United States v. Garcia
 Affirmed. Terminated on the merits after submissions without oral hearing. Written, signed, published. Judges Lucero, authoring; Gorsuch; and Holmes. Mandate to issue.
United States Court of Appeals
Appellate Case: 10-2115 Document: 01018611340 Date Filed: 03/28/2011 Page: 1
March 28, 2011
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
UNITED STATES OF AMERICA,
ERIKA DENISE GARCIA,
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 2:09-CR-02740-MCA-1)
Submitted on the briefs:*
Darcy Blue Riley, Assistant Federal Public Defender, Office of the Federal Public
Defender, District of New Mexico, Las Cruces, New Mexico, for the DefendantAppellant.
Kenneth J. Gonzales, United States Attorney, and Nathan J. Lichvarcik, Assistant United
States Attorney, Office of the United States Attorney, District of New Mexico, Las
Cruces, New Mexico, for the Plaintiff-Appellee.
Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.
*The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G).
Appellate Case: 10-2115 Document: 01018611340 Date Filed: 03/28/2011 Page: 2
LUCERO, Circuit Judge.
Erika Garcia was convicted of knowingly making false statements to a federally
licensed firearms dealer (“FLFD”), that is, acting as a straw buyer. She appeals her
conviction and sentence on two grounds, claiming the district court: (1) abused its
discretion by admitting portions of a Bureau of Alcohol, Tobacco, and Firearms (“ATF”)
agent’s expert testimony; and (2) clearly erred by imposing a four-level sentencing
enhancement for arms trafficking. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm Garcia’s conviction and sentence.
Garcia was charged in a superseding indictment with ten counts of knowingly
making false statements to an FLFD, in violation of 18 U.S.C. § 924(a)(1)(A), relating to
statements she made on ATF Form 4473 (“Form 4473”) when she purchased or
attempted to purchase the following weapons:
One Armalite AR-50 BMG .50 caliber rifle
One Ruger Mini-14 .223 caliber rifle
Several Glock .40 caliber and 9 mm handguns
Several AK-47 type 7.62 mm rifles
Each count charged her with either: (1) representing herself as the actual buyer, when in
fact she was not; or (2) stating that her address was 221 Houston Street, Columbus, New
Mexico, when that was not her current address.
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Prior to trial, the government filed a notice of its intent to call ATF Special Agent
Jose Ballesteros as an expert witness on straw purchasers, Mexican and American
firearms laws, efforts by both governments to stem the flow of firearms into Mexico from
the United States, the use of straw buyers by Mexican drug cartels to obtain firearms
from the United States, and the types of firearms preferred by the cartels. Garcia moved
to exclude this testimony under Fed. R. Evid. 401 and 402, contending that Ballesteros’
testimony would be irrelevant, and under Fed. R. Evid. 403, because of the unduly
prejudicial effect of testimony about Mexican drug cartels.
The district court permitted Ballesteros to testify, but limited the scope of his
testimony. He was permitted to testify generally about straw buyers, why the actual
purchaser would use a straw buyer, and that firearms laws in Mexico are more restrictive
than those in the United States, including that some types of guns were impossible to
purchase legally in Mexico but could be obtained in the United States. However, the
court did not permit Ballesteros to testify that, in his opinion, Garcia’s purchases and
attempted purchases of firearms were consistent with those of a straw purchaser, nor did
it permit him to mention or describe Mexican drug cartels.
At trial, Ballesteros testified that a straw purchaser is someone who circumvents
firearms laws by falsely representing themselves as the actual buyer of a firearm. He
explained that straw buyers generally acquire firearms on behalf of another person who is
prohibited from buying guns or who does not wish to be linked to the firearm. He further
testified that Mexican gun laws are extremely restrictive, permitting civilians to purchase
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only basic firearms, and restricting all other firearms for exclusive use by the military.
By contrast, he continued, gun laws in the United States are minimally restrictive, which
makes the United States a “source country” for firearms while Mexico is a “demand
Garcia was found guilty on eight of ten counts.
During the sentencing hearing, the United States presented additional evidence
about Garcia’s straw purchases and the recovery of some of the firearms in Mexico.
Albuquerque police officer Luis Hernandez testified about Garcia’s attempted
purchase of four AK-47 type rifles at an Albuquerque gun show. Hernandez, who was
off duty and manning a booth at the show, noticed that two men with Garcia appeared to
be furtively whispering to her in Spanish, telling her which guns to purchase. Both men
told Hernandez they were from Mexico. When Hernandez asked the men for
identification, one of them produced a Mexican driver’s license, and the other produced a
Mexican identification card.
ATF Agent Karl Jorgensen testified that the Armalite AR-50 rifle Garcia
purchased on August 4, 2007, was seized by law enforcement in Durango, Mexico, on
September 19, 2008, from members of the Zetas Cartel. Jorgensen testified two of the
Glock pistols and two the AK-47 type rifles purchased by Garcia were also recovered in
Agent Ballesteros testified again, in more detail, about straw buyers and the
Appellate Case: 10-2115 Document: 01018611340 Date Filed: 03/28/2011 Page: 5
Mexican demand for firearms from the United States. In addition to repeating much of
his trial testimony, he added that the type of firearm a straw purchaser acquires reveals
much about the purchaser’s state of mind—purchasing a “military grade” firearm
suggests a straw purchaser “know[s], or ha[s] reason to know . . . [t]hat the firearm is
intended to be used illegally, to either be diverted to the illegal market or to be used [in]
some other type of crime.” Ballesteros testified that the types of firearms Garcia
purchased—high-powered handguns, semi-automatic rifles, and a .50 caliber rifle—are
the types of firearms Mexican drug cartels have been acquiring to control their drug
routes, wage war against rival drug cartels, and fight the Mexican government.
A four-level sentencing enhancement for arms trafficking was imposed by the
court, pursuant to U.S.S.G. § 2K2.1(b)(5). With the resulting offense level of twenty and
criminal history category of one, it imposed concurrent terms of imprisonment of forty
one months on each count.
We review de novo whether the district court applied the proper standard in
deciding to admit or exclude expert testimony. Norris v. Baxter Healthcare Corp., 397
F.3d 878, 883 (10th Cir. 2005). “That is, whether the district court properly performed its
role as ‘gatekeeper’ pursuant to Federal Rule of Evidence 702” and Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Norris, 397 F.3d at 883. If the district
court applied the correct legal standard, we then review the manner in which the court
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performed its gatekeeping role, deciding whether to admit or exclude testimony, for
abuse of discretion. Id. A district court abuses its discretion only if its ruling is
“arbitrary, capricious, whimsical or manifestly unreasonable or when we are convinced
that the district court made a clear error of judgment or exceeded the bounds of
permissible choice in the circumstances.” Id. (quotation omitted).
Garcia does not contend that the district court applied the wrong legal standard.
We therefore review the district court’s evidentiary ruling to determine whether it was
arbitrary, capricious, whimsical, or manifestly unreasonable.
Garcia contends the district court’s decision to admit Agent Ballesteros’ trial
testimony was an abuse of discretion because the testimony “did not assist the jury to
understand the evidence or determine a fact in issue,” as Fed. R. Evid. 702 requires.1
Even if the testimony were admissible under Fed. R. Evid. 702, Garcia argues, it should
have been excluded under Fed. R. Evid. 403 because its probative value was substantially
outweighed by the danger of unfair prejudice or misleading the jury.
Relevant expert testimony must “logically advance a material aspect of the
case,” Norris, 397 F.3d at 884 n.2, and be “sufficiently tied to the facts of the case that it
District courts must ensure that all expert testimony admitted at trial is both
relevant and reliable. Fed. R. Evid. 702; Daubert, 509 U.S. at 589. Garcia does not
dispute the reliability of Ballesteros’ testimony.
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will aid the jury in resolving a factual dispute,” Daubert, 509 U.S. at 591 (quotation
omitted). In assessing whether testimony will assist the trier of fact, district courts
consider several factors, including whether the testimony “is within the juror’s common
knowledge and experience,” and “whether it will usurp the juror’s role of evaluating a
witness’s credibility.” United States v. Rodriguez-Felix, 450 F.3d 1117, 1123 (10th Cir.
2006) (footnote omitted). Pursuant to Rule 702, courts must conduct a “common-sense
inquiry” into whether a juror would be able to understand certain evidence without
specialized knowledge. United States v. Becker, 230 F.3d 1224, 1231 (10th Cir. 2000).
Because the average juror is often innocent of the ways of the criminal
underworld, expert testimony is allowed in order to provide jurors a context for the
actions of defendants. For example, pursuant to Fed. R. Evid. 702, we routinely allow
law enforcement experts with “other specialized knowledge” to opine as to the means and
methods of the narcotics trade. See United States v. Garza, 566 F.3d 1194, 1199 (10th
Cir. 2009) (explaining how we have repeatedly permitted police officers to testify as
experts on the drug trade).
By analogy, expert testimony that assists jurors in distinguishing the actual
purchaser of a firearm from a straw buyer is also relevant. The average juror is as likely
to be unaware of the dynamics of the illicit arms trade as of the trade in narcotics.
Ballesteros’ expert testimony provided a context for the government’s evidence which
rendered it intelligible to the jury. At trial, the government was required to prove that
Garcia knowingly made a false statement to an FLFD. Ballesteros’ testimony was
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adduced to show Garcia made the false statements knowingly. He explained the
significance of a particular subset of weapons to the jury. Garcia was not buying a
random assortment of guns, but instead was selectively acquiring a specialized arsenal of
firearms which were in demand in Mexico. The significance of the types of firearms
purchased by Garcia is not within the average juror’s common knowledge and
experience. Ballesteros helped the jury understand the mechanics of the transborder arms
trade, by explaining that the guns purchased by Garcia and subsequently recovered in
Mexico, were tightly regulated by Mexico, but were readily available in the United
States. Comparative gun regulation is not a field within the ken of the average juror.
In short, Ballesteros’ expert testimony: (1) placed Garcia’s purchases in context
by explaining the demand for these guns in Mexico and the value of a straw buyer in the
United States; (2) helped explain Garcia’s possible profit motive for providing a scarce
commodity in Mexico; and (3) helped the jury connect Garcia’s modus operandi—
purchasing weapons from multiple dispersed gun stores using multiple forms of
identification—to her reasons for doing so. Ballesteros’ statements provided the jury a
critical connection between Garcia’s acts and her state of mind. His testimony helped the
jury decide whether Garcia “knowingly” made false statements when purchasing
firearms, in much the same way that expert testimony enables a jury to distinguish a drug
user from a distributer. This evidence was therefore relevant.
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Garcia also contends that the probative value of Ballesteros’ testimony was
substantially outweighed by the danger of unfair prejudice in violation Fed. R. Evid. 403.
Garcia argues Ballesteros implicitly referred to Mexican drug cartels by explaining that
the quantity and type of firearms purchased by Garcia were consistent with those of arms
recovered from Mexico.
Under Rule 403, “evidence is unfairly prejudicial if it makes a conviction more
likely because it provokes an emotional response in the jury or otherwise tends to affect
adversely the jury’s attitude toward the defendant wholly apart from its judgment as to
his guilt or innocence of the crime charged.” United States v. Tan, 254 F.3d 1204, 121112 (10th Cir. 2001) (alteration and quotation omitted). Even if unfair “prejudice is found,
it must substantially outweigh the probative value of the evidence in order to be
Ballesteros’ testimony was carefully proscribed. He was specifically prohibited
from mentioning Mexican drug cartels during the trial, and did not mention them during
his trial testimony.2 Insofar as Ballesteros’ testimony conjured visions of drug cartels in
the minds of the jurors, these images were not unmoored from other evidence presented
during the trial. To the contrary, his testimony was firmly anchored in the facts of the
Ballesteros testified only that “[t]he type of firearm [Garcia purchased] is what’s
most being recovered in Mexico at this time. The amount of firearms is consistent with
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case, specifically Garcia’s purchase in cash of thousands of dollars of high-powered
weapons and the subsequent recovery of some of these arms in Mexico. Therefore
Ballesteros’ testimony did not tend to affect the jury’s attitude toward Garcia “wholly
apart from its judgment as to h[er] guilt or innocence of the crime[s] charged.” See Id.
There was no abuse of discretion in allowing Ballesteros’ testimony.
At sentencing, the government must prove facts supporting a sentencing
enhancement by a preponderance of the evidence. United States v. Gambino-Zavala, 539
F.3d 1221, 1228 (10th Cir. 2008). We review the district court’s factual findings for
clear error. United States v. Orr, 567 F.3d 610, 614 (10th Cir. 2009). “To constitute
clear error, we must be convinced that the sentencing court’s finding is simply not
plausible or permissible in light of the entire record on appeal, remembering that we are
not free to substitute our judgment for that of the district judge.” United States v.
McClatchey, 316 F.3d 1122, 1128 (10th Cir. 2003) (quotation omitted).
“If the defendant engaged in the trafficking of firearms,” U.S.S.G. § 2K2.1(b)(5)
provides for a four-level increase in the offense level. The application note explains that
this enhancement applies if the defendant:
(i) Transported, transferred, or otherwise disposed of two or more firearms
to another individual, or received two or more firearms with the intent to
transport, transfer, or otherwise dispose of firearms to another individual;
(ii) Knew or had reason to believe that such conduct would result in the
transport, transfer, or disposal of a firearm to an individual—
(I) Whose possession or receipt of the firearm would be unlawful;
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(II) Who intended to use or dispose of the firearm unlawfully.
§ 2K2.1 cmt. n.13(A). Garcia does not dispute that she transferred two or more firearms
to another individual, and the government does not contend that the recipients belonged
to the narrow category of prohibited possessors. Therefore the issue is whether Garcia
“knew or had reason to believe” that her straw purchases would result in the transfer of
firearms to an individual who intended to dispose of them unlawfully.
In assessing a defendant’s mental state for the purposes of sentencing, a court may
draw “common-sense inferences from the circumstantial evidence.” United States v.
Juarez, 626 F.3d 246, 256 (5th Cir. 2010) (quotation omitted). Our Circuit has not
previously addressed the type of circumstantial evidence necessary to support the
firearms trafficking enhancement of § 2K2.1(b)(5). However, the facts of this case are
analogous to those of Juarez, and we find that decision’s reasoning compelling.
In Juarez, the government presented evidence that the defendant purchased
twenty-five firearms, the majority of them military-style arms. 626 F.3d at 249. The
evidence also indicated that some of these arms were subsequently recovered from gang
members in Mexico. Id. In addition, the defendant had an ongoing relationship with an
arms buyer who specified which weapons to purchase, provided her with the cash for the
weapons, and then paid the defendant $200 for each firearm. Id. In light of these facts,
the Fifth Circuit concluded that the district court did not clearly err by applying the
enhancement, given “[t]he number of weapons, their type, and the circumstances
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surrounding Juarez’s relationship” with the arms buyer—specifically the “clandestine
nature” of this relationship. Id. at 252.
In this case, the government presented evidence at sentencing that Garcia had
purchased or attempted to purchase nineteen firearms, all of which are types of weapons
Mexican drug cartels actively seek in the United States. The government presented
testimony that five of these weapons were in fact recovered in Mexico. In particular, the
district court heard that the AR-50 rifle was seized from three members of the Zetas
Agent Ballesteros testified at sentencing that, in his experience, straw purchasers
were generally aware the firearms they purchased were intended to be used illegally. He
testified that the role of firearms in the Mexican drug war was common knowledge along
the border, the area where Garcia lived when she made her purchases. The district court
also heard evidence of the “significant drug war” taking place “across the border from
New Mexico into Mexico.”
The government presented evidence of the clandestine relationships involved in
Garcia’s firearms purchases. When attempting to make one purchase, she was dropped
off some distance from the gun store by two men who sped away. She was furtively
directed to buy four AK-47 type weapons by the two men whispering in Spanish at the
Albuquerque gun show. Evidence at trial also indicated that someone else was funding
Garcia’s gun shopping spree. Despite being unable to pay her rent and reporting an
income of only $4171 in 2008, Garcia paid thousands of dollars for firearms, in cash,
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including over $3000 for a single sniper rifle, in less than a year.
Garcia seeks to distinguish this case from Juarez, arguing the government failed to
present evidence of: (1) the identity or number of persons for whom she obtained
firearms; (2) the source of her funds for the purchases; (3) how she transferred the
weapons to their actual buyers; and (4) whether she was compensated for acting as a
We do not consider these distinctions to be dispositive. The district court had
ample circumstantial evidence from which to infer Garcia knew or had reason to believe
the arms she purchased were destined for individuals who would dispose of them
unlawfully. As in Juarez, there was evidence that Garcia bought the type of weapons
preferred by Mexican cartels, and that she bought them in significant quantities. As in
Juarez, there was evidence that weapons purchased by Garcia were recovered in Mexico,
including from the Zetas Cartel. On the basis of this evidence, and the rest of the
government’s circumstantial evidence, we cannot conclude that the district court clearly
erred when it inferred that Garcia knew or had reason to believe she was transferring
firearms to individuals who intended to dispose of them in an unlawful manner.
For the foregoing reasons we AFFIRM Garcia’s conviction and sentence.
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