USA v. Jose Morin

Filing

PUBLISHED OPINION FILED. [09-40702 Affirmed ] Judge: WED , Judge: JLW , Judge: JLD Mandate pull date is 01/03/2011 for Appellant Jose Santos Morin [09-40702]

USA v. Jose Morin Case: 09-40702

Document: 00511318362 Page: 1 Date Filed: 12/10/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 10, 2010 N o . 09-40702 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J O S E SANTOS MORIN, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court for the Southern District of Texas

B e fo r e DAVIS, WIENER, and DENNIS, Circuit Judges. W . EUGENE DAVIS, Circuit Judge. J o s e Santos Morin appeals his conviction for possession with intent to d is t r ib u t e more than 1,000 kilograms of marihuana in violation of 21 U.S.C. §§ 8 4 1 (a )(1 ) and (b)(1)(A) and conspiracy to commit that same offense in violation o f 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). Morin challenges the testimony o f government witnesses as being impermissible "drug courier profiling" t e s t im o n y . He also challenges a question asked by the prosecutor during trial. For the following reasons, we find no reversible plain error and affirm the d is t r ic t court's judgment of conviction.

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No. 09-40702 I. T h e district court entered a judgment of conviction against Morin after the ju r y found him guilty on the above-cited counts. The principal factual issue p r e s e n t e d to the jury was whether Morin "knowingly and intentionally" p o s s e s s e d and conspired to possess a controlled substance. A summary of the e v id e n c e presented at trial in the light most favorable to the verdict follows. Morin drove a tractor-trailer to the Falfurrias, Texas Border Patrol c h e c k p o in t on January 20, 2009. Juan Manuel Hernandez, whose wife owned t h e tractor, was a passenger in the vehicle. In response to questioning from U n ite d States Border Patrol Agent Francisco Carriaga, Morin stated that the t r a ile r was owned by Dice Transport and that it was empty, but when asked in S p a n is h he responded that it was carrying cabbage. When asked about where t h e y had picked up the load, Hernandez interrupted and stated that they had ju s t picked up the trailer at the ISPE produce warehouse. Morin handed Agent C a r r ia g a the bill of lading indicating that the trailer contained cabbage from the I S P E warehouse bound for a produce company in Houston, Texas. The bill of la d in g had been signed by Hernandez. According to Agent Carriaga, Morin did not appear nervous. Another B o r d e r Patrol Agent, Oscar Ortiz, testified that he conducted a routine canine s e a r c h around the tractor-trailer. The canine alerted to one of the drain holes a b o v e the rear tires of the trailer. Agent Carriaga then sent Morin and

H e r n a n d e z to secondary inspection. The canine again alerted to the rear of the t r a ile r . Agent Carriaga saw that the doors of the trailer were sealed, and asked M o r in if he could cut the seal. Morin consented to a search of the trailer. Once A g e n t Carriaga opened the door, the canine jumped on top of produce boxes in t h e back of the trailer. Opening one of the boxes, Agent Ortiz saw black bundles h id d e n under layers of cabbage leaves. A search revealed 284 bundles of

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No. 09-40702 m a r ih u a n a weighing 3,586.18 kilograms (9,146 pounds) with an approximate s t r e e t value of $7.3 million. No fingerprints were found on the bundles. M o r in and Hernandez were placed under arrest.1 Drug Enforcement A g e n c y ("DEA") Agents Xavier Bedoya and Suzanne Minnick arrived at the s c e n e later that day. Morin agreed to give the DEA agents a statement.

According to the DEA agents, Morin told them the following. Hernandez had c a lle d him the day before at his home in Mission, Texas and asked him if he w a n t e d to go to Houston to deliver a load of cabbages, and Morin agreed to go. Morin's wife and children were at his sister's house in a nearby town that night. Morin had a friend named Oscar Cantu call a taxi for him, which picked him up a t his home around 11:30 p.m. on January 19 and dropped him off at a Jack in t h e Box restaurant. Hernandez arrived at the restaurant at approximately 1 2 :0 0 a.m. in the tractor, pulling the trailer. Morin did not know how long they w o u ld be gone, where they were going, where they were going to stay, or the id e n tity of the tractor or the trailer's owner. Morin was not employed by the c o m p a n y named on the side of the tractor, Dice Transport. Once he had been p ic k e d up at the Jack in the Box, he and Hernandez headed straight for F a lfu r r ia s , Texas, stopping only at a gas station in Encino, Texas where Morin t o o k over the driving. The DEA agents did not make a recording of this

s t a t e m e n t or take a written statement from Morin. A g e n t Minnick searched Hernandez's wallet and found a receipt dated J a n u a r y 19, 2009 from a Stripes convenience store in Mission, Texas. According t o the testimony of Agents Minnick and Bedoya, Morin had not mentioned the S t r ip e s store during the interview, despite their thorough questioning. The

a g e n t s obtained the video surveillance tapes from the store for the thirty m in u t e s before and after the time indicated on the receipt. The Stripes store had

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Morin and Hernandez were tried separately.

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No. 09-40702 1 6 different security cameras, several of which caught footage relevant to the a g e n t s ' investigation. Agent Minnick testified that she analyzed footage from t h e different cameras to arrive at her conclusions about what the video showed. Several portions of the video footage from these different cameras were played fo r the jury. Agent Minnick testified that the video evidence showed that at a p p r o x im a t e ly 10:00 p.m. a red tractor with a white trailer similar to the one M o r in was pulling when arrested backed up from the pump area, where it p a r k e d . A second red tractor closely resembling the one Morin drove to the b o r d e r checkpoint pulled into pump number 11 at approximately 10:26 p.m., m a t c h in g the pump and the time listed on the receipt. At that point, the first r e d tractor detached from the white trailer and pulled up to the pump in front o f the second red tractor. A white vehicle called an Avalanche then pulled up b e h in d the tractors about three minutes later, and several people walked from t h e tractors to the white vehicle where they appeared to talk together. The first r e d tractor then left, and the second red tractor could be seen backing up and a t t a c h in g to the white trailer, then leaving the service area at approximately 1 0 : 5 3 p.m. Agent Minnick also testified that the video showed a person who a p p e a r e d to be Morin inside the store at the cash register making purchases a r o u n d this time. Morin testified at the trial in his own defense. He stated that Hernandez c a lle d him around 7:00 p.m. on January 19 and asked him to go with him to H o u s t o n in the tractor-trailer. He had been friends with Hernandez for over 12 y e a r s , and Hernandez was the godfather of Morin's son. Hernandez picked M o r i n up at his house in Mission, Texas about 9:30 p.m. without the trailer a t t a c h e d and drove them to the Stripes store. At the Stripes store, they fueled t h e tractor and Morin went inside to buy some food and soft drinks while H e r n a n d e z paid for the fuel. When he left the store with his snacks, Morin saw t h e white Avalanche. Morin then got a ride back to his house from an 4

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No. 09-40702 a c q u a in t a n c e who happened to be passing by the gas station because Morin w a n t e d to say goodbye to his family. Morin then had a friend named Oscar C a n t u call a taxi that took him to the Jack in the Box restaurant, where he met H e r n a n d e z at approximately 12:00 a.m., at which time the trailer was already a t t a c h e d . Morin and Hernandez then drove toward the Falfurrias checkpoint. About ten miles from the checkpoint, Morin took over the driving because H e r n a n d e z claimed to be ill. Morin denied any knowledge that the trailer c o n t a in e d marihuana. As discussed later in this opinion, Morin's testimony a b o u t his presence at the Stripes convenience store conflicts with the DEA a g e n t s ' testimony about what Morin told them shortly after his arrest and in c e r t a in other respects. M orin presented evidence tending to show that Hernandez was responsible for the marihuana, including evidence that Hernandez falsified the bill of lading. Morin did not present any testimony to corroborate his story about leaving the S t r ip e s store, returning home, and then catching a taxi to the Jack in the Box r e s ta u r a n t. Agent Minnick testified that she asked Morin for the contact

in fo r m a t io n of his friend, Oscar Cantu, in order to corroborate Morin's statement t h a t Cantu had called a taxi for him. Agent Minnick testified that she called the n u m b e r Morin gave her twice, and on both occasions a man answered the phone (o n one occasion identifying himself as Morin's brother) and said that he did not k n o w Cantu. T h e prosecution presented a number of witnesses in support of its case. The jury heard from an employee of the produce company listed on the bill of la d in g who testified that the company had not been expecting any load of c a b b a g e that day. A witness from the ISPE warehouse testified that the bill of l a d in g was an obvious forgery and that it did not correspond to any legitimate l o a d of cabbage that had been scheduled for transport. An employee of the S t r ip e s convenience store testified regarding the particulars of the receipt and 5

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No. 09-40702 t h e security cameras at the gas station. The owner of the taxi company that M o r in claimed picked him up at his house on January 19 testified that none of h is drivers had any record of picking up a passenger in the vicinity of Morin's a d d r e s s on that evening. D u r in g presentation of the government's case, Border Patrol Agent Ortiz a n d DEA Agent Minnick testified. The prosecutor asked both agents questions a b o u t their experience and background. On this appeal, Morin objects to the fo llo w in g testimony of Agent Ortiz, which occurred after some general q u e s t io n in g from the prosecutor about Ortiz's experience in narcotics cases. Q : Tell us a little bit about your understanding of how a drug o r g a n iz a tio n works; where does [sic] the drugs come from, where do t h e y go, in a general fashion? D e f e n s e Counsel: Judge, I'm going to object to it on the basis of r e le v a n c y and also confusing the jury, Judge, as far as organizations t h a t are dealing with drugs. This is a -C o u r t : Only in the most general way. But defendant himself is not a c c u s e d of being a member of any organization or cartel from M e x ic o , but I think the jury is entitled to know generally ­ . . . the p r o c e s s by which ­ . . . the United States has these facilities and w hy. Q : In general where ­ the drugs that you catch at the checkpoint: W h e r e are they coming from? Where are they going? What's going on? A : My understanding is most of this comes from Mexico. It's grown in Mexico, harvested over there, packaged, and then transported n o r t h . And it comes across the river either through the river itself o r through a port of entry in compartments. Q : Secret compartments in vehicles? A : Secret compartments in vehicles. Q : Yeah. A : And from there it's transferred to another conveyance, 18w h e e le r s , buses, or walked around the checkpoint. Q : Okay. And then, from there ­ A : It goes up north. Q : Once it gets past the checkpoint, what happens?

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No. 09-40702 A : They take it north, wherever its destination is it's supposed to be g o in g , and from there I guess they distribute it among ­ Q : Well, various cities across the United States. A : I would assume, yes. Q : And from your experience and from what you've learned about d r u g organizations, are there many people involved in these sort of tr a n s p o r ta tio n s ? A : Yes, sir. Q : And the people that you're dealing with that you catch out there a t the checkpoint: Normally, in general, what is their job? Where do t h e y fit in? A : I guess they're just the middleman, the people that actually t r a n s p o r t it from point A to point B. I mean ­ Q: Okay. Where does the checkpoint, in your experience ­ how does it ­ how does this trip from, say, Mexico to some city in the United S t a t e s that the drugs are on, where does the checkpoint fit in? How d o e s it figure into what ­ A: I would say the checkpoint would be considered, like, the choke p o in t. Q : The choke point? A : A choke point, yes. Q : What do you mean by that? A : Well, as they bring their stuff down from the south, let's say, they h a v e to take the highway or walk it through the brush. But with la r g e amounts of narcotics, its kind of hard to walk it through the r a n c h e s , so most of it they will drive through ­ try to drive through in compartments or concealed somewhere. And at the checkpoint is, I guess it's the most vulnerable spot from them, you know. Q : All right. Most vulnerable? A : Well, they get a ­ it's a higher risk of getting caught there ­ Q: Okay. A : ­ at the checkpoint. Q : All right. And, in your experience, are some of the people that y o u catch there, their only job is just to get it through the c h e c k p o in t? A: Correct. That's what they usually do, just drive it from point A t o point B, and that's it: that's all they do. M o r in also challenges the following testimony of Agent Minnick, which w a s given later in the trial.

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No. 09-40702

Q : All right. In your experience, would you expect somebody driving a tractor-trailer with a large load of marihuana in the back to have h a n d le d the bundles ­ D e f e n s e Counsel: Objection, your Honor, calling for speculation, y o u r Honor. C o u r t : Overruled. Q : In your experience, would you expect someone driving a large lo a d of marihuana to have handled the bundles that were in the b a c k of their tractor-trailer? A : No. In my experience in all the cases that I've handled in the fo u r years since I've been here and the Defendants I've spoken with, w h ic h it's been several ­ many, in fact ­ none of them loaded the m a r ih u a n a onto their trailers. Q : It's done by somebody else? A : Yes. It's done by somebody else. It's more convenient for the o r g a n iz a tio n as a whole because they don't want the people that are tr a n s p o r tin g ­ ... Q: Well, let me ask you. Is there a logical reason in your experience w h y the driver would not have handled the bundles? A : Yes. It's more convenient for the organization. They c o m p a r t m e n t a liz e everything they do. So they have the people at t h e warehouse. They have the people that transport it across the r iv e r and they don't want one portion of the method of transporting t h e marihuana or packaging the marihuana ­ they don't want that p o r t io n to know about the other portion. They keep everything very c o m p a r t m e n t a liz e d . So once it come across the river, it's usually s t o r e d in a warehouse, usually rewrapped and then they would find a way of getting ­ and that's kind of what explains this video as well b e c a u s e they would get a way ­ D e f e n s e Counsel: Your Honor, I would object to the nature of the a n s w e r that she keeps on going and going, your Honor. P r o s e c u t o r : It's ­ she's explaining ­ C o u r t : Sustained. Question and answer. P r o s e c u t o r : Okay. Q : Well, you were explaining the logic behind them not handling the b u n d le s and you described the different compartments that drug o r g a n iz a tio n s are normally organized in and so when they crossed t h e river, they come to ­ where do they put it after that? A : Usually typically they store it in a stash house.

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No. 09-40702 Q : All right. Then what happens? A : And then they ­ in order for their transportation, they arrange t r a n s p o r t a t io n by whatever method, car, tractor-trailer, whatever m e t h o d they're going to use and usually someone from that o r g a n iz a tio n ­ not the person that going to transport it from point A to point B ­ will take custody of a trailer or tractor or whatever c o n v e y a n c e they're going to use and will take it to a stash house to g e t it loaded. They do not want the person that's going to transport t h e illegal drugs from point A to point B to have knowledge about w h e r e the stash location is. Typically they do not want that person t o have that knowledge. Q : So in this video your theory is that somebody delivered the trailer t o the Stripes store, dropped it off at least temporarily from the ­ fr o m what we've seen and that with Mr. Morin and Mr. Hernandez t h e r e at the pumps. D e f e n s e Counsel: Your Honor, he's leading the witness, your H on or. C o u r t : I'll allow it. I think the testimony is a bit long and he's t r y in g to sum it up ­ P r o s e c u t o r : Yes. C o u r t : Because I know he's about to get through with the witness. Q : So they dropped off the trailer. They pulled up and then this A v a la n c h e [the white vehicle] comes up and there's a meeting b e tw e e n everyone at the pumps and then Morin and Hernandez b a c k up and get the trailer already loaded? A : Yes, right. Q : In your experience, this would be fairly common of how a drug o r g a n iz a tio n would work? A : Yes. Q : And was there any indication in this ­ in your investigation that there w a s any legitimate load of cabbage on that trailer? A : No. M o r in also claims that the following exchange between the prosecutor and M o r in at trial was prejudicial and constitutes reversible error. Q : And you've been a truck driver since 2001? A : Perfect (phonetic). Q : And how long have you had the cell phone that you had when you w e r e arrested?

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No. 09-40702 A : Well, it had been a while. It had been a long while. Q : Do you know or do you call other drug dealers? A : No, sir. T h is question elicited no objection from defense counsel. But the district ju d g e dismissed the jury shortly thereafter and chastised the prosecutor for a s k in g this question, which the judge deemed to be "unfair" and "leading," as no e v id e n c e had been produced indicating that Morin had ever talked to any drug d e a le r . The judge stated that he would declare a mistrial if the prosecutor asked a n y additional such questions. Morin's counsel did not request a mistrial. The p r o s e c u t o r did not attempt to resume this line of questioning or make reference t o this question at closing. At the close of evidence, the district court gave the ju r y general instructions indicating that attorney comments do not represent e v id e n c e upon which the jury may rely. Morin's counsel did not request a more s p e c ific curative instruction regarding the prosecutor's question. II. " I f the defendant objects, the district court's decision to admit testimony is reviewed for abuse of discretion and harmless error analysis applies." United S ta te s v. Sanchez-Hernandez, 507 F.3d 826, 831 (5th Cir. 2007). If the defendant d o e s not object, then plain error review applies. Id. The trial record indicates t h a t defense counsel made a few objections during the testimony of Agent Ortiz a n d Agent Minnick, but these objections were not related to Morin's claim on a p p e a l that their testimony constituted drug courier profiling. Because Morin's t r ia l counsel did not object on this basis, we review the district court's ruling admitting the alleged profiling testimony for plain error.2

"An appellant must raise an objection to the admission of evidence at trial such that the issue is presented to the district court with sufficient specificity . . . . If the issue was not adequately raised at trial, we review only for plain error." United States v. Burton, 126 F.3d 666, 671 (5th Cir. 1997) (internal citations and quotation marks omitted).

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No. 09-40702 M o r in also admits that his trial counsel did not contemporaneously object t o the prosecutor's challenged question regarding "other drug dealers," so plain e r r o r review applies to this argument as well. United States v. Gracia, 522 F.3d 5 9 7 , 599-600 (5th Cir. 2008). To demonstrate reversible plain error, the Appellant must show that "(1) t h e r e is error; (2) it is plain; and (3) it affected his substantial rights." Id. An

e r r o r "must be `so clear or obvious that the trial judge and prosecutor were d e r e lic t in countenancing it, even absent the defendant's timely assistance in d e t e c t in g it.'" United States v. Gonzalez-Rodriguez, 621 F.3d 354, 363 (5th Cir. 2 0 1 0 ) (quoting United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010)). "As a g e n e r a l rule, an error affects a defendant's substantial rights only if the error w a s prejudicial." Id. (citing United States v. Olano, 507 U.S. 725, 734 (1993)). An error is prejudicial "if there is a reasonable probability that the result of the p r o c e e d in g s would have been different but for the error." Id. "The probability o f a different result must be sufficient to undermine confidence in the outcome o f the proceedings." Id. "The defendant bears the burden of demonstrating that a plain error affects his substantial rights." Id. (citing Olano, 507 U.S. at 7343 5 ). Even if the defendant can meet this burden, "we do not exercise our

d is c r e t io n to correct the error unless it seriously affects the fairness, integrity, a n d public reputation of the judicial proceeding." Id.; accord Gracia, 522 F.3d a t 599-600. "When a defendant does not timely object to an error at trial, s a t is fy in g the requirement for error is `difficult, as it should be.'" GonzalezR o d r ig u e z , 621 F.3d at 363 (quoting Puckett v. United States, 129 S. Ct. 1423, 1 4 2 9 (2009)).

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No. 09-40702 III. A. W e first address Morin's challenge to the alleged profiling testimony of A g e n t s Ortiz and Minnick. 1. E x p e r t testimony may be admitted pursuant to Federal Rule of Evidence 7 0 2 if the expert's "scientific, technical, or other specialized knowledge will assist t h e trier of fact to understand the evidence." Under Federal Rule of Evidence 7 0 4 ( b ) , however, expert testimony may not be admitted in a criminal case to s h o w that the defendant had the requisite mental state to satisfy an element of t h e crime charged. I n the context of drug-related criminal trials, we have allowed law e n fo r c e m e n t expert witnesses to give background testimony about "`the s ig n ific a n c e of certain conduct or methods of operation unique to the drug b u s in e s s so long as the testimony is helpful and its relevance is not substantially o u tw e ig h e d by the possibility of unfair prejudice or confusion.'" Sanchez-

H e r n a n d e z , 507 F.3d at 831 (quoting United States v. Garcia, 86 F.3d 394, 400 (5 t h Cir. 1996)). On the other hand, however, "drug courier profiling" testimony is generally not admissible as substantive evidence of guilt because of its p o t e n t ia l for including "innocent citizens as profiled drug couriers." United S ta te s v. Williams, 957 F.2d 1238, 1241-42 (5th Cir. 1992); United States v. Brito, 1 3 6 F.3d 397, 412 (5th Cir. 1998) (declaring that testimony is "inadmissible to p rov e substantive guilt based on similarities between defendants and a profile."). A drug courier profile is "a compilation of characteristics that aid law e n fo r c e m e n t officials in identifying persons who might be trafficking in illegal n a r c o t ic s ." Sanchez-Hernandez, 507 F.3d at 831; Gonzalez-Rodriguez, 621 F.3d a t 363. Such testimony is usually sought to be admitted to show that because

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No. 09-40702 a defendant matches the profile, he must have had "knowledge" of the drugs he w a s transporting. Gonzalez-Rodriguez, 621 F.3d at 363; Sanchez-Hernandez, 5 0 7 F.3d at 831; United States v. Guitterez-Farias, 294 F.3d 657, 662 (5th Cir. 2 0 0 2 ). This kind of testimony is prohibited if it crosses the "borderline" between a "mere explanation of the expert's analysis of the facts" to a "forbidden opinion o n the ultimate legal issue in the case." Guiterez-Farias, 294 F.3d at 663

(in t e r n a l quotation omitted). A witness crosses this line by offering a direct o p in io n as to the defendant's mental state or by giving the "functional e q u iv a le n t " of such a statement. Id. In particular, "such testimony is not a d m is s ib le if it amounts to the `functional equivalent' of an opinion that the d e fe n d a n t knew he was carrying drugs." Gonzalez-Rodriguez, 621 F.3d at 364 (q u o tin g Guiterez-Farias, 294 F.3d at 663-64). Thus, "there is a fine but critical lin e between expert testimony concerning methods of operation unique to the d r u g business, and testimony comparing a defendant's conduct to the generic p r o file of a drug courier." Id. 2. A p p ly in g these rules to the present case, it is clear that the majority of the a g e n t s ' challenged testimony does not cross the critical line into profiling t e s t im o n y . Almost all of Agent Ortiz's testimony comfortably falls into the p e r m is s ib le "background" variety. Most of his testimony was about the "conduct o r methods of operation unique to the drug business." Sanchez-Garcia, 507 F.3d a t 831. Agent Ortiz was largely "explaining to the jury based on [his] experience in patrolling the U.S.-Mexico border in that area how drug smuggling operations w e r e conducted." Id. at 832. This testimony based on his knowledge and

e x p e r ie n c e could have assisted the trier of fact. Id. at 833. I n contrast with cases in which we have found that drug courier testimony w a s admitted in error, Agent Ortiz did not offer direct testimony regarding M o r in 's mental state or its functional equivalent. See Guiterez-Farias, 294 F.3d 13

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No. 09-40702 a t 663 (involving an agent who testified that drug organizations look for drivers w h o have certain "knowledge," thereby directly suggesting that because most d r iv e r s have knowledge the defendant must have also had knowledge of the d r u g s ); United States v. Mendoza-Medina, 346 F.3d 121, 128 (5th Cir. 2003) (in v o lv in g an agent who testified as to the importance of "trust" between the d is t r ib u t o r and driver, suggested that only "experienced" drivers are trusted w it h large amounts of drugs, and made other comparisons with the facts of the c a s e that tended to imply that the defendant-driver had knowledge). Other c o u r ie r profiling cases have involved similar testimony, either directly or in d ir e c t ly , about the defendant's mental state. See, e.g., Gonzalez-Rodriguez, 6 2 1 F.3d at 366 (involving an agent who testified that defendant "must have k n o w n he was carrying drugs" because he falsified the log book); RamirezV e la s q u e z , 322 F.3d 868, 879 (5th Cir. 2003) (involving an agent who testified t h a t drivers are chosen for their trustworthiness and past performance carrying d r u g s ). This type of mental-state testimony about Morin's knowledge of the d r u g s is absent from Agent Ortiz's testimony. T h e one statement in Agent Ortiz's testimony that may have come close t o crossing the line into profile testimony occurred when the prosecutor asked " t h e people that you're dealing with that you catch out there at the checkpoint: N o r m a lly , in general, what is their job? Where do they fit in?" Agent Ortiz a n s w e r e d "I guess they're just the middleman, the people that actually transport it from point A to point B." Morin's counsel argues that this statement is a n a lo g o u s to testimony in Gonzalez-Rodriguez that we recently held the district c o u r t plainly erred in admitting. 621 F.3d at 366-67 ("[T]he district court plainly e r r e d in admitting Agent Crawford's testimony that the majority of people a r r e s t e d at immigration checkpoints are couriers."). Although similar to the s t a t e m e n t in Gonzalez-Rodriguez, we are persuaded that in the overall context o f Agent Ortiz's testimony this comment was simply part of his legitimate 14

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No. 09-40702 b a c k g r o u n d testimony. We read this portion of Agent Ortiz's testimony as part o f his response to the prosecutor's general questions about how a drug o r g a n iz a t io n works. He was explaining the various segments of the organization a n d the different roles played by individuals within these different segments. He explained that drugs are (1) grown in Mexico, (2) packaged in Mexico, and (3) fin a lly transported north. In explaining the transporting segment of the

o r g a n iz a t io n , he explained the various ways the transporters move the cargo t h r o u g h or around the checkpoints. It was in this context that Agent Ortiz e x p la in e d that most of the people he catches at the checkpoint are transporters, o r middlemen, i.e., engaged in that segment of the organization. We do not read t h is testimony as a suggestion by Agent Ortiz that Morin was a middleman s im p ly because he was arrested at a checkpoint. Neither Agent Ortiz nor the p r o s e c u t o r ever classified or labeled Morin a "middleman" or used the term again a t any later point in the trial. See Brito, 136 F.3d at 412 (involving an agent w h o s e impermissible profiling testimony included labeling the defendants based o n their roles in the drug organization). Thus, Agent Ortiz did not cross the line in t o profiling with the comment. As discussed further below, moreover, even if t h e district court erred in admitting this portion of Agent Ortiz's testimony, it d id not affect Morin's substantial rights. 3. T u r n in g to Agent Minnick's testimony, we conclude that the majority of h e r testimony also falls within the benign category of "background" testimony. Most of her testimony cannot reasonably be interpreted to directly accuse Morin o f having any knowledge of the drugs being transported or as indirectly implying t h e same based on comparison to a profile.3 Like Agent Ortiz's testimony, most

For instance, Agent Minnick's testimony that she has never encountered a driver who loaded the bundles of marihuana into the transporting vehicle was offered to rebut any inferences the jury may have drawn from the lack of Morin's fingerprints on the bundles. The

3

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Case: 09-40702 Document: 00511318362 Page: 16 Date Filed: 12/10/2010

No. 09-40702 o f Agent Minnick's testimony is not comparable to the testimony in cases in w h ic h an agent has testified that a defendant had knowledge of the drugs he was t r a n s p o r t in g based on comparison to a profile. See Gonzalez-Rodriguez, 621 F.3d a t 366-67; Mendoza-Medina, 346 F.3d at 128; Ramirez-Velasquez, 322 F.3d at 8 7 9 ; Guiterez-Farias, 294 F.3d at 663. The last part of Agent Minnick's challenged testimony, however, crossed t h e critical line into an impermissible comparison between a drug profile and M o r in . During this portion of the testimony, Agent Minnick transitioned from giving background testimony about how drug organizations operate to describing h e r "theory" of the surveillance video from the Stripes convenience store. Her t h e o r y was that "somebody delivered the trailer to the Stripes store, dropped it o ff at least temporarily from the ­ from what we've seen and that with Mr. M o r in and Mr. Hernandez there at the pumps . . . then this Avalanche [the white v e h ic le ] comes up and there's a meeting between everyone at the pumps and t h e n Mr. Morin and Mr. Hernandez back up and get the trailer already loaded." She further replied affirmatively when asked by the prosecutor if "this would be fa ir ly common of how a drug organization would work." We note first that the prosecutor was entitled to ask Agent Minnick to p r o v id e a summary of the video testimony and her expert opinion of it. Federal R u le of Evidence 1006 states that "[t]he contents of voluminous writings, r e c o r d in g s , or photographs which cannot conveniently be examined in court may b e presented in the form of a chart, summary, or calculation." This Rule "does n o t specifically address summary witnesses," but "[n]evertheless, for complex c a s e s , this court has allowed summary witnesses in a limited capacity." United

prosecution is entitled to rebut this type of inference with background testimony. See Sanchez-Garcia, 507 F.3d at 833 (permitting prosecution to offer agent background testimony to rebut the defendant's innocent explanation that he was attempting to enter the country to work rather than smuggle drugs).

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Case: 09-40702 Document: 00511318362 Page: 17 Date Filed: 12/10/2010

No. 09-40702 S ta te s v. Nguyen, 504 F.3d 561, 572 (5th Cir. 2007) (quotation marks omitted). In complex criminal cases ­ primarily cases involving complex financial d o c u m e n t s but also including some drug cases ­ this court has also recognized t h a t a government agent may "serve as `an expert summary witness', in which c a p a c it y the witness may testify regarding his analysis of the subject matter of h is expertise . . . ." United States v. Castillo, 77 F.3d 1480, 1499 (5th Cir. 1996) (r e g a r d in g testimony by DEA agent about wiretap investigation of defendant c o n v ic t e d of possession with intent to distribute marihuana) (quoting United S t a t e s v. Moore, 997 F.2d 55, 57 (5th Cir. 1993)). The video evidence from 16 d iffe r e n t security cameras, which Agent Minnick collected, was sufficiently v o lu m in o u s and complex for the district court to allow Agent Minnick to offer her e x p e r t testimony summarizing the video and describing her analysis of it. Video fo o t a g e of the two red tractors, the trailer, the white Avalanche vehicle, and M o r in were captured on a number of different cameras, and many of the images w e r e blurred or otherwise difficult to see. Morin and the vehicles moved in and o u t of the various cameras' ranges at different times. Putting these video

s e g m e n t s from different cameras together to create a coherent whole required s u b s t a n t ia l time and analysis by Agent Minnick. Thus, it was not obvious or p la in error to allow Agent Minnick to summarize the video evidence and assist t h e jury in understanding it. H o w e v e r , Agent Minnick testified that (1) based on her interpretation of t h e video evidence, after everyone met at the pumps at the Stripes station, M o r in and Hernandez backed up to the "already loaded" trailer that had been d e liv e r e d to the Stripes station and attached that trailer to Hernandez's tractor; a n d (2) that "this would be fairly common of how a drug organization would w o r k ." Thus, Agent Minnick, based on what she saw on the video evidence, gave a n opinion that Morin and Hernandez were probably part of a drug organization w h o met the drug supplier at the Stripes store, and the drug supplier 17

Case: 09-40702 Document: 00511318362 Page: 18 Date Filed: 12/10/2010

No. 09-40702 t r a n s fe r r e d the trailer loaded with drugs to Hernandez and Morin for transport t o a city in the United States. This testimony effectively conveyed to the jury t h a t Morin, as a likely member of a drug organization, had knowledge that the t r a ile r he and Hernandez were pulling was loaded with drugs. This part of A g e n t Minnick's testimony is unacceptable profile testimony. It is also

u n a c c e p t a b le as part of her analysis of the video evidence. By implying that M o r in was a member of a drug organization, Agent Minnick crossed the line fr o m giving an explanation of the facts to advancing an impermissible opinion r e g a r d in g Morin's mental state. See Nguyen, 504 F.3d at 572 (noting that by c a llin g the defendant a "co-conspirator" during summary testimony, the g o v e r n m e n t agent impermissibly implied that the defendant "had the requisite m e n ta l state for the criminal act" of fraud, because "one cannot be an unwitting c o n s p ir a t o r " ). The district court plainly erred in admitting this testimony. A s explained below, however, even though Agent Minnick crossed the line in t o profiling with this comment, we are persuaded that Morin has not carried h is burden of proving that the erroneously admitted testimony affected his s u b s t a n t ia l rights under plain error review. 4. U n d e r plain error review, Morin has the burden of persuasion to show that t h e erroneously admitted testimony resulted in prejudice, thereby affecting his s u b s t a n t ia l rights. To carry this burden he must show "a reasonable probability t h a t his trial would have come out differently but for the illegitimate aspects of" t h e agents' testimony. Gonzalez-Rodriguez, 621 F.3d at 367. We conclude that M o r in has failed to bear this burden. F ir s t , Morin and Hernandez shared the driving duties as they transported t h e drugs. The district court charged the jury that in reaching the issue of d e fe n d a n t 's knowledge it could consider the fact that Morin was driving the v e h ic le as one factor. The district court explained, however, that the jury must 18

Case: 09-40702 Document: 00511318362 Page: 19 Date Filed: 12/10/2010

No. 09-40702 fin d other evidence in the case to find beyond a reasonable doubt that Morin had g u ilt y knowledge that a controlled substance was hidden in the vehicle. This c h a r g e was not objected to, and that is the law that controls this case. United S ta te s v. Redd, 355 F.3d 866, 874 (5th Cir. 2003); FED. R. CRIM. P. 30 (d). The g o v e r n m e n t produced a substantial volume of additional evidence demonstrating M o r in 's guilty knowledge that he and Hernandez were transporting a controlled s u b s t a n c e .4 T h e most important evidence the government presented to the jury was t h e video taken at the Stripes store on which Morin appears. Morin admitted h e was at the store during the time of the video. The jury was entitled to infer fr o m the video that Morin was present when the trailer containing the m a r ih u a n a was attached. The jury was also entitled to consider the suspicious c ir c u m s t a n c e of picking up a supposed load of produce at a gas station. T h e jury also could have inferred his knowledge about the marihuana from m u lt ip le inconsistencies between Morin's testimony at trial and what he told the D E A agents during his initial interview after being taken into custody. Agent M in n ic k and Agent Bedoya testified that Morin never mentioned his presence a t the Stripes store during this initial interview, despite their thorough q u e s t io n in g . Agent Minnick testified that she only learned of the Stripes store w h e n she found the receipt in Hernandez's wallet. Although no recording was m a d e of the initial DEA interview, and Morin contends that there are no in c o n s is t e n c ie s between what he told the agents originally and his testimony at t r ia l, the jury was entitled to credit the DEA agents' testimony and reject M o r in 's testimony.

A defendant's state of mind cannot ordinarily be proved by direct evidence, and circumstantial evidence will suffice. Williams, 957 F.2d at 1243 (citing United States v. Moye, 951 F.2d 59 (5th Cir. 1992)).

4

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Case: 09-40702 Document: 00511318362 Page: 20 Date Filed: 12/10/2010

No. 09-40702 T h e jury was further entitled to consider a large portion of Morin's t e s t im o n y as a suspicious and less-than-convincing attempt to give a false, aftert h e -fa c t explanation for his failure to tell the DEA agents in his initial statement t h a t he and Hernandez were at the Stripes gas station. See Gutierrez-Farias, 2 9 4 F.3d at 660-61 ("[A] `less-than-credible' explanation is part of the overall c ir c u m s t a n t ia l evidence from which possession and knowledge may be in fe r r e d ." ). Morin testified that an acquaintance who happened to be driving b y the gas station gave him a ride home and that another friend named Oscar C a n t u called a taxi to take him from his house to the Jack in the Box restaurant, t h e place where he told the agents that he met Hernandez. Morin did not call e it h e r of these people as witnesses at trial to corroborate his story, nor did he a t t e m p t to provide their contact information to the agents, who requested this in fo r m a t io n . Indeed, Agent Minnick testified that when she asked Morin for C a n t u 's contact information in order to seek such corroboration, Morin gave her t h e wrong number, which is a fact from which the jury could have inferred that M o r in was either hiding the witness or fabricating the story entirely. Additionally, the jury heard testimony from the owner of the taxi company that h e had no record indicating that any of his drivers picked up a passenger near t h e address of Morin's house that evening to take him to the Jack in the Box resta u ra n t. F u r t h e r , the government presented the jury with testimony that the p r o d u c e company listed on the falsified bill of lading was not expecting a load of c a b b a g e that day. The prosecution also presented testimony from an employee o f the ISPE warehouse that the bill of lading had been forged and did not c o r r e s p o n d to a legitimate load of cabbage. The jury was entitled to infer that M o r in , as one of the drivers of the tractor, would have been told where the cargo w a s to be delivered. The jury was also entitled to accept the prosecutor's theory t h a t Morin and Hernandez had no lawful destination. The testimony presented 20

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No. 09-40702 t o the jury further established that Morin and Hernandez had been friends for o v e r 12 years and that Hernandez was the godfather of Morin's son. Based on t h e ir close relationship, together with the evidence discussed above, the jury was e n tit le d to believe that Morin was aware that he and Hernandez were t r a n s p o r t in g a controlled substance and reject Morin's explanation that H e r n a n d e z had deceived him in this respect. G iv e n the volume of evidence produced by the government of Morin's g u ilt y knowledge that he and Hernandez were transporting an illicit cargo, we a r e persuaded that Morin has failed to demonstrate a reasonable probability t h a t the outcome of his trial would have been different but for the illegitimate a s p e c t s of Agent Minnick's testimony. As we recently noted in Gonzalez-

R o d r ig u e z , however, "[w]ere it the government's burden to establish harmless e r r o r beyond a reasonable doubt, our conclusion today might be different." 621 F .3 d at 367. Because the burden is Morin's to show the erroneously admitted e v id e n c e was harmful, we conclude that reversal is not warranted under plain e r r o r review. But we again "pause to caution that it is time for our able trial ju d g e s to rein in this practice" of permitting prosecutors to rely on opinion t e s t im o n y that is unacceptable profile evidence. Mendoza-Medina, 346 F.3d at 125. B. W e next consider Morin's challenge to the prosecutor's question regarding w h e t h e r he called or knew "other drug dealers." Under the three-step test for p la in error review, it is clear to us, as it was to the district court, that the p r o s e c u t o r 's question satisfies the first two steps: it was an error and it was p la in . Even though the defense did not object, the district judge sharply

c h a s t is e d the prosecutor for the question, referring to the question as "unfair," " le a d in g ," and "establishing a fact not in evidence." We agree that the question

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Case: 09-40702 Document: 00511318362 Page: 22 Date Filed: 12/10/2010

No. 09-40702 w a s obviously improper as there was no factual predicate laid that Morin had m a d e other calls to drug dealers. H o w e v e r , as applied to an improper question from a prosecutor, the third s t e p of plain error review "sets a high bar," and "the determinative question is w h e t h e r the prosecutor's remarks cast serious doubt on the correctness of the ju r y 's verdict." Gracia, 522 F.3d at 603. The district court obviously concluded t h a t the question did not affect Morin's substantial rights, and our review of the r e c o r d persuades us that this is correct. We decline to disturb the district court's r u lin g on this matter. See United States v. Munoz, 150 F.3d 401, 415 (5th Cir. 1 9 9 8 ) ("The trial judge's on-the-scene assessment of the prejudicial effect [of a p r o s e c u t o r 's remark], if any, carries considerable weight."). The prosecutor's question was a solitary, isolated event. The prosecution n e v e r attempted to raise the line of questioning again and did not refer to the q u e s t io n in closing. See id. (emphasizing that the prosecution "never made a n o t h e r reference" to the challenged testimony). The district judge further " m it ig a te d the prejudicial effect" of the question through general instructions a d m o n i s h in g the jury that the remarks of the attorneys are not evidence and t h a t the jurors must base their decision on evidence. Id. Importantly, the d e fe n s e did not request a more specific curative instruction or move for a m is t r i a l . Moreover, when viewed in the context of the proceedings as a whole a n d the totality of the evidence arrayed against the Morin at trial, as discussed m o r e fully above, we are satisfied this isolated question did not affect the jury's v e r d ic t . IV . I n sum, the portion of Agent Minnick's testimony that crossed the line into p r o filin g testimony does not warrant reversal of Morin's conviction under plain e r r o r review because Morin has not demonstrated that admission of such 22

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No. 09-40702 t e s t i m o n y affected his substantial rights. The prosecutor's improper question a ls o does not require reversal of the conviction under plain error review because M o r in has similarly failed to demonstrate that this single question affected the ju r y 's verdict. For the foregoing reasons, the district court's judgment of

c o n v ic t io n is AFFIRMED.

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