Expert
testimony on drug courier profiles is inherently prejudicial. It has the potential
for “including innocent citizens as profiled drug couriers” because simply matching
a defendant to a drug profile “suggests to the jury that otherwise innocuous
conduct or events demonstrate criminal activity.” Hence the reversal last week by
the Ninth Circuit in United
States v. Espinoza-Valdez where the government hung its hat “almost
exclusively” on drug courier profile testimony.
In
Espinoza-Valdez, evidence at trial demonstrated
Espinoza-Valdez’s presence with two unknown men in a known drug-smuggling
corridor close to the Mexican border near what appeared to be a camp for drug trafficking
scouts. Evidence also demonstrated “the seizure of items that were suspicious
in this context.” Nevertheless, “there was insufficient evidence for a jury to
find beyond a reasonable doubt that Espinoza-Valdez entered into a
conspiratorial agreement to import or distribute marijuana[,]” wrote D.C.
District Court Judge Paul L. Friedman sitting in designation for the Ninth Circuit. And
this was true despite the introduction of 404(b) evidence that agents had previously
apprehended Espinoza-Valdez in the same area, and that he had told the agents at
that time that he and others were backpacking marijuana across the desert.
In
short, the government may not rely on inherently prejudicial “expert testimony
of drug courier profiles alone to establish guilt.” In Espinoza-Valdez the government presented no evidence of drugs that
actually passed through or were intended to pass through the area under
Espinoza-Valdez’s watch. “There simply [was] no evidence as to what (if anything)
was specifically agreed to, who agreed to it, or what any agreement was
intended to accomplish.”
“While
it is possible, perhaps even probable, that Espinoza-Valdez was on the
mountaintop to act as a scout for drug traffickers, a reasonable suspicion or
probability of guilt is not enough.” Guilt, “according to the basic principles
of our jurisprudence,” Judge Friedman stresses, demands more.