, such a statement
would not be truthful. As stated in the recent unpublished decision in United
States v. Flores, No. 11-50431, 2013 WL 681155, at *2 (9th Cir. Feb. 26, 2013),
“[w]e trust that the government will not submit expert testimony that it knows is
inaccurate.”
AFFIRMED.
4
Even if the prosecution came into “possession” of the Chavez complaint
after it had been filed, it is difficult to say Reynoso suffered any prejudice by the
prosecution’s failure to disclose the complaint since Reynoso’s counsel learned of
the filing on July 13, 2011, and filed the new trial motion on August 3, 2011.
6