United States v. Felix Montas

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1264

UNITED STATES OF AMERICA,

Appellee,

v.

HECTOR JULIO FELIX MONTAS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]

Before

Torruella, Chief Judge,

Coffin and Campbell, Senior Circuit Judges.

Rafael F. Castro Lang for appellant.

Esther Castro Schmidt, Assistant United States Attorney, with

whom Guillermo Gil, United States Attorney, and Jose A. Quiles-

Espinosa, Senior Litigation Counsel, were on brief for appellee.

December 7, 1994

COFFIN, Senior Circuit Judge. Hector Julio Felix Montas

appeals his conviction after jury trial for possession with

intent to distribute cocaine. He raises three issues: the

sufficiency of the evidence to support the jury verdict, the

appropriateness of the district judge's conduct during the trial,

and the admission of expert testimony concerning the use of false

names by airplane drug couriers. While we are given pause by

some aspects of the case, we conclude that there is no reversible

error.

Background

On June 30, 1993, a dog used by a United States Customs K-9

unit detected drugs in two suitcases checked onto a flight from

San Juan, Puerto Rico, to New York City. The two bags had been

checked in the name of Miguel Rivera ("Rivera") and bore

identification tags with Rivera's name written by hand. Customs

inspectors located a third bag checked in Rivera's name, but no

cocaine was detected therein. This third bag also had an

identification tag affixed to it, which bore the handwritten name

of Pedro Felix followed by defendant's address. All three bags

had consecutive claim tag numbers. Airline records indicated

that Felix and Rivera had purchased their tickets, checked in,

and checked their bags, at the same time. They also had been

assigned adjacent seats on the flight.1

1 In its brief the government misleadingly asserts that "the
name of Miguel Rivera appeared on all three" bags. By failing to
explain what only a close reading of the trial transcript reveals
-- that the airline placed tags with Rivera's computer-printed

name on the bags -- the government implies the existence of a

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Upon detection of the presence of drugs, Customs inspectors

rushed to the flight gate to locate Rivera and Felix. Though

many of the passengers already had boarded, they found defendant

in the gate area and asked to see his ticket and boarding pass.

Defendant showed them these documents, which were in the name of

"Felix, P.," and they detained him. Defendant asked why he was

being held and was told "because the dog has detected the odor of

narcotics on your bags." Supervisory Customs Inspector Irizarry

went to search the plane for Rivera, telling Inspector Ramos to

stay and watch defendant closely because he thought he looked

nervous and was getting ready to throw away something he had in

his pants pocket. This prediction proved prescient, for, after

watching defendant take his hands in and out of his pockets

several times, Ramos observed what he described as a crumpled

piece of paper fall from defendant's back. Ramos said,

"something fell from you." Defendant replied: "Not me. That's

not mine." Ramos picked up the crumpled papers and discovered

that they were the claim checks for the three pieces of luggage,

two of which contained the cocaine. Defendant was taken into

custody, where he was found to be in possession of a Dominican

Republic passport and other identification in the name of Hector

Julio Felix Montas.

There is conflicting evidence on what happened next. The

government contends that Irizarry and another Customs official

stronger connection among the bags, and of the defendant to them,
than is warranted.

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entered the plane and determined that no passenger named Rivera

was aboard. Defendant argues that Rivera was on the plane when

it took off and disembarked with the other passengers in New

York, noting that this theory finds support in testimony by DEA

Agent Ivan Rios at a preliminary hearing. Rios, who arrived on

the scene after defendant was detained, testified that Customs

officials told him that Rivera had taken off on the flight. He

also testified that, by the time authorities were contacted in

New York, the passengers already had disembarked. In any event,

no Rivera was ever apprehended.

The jury convicted defendant of the single count with which

he was charged, possession with intent to distribute cocaine.

Discussion

We address the three claims of error in turn.

I. Sufficiency of the Evidence

In assessing the sufficiency of the evidence to support the

jury's guilty verdict, we read the record and draw all reasonable

inferences therefrom in the light most favorable to the

prosecution. United States v. Loder, 23 F.3d 586, 589 (1st Cir.

1994). We must affirm if, based on the evidence viewed in this

way, a rational fact finder could have found defendant guilty

beyond a reasonable doubt. Id.

The evidence adduced at trial was sufficient to sustain the

verdict. Though the bags containing cocaine were checked to

Rivera and bore identification labels with Rivera's hand-written

name, the record shows that defendant was linked to these bags in

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several ways. First, he possessed the claim checks for the bags,

making reasonable the inference that he planned to pick them up

upon arrival in New York. Possession of such claim checks,

because they "represent [the] legal right to reclaim the

luggage," is sufficient to show constructive possession over the

luggage itself. United States v. Ocampo-Guarin, 968 F.2d 1406,

1410 (1st Cir. 1992). Second, when he was detained, he

intentionally threw away the claim checks. Such evidence is

highly probative that he was conscious of his own guilt. Third,

defendant and Rivera bought their tickets together, checked in

together, and checked their bags together. This could show

nothing more than that the two men were co-travellers, but, when

taken together with the other evidence, it also supports the

inference that either Rivera never existed and defendant created

his persona as part of a scheme to avoid detection, or that the

two men were cohorts in a smuggling endeavor. In any event,

based on the totality of the evidence, a rational jury could find

defendant guilty beyond a reasonable doubt.

Defendant argues that all of this evidence is perfectly

consistent with innocence. He submits that he possessed the

claim checks for the bags containing cocaine only because the

airline clipped both his and Rivera's checks onto his ticket

jacket, as the airline representative testified is sometimes done

when two passengers check in together. He points out that he

threw away the checks only after being told that the odor of

narcotics was detected in "his" bags. He says he then realized

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for the first time that Rivera's bags must have contained

narcotics. Throwing away the checks, he contends, was simply a

natural human reaction to avoid the erroneous conclusion that he

was involved. He also stresses that the handwritten

identifications tags showed that the cocaine-filled bags were

Rivera's and the unoffending bag was his.

This argument fails for two basic reasons. First, even

assuming the plausibility of defendant's explanations, it is not

a prerequisite of conviction that the prosecution adduce evidence

to preclude "every reasonable hypothesis of innocence." United

States v. Gonzalez-Torres, 980 F.2d 788, 790 (1st Cir. 1992).

Moreover, defendant made this same argument -- that the evidence

showed nothing more than that he was an innocent co-traveller

with Rivera -- to the jury. Because there was sufficient

evidence to make reasonable a finding of guilt, the jury was

entitled to discredit his theory of innocence. See, e.g., id.

II. The Judge's Conduct

Defendant next urges us to reverse because, he asserts, the

district judge became "a partisan of the government's case," thus

depriving him of a fair trial. See, e.g., United States v.

Wilensky, 757 F.2d 594, 598 (3d Cir. 1985) (criminal trial unfair

when "the judge's role loses its color of neutrality and tends to

accentuate and emphasize the prosecutor's case"), cited in United

States v. Corgain, 5 F.3d 5, 9 (1st Cir. 1993). The judge's

allegedly improper conduct consists of questioning a prosecution

witness and admonishing the prosecutor on her trial strategy in a

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manner reflecting adversely on defendant's case. We have

reviewed these matters, as well as the entire record, and find no

conduct by the judge warranting reversal.

The role of a federal trial judge, of course, is not limited

to that of a "mere umpire." United States v. Polito, 856 F.2d

414, 418 (1st Cir. 1988). Instead, the judge "is the governor of

the trial for assuring its proper conduct." Desjardins v. Van

Buren Community Hosp., 969 F.2d 1280, 1281 (1st Cir. 1992) (per

curiam) (quoting Quercia v. United States, 289 U.S. 466, 469

(1933)). In the exercise of this power, a trial judge has

"the prerogative, and at times the duty, of eliciting facts
he deems necessary to the clear presentation of issues. To
this end he may examine witnesses who testify, so long as he
preserves an attitude of impartiality and guards against
giving the jury the impression that the court believes the
defendant is guilty."

United States v. Paz Uribe, 891 F.2d 396, 400-401 (1st Cir. 1989)

(quoting Llach v. United States, 739 F.2d 1322, 1329-1330 (8th

Cir. 1984)). An appellate court, when asked to reverse because

of asserted improper conduct by a trial judge, must "consider

isolated incidents in light of the entire transcript so as to

`guard against magnification on appeal of instances which were of

little importance in their setting.'" Aggarwal v. Ponce School

of Medicine, 837 F.2d 17, 22 (1st Cir. 1988) (quoting Glasser v.

United States, 315 U.S. 60, 83 (1942)).

Preliminarily, we note that defense counsel never objected

to any of the court's conduct about which he now complains. We

therefore review the issue for plain error only. Fed. R. Crim.

P. 52(b); United States v. Gonzalez-Torres, 980 F.2d 788, 791

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(1st Cir. 1992). To satisfy this standard, defendant must show

that there was error, that it was clear or obvious, and that it

affected a substantial right. United States v. Olano, 113 S. Ct.

1770, 1776-78 (1993). "[E]rror rises to this level only when it

is `so shocking that [it] seriously affect[ed] the fundamental

fairness and basic integrity of the proceedings conducted

below.'" United States v. Ortiz, 23 F.3d 21, 26 (1st Cir. 1994)

(quoting United States v. Olivo-Infante, 938 F.2d 1406, 1412 (1st

Cir. 1991)) (internal quotations omitted).

The first alleged impropriety concerns the court's

questioning of a prosecution witness during her cross-

examination. Sandra Roman, who worked for the airline as a

ticket agent at the San Juan airport, testified that she sold two

tickets in the names of Miguel Rivera and Pedro Felix, and

checked in three bags under Rivera's name, at 5:45 in the morning

of the flight. On cross-examination, defense counsel tried to

advance the theory that Rivera was allowed to take off on the

flight to New York and disembark there. He handed Roman a

document captioned "passenger list" and asked whether "the names

that you find here would be the names of the passengers on that

particular flight?" Roman replied in an ambiguous manner2 and

the court asked whether the people on the "passenger list"

actually boarded the plane. Roman answered: "This is not my

area, okay? So I am not very expert on the information in this

list. I really work at the counter, so I work with the

2 The transcript shows she answered by stating "aha."

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reservation, not with the list." When defense counsel persisted

in inquiring further about the list, the court finally asked

Roman: "Do you know whether that list means that all the persons

boarded the plane?" Roman replied:

I am not sure. Okay, there is a list that says -- what is
called the on list. That is the one that all the passengers
are on board, and it doesn't look -- I don't think it's this
one. There is another list with all the reservations that
we have for the flight. So I'm not sure which one is this
one, if this is the on list, what we call the on list, or
the list of all the people that had reserved for that
flight.

Defense counsel continued to cross-examine Roman,

successfully eliciting that, when two passengers check in

together with luggage, sometimes both of their baggage claim

checks are clipped to one passenger's ticket jacket. This

testimony was obviously helpful to defendant because it made

plausible his assertion that he possessed the incriminating claim

checks simply due to the innocent fact of his having checked in

with Rivera. The prosecution tried to discredit this theory on

redirect by suggesting that, since the bags were checked in

Rivera's name, the baggage claim checks would have been clipped

to his ticket jacket, not defendant's. On recross-examination,

the defense rebutted this suggestion by eliciting that baggage

checks may be clipped to one of the passenger's ticket jackets

regardless of which passenger actually checked the bags. The

judge then asked Roman:

THE COURT: When somebody goes to the counter to buy a
ticket or two tickets or three tickets, do
you need to have the physical presence of the
two or three persons there, or can the one
person buy the three tickets?

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THE WITNESS: One person can buy however number [of]
ticket[s] he wants.

THE COURT: And I can go with my wife, for example, and
say "Here I am to check in." My wife may be
in the bathroom or buying something and I can
check in and you don't see her face
physically, correct?

THE WITNESS: No.

Later, during oral argument outside the jury's presence on

the defense motion for a judgment of acquittal, the court made

certain statements that defendant argues show the court's bias in

favor of the prosecution. In essence, the court chided the

prosecutor for failing to produce the "on list" to which Ms.

Roman referred, and for failing to have someone from the airline

testify that no one named Rivera ever turned in a boarding pass.

The court explained that it thought this evidence was crucial

because "it is entirely possible that [Rivera is] a no[n] entity.

It's entirely possible that somebody bought a ticket in his name

not to use it." The prosecutor responded that she had called a

Customs inspector who testified that no Miguel Rivera ever

checked in at the gate.

THE COURT: I understand he said that. But the truth of
the matter is that it would have looked
better if someone from American Airlines
would have come to verify that same fact. . .
. I do think your case contains elements
enough for it to go before the jury. . . .
But the truth of the matter is that you are
missing a very important element, extremely
important. Don't be surprised if you get a
defendant's verdict in this case.

MS. CASTRO: Okay. Thank you, your Honor.

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THE COURT: As a matter of fact, you want me to tell you,
I don't think Miguel Rivera was ever at the
airport, but that's besides the point.

We find the court's questions concerning the "passenger

list" to have been entirely appropriate. The defense tried to

prove that Rivera must have boarded the plane because his name

was on the list. By its questions, the court elicited that the

list under review may not have been the "on list," i.e., the list

of passengers who actually boarded, but rather, only a list of

those who had made a reservation for the flight. Thus, the

effect of the court's questioning was to clarify the true

significance of the document for the jury, which is, of course,

entirely proper. See, e.g., Corgain, 5 F.3d at 9; Paz Uribe, 891

F.2d at 401. No judicial bias inheres in the fact that the

premise of defendant's theory, that Rivera's name on the list

meant he boarded the plane, was shown to be more dubious than the

defense wanted the jury to believe.

With the benefit of hindsight, we could take issue with the

court's questions regarding the possibility of checking in for

other passengers in their absence. After all, neither side had

broached this topic with Roman,3 so it is difficult to see what

confusion or ambiguity in the mind of the jury required

clarification. Further, the testimony the judge elicited

3 The prosecutor may have attempted to make this point when
one of the customs inspectors testified earlier that day. She
asked him whether either Rivera or Felix could have checked the
bags. The court sustained defense counsel's objection, stating:
"We have to wait for the American Airlines person." The
prosecutor never took up the issue when Roman later testified.

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apparently did little more than highlight the possibility that

Rivera was never at the airport. It showed that it was possible

for the defendant, acting alone, to have bought the two tickets,

checked in for himself and Rivera, and checked in the three

pieces of luggage under Rivera's name -- a theory that, as we

know from the judge's later comments, he himself believed.

While this testimony perhaps more properly would have been

elicited by the prosecutor than the judge, we do not think

defendant's right to a fundamentally fair trial was affected.

First, the fact that it is possible to buy tickets and check in

for another passenger is collateral to the ultimate determination

of defendant's guilt or innocence. Second, in eliciting this

testimony, the judge did not expressly display an attitude of

partiality or tip his hand to the jury concerning his belief

about Rivera's existence or defendant's guilt or innocence. See

Paz Uribe, 891 F.2d at 400-401. Nor do we think there was a

significant risk that the jury perceived any partiality based on

the fact of asking these questions. If any such risk existed, it

was ameliorated by the court's instruction to the jury, at the

beginning of the trial, that "[n]othing that I may say, nothing

that I may do, is intended by me as indicating what your verdict

should be." As already noted, the judge's comment that he did

not believe Rivera was ever at the airport took place outside the

jurors' presence and thus could not possibly have affected their

verdict. Further, in the context of the court's overall

supervision of the trial, the challenged conduct amounted to very

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little. See Polito, 856 F.2d at 418. The judge's few questions

on this score were not the type of serious departure from the

wide boundaries of the judicial role that requires reversal, and

certainly not where there was no objection below.

Finally, defendant complains that, by pointing out the

failure to show conclusively that no Rivera was aboard, the court

gave the prosecutor a suggestion of valuable trial strategy at a

time when she still could have used it to her benefit. But this

argument ignores that the court expressly ruled that it would not

allow the government to re-open its case to correct the

deficiency. There was, in fact, no further evidence offered by

the prosecution and thus no prejudice to the defendant.

III. Admission of Expert Testimony

The defendant also asserts that the court erred in admitting

certain expert testimony under Fed. R. Evid. 702 because it

concerned a subject within an average juror's understanding. The

testimony was given by the government's case agent, DEA Agent

Rios. We reproduce it in its entirety.

Q. Based on your experience, was it unusual that this
person who has been detained as Pedro Felix was
carrying a passport identifying himself with another
name?

Mr. Castro Lang: Objection, your Honor. Leading,
number one. Second, it's
requesting the witness to speculate
about matters that are not in
evidence.

The Court: Let me say this: You can rephrase
the question.

Q: Have you participated in many airport cases?

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A: Yes, ma'am.

Q. Have you participated in cases where suitcases are
involved containing narcotics?

A. Yes, Ma'am.

Mr. Castro Lang: Objection, Your Honor.

The Court: Grounds?

Mr. Castro Lang: We are dealing with this
interception. Were they
interceptions that were unrelated
to this case? If that's the
situation, I object.

The Court: Overruled.

Q. And in these situations where you have intervened with
individuals who had narcotics in their suitcases, what
has been your experience as to the names on the
suitcases and the names on the individuals?

Mr. Castro Lang: Objection, your Honor.

The Court: Overruled.

A. My experience has been that possibly 99 percent of the
previous cases I've had as a special agent of the Drug
Enforcement Administration, cases related to airport
seizures like this particular one, have been that the
person is travelling under an assumed name.

Q. By "travelling under an assumed name," what do you mean
by this?

A. They use a different name in their flight ticket in
order to avoid -- a different name in the flight ticket
in comparison to the name that is the real name. For
instance, in an ID -- they will use an ID if they have
one, Okay? And they will place a different name in the
flight ticket which would in turn put a different name
also in the claim tags and also in the claim checks.

Q. Are you telling us that there would be one name on the
suitcases --

A. Correct[], different from his real name, in order to
avoid any kind of linking between that particular
suitcase, the name on that particular suitcase, to his
real person, to his real name.

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Q. And why would he want to avoid that?

A. Well, that's obvious right there. Because if you are
ever caught with a controlled substance in a particular
suitcase and you get asked your name, you show a
different ID to the name on the label, and in that way
you will try to avoid being caught.

On summation, the prosecutor emphasized the similarity

between defendant's conduct and the conduct that Rios attributed

to "99 percent" of the drug smugglers caught in his previous

cases:

And then you remember the testimony of the case agent
in this case, Mr. Ivan Rios. He told you he's been --
he's intervened in many airport cases involving
suitcases. He also told you, ladies and gentlemen,
that in 99 percent of the cases in which he's
intervened, the person is travelling under an assumed
name, like the defendant here, P. Felix, when in fact
his name is Hector Julio Felix Montas.

And he also told you that besides travelling under an
assumed name, like the defendant here, based on his
experience, the names that appear on the suitcases do not
correspond to the name of the person arrested.

And I said, "Well, isn't that unusual? Why is that,
Mr. Rios?" And he said, "No, that's not unusual.
That's very common. Because in case the person is
arrested, he doesn't want his name on those suitcases.
He doesn't want to be connected to those suitcases."

We have quoted the record so extensively to show that, while

defense counsel objected to Agent Rios's testimony, he did so

only on the grounds of leading, speculation, and -- as best we

can understand his last objection -- relevance. At no time did

he object to this testimony on the basis either that it was not a

proper subject of expert testimony under Fed. R. Evid. 702 or

that it was unfairly prejudicial under Fed. R. Evid. 403. No

objection of any kind was registered to the prosecutor's argument

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on summation. Thus, we review these matters for plain error

only. See United States v. Castiello, 915 F.2d 1, 3-4 (1st Cir.

1990); United States v. Gonzalez-Sanchez, 825 F.2d 572, 583 n.27

(1st Cir. 1987) ("Without a timely objection stating the specific

grounds therefor, our review is limited to plain error.").

The initial test for determining the admissibility of expert

testimony is laid out in Fed. R. Evid. 702. Under Rule 702, an

expert may testify concerning "scientific, technical, or other

specialized knowledge" if it "will assist the trier of fact to

understand the evidence or to determine a fact in issue." As the

Advisory Note to the Rule states:

There is no more certain test for determining when experts
may be used than the common sense inquiry whether the
untrained layman would be qualified to determine
intelligently and to the best degree the particular issue
without enlightenment from those having a specialized
understanding of the subject involved in the dispute.

Fed. R. Evid. 702 advisory committee's note (quoting Ladd, Expert

Testimony, 5 Vand. L. Rev. 414, 418 (1952)); United States v.

Lamattina, 889 F.2d 1191, 1194 (1st Cir. 1989). A district

judge, who sees and hears the challenged evidence first hand in

the context of the overall trial, enjoys broad discretion in

determining the admissibility of expert testimony; an appellate

court will overturn such a determination only if it represents a

manifest abuse of discretion. United States v. Echeverri, 982

F.2d 675, 680 (1st Cir. 1993).

Even if admissible under Rule 702, expert testimony still

may be excluded under Fed. R. Evid. 403 if its probative value is

substantially outweighed by the risk of unfair prejudice it

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creates. See Castiello, 915 F.2d at 3-4; United States v.

Hensel, 699 F.2d 18, 38 (1st Cir. 1983). Accord United States v.

Castillo, 924 F.2d 1227, 1232 n.9 (2d Cir. 1991). The 403

inquiry also is left to the sound discretion of the trial court,

an appellate court substituting its judgment "only rarely -- and

in extraordinarily compelling circumstances." Newell Puerto

Rico, Ltd. v. Rubbermaid Inc., 20 F.3d 15, 21 (1st Cir. 1994)

(quoting Freeman v. Package Machinery Co., 865 F.2d 1331, 1340

(1st Cir. 1988)) (internal quotation omitted).

We have admitted expert testimony regarding the operation of

criminal schemes and activities in a variety of contexts, finding

such testimony helpful to juries in understanding some obscure or

complex aspect of the crime. See Echeverri, 982 F.2d at 680

(expert may "identify an otherwise inscrutable document as a drug

ledger and explain its contents"); Castiello, 915 F.2d at 3

(statement phrased in drug world jargon "was not so readily

comprehensible to the layman that it could not bear elucidation

by a law enforcement agent knowledgeable in the ways of the drug

world"); United States v. Angiulo, 897 F.2d 1169, 1189 (1st Cir.

1990) (expert testimony that defendants played certain roles in

criminal activities is helpful to jury because of the crime

family's "extensive criminal organization . . ., the complexity

of the interrelationships within the organization, and the use of

criminal jargon by defendants in their conversations");

Lamattina, 889 F.2d at 1194 (expert may translate the meaning of

jargon used in conversation related to a loansharking transaction

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that jury "would probably have been at a loss to understand");

United States v. Ladd, 885 F.2d 954, 959-60 (1st Cir. 1989)

(expert may testify that type of packaging and number of packages

of drugs is consistent with distributive intent, not personal

use, because "jurors are not expected to be familiar with the . .

. workings of the heroin community"); United States v. Angiulo,

847 F.2d 956, 973-75 (1st Cir. 1988) (expert testimony that

defendants were close associates of organized crime family

assisted jury in light of family's complex structure); United

States v. Rivera Rodriguez, 808 F.2d 886, 888 (1st Cir. 1986) (to

help jurors understand the significance of an instrument called a

"sifter-grinder" found in defendant's possession, expert may

testify that it is used to adulterate cocaine); Hensel, 699 F.2d

at 38 (since "smuggling tons of marijuana is a complex matter,"

expert testimony about drug smugglers' methods would help the

jury understand the evidence).

This case is distinguishable. Unlike those cases, here the

expert testified about matters that were readily intelligible.

We believe that an average juror can assess intelligently whether

an inference of guilt should be drawn from defendant's travelling

under the name of "P. Felix" without expert testimony that

airline drug smugglers check their bags and buy their tickets

under false names to avoid detection. Cf. United States v.

Weiner, 3 F.3d 17, 21-22 (1st Cir. 1993) (error to admit expert

testimony of "a routine inference that the jury could draw on its

own"). Indeed, in a telling slip of the tongue, the expert

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himself belied the claim: when asked why smugglers would use

false names, he responded, "Well, that's obvious . . . . to avoid

being caught." Expert testimony on a subject that is well within

the bounds of a jury's ordinary experience generally has little

probative value. On the other hand, the risk of unfair prejudice

is real. By appearing to put the expert's stamp of approval on

the government's theory, such testimony might unduly influence

the jury's own assessment of the inference that is being urged.4

See Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1055 (4th Cir.

1986) (expert testimony is unfairly prejudicial "when the

4 Defendant relies heavily on language in two Second Circuit
decisions that seemed to extend the limits imposed by Rules 702
and 403. In Castillo, 924 F.2d at 1234, the court declared:

"[W]e take serious issue with the Government's use of an expert
witness to propound the impermissible theory that appellants'
guilt could be inferred from the behavior of unrelated persons."
Accord United States v. Cruz, 981 F.2d 659, 663 (2d Cir. 1992)

("[G]uilt may not be inferred from the conduct of unrelated
persons.").

This pronouncement seems to us too broad to be workable. By
definition, even the most acceptable expert testimony concerning
the modus operandi of a criminal scheme distills a pattern from
the behavior of unrelated persons. In fact, in more recent cases
the Second Circuit itself has stressed the narrower grounds of
decision in Castillo and Cruz, namely that experts "`cannot be

used solely to bolster the credibility of the government's fact-
witnesses by mirroring their version of events,'" and that, while
the operations of drug dealers is a proper subject for expert
testimony, such operations normally must have "esoteric aspects
reasonably perceived as beyond the ken of the jury." United

States v. Tapia-Ortiz, 23 F.3d 738, 740 (2d Cir. 1994) (quoting

Cruz, 981 F.2d at 664 and citing Castillo, 924 F.2d at 1232); see

also United States v. Taylor, 18 F.3d 55, 59 (2d Cir. 1994)

(stressing that "[e]xpert testimony may be used `on some
occasions to explain even non-esoteric matters, when the defense
seeks to discredit the government's version of events as
improbable,'" quoting Cruz, 981 F.2d at 664).

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evaluation of the commonplace by an expert witness might supplant

a jury's independent exercise of common sense").

As we have noted, the trial court enjoys vast discretion in

deciding whether to admit expert testimony under Rules 702 and

403. We believe that this evidence was on the very margin of --

and probably beyond -- what is acceptable. But as also noted,

Rules 702 and 403 were not raised as grounds of objection below.

We conclude that admitting this testimony was not plain error.

See Olano, 113 S. Ct. at 1776-78 (plain error requires error that

was clear or obvious and affected a substantial right). First,

we find the relevant inquiries -- was the jury competent to

assess the evidence intelligently without the expert testimony,

what is the probative weight of the testimony, what are the risks

of prejudice, and which is greater -- to be subtle rather than

obvious and clear. Indeed, for this reason it is particularly

important for counsel to call to the trial court's attention the

bases of such evidentiary challenges so that the court has the

opportunity to carefully consider them. Second, without

minimizing the risks associated with this testimony, we cannot

say that its admission was "`so shocking that [it] seriously

affect[ed] the fundamental fairness and basic integrity of the

proceedings conducted below.'" Ortiz, 23 F.3d at 26. The

admission of this evidence, therefore, does not require reversal

in this case.

Affirmed.

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