Thursday, September 23, 2010
The Profile Doesn't Fit The Profile: Fifth Circuit Addresses Admissibility Of Drug Courier Profile Evidence Under Rule 704(b)
Federal Rule of Evidence 704(b) provides that
No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
So, is drug courier profile evidence admissible under Rule 704(b)? That was the question addressed by the Fifth Circuit in its recent opinion in United States v. Gonzalez-Rodriguez, 2010 WL 3636986 (5th Cir. 2010).
In Gonzalez-Rodriguez, Rafael Gonzalez-Rodriguez was convicted of possession with intent to distribute more than 500 grams of methamphetamine. The evidence at trial established that
Gonzalez-Rodriguez drove a Freightliner tractor-trailer to the immigration checkpoint in Falfurrias, Texas....
The Freightliner was carrying a shipment of grapefruits destined for a Costco warehouse in Dallas, Texas....
Border Patrol Agents Abel Quintana and Victor Valdez were on duty...when Gonzalez-Rodriguez arrived at approximately 11:26 P.M. Agent Valdez is a trained K-9 handler and was with his canine, Ringo. As Gonzalez-Rodriguez approached the primary inspection area, Ringo pulled Agent Valdez to the back of the Freightliner. Agent Valdez signaled to Agent Quintana that Ringo had alerted to the trailer, and Agent Quintana asked Gonzalez-Rodriguez to drive to a secondary inspection area.
At secondary inspection, Agent Valdez...asked Gonzalez-Rodriguez to open the trailer door. After Gonzalez-Rodriguez opened the door, Ringo jumped on top of grapefruit bins stacked two high and ran full speed to the front of the trailer. Ringo started digging through a particular bin of grapefruits. Agent Valdez crawled to the area where Ringo was digging, moved some bags of grapefruits, and discovered bundles bearing an image of the grim reaper. Agent Valdez, with the assistance of other agents, ultimately recovered 124 such bundles weighing a total of 312.5 pounds. The bundles had been placed in the center of five different grapefruit bins, with grapefruits layered on all sides. The bundles contained extremely high quality methamphetamine, referred to as “ice” due to its purity, with an estimated street value of $10 to $40 million.
A bill of lading and log book were recovered from the Freightliner. The bill of lading was prepared by Interstate Fruit and indicates that Order 5349 contained 40 bins of 15-pound bags of grapefruit destined for a Costco warehouse in Dallas. Interstate Fruit's shed foreman testified that Order 5349 left Interstate at 12:56 P.M. The log book's latest entry, on the other hand, states that “Pickup # 4359” was made at 9:45 P.M. The log book was signed by Gonzalez-Rodriguez. It normally takes about one and one-half hours to drive from Interstate Fruit's warehouse in Donna to the immigration checkpoint in Falfurrias.
Moreover, Agent Robert Crawford of the Drug Enforcement Administration testified that
that he would “classify” the majority of people arrested at immigration checkpoints as couriers, and that couriers generally are at the bottom of drug organizations and do not actually handle the drugs they transport. Agent Crawford explained that this is to reduce the cost of the courier's services, and also to ensure that the courier has little information that could be traced back to the broader organization. Because drug couriers typically do not handle drugs, Agent Crawford testified that a courier probably did not hide the methamphetamine in Gonzalez-Rodriguez's trailer, and thus Agent Crawford did not expect to find, and was not surprised when he did not find, Gonzalez-Rodriguez's fingerprints on the bundles of methamphetamine. Agent Crawford additionally testified that large drug organizations often seek couriers with no criminal history to give an appearance of legitimacy to their operation. For a similar reason, Agent Crawford stated that drug organizations often try to hide their illegitimate contraband in seemingly legitimate places for transportation. He explained that drugs often are hidden in “false walls, false compartments, they will put it in engines, they will put it in tires, they will put it in produce just various different particular ways.” Indeed, Agent Crawford asserted that the “first thing” he wanted to know when conducting his investigation was whether the Freightliner was carrying a “legitimate load.” Agent Crawford further testified that two drain holes in the Freightliner's trailer had been plugged, and that this indicated an effort to impede a detectable drug odor. Finally, Agent Crawford suggested that Gonzalez-Rodriguez must have known about the drugs in the Freightliner because he falsified the Freightliner's log book. Gonzalez-Rodriguez did not object to any of this testimony.
After he was convicted, however, Gonzalez-Rodriguez appealed, claiming, inter alia, that this testimony was improperly received under Federal Rule of Evidence 704(b), and the Fifth Circuit reviewed for plain error. According to the court,
A drug courier profile is a compilation of characteristics used by law enforcement officers to identify individuals who might be involved in the trafficking of narcotics....In cases involving pure profile evidence, law enforcement personnel seek to testify that because a defendant's conduct matches the profile of a drug courier, the defendant must have known about the drugs he was transporting....We have repeatedly held that drug courier profile evidence is “inadmissible to prove substantive guilt based on similarities between defendants and a profile.”...This is because profile evidence may amount to the functional equivalent of an expert opinion that the defendant knew he was carrying drugs, see...Fed.R.Evid. 704(b), and also because profile evidence is likely to be overinclusive and its probative value low in relation to its prejudicial effect, see...Fed R. Evid. 403. That an individual fits a generic drug courier profile does not mean that the individual knew he was carrying drugs in a particular case, and “[i]t is the evidence showing the person's connection to drug trafficking that must form the basis for the conviction.”...Although the Government may introduce evidence that the defendant exhibited the individual behaviors that make up a drug courier profile, the Government may not define the profile or suggest that the defendant's behavior in fact fit the profile.
The Fifth Circuit found that some of Agent Crawford's testimony fell on the good side of this divide, such as his testimony
that most large quantity methamphetamine is produced in Mexico; that drug organizations use couriers to transport drugs to the United States for distribution; that drug organizations often transport drugs by hiding them in seemingly legitimate places; that couriers normally do not handle drugs; that a courier probably would not have been the person who hid the methamphetamine in the grapefruit; and that Agent Crawford therefore was not surprised when he did not find Gonzalez-Rodriguez's fingerprints on the bundles of methamphetamine.
That said, the court found that other portions of Agent Crawford's testimony crossed the line, such as his testimony
that drug couriers generally have no criminal history (The court found this to be "classic profile testimony: it describes a characteristic used by law enforcement officers to identify an individual who might be a drug courier.");
that the “first thing” he wanted to know when conducting his investigation was whether the Freightliner was carrying a “legitimate load,” such as “produce;”
that Gonzalez-Rodriguez must have known about the drugs because he falsified the Freightliner's log book; and
that the majority of people arrested at immigration checkpoints are couriers (The court found that "[t]his testimony implied that Gonzalez-Rodriguez was a drug courier, and therefore knew he was carrying drugs, because he was arrested at a checkpoint.").
In the end, however, the Fifth Circuit still affirmed, finding that the erroneous admission of this testimony did not affect Gonzalez-Rodriguez's substantial rights because "even excluding Agent Crawford's impermissible testimony, there is still extensive evidence that Gonzalez-Rodriguez knew about the drugs in the Freightliner."