United States v. Vicente Pineda-Torres - Petition

Docket number: 
No. 02-112
Supreme Court Term: 
2002 Term
Court Level: 
Supreme Court

No. 02-112

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

VICENTE PINEDA-TORRES

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

THEODORE B. OLSON
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether expert testimony concerning the structure and modus operandi of drug-trafficking organizations is categorically prohibited by the Federal Rules of Evidence in a prosecution of a drug courier for importation of narcotics.

In the Supreme Court of the United States

No. 02-112

UNITED STATES OF AMERICA, PETITIONER

v.

VICENTE PINEDA-TORRES

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United States of America, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App., infra, 1a-12a) is reported at 287 F.3d 860.

JURISDICTION

The judgment of the court of appeals was entered on April 23, 2002. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATUTES AND RULES INVOLVED

Pertinent statutory provisions-21 U.S.C. 841(a), 952(a), and 960(a)-and Federal Rules of Evidence 401, 402, 403, and 702 are set forth in the Appendix. App., infra, 28a-32a.

STATEMENT

Following a jury trial, respondent was convicted in the United States District Court for the Southern District of California of importation of marijuana in violation of 21 U.S.C. 952 and 960, and possession of marijuana with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). He was sentenced to 37 months imprisonment, to be followed by three years supervised release, and a $200 special assessment. The court of appeals reversed the convictions, App., infra, 1a-12a, on the ground that the district court erred in admitting expert testimony concerning the structure of drug trafficking organizations.

1. On August 2, 2000, respondent was driving a car from Mexico into the United States when he was stopped at the San Ysidro Port of Entry near San Diego. During a routine inspection, a U.S. Customs Inspector questioned respondent about his citizenship and the ownership of the vehicle he was driving. When respondent appeared nervous, the Customs Inspector brought a drug sniffing dog to his car, and the dog alerted to the dashboard. A further search of the car revealed 23 packages of marijuana weighing 42.7 pounds hidden behind the glove compartment. See App., infra, 3a.

2. On August 16, 2000, respondent was charged with importation of marijuana, in violation of 21 U.S.C. 952 and 960, and possession of marijuana with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). Both counts required the government to prove, inter alia, that respondent "knowingly or intentionally" engaged in the alleged criminal conduct. 21 U.S.C. 841(a), 960(a)(1).

Before trial, the government provided notice of its intent to introduce expert testimony about the structure of drug trafficking organizations and, in particular, testimony that the person who loads the vehicle with drugs usually is not the person who drives the drugs across the border. Respondent moved to exclude the evidence pursuant to, inter alia, Federal Rules of Evidence 401, 403, and 702. Following a hearing, the district court ruled that it would allow the expert testimony. App., infra, 4a.

3. A two day trial followed. The government presented the testimony of an Immigration and Naturalization Service (INS) Inspector and two U.S. Customs Service employees concerning the discovery of the drugs in respondent's car, and testimony of a forensic chemist who identified the drugs. In addition, the government called Special Agent Robert Villars of the U.S. Customs Service as an expert in marijuana smuggling. Respondent renewed his objection to the testimony under Rules 401 and 403, but the district court allowed it. Special Agent Villars testified about the "compartmentalization" of the smuggling process, stating that each participant has a separate role, and that the person who loads the vehicle with marijuana is not the person who drives the vehicle across the border. App., infra, 4a-5a. He further explained that, given the separation in functions, fingerprinting generally is not a valuable law enforcement tool in identifying drug couriers. Ibid.

During respondent's cross examination of the government's witnesses and his closing arguments, counsel referred both directly and indirectly to the absence of fingerprint or other physical evidence tying respondent to the drugs. See App., infra, 16a-17a, 21a-22a, 24a, 26a-27a. On November 8, 2000, the jury returned guilty verdicts on both counts.

4. The court of appeals reversed the convictions and remanded. App., infra, 1a-12a. The court held that the admission of Special Agent Villars's testimony required reversal under United States v. Vallejo, 237 F.3d 1008, amended by 246 F.3d 1150 (9th Cir. 2001). As the court explained, "Vallejo * * * held that the admission of expert testimony about the structure of drug trafficking organizations violates Federal Rules of Evidence 401 and 403 'whe[n] the defendant is not charged with a conspiracy to import drugs or whe[n] such evidence is not otherwise probative of a matter properly before the court.'" App., infra, 5a. The court stated that "[t]he case before us is, in almost all respects, similar to [Vallejo]." Ibid. In addition, the court relied on its decision in United States v. McGowan, 274 F.3d 1251 (9th Cir. 2001), petition for cert. pending, No. 02-64 (filed July 12, 2002), in which the court-applying the holding in Vallejo-concluded that the admission of "virtually identical expert testimony" by the same expert (Special Agent Villars) "was reversible error." App., infra, 7a n.3; see id. at 5a-7a.

ARGUMENT

This case presents the question whether expert testimony concerning the structure and modus operandi of drug trafficking organizations is categorically prohibited by the Federal Rules of Evidence in the prosecution of a drug courier for importation of narcotics. In holding that the admission of such expert testimony was reversible error in this case, the court of appeals specifically relied on its decisions in United States v. McGowan, 274 F.3d 1251 (9th Cir. 2001), petition for cert. pending, No. 02-64 (filed July 12, 2002), and United States v. Vallejo, 237 F.3d 1008, amended by 246 F.3d 1150 (9th Cir. 2001). App., infra, 5a-6a. On July 12, 2002, the United States filed a petition for certiorari in McGowan, presenting the same question in this case and, in particular, requesting this Court's review of the categorical rule established by the Ninth Circuit in Vallejo. In both McGowan and in this case, the court of appeals held that the rule of Vallejo required invalidation of convictions obtained under 21 U.S.C. 841(a)(1), 952, and 960. Because the question presented in this case is before the Court in McGowan, the petition for a writ of certiorari should be held pending the Court's disposition in that case.

CONCLUSION

The petition for a writ of certiorari should be held pending this Court's disposition of United States v. McGowan, No. 02-64, and then should be disposed of as appropriate in light of the disposition in that case.

Respectfully submitted.

THEODORE B. OLSON
Solicitor General

JULY 2002

* The Honorable Frank C. Damrell, Jr., United States District Judge for the Eastern District of California, sitting by designation.

1 Pineda-Torres also argues that the district court erred by (1) denying his motion for judgment of acquittal on the importation charge because the government failed to prove that he actually crossed the border and "brought the marijuana" into the United States; (2) failing to dismiss the indictment due to the invalid appointment of the United States Attorney in violation of the Appointments and Vacancies Clause of the Constitution of the United States; and (3) failing to dismiss the indictment because 21 U.S.C. §§ 841 and 960 are facially unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed.2d 435 (2000).

First, we reject Pineda-Torres's claim that there was insufficient evidence to convict him of importation. Customs Inspector Cruz testified that Pineda-Torres had already crossed the border into the United States when he was stopped at the primary inspection area. Second, Pineda-Torres's argument that the United States Attorney's appointment violates the Appointments and Vacancies Clause is precluded by this court's holding in United States v. Gantt, 194 F.3d 987, 999 (9th Cir. 1999). Third, in light of our recent decisions in United States v. Buckland, 277 F.3d 1173 (9th Cir. 2002) (en banc), and United States v. Mendoza-Paz, No. 00-50029, 2002 WL 531153 (9th Cir. Apr. 10, 2002), we reject Pineda-Torres's claim that 21 U.S.C. §§ 841 and 960 are facially unconstitutional.

2 Additionally, Special Agent Villars testified that drug trafficking organizations intentionally use a packaging material that makes it difficult to lift clear fingerprints and that any recoverable prints would probably be from someone "south of the border" whose prints are not on file in the United States.

3 Special Agent Robert Villars provided virtually identical expert testimony in both McGowan and Pineda-Torres's trials. McGowan, 274 F.3d at 1253. We held that admission of Special Agent Villars's testimony was reversible error in McGowan. Id.

4 The fact that Pineda-Torres did not testify and affirmatively deny knowledge of the drugs that were found in the car is not dispositive. Both parties recognized in their closing arguments to the jury that the only issue in the case was knowledge. Because the improper expert testimony about the structure of drug trafficking organizations was admitted to support the government's contention of knowledge, the testimony was prejudicial regardless of whether Pineda-Torres affirmatively denied knowledge or argued that the government had not proven knowledge.

5 That is what occurred in Murillo, a case in which the defense engaged a fingerprint expert and initiated the inquiry at trial regarding the lack of fingerprints on the drug packages. Murillo, 255 F.3d at 1177.

Type: 
Petition for Writ of Certiorari
Updated October 21, 2014