United States v. Daniel Joseph McGowan

Citations: 274 F.3d 1251; 2001 Daily Journal DAR 13075; 2001 Cal. Daily Op. Serv. 10477; 58 Fed. R. Serv. 890; 2001 U.S. App. LEXIS 26894Docket: 00-50725

Court: Court of Appeals for the Ninth Circuit; December 19, 2001; Federal Appellate Court

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Daniel McGowan was convicted of importing marijuana and possessing it with intent to distribute, violating 21 U.S.C. §§ 952, 960, and 841(a)(1). He appealed his convictions, arguing that the district court improperly admitted expert testimony on drug trafficking organizations in a case that did not involve a conspiracy. The events leading to his arrest occurred on July 2, 2000, when McGowan, driving a rental Ford Windstar with passenger Mary Joanne Ramirez, entered the U.S. from Mexico at the Otay Mesa Port of Entry. A customs canine alerted to the vehicle's gas tank, prompting further inspection by U.S. Customs Inspector Wilkins. Wilkins noted signs of tampering on the gas tank and discovered approximately 38 vacuum-sealed packages of marijuana, weighing around 45.5 pounds, inside the tank, which had been modified to hold minimal fuel. Investigations revealed McGowan had rented the vehicle shortly before the incident and crossed into Mexico and back multiple times, with receipts indicating purchases made in Tijuana on the day of his return. He was sentenced to 27 months in custody and 3 years of supervised release.

McGowan's motion in limine sought to exclude expert testimony regarding drug trafficking organizations, claiming it was inadmissible under Fed. R. Evid. 401, 403, and 702, referencing United States v. Vallejo. The government argued the testimony was necessary to address potential defense points regarding the absence of fingerprints on marijuana packages and to provide context. McGowan's counsel offered to stipulate that the lack of fingerprints would not be raised as a defense.

The district court denied the motion, citing the relevance of the expert testimony for timing, the portrayal of drug couriers as ordinary individuals rather than stereotypical dealers, and its utility in rebutting defense claims about missing fingerprints. During the trial, Special Agent Villars explained the compartmentalized roles within drug trafficking organizations and noted that fingerprinting would not be useful due to various factors, including the difficulty of obtaining clear prints and the likelihood that usable prints would belong to individuals not connected to the case.

However, the admission of this expert testimony was ultimately deemed improper under Vallejo, which asserted that such testimony is inadmissible when the defendant is not charged with conspiracy and when the evidence does not connect the defendant to a drug trafficking organization. Both Vallejo and McGowan faced similar charges under 28 U.S.C. 841(a), 952, and 960, and neither case presented evidence linking the defendants to any drug trafficking network or indicated that they intended to use the absence of fingerprints to argue lack of knowledge. The expert testimony in both cases was nearly identical, leading to the conclusion that there were no significant distinctions between the two cases.

The district court's rationale for admitting expert testimony deviates from established precedent set in Vallejo. Firstly, the explanation regarding timing is irrelevant, as the expert did not address transaction timing, nor was it contested by the government. Secondly, the attempt to counter the stereotype of typical drug couriers has been explicitly rejected in prior rulings as a valid reason for admitting such testimony. Thirdly, the rationale aimed at rebutting an anticipated defense related to the absence of fingerprints is also invalid, as that defense was not actively asserted by the defendant. Additionally, the defense did not "open the door" for the expert testimony; the closest it came to invoking a lack of fingerprint defense was a peripheral question about agents using gloves, which does not constitute an affirmative assertion. It is improper to allow expert testimony based merely on anticipated defenses that have not been raised. The case United States v. Murillo, which permitted expert testimony in a different context, does not apply here because the defendant in Murillo had designated a fingerprint expert and raised the issue of fingerprints at trial, unlike in the current case. Consequently, the government's expert testimony was improperly admitted, necessitating reversal of the decision, without addressing additional issues raised by the defendant. The ruling is therefore reversed.