7ASR3d32

Series: 7ASR3d | Year: () | 7ASR3d32
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ALAMOANA MULITAUAOPELE, Appellant,

 

v.

 

AMERICAN SAMOA GOVERNMENT, Appellee.

 

High Court of American Samoa

Appellate Division

 

AP No. 09-01

 

November 3, 2003

 

 

[1] Expert

testimony is admissible only if it is both relevant and reliable.

 

[2] The presiding

judge’s role in ensuring the reliability and relevancy of expert testimony

extends to all expert testimony.

[3] Reliability of a specific scientific theory or technique may be determined

by all or some of certain specific factors, including testing, peer review,

error rates, and acceptance in the relevant scientific community.

 

[4] The Daubert test for reliability of a

specific scientific theory or technique is

flexible, and the list of specific factors neither necessarily nor exclusively

applies to all experts or in every case.

 

[5] A trial court

has broad discretion concerning the admissibility or exclusion of expert

testimony, and its action will be sustained unless it is shown to be manifestly

erroneous.

 

[6] Drug

courier profile evidence is a somewhat informal compilation of characteristics

believed to be typical of persons unlawfully carrying narcotics.

 

[7] T.C.R.Ev.

403 mandates the exclusion of evidence when its probative value is

substantially outweighed by its unfair prejudicial effect.

 

[8] Drug

courier profile evidence is not always improper, and the court does not abuse

its discretion in allowing such evidence to rebut a defendant’s claim that he

or she does not fit the typical drug courier profile, or to establish a modus operandi in complex cases.

 

[9] T.C.R.Ev.

704 does not contain the prohibition against expert testimony in a criminal

case as to whether a defendant had the mental state constituting an element of

the offense charged, American Samoa’s rules do not open the door to all expert

testimony on the ultimate issue of a defendant’s guilt.

 

[10]

T.C.R.Ev. 704 allows expert testimony in the form of an opinion or inference

only when it is otherwise admissible.

 

[11] A trial court’s errors require reversal unless it is more probable than not that the prejudice resulting

from the error did not materially affect the verdict. T.C.R.C.P. 52(a).

 

[12]

T.C.R.Ev. 704 does not prohibit experts from testifying as to ultimate issues,

but allowing an expert witness provide an opinion that the accused used a

co-defendant’s weaknesses when the expert could provide no proper foundation

for his opinion was an error that was not harmless, and was improper and

prejudicial evidence by the expert that the accused was, in fact, guilty.

 

Before KRUSE,

Chief Justice, WALLACE,* Acting Associate Justice, MOLLWAY,**

Acting Associate Justice, MAMEA, Associate Judge, TUPUIVAO, Associate Judge.

 

Counsel:  For Defendant-Appellant, Tautai A.F.

Fa`alevao and Curtis E. Sherwood

 

For Plaintiff-Appellee American Samoa Government, Fiti A. Sunia

 

OPINION AND

ORDER

Introduction

 

The

defendant-appellant, Alamoana Mulitauaopele (“Mulitauaopele”), was charged in a

two-count information with unlawful possession of methamphetamine and

cocaine.  After a jury trial,

Mulitauaopele was convicted on both counts and sentenced to two consecutive

ten-year terms of imprisonment.

 

Mulitauaopele

appealed, arguing that: 1) the admission of expert testimony by Captain

Va`aomala K. Sunia (‘Sunia”) was improper; 2) the imposition of two consecutive

ten-year terms was improper; 3) the two consecutive ten-year terms amounted to

cruel and/or unusual punishment; and 4) the government failed to produce

sufficient evidence at trial to support the convictions.

 

Because Sunia

improperly provided an opinion that was tantamount to saying that Mulitauaopele

was guilty, and because that opinion lacked an admissible foundation, we

reverse Mulitauaopele’s convictions.

 

 Background

 

A. 

The Evidence Regarding Drug Trafficking.


Mulitauaopele

asked fifteen-year-old Pio Vitolio, Jr. (“Vitolio”), to take a trip to buy

drugs and bring them back to American Samoa. Mulitauaopele made all of the

preparations for the trip.  He got

Vitolio a birth certificate and a certificate of identity and paid for

Vitolio’s airline ticket in cash. 

Mulitauaopele gave Vitolio two envelopes containing money and told

Vitolio to carry them.  Mulitauaopele

flew with Vitolio to Honolulu, Hawaii, and then to Los Angeles, California.

 

In Los

Angeles, they purchased a substance containing Methamphetamine.  On their way back to American Samoa, they

stopped in Honolulu, where Mulitauaopele made a phone call and then went out to

pay for some cocaine.  He told Vitolio to

stay at a house and wait for two men to bring the cocaine.

 

Mulitauaopele

and Vitolio then returned to the Honolulu airport separately.  Vitolio was carrying the drugs–one bag of

methamphetamine and two bags of cocaine. 

He had gotten a ride back to the Honolulu airport from the men who had

given him the cocaine. Vitolio got to the airport so late that the plane had

left the gate without him and had to be called back so that he could board.

 

Mulitauaopele

and Vitolio met in the bathroom after they arrived at the airport in Pago

Pago.  Mulitauaopele told Vitolio to

follow him. They then went to the baggage area, picked up Mulitauaopele’s bags,

and walked to the customs area.

 

Mulitauaopele

and Vitolio handed Territorial Custom Inspector Patrick Tuvale (“Tuvale”) a

single customs declaration form.  When

Tuvale asked why only one form was being used for two people, Mulitauaopele

answered that Vitolio did not know how to complete the form.  Tuvale asked about the bags and Mulitauaopele

told him that the bags belonged to Mulitauaopele, but that Vitolio’s clothes

were in one of them.  Tuvale then asked

whether they were visiting American Samoa. 

Mulitauaopele affirmed that they were “visiting.”  Tuvale noticed that Vitolio’s certificate of

identity had been issued three days earlier in American Samoa, suggesting that

Vitolio was not just visiting American Samoa. Tuvale was also suspicious

because Mulitauaopele had been answering the questions put to Vitolio, and

because Vitolio appeared nervous. Tuva1e therefore directed a “one hundred

percent search” of both Mulitauaopele and Vitolio.  Authorities found two bags of cocaine and one

bag of methamphetamine on Vitolio.

 

At trial,

Vitolio, who was cooperating with the government, testified that Mulitauaopele

had recruited him and directed his actions.

 

B. 

Sunia’s Expert Testimony

 

The

government offered Sunia, a police captain, as “an expert witness in the area of

controlled substance imvestigation including the street value of drugs and the

methods of drug smuggling.”  The

government says it needed Sunia to explain to the jury how Mulitauaopele could

“possess” drugs when the drugs were being carried by someone else, a procedure

called “muling.”

 

Sunia

testified that there were three kinds of “muling operations.”  The third type involved a “vulnerable mule,”

usually an unemployed person acting out of fear, or a pregnant or young person.  Sunia said his observations of the witnesses,

the testimony of the witnesses, and other evidence led him to conclude, in

light of his training and experience, that the “operation” was consistent with

a “muling operation” using a “vulnerable mule.” 

Sunia recapped the evidence, referring to Tuvale’s testimony that

Vitolio had appeared nervous and that Mulitauaopele had answered all questions

asked of him and Vitolio.  Sunia noted

that Vitolio had testified that all travel documents and tickets were obtained

for him and that he had been brought to the airport at the last minute by the

men who gave him drugs.  Sunia then

opined that Vitolio “appears to be a person who was very—who was persuaded

early into accepting what was offered to him.” 

Sunia concluded that “[t]hey used this kid’s weaknesses, his ignorance

of what’s surrounding him.  He was just

following instructions.”

 

Analysis

 

A.        Sunia’s

Expert Testimony Regarding Methods of Drug Smuggling was Admissible Under Ru1e

702

Rule 702 of the American Samoa

Rules of Evidence provides for the admission of expert testimony when

“scientific, technical, or other specialized knowledge will assist the trier of

fact.”  In such situations, “a witness

qualified as an expert by knowledge, skill, experience, training, or education

may testify … in the form of an opinion or otherwise.”  Id.  The starting point for determining whether

any expert testimony is admissible is first finding that it is relevant and

reliable.

[1-2] In Daubert v. Merrell Dow Pharm., Inc., 50 U.S. 579, 589 (1993), the

Supreme Court focused on the admissibility of scientific expert testimony.  Under Rule 702 of the Federal Rules of Evidence, which at the time was

identical to American Samoa’s present Rule 702, the court found that expert

testimony is admissible only if it is both relevant and reliable.  In Kumho

Tire Co. v. Carmichael, 526

U.S. 137, 146 (1999), the Court explained that the presiding judge’s

role in ensuring the reliability and relevancy of expert testimony extends to

all expert testimony.[1]

[3-4] Daubert outlined specific factors, such as testing, peer review,

error rates, and acceptance in the relevant scientific community, some or all

of which might assist in determining the reliability of a particular scientific

theory or technique.  Daubert, 309 U.S. at 593-94.  The Daubert

test is “flexible,” and the “list of specific factors neither necessarily

nor exclusively applies to all experts or in every case.  Rather, the law grants a [trial] court the

same broad latitude when it decides how to determine reliability as it enjoys

in respect to its ultimate reliability determination.”  Kumho,

526 U.S. at 141.  Under Rule 702, Daubert, and Kumho, Sunia’s

testimony was admissible only if he was qualified as an expert and his

testimony was reliable and relevant, and would assist the trier of fact.

 

In United States v. Mendoza-Paz, 286 F.3d

1104, 1112-13 (9th Cir. 2002), the

Ninth Circuit held that the trial court did not err in qualifying an expert to

give testimony regarding the value of seized marijuana.  Although Mendoza-Paz

did not explicitly discuss Rule 702, it concluded that the Daubert/Kumho test for reliability was

satisfied because the valuation expert testified that he had investigated

illegal narcotics trafficking for eleven years and had participated in seminars

on methods and techniques of drug trafficking organizations.  He further testified that he learned about

the value of illegal narcotics through his experience working with intelligence

databases, in-house intelligence agents, confidential informants, defendants he

debriefed, and cooperating defendants.

Just as the Ninth Circuit concluded in Mendoza-Paz,

we conclude that the Daubert/Kumho test

for reliability was satisfied here as to Sunia’s expertise in the area of the

methods of drug smuggling.  Sunia

testified that he had spent eight of his

fifteen years as a law enforcement officer involved, at least in part, in the

investigation and detection of controlled substances.  For four of those eight years, Sunia’s

primary focus was controlled substances investigations.  Additionally, Sunia had been in charge of the

vice and. narcotics division of the police department for about a year to a

year and a half.  Sunia testified that he

attended training sessions “on how drugs are being used by gangs in L.A.”  He further testified that he participated in

undercover drug investigations.  Through

this experience, Sunia testified, he had become fami1iar with the way

methamphetamine and cocaine were smuggled. 

Accordingly, Sunia’s expert testimony on the methods of drug smuggling

was admissible.

 

B. 

Sunia’s Testimony Went Beyond Admissible Expert Testimony

[5] “A trial court has broad

discretion concerning the admissibility or exclusion of expert testimony, and

its action will be sustained unless its action is shown to be manifestly

erroneous.”  EW Truck & Equip Co. v. Coulter, 20 A.S.R.2d 88, 92 (App. Div. 1992).  Although

Sunia’s testimony satisfied Rule 702, Mulitauaopele argues that it amounted to

improper drug courier profile evidence that should not have been admitted.  We agree.

[6] Drug courier profile evidence is

a “somewhat informal compilation of characteristics believed to be typical of

persons unlawfully carrying narcotics.”  United States v. Lui, 941 F.2d 844, 847

(9th Cir. 1991) (quoting Reid v. Ga., 448 U.S. 438, 440 (1979) (per

curiam)).  Sunia testified that Vitolio

fit the “vulnerable mule” description because Vitolio was young and nervous and

let Mulitauaopele answer questions and fill out the declaration form.  This was drug courier profile evidence.[2]

 

[7] The Ninth Circuit has “denounced the

use of drug courier profile evidence as substantive evidence of a defendant’s

innocence or guilt.” Lui, 941 F.2d at

647.  Drug courier profiles are

“inherently prejudicial because of the potential they have for including

innocent citizens as profiled drug couriers.” 

Id. at 847 (quoting United States v. Hernandez-Cuartas, 717

F.2d 552, 555 (11th Cir. 1983)). 

Accordingly, the Ninth Circuit has cautioned that drug courier profile

evidence should not be used to prove a defendant’s guilt.  Lui,

941 F.2d at 847.  The unfair prejudicial

effect of such profile evidence far outweighs its probative value and therefore

the profile evidence should be excluded. 

See United States v. Lim, 984 F.2d 331, 335 (9th Dir. 1993).  In short, such profile evidence may be

excluded under T.C.R.Ev. 403, which mandates exclusion of evidence when its

probative value is substantially outweighed by its unfair prejudicial effect.

Other circuits agree that drug profile evidence should not be used as

substantive evidence.  In United States. v Williams, 957 F.2d 1238 (5th Cir. 1992), the

Fifth Circuit noted:

 

While the government may introduce evidence that the defendant exhibited

individual behaviors that make up the profile, it is something entirely

different to tell the jury that all the behaviors together fit a law

enforcement mode: of a drug courier. 

Despite the wide latitude district judges have in determining whether

evidence is more probative than prejudicial, in our view the probative value of

a drug courier profile is so low in relation to its prejudicial effect that its

admission is error.

Id. at 1242 (internal citation

omitted); accord United States v.

Jones, 913 F.2d 174, 177 (4th Cir. 1990) (stating that it is improper to

use expert testimony as substantive evidence to show that the defendant fits a

profile and, therefore, must have intended to distribute drugs); United States v. Carter, 901 F.2d 683, 694 (8th Cir. 1990)

(“Drug courier profiles are investigative tools, not evidence of guilt.  The admission of a profile into evidence is

inherently prejudicial and can easily influence a jury into thinking that the

defendant is guilty.  Drug courier

profiles are not to be admitted as substantive evidence of guilt.”) (internal

quotation marks and citation omitted); see

also Commonwealth v. Poitras, 777 N.E.2d 647, 650-51 (Mass. App.

Ct. 2002) (reversing a sexual assault conviction because an expert improperly testified

as to a profile typically found in child sex abuse cases, and noting the

prejudice to defendant because guilt or innocence turned on the complainant’s

credibility and the jury might have found that the defendant fit the profile).

 

[8] Drug courier profile evidence,

however, is not always improper.  For

example, a court does not abuse its discretion in allowing such evidence to

rebut a defendant’s claim that he or she does not fit the typical drug courier

profile. 

See United States v. Beltron-Rios, 878 F.2d 1208, 212-13 (9th Cir. 1989).  It may also be used to establish a modus

operandi in complex cases.  United States v. Klimavicius-Viloria, 144 F.3d 1249, 1259 (9th Cir. 1998); Lui,

941 F.2d at 848 (recognizing that drug courier profile evidence may be allowed

in complex drug-smuggling conspiracy cases). 

The present case does not involve either exception.  Sunia provided a drug courier profile when he

testified that Vitolio fit the “vulnerable mule” description because he was

young and nervous, and because Mulitauaopele answered all of the questions put

to Vitolio and filled out the declaration form for him.  This case is very much like Lim.

 

In Lim, the trial court allowed an agent to

testify regarding the drug courier “shotgun” profile, in which the “shotgun”

carries no drugs, instead traveling with a “mule” who carries the drugs.  Lim,

984 F.2d at 334. Noting that the expert testimony was not presented to rebut

testimony by the defendant, the Ninth Circuit then determined that there was “nothing

complex about this conspiracy.”  Id. at 335.  In Lim,

the drug courier “shotgun” profile was applied to “two innocuous bits of

evidence concerning Lim – the fact that he was engaging in domestic travel and

was not carrying drugs.”  Id. 

Lim noted that the prejudicial

effect of the “shotgun” profile far outweighed its probative value.

Accordingly, Lim held that the drug

courier profile was improperly used as substantive evidence of guilt.  Id.

Here, the unfair prejudicial effect of the drug courier profile evidence

substantially outweighed its probative value, as it merely explained a

relatively simple crime.  The evidence

should have been excluded under Rule 403 and the court committed a manifest

error by admitting it. Accordingly, we conclude that the trial court abused its

discretion in allowing Sunia to testify that Vitolio fit the profile of a

vulnerable mule.


C.         Sunia

Improperly Testified That Mulitauaopele Used Vitalio’s Weaknesses

[9-10] Sunia’s testimony went beyond the

improper profile evidence. Sunia opined that Mulitauaopele had used Vitolio’s

weaknesses.  This was tantamount to

saying not just that Vitolio fit a profile but that Mulitauaopele was

guilty.  This opinion was also

inadmissible.  Although T.C.R.Ev. 704

does not contain the prohibition in Fed. R. Evid. Rule 704(b) against expert

testimony in a criminal case as to whether a defendant had the mental state

constituting an element of the offense charged, American Samoa’s rules do not

open the door to all expert testimony on the ultimate issue of a defendant’s

guilt.  Rule 704 allows expert testimony

“in the form of an opinion or inference” only when it is “otherwise

admissible.”  T.C.R.Ev. 704.

 

Although

Sunia was qualified to provide expert testimony as to methods of drug smuggling,

Sunia’s opinion that Mulitauaopele was actually using Vitolio’s weaknesses to

smuggle drugs was based on improper drug courier profile evidence that was not

admissible.[3]  Of course, an expert’s opinion may be based

on inadmissible facts or data under Rule 703. 

Here, however, Sunia’s opinion as to Mulitauaopele’s use of Vitolio’s

weakness was so completely intertwined with and dependent on Sunia’s drug

courier profile testimony that the inadmissibility of the profile evidence left

Sunia with nothing to present to the jury in support of his opinion as to

Mulitauaopele’s use of Vitolio.  Without

the inadmissible drug courier profile evidence, his opinion was an unadorned

and unexplained statement that Mulitauaopele was guilty. Such a statement would

not assist the jury and so was inadmissible under Rule 702, which permits

expert testimony if it “will assist the trier of fact to understand the

evidence or to determine a fact in issue.”  Moreover, the opinion as to guilt ran afoul

of Rule 403, which provides for exclusion of evidence when its probative value

is substantially outweighed by its unfair prejudicial effect.  A bald, unsupported opinion as to guilt is

highly prejudicial and totally lacking in probative value. Sunia’s opinion that

Mulitauaopele was using Vitolio’s weaknesses to smuggle drugs should have been

excluded.

 

D.        Allowing Sunia to Testify that

Mulitauaopele was Using Vitolio’s Weaknesses to Smuggle Drugs Was Not Harmless

Error

 

[11] The trial

court’s errors in allowing Sunia to provide drug courier profile evidence and opine that Mulitauaopele

was using Vitolio’s weaknesses to smuggle drugs require reversal of

Mulitauaopele’s convictions unless they were harmless.  See

Lui, 941 F.2d at 848 (unless there is

“a reasonable possibility that the improperly admitted evidence contributed to

the conviction, reversal is not required”) (quoting Schneble v. Fla., 405 U.S. 427, 432 (1972)); United States v. Binder, 769 F.2d 595, 601-02 (9th Cir.

1985) (erroneous admission of expert testimony is reversible when it more

probably than not materially affected the verdict) (citing United States v.

Valle-Valdez, 554 F.2d 911,

916 (9th Cir. 1977)).  In other words, reversal is required unless “it is more probable than not that

the prejudice resulting from the error did not materially affect the

verdict.”  Lim, 984 F.2d at 335; Lui,

941 F.2d at 848; see also

T.C.R.C.P. 52(a) (“Any error, defect, irregularity or variance which does not

affect substantial rights shall be disregarded.”).

[12] Although T.C.R.Ev. 704 does not

prohibit experts from testifying as to ultimate issues, we hold that allowing

Sunia to provide an opinion that Mulitauaopele used Vitolio’s weaknesses when

Sunia could provide no proper foundation for his opinion was an error that was

not harmless.  Sunia’s testimony that

Mulitauaopele was using Vitolio’s weaknesses to smuggle drugs was improper and

prejudicial evidence by a police expert that Mulitauaopele was, in fact,

guilty.  Under these circumstances, we

cannot conclude that it is more probable than not that Sunia’s testimony did

not materially affect the verdict.

Our conclusion that admission of Sunia’s opinion as to Mulitauaopele’s guilt

was reversible error makes it unnecessary for us to decide whether the error in

admitting drug courier profile evidence, standing alone, was reversible

error.  As the record clearly contains

sufficient evidence to permit conviction even without any of Sunia’s testimony, we are not

persuaded by Mulitauaopele that his convictions should be reversed based on

insufficient evidence.  However, we

cannot say that the jury would probably have found Mulitauaopele guilty absent

Sunia’s opinion as to guilt.  It is

difficult to conceive of expert testimony that is more prejudicial and less

probative than an opinion by a law enforcement expert, unsupported by anything

permitted by court rules, that a defendant is guilty.  The judgment against Mulitauaopele is

reversed and this case is remanded for a new trial.[4]

It is so ordered.

______________________________

 

KRUSE, Chief

Justice, Concurring:

 

I agree with

the portion of the lead opinion, authored by Acting Associate Justice Mollway,

concerning the inadmissibility of the drug courier profile evidence.  In my view, that alone is enough to warrant a

new trial.  Thus, I do not find it

necessary to explore other improprieties with Captain Sunia’s testimony, though

many aspects of it were troubling.1  As the lead opinion amply demonstrates this

profile evidence was unfairly prejudicial and thus substantially outweighed its

probative value.  The trial court abused

its discretion in admitting it.

Finding error, the next question is whether or not it was harmless. Compare

United States v. Pinnigorii, 96 F.3d 1132,

1143 (9th Cir. 1996) (harmless error ana1ysis applied to classic trial error

such as improper admission of evidence) and T.C.R.Cr.P. 52(a), with U.S. v. Burt, 143 F.3d 1215, 1217 (Plain

error analysis typically reserved for forfeited errors) and T.C.R.Cr.P. 52(b).  Under a harmless error standard, “if the

evidence presented at trial is ambiguous, even a relatively minor error

requires reversal.”  United States v. Smart, 9 F.3d 1379, 1386 (D.C.Cir. 1996) (citing O’Neal v. McAninch, 514 U.S. 432 (1995)).  “We must reverse . . . unless it is more

probable than not that the error did not materially affect the verdict.”  United

States v. Morales, 108 F.3d

1031, 1040 (9th Cir. 1997).

 

Here, the

government’s case without the profile evidence was at best ambiguous and open to

reasonably differing interpretations.  But

see United States v. Lim, 984

F.2d 331, 335 (9th Cir. 1993); United

States v. Williams, 957

F.2d. 1238, 1242-43 (5th Cir. 1992); United

States v. Quigley, 890 F.2d

1019, 1024 (8th Cir. 1989).  Essentially,

the prosecution’s evidence was the self-serving testimony of Vitolio, bolstered

by Sunia’s improper testimony. 

Additionally, the trial judge did not give any limiting instructions,

either during Sunia’s testimony or before jury deliberation.  Thus, absent any physical evidence tying the

defendant to the drugs—which is typical in a case of constructive

possession—the verdict turned entirely on the credibility of the witnesses,

spcifical1y Vitolio’s.  See generally United States v. Gartmon, 146 F.3d 1015, 1026 (D.C. Cir.

1998) (quoting United States v. North,

910 F.2d 843, 895 (D.C. Cir. 1990) (defendant’s entitlement to a new trial

depends on the “closeness of the case, the centrality of the issue affected by

the error, and the steps taken to mitigate the effects of the error”).  The admission of the profile evidence,

therefore, did, more probably than not, materially affect the verdict.

 

I therefore

concur with the lead opinion’s result, requiring a new trial, and express no

view as to the scope of T.C.R.Ev. 702-705.

______________________________

 

WALLACE,

Acting Associate Justice, dissenting:

I understand

the concerns expressed by the majority and am not unsympathetic.  However, as an appellate court, our

responsibilities are governed by certain limits critical to the smooth

operation of the justice system.  Three

of those cause me to dissent.  First, we

are limited to the lower court’s factual record.  A second limit is the standard of review:

here, abuse of discretion.  The standard

of review is important not only because it is sometimes dispositive to the

outcome of the appeal, but also because it traces the proper distribution of

judicial power between the trial and appellate courts.  The third limit is the law applicable to the

case before us.  Because I disagree with

the majority in these critical areas, I am unable to join in the majority

disposition.

 

I.

 

I start with

the issue of the drug courier profile evidence. 

The majority concludes:

[T]he unfair prejudicial effect of the drug courier profile evidence

substantially outweighed its probative value, as it merely explained a

relatively simple crime.  The evidence

should have been excluded under Rule 403 and the court committed a manifest

error by admitting it.  Accordingly, we

conclude that the trial court abused its discretion in allowing Sunia to

testify that Vitolio fit the profile of a vulnerable mule.

 

Majority

Opinion, page 12.  Here I disagree with

the majority’s understanding of the law. 

While recognizing that the question is whether the evidence’s unfair prejudicial effect substantially

outweighed its probative value, T.C.R.Ev. 403; accord Fed. R. Evid. 403, the majority fails to identify how the

evidence’s prejudicial effect is unfair, and how it substantially outweighs its

probative value.  Indeed, there is no

showing that there was any unfair prejudice at all, much less that it

substantially outweighed the evidence’s probative value.

But that is not all.  The majority

articulated the correct standard of review, abuse of discretion, but it failed

to apply this standard in any meaningful sense. 

“A trial court has broad discretion concerning the admissibility or

exclusion of expert testimony.”  EW Truck & Equip. Co. v. Coulter, 20 A.S.R.2d 88, 92 (1992).  To be of concern to the appellate court, the

trial court must have abused its discretion.  United

States v. Hanna, 293 F.3d

1080, 1085 (9th Cir, 2002); United States

v. VonWillie, 59

F.3d 922, 928 (9th Cir. 1995) (stating

that there is no difference between the “abuse of discretion” standard and the

“manifestly erroneous” standard, and adopting the former characterization); United States v. Rahm, 993 F.2d 1405,

1409-l0 (9th Cir. 1993) (same).  In

effect, the majority determined what the trial court should have done, but the

appellate court cannot substitute its judgment for the lower court’s. United States v. McMullen, 98 F.3d 1155, 1159 (9th Or,

1996).  Under an abuse of discretion

standard, an error is not enough.  The

trial court’s evidentiary rulings may be reversed only if there is abuse of

discretion, which has been defined as “a plain error, discretion

exercised to an end not justified by the evidence, a judgment that is clearly

against the logic and effect of the facts as are found.”  Wing v.

Asarco, Inc., 114 F.3d 986,

988 (9th Cir. 1997) (emphasis added, internal quotation marks omitted).

Reversal is possible only “when the appellate court is convinced firmly that

the reviewed decision lies beyond the pale of reasonable justification under

the circumstances.” Harman v. Apfel,

211 F.3d 1172, 1174 (9th Cir. 2000).

I would have difficulty holding there was trial court error in admitting the

evidence at issue. Certainly, then, applying the law and the applicable standard

of review, as I must, I cannot conclude that the trial court abused its

discretion.  The majority cites United States v. Lim, 984 F.2d 331 (9th Cir. 1993), United States v. Lui, 941 F.2d 844 (9th Cir. 1991), United States v. Jones, 913 F.2d 174,

177 (4th Cir. 1990), United States v.

Carter, 901 F.2d 683, 684

(8th Cir. 1990), and Commonwealth v.

Poitras, 774 N.E.2d 647,

650-51 (Mass. App. Ct. 2002), but this case is significantly different.  Unlike Lim, Lui, Jones, Carter, and Poitras, Sunia did not opine that the defendant fit the drug

courier profile.  This is not “a case in

which the government attempted to establish the defendant’s guilt by showing

that he has the same characteristics as a drug courier.” Cf. Jones, 913 F.2d at 177. 

Instead, the officer opined that Mulitauaopele’s alleged accomplice,

Vitolio, fit the drug courier profile. 

Considering that Vitolio himself testified that he was a “mule” (drug

courier), there was no unfair prejudicial effect.  Unlike the cases the majority cites, the drug

courier profile was not used as substantive evidence of the defendant’s guilt,

but only of Vitolio’s guilt.  Put another

way, as the majority recognizes, drug courier profiles are “inherently

prejudicial because of the potential they have for including innocent citizens

as profiled drug couriers.” Lui, 941

F.2d at 847 (internal quotation marks omitted). 

This unfair prejudice is suffered by the person profiled, Vitolio.  Mulitauaopele suffers no unfair prejudice,

and he cannot complain of Vitolio’s harm.

 

The

majority’s citation of Poitras is

doubly ironic because, in that child abuse case, the court permitted profile

evidence of child abuse victims. 774 N.E.2d at 649-50.  The appellate

court held that the trial court abused its discretion only when it admitted an

opinion that the defendant fit the profile of child abusers.  Id.

at 650. The prejudicial effect was improper because the jury might conclude

that, because the defendant fit the profile, he is more likely to have

committed the crime.  Id. 

There is no such unfair prejudice here, where the profile is of the

accomplice, not the defendant.  Just as

the trial court in Poitras did not

abuse its discretion in permitting profile evidence of child abuse victims, the

trial court here did not abuse its discretion in permitting profile evidence of

the accomplice.  The analysis in Poitras, a case relied on by the

majority, demonstrates why the majority is wrong in its holding.

 

II.

 

The majority holds

that because “Sunia opined that Mulitauaopele had used Vitolio’s weaknesses,”

this was “tantamount to saying … that Mulitauaopele was guilty.”  I read the record differently.  Sunia never opined that Mulitauaopele used Vitolio’s weaknesses.  Instead, Sunia opined that “they used

Vitolio’s weaknesses.  The majority just

assumes, with no basis in the record, that Sunia meant “Mulitauaopele” when he

said “they.”  I cannot agree with the

majority’s description of the record.

But, even assuming that Sunia said what the majority claims, I disagree that

his opinion is “tantamount” to saying that Mulitauaopele was guilty. Sunia did

not state Mulitauaopele was guilty. 

Sunia did not even necessarily imply guilt.  Mulitauaopele could use Vitolio’s weakness and

yet not be guilty of drug possession. 

Suppose, for instance, that Mulitauaopele mistakenly thought that he was

using Vitolio to smuggle Russian diamonds or Cuban cigars instead of illegal

drugs.  In that case, Mulitauaopele would

have used Vitolio’s weaknesses, but he is not guilty of unlawful possession of

drugs.  Under the majority’s reasoning,

anytime an expert gives an opinion that tends to show that the defendant is

guilty, i.e., every time an expert’s

opinion is relevant—a necessary precondition to it being admissible at all—the

expert is somehow giving an opinion that the defendant is guilty.

 

III.

 

So far, I

have disagreed with the majority’s conclusion that Sunia’s opinion that

Mulitauaopele (or “they”) used Vitolio’s weakness was inadmissible because the

opinion was based on improper drug courier profile evidence.  But even assuming for the sake of argument

that drug courier profile evidence would be improper in this case, the

majority’s conclusion still does not follow.

 

First,

Sunia’s opinion was based not on profile evidence, but on the officers’

firsthand observations that Vitolio was weak. 

This is not profile evidence, and it is not inadmissible just because

other drug couriers tend to act similarly. 

Sunia’s opinion was properly based on the officers’ observations that

Vitolio did not answer the questions put to him, he was fifteen years old, he

appeared nervous, all his travel arrangements were made by another, his airline

ticket was paid for by another, he let another fill out his declaration form,

etc.  Sunia’s opinion that Mulitauaopele

used Vitolio’s weakness was not based at all on any drug courier profile.  It does not matter how other mules act.  All that mattered, as far as Sunia’s opinion

was concerned, was what Mulitauaopele (or “they”) did, and how Vitolio acted.

 

Second, even

if Sunia’s opinion was based entirely on an inadmissible drug courier profile,

his opinion is nonetheless admissible under the rules of evidence.  T.C.R.Ev. 702 governs the admissibility of

expert opinions, and nowhere is there a requirement that the basis of the

opinion be admissible.  As the majority

opinion observes but does not apply, T.C.R.Ev. 703 permits an expert’s opinion

to be based on inadmissible facts or data. 

According to Rule 705, the

basis need not be disclosed.  T.C.R.Ev.

705 (stating that the “expert may testify in terms of opinion or

inference and give his reasons therefor without prior disclosure of the

underlying facts or data, unless the court requires otherwise” or unless the basis

is elicited on cross-examination).  Under

the applicable rules of evidence, an expert may give, what the majority calls,

an “unadorned” and “unexplained” opinion. 

The majority opinion fails to follow the rules of evidence.  This I cannot do.

 

IV.

 

Because I

disagree with the majority’s reading of the record, its failure to apply the

appropriate standard of appellate review meaningfully, and its understanding of

applicable law, I must dissent.  I would

affirm the conviction.


 



* The Honorable J. Clifford Wallace, Senior Circuit

Judge, United States Court of Appeals for the Ninth Circuit, sitting by

designation of the Secretary of the Interior.

** The Honorable

Susan Oki Mollway, District Judge, United States District Court for the District

of Hawaii, sitting by designation of the Secretary of the Interior.

[1] The federal rule

was amended in 2000 in response to Daubert, Kumho, and other similar cases. See Fed. R. Evid. 702 advisory

committee’s note.

[2] Sunia’s

testimony about the types of muling operations, as well as his comments on

Mulitauaopele’s purchase of Vitolio’s airlines tickets and remarks about

Vitolio’s late arrival at the airport, however, were modus operandi (“MO”)

evidence, not drug courier profile evidence.  United States v. Gil, 58 F.3d 1414, 1422 (9th Cir. 1995)

(stating that MO evidence aids a jury’s understanding of complex criminal

activities and notifies the jury that combinations of seemingly innocuous

events may indicate criminal behavior). 

Government agents may testify regarding the general practices of

criminals to establish an MO in complex criminal cases.  Id.

(permitting “expert testimony that drug traffickers often employ counter-

surveillance driving techniques, register cars in others’ names, make narcotics

and cash deliveries in public parking lots, and frequently use pages and public

telephones”); accord United States v.

Cordoba, 104 F.3d 225, 229-30 (9th Cir. 1997) (noting that testimony

regarding drug traffickers’ practice of avoiding giving large amounts of

cocaine to couriers who do not know what they are transporting was not drug

courier profile evidence, but instead permissible MO evidence in a complex

criminal case).  The definition of what

is a sufficiently complex criminal case to allow expert testimony differs in

the MO and drug courier profile contexts. 

In the latter, for

instance, the Ninth Circuit has found “nothing complex” about a drug conspiracy

involving two defendants traveling on the same plane with only one of the two carrying the drugs.  United

States v. Lim, 984 F.2d 331, 335 (9th Cir.

1993).  The present case offers

complexity sufficiently analogous to that in Gil and Cordoba to permit

MO evidence.  As noted below, however,

that is not the same as saying that this case was sufficiently complex to

permit drug courier profile evidence.

[3] The evidence

described in footnote 5 above did not support Sunia’s opinion that

Mulitauaopele was using Vitolio’s weaknesses.

[4] As we reverse

Mulitauaopele conviction, we need not determine whether his sentence was

improper or unconstitutional.

1 The lead opinion

and the dissent differ as to whether Sunia’s testimony was properly admitted

under the rules governing expert testimony. See T.C.R.Ev. 702-705.  I do not find this discussion necessary

because, even if expert testimony is proper under those rules, it can still be

excluded under Rule 403.  See, e.g.,

United States v. Boney, 977 F.2d 624, 631 (D.C. Cir. 1992); United States v. Young, 745 P.2d 733, 755-65 (2d Cir. 1984) (Newman,

J., concurring).  Thus, because I am of

the view that the profile evidence itself merits reversal under Rule 403, I do

not feel we need to address those points, even if raised by ASG.