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.