LEO's Expert Testimony on Methods of Illegal Alien Transportation Violated FRE 704(b); Conviction Reversed

United States v. Hernandez-Acuna, No. 05-30555 (5th Cir. Oct. 17, 2006) (per curiam) (unpublished) (King, Garwood, Jolly)

Sometimes you find the most interesting things in unpublished opinions. For example, when was the last time you saw a conviction reversed on the ground that a law enforcement agent's "expert" testimony crossed the line into an impermissible opinion on the defendant's mental state? The opinion's a little murkier than it could be on that point, but you nevertheless might be able to use it to persuade a district court to circumscribe the scope of, if not prohibit, this highly questionable type of testimony.

Hernandez was a driver for a small (apparently unlicensed) transportation company in Dallas. "On May 16, 2004, Hernandez was the relief driver riding in the front passenger seat of a van when Officer Earlton Parker of the Greenwood City[, Louisiana] Police Department stopped the driver, Jose de Jesus Contreras, for speeding." For whatever reason, Officer Parker summoned ICE agents to check the immigration status of the van's passengers. All of the passengers, including Hernandez, turned out to be aliens illegally present in the United States.

Hernandez was charged with ten counts of illegal alien transportation and one count of conspiring to transport illegal aliens for gain. His defense seems to have centered on the mens rea element of the offenses, i.e., whether he knew or recklessly disregarded the aliens' immigration status. The jury convicted him on all counts. Hernandez challenged his conviction on several grounds, resulting in an odd mix of holdings from the court of appeals.

The most significant holding (seeing as how it results in the reversal of Hernandez's conviction) involves the expert testimony of Agent Jon Stansel concerning camioneta vans. See slip op. at 4-12. Here's the court's summary of his testimony:

In this case, Agent Stansel testified that “camioneta” is a Spanish word meaning small bus or van and that law-enforcement officials generally refer to a camioneta operation as a van company that does not comply with regulations and that transports illegal aliens across the United States. He also noted that smugglers bring illegal aliens directly to the van companies, which then transport the aliens from larger cities, such as Houston and Dallas, to other locations in the United States. According to Agent Stansel, camioneta operations are considered a “front” for alien smuggling operations and do not put signs on their vans to avoid detection. The camioneta passengers do not volunteer that they are illegal aliens, and the company does not ask questions regarding the passengers’ immigration status so that its personnel can say they were unaware of it. [. . .] In Agent Stansel’s opinion, border patrol agents watch for camioneta vans because they are “100% illegal” and the facts of this case were consistent with camioneta operations that he had investigated in the past.

Got any problem with that? The court sure did. It had no trouble concluding that Agent Stansel's testimony was the functional equivalent of an opinion as to whether Hernandez had the mental state required for the charged offenses, an opinion which is of course prohibited by Fed. R. Evid. 704(b). The court even went so far as to conclude that the district court's abuse of discretion in allowing the forbidden testimony was not harmless in light of the thin circumstantial evidence of Hernandez's guilty knowledge.

Unfortunately, the opinion is a little vague on exactly which portions of the testimony were problematic. It makes sure to note that "only that which amounted to a comment on Hernandez's mental state was improper[,]" but it isn't clear whether all of the testimony mentioned in the opinion crossed the line, or just some of it. (Personally, I don't see what value any of Stansel's testimony could have possibly had apart from the looks-acts-and-quacks-like-a-duck inference that the Government clearly expected the jury to draw from it.) Nevertheless, the case should serve as a reminder to district courts to be very careful about allowing this type of flimsy "expert" testimony from law enforcement agents that isn't at all helpful to the jurors' understanding of the evidence in the case.

Where this opinion gets strange is in its resolution of two other issues: the district court's refusal to allow Hernandez to introduce expert testimony of his own regarding camioneta vans (see slip op. at 12-13), and Hernandez's sufficiency challenge to his conviction (see id. at 13-16).

First, the proffered defense expert. Hernandez wanted to call Robert Van Kemper, a professor of cultural anthropology at Southern Methodist University in Dallas, to testify about Hispanics' use of camioneta vans in Mexico and Dallas. The district court refused to allow it for two reasons. First, the district court found the testimony unreliable because it "relied largely upon one study on camionetas done by a professor in Los Angeles," and that study had not been peer-reviewed. Second, the district court concluded that 704(b) precluded the testimony because even though Van Kemper was qualified as an anthropologist, he "was in no better position than a juror to conclude whether Hernandez's actions demonstrated knowledge or reckless disregard of the passengers' immigration status." The court of appeals found no abuse of discretion as to the reliability determination, and concluded that "[b]ecause the purpose of Professor Van Kemper’s testimony was to negate Agent Stansel’s testimony and to provide other evidence concerning Hernandez’s state of mind, the testimony was rightfully excluded under Rule 704(b)."

What? Recall that the court held just a few pages earlier that only some of Agent Stansel's testimony crossed the 704(b) line. By holding the way it does the court sanctions a one-sided presentation to the jury wherin the government gets to elicit expert testimony from a law enforcement officer who sees alien smuggling in every camioneta operation, but the defense can't offer its own expert (a professor of cultural anthropology, no less) to give another expert perspective on who uses camionetas and why. And as far as the reliability issue is concerned, the court makes the common error of relying largely on Daubert to resolve that issue. Daubert isn't really on point for non-scientific expert testimony, and even under Daubert peer-review is not a sine qua non of admissibility. (Bonus tip: see Daubert on the Web for all things Daubert.)

The final point I'll mention is the court's rejection of Hernandez's sufficiency challenge to his conviction. (Why the court even addresses this issue given its reversal of the conviction on other grounds is a mystery.) Here's what the court had to say:

Even if, for the sake of argument we exclude Agent Stansel’s testimony bearing directly on Hernandez’s state of mind, the record is not devoid of evidence pointing to Hernandez’s guilt, nor is the evidence so tenuous that a conviction would be shocking. The remainder of Agent Stansel’s testimony, in addition to Officer Parker’s and Agent Patton’s testimony describing the condition of the van’s passengers, suggests that Hernandez may have recklessly disregarded the passengers’ illegal status. For instance, the evidence showed: (1) that the passengers had utilized a small transport company operated by and for Spanish-speaking individuals; (2) that the van company allowed payment at the destination rather than requiring payment up front; (3) that all the passengers appeared to be Hispanic; (4) that there was a “strong odor” indicating that some of the passengers had not bathed recently; (5) that the van was crowded; (6) that the passengers’ clothing was “dingy”; (7) that they had little luggage in the van, a mere four or five backpacks among twelve passengers each taking a long distance trip; (8) that safety equipment was not in the van; and (9) that the exterior of the van was unmarked.

Since the court reverses the conviction on other grounds, anyway, I guess we'll have to agree to disagree about whether that evidence is sufficient to show reckless disregard.