This
opinion was acquired from the 9th Circuit and enhanced for distribution
on the Internet byThe Villanova Center for Information and Policy.
This
opinion was acquired from the 9th Circuit and enhanced for distribution
on the Internet by
The Villanova Center for Information and Policy.
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
No. 95-50492
Plaintiff-Appellee,
D.C. No.
v.
CR-95-00039-GT
FRANK JAVIER CORDOBA,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Gary L. Taylor, District Judge, Presiding
Submitted October 10, 1996**
Pasadena, California
Before: Melvin Brunetti, Stephen S. Trott and
Sidney R. Thomas, Circuit Judges.
Filed January 7, 1997
Opinion by Judge Thomas
_________________________________________________________________
SUMMARY
_________________________________________________________________
_________________________________________________________________
97
98
99
_________________________________________________________________
COUNSEL
Olivia W. Karlin, Deputy Federal Public Defender, Los Ange-
les, California, for the defendant-appellant.
Elizabeth Abrams Sellung, Assistant United States Attorney,
Los Angeles, California, for the plaintiff-appellee.
_________________________________________________________________
OPINION
THOMAS, Circuit Judge:
This appeal requires us to decide whether our per se rule
excluding the admission of unstipulated polygraph evidence
was effectively overruled by Daubert v. Merrell Dow Phar-
maceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d
469 (1993). We conclude it was and vacate Defendant Cordo-
ba's conviction for possession of cocaine with intent to dis-
tribute in violation of 21 U.S.C. S 841(a)(1). We affirm the
remainder of the district court's evidentiary rulings.
100
I.
We have long expressed our hostility to the admission of
unstipulated polygraph evidence. See United States v. Givens,
767 F.2d 574, 585-86 (9th Cir.), cert. denied, 474 U.S. 953,
106 S. Ct. 321, 88 L. Ed. 2d 304 (1985); United States v.
Demma, 523 F.2d 981, 987 (9th Cir. 1975) (en banc). This
antipathy culminated in the adoption of a "bright line rule"
excluding all unstipulated polygraph evidence offered in civil
or criminal trials. See Brown v. Darcy, 783 F.2d 1389, 1396
n.13 (9th Cir. 1986).
In Daubert, the Supreme Court held that Federal Rule of
Evidence 702, governing the admission of scientific expert
testimony, superseded Frye v. United States, 293 F. 1013,
1014 (D.C. Cir. 1923), which had required scientific testi-
mony to be generally accepted in the relevant scientific com-
munity to be admissible. 509 U.S. at 584-87, 113 S. Ct. at
2792-93. The Supreme Court stated that under Rule 702,
when "[f]aced with a proffer of expert scientific testimony . . .
the trial judge must determine at the outset, pursuant to Rule
104(a), whether the expert is proposing to testify to (1) scien-
tific knowledge that (2) will assist the trier of fact to under-
stand or determine a fact in issue." Id. at 592; 113 S. Ct. at
2796 (footnotes omitted). While the Court noted that many
factors bear on the first inquiry and refused to set out an
exclusive checklist, it identified the following issues as rele-
vant: (1) whether the theory or technique can be and has been
tested, (2) whether it has been subjected to peer review, (3)
whether the technique has a high known or potential rate of
error, and (4) whether the theory has attained general accep-
tance within the scientific community. Id. at 593-94; 113 S.
Ct. 2796-97. Finally, the Court stated that "[t]he inquiry envi-
sioned by Rule 702 is, we emphasize, a flexible one " and that
"Rule 702 . . . assign[s] to the trial judge the task of ensuring
that an expert's testimony both rests on a reliable foundation
and is relevant to the task at hand." Id. at 594, 597; 113 S. Ct.
2797, 2799.
101
[1] The per se Brown rule excluding unstipulated polygraph
evidence is inconsistent with the "flexible inquiry" assigned
to the trial judge by Daubert. This is particularly evident
because Frye, which was overruled by Daubert, involved the
admissibility of polygraph evidence.
The only other circuit that has squarely addressed this issue
held that a per se rule excluding expert polygraph evidence
was overruled by Daubert and Rule 702. United States v.
Posado, 57 F.3d 428, 431-34 (5th Cir. 1995). The court
stated:
[W]e do not now hold that polygraph examinations
are scientifically valid or that they will always assist
the trier of fact, in this or any other individual case.
We merely remove the obstacle of the per se rule
against admissibility, which was based on antiquated
concepts about the technical ability of the polygraph
and legal precepts that have been expressly over-
ruled by the Supreme Court.
Id. at 434. We agree with the Fifth Circuit.
[2] This holding is consistent with precedent in this circuit.
We have held that Daubert overruled a per se rule excluding
expert testimony regarding the credibility of eyewitness iden-
tification. See United States v. Amador-Galvan, 9 F.3d 1414,
1417-18 (9th Cir. 1993) (declining to follow per se rule of
United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir. 1973)
and instead requiring district courts to consider whether
expert testimony regarding eyewitness identification meets
Daubert requirements). Similarly, in United States v. Rincon,
28 F.3d 921 (9th Cir.), cert. denied, _______ U.S. _______, 115 S. Ct.
605, 130 L. Ed. 2d 516 (1994), we upheld a district court's
decision to exclude expert testimony on eyewitness identifica-
tion under Daubert, stating:
Notwithstanding our conclusion, we emphasize
that the result we reach in this case is based upon an
102
individualized inquiry, rather than strict application
of the past rule concerning expert testimony on the
reliability of eyewitness identification. See Amador-
Galvan, 9 F.3d at 1418. Our conclusion does not pre-
clude the admission of such testimony when the
proffering party satisfies the standard established in
Daubert by showing that the expert opinion is based
upon "scientific knowledge" which is both reliable
and helpful to the jury in any given case. See Dau-
bert, 509 U.S. at _______, 113 S. Ct. at 2796. District
courts must strike the appropriate balance between
admitting reliable, helpful expert testimony and
excluding misleading or confusing testimony to
achieve the flexible approach outlined in Daubert.
See id. at _______ - _______, 113 S. Ct. at 2798-99.
Id. at 926.
[3] Accordingly, we hold that Daubert effectively over-
ruled Brown's per se rule under Rule 702 against admission
of unstipulated polygraph evidence.
[4] Brown also suggested that the admission of unstipulated
polygraph evidence per se violated Federal Rule of Evidence
403. Brown, 783 F.2d at 1396 n.13. Daubert specifically
states that other evidentiary rules, such as Rule 403, should be
considered by the trial judge in determining whether to admit
scientific evidence. 509 U.S. at 595, 113 S. Ct. at 2797-98;
see also Posado, 57 F.3d at 435. Daubert holds that it is the
trial judge's task, rather than ours, to conduct the initial
weighing of probative value against prejudicial effect.
Accordingly, we hold that Daubert also overruled any per se
rule created by Brown that unstipulated polygraph evidence is
always inadmissible under Rule 403.
Requiring the trial judge to conduct the Rule 403 analysis
is consistent with the law of other circuits. While the Fifth and
Sixth Circuits disfavor admission of unstipulated polygraph
103
evidence under Rule 403 when the evidence is introduced to
bolster credibility, these circuits still require the trial judge to
conduct the balancing test under Rule 403. See United States
v. Pettigrew, 77 F.3d 1500, 1515 (5th Cir. 1996) (noting that
the absence of safeguards such as agreement by parties to
polygraph test weighs heavily against admission); United
States v. Sherlin, 67 F.3d 1208, 1216-17 (6th Cir. 1995), cert.
denied, _______ U.S. _______, 116 S. Ct. 795, 133 L. Ed. 2d 744
(1996); Conti v. Commissioner, 39 F.3d 658, 663 (6th Cir.
1994), cert. denied, _______ U.S. _______, 115 S. Ct. 1793, 131 L. Ed.
2d 722 (1995). Other circuits simply require the trial court to
conduct a balancing test under Rule 403 before admitting
polygraph evidence. See United States v. Williams, 95 F.3d
723, 729-30 (8th Cir. 1996); United States v. Kwong, 69 F.3d
663, 668 (2d Cir. 1995), cert. denied, _______ U.S. _______, 116 S. Ct.
1343, 134 L. Ed. 2d 491 (1996); United States v. Piccinonna,
885 F.2d 1529, 1536 (11th Cir. 1989).
[5] With this holding, we are not expressing new enthusi-
asm for admission of unstipulated polygraph evidence. The
inherent problematic nature of such evidence remains. As we
noted in Brown, polygraph evidence has grave potential for
interfering with the deliberative process. Brown, 783 F.2d at
1396-97. However, these matters are for determination by the
trial judge, who must not only evaluate the evidence under
Rule 702, but consider admission under Rule 403. Thus, we
adopt the view of Judge Jameson's dissent in Brown that these
are matters which must be left to the sound discretion of the
trial court, consistent with Daubert standards.
In this case, Cordoba took an unstipulated polygraph exam-
ination. The examiner found Cordoba truthful when he
responded "no" to questions regarding his awareness of
cocaine in the Plymouth van he was driving. The government
moved to exclude the polygraph evidence. Cordoba argued
that the evidence was admissible to rehabilitate his credibility
if the government attempted to impeach his credibility. The
district court granted the motion to exclude the evidence
104
based on Brown's per se rule. In view of Daubert, we vacate
the conviction and remand for the district court to conduct a
particularized inquiry consistent with Daubert and to deter-
mine admissibility. If the district court concludes that the evi-
dence is still inadmissible after conducting the inquiry, it may
reinstate the conviction.
II.
[6] Cordoba appeals the admission of his 1985 conviction
of possession with intent to distribute cocaine. We review a
district court's decision to admit evidence of prior convictions
under Federal Rules of Civil Procedure 404(b) and 609(a) for
abuse of discretion. United States v. Jackson, 84 F.3d 1154,
1158 (9th Cir. 1996). The district court did not abuse its dis-
cretion in admitting the evidence. Prior convictions for drug
offenses are probative of veracity, which was at issue. United
States v. Alexander, 48 F.3d 1477, 1488 (9th Cir.), cert.
denied, _______ U.S. _______, 116 S. Ct. 210, 133 L. Ed. 2d 142
(1995). The evidence was not impermissibly stale."By its
terms, Rule 609 allows for admissibility of such a prior con-
viction even where the defendant has been released for up to
ten years." United States v. Browne, 829 F.2d 760, 763 (9th
Cir. 1987), cert. denied, 485 U.S. 991, 108 S. Ct. 1298, 99 L.
Ed. 2d. 508 (1988).
[7] We need not address whether Cordoba's prior convic-
tion was admissible under Rule 404(b). We have held that
when a prior conviction is properly admitted under Rule
404(b), then any error in admitting such conviction under
Rule 609(a)(1) is harmless. See United States v. Mehrmanesh,
689 F.2d 822, 831 n.10 & 833 (9th Cir. 1982). We agree with
the Eighth Circuit that the converse is true: when a prior con-
viction was properly admitted under Rule 609(a)(1), any error
in admitting the conviction under Rule 404(b) is harmless. See
United States v. Smith, 49 F.3d 475, 478 (8th Cir. 1995).
105
III.
Cordoba also appeals the district court's admission of
expert testimony concerning the modus operandi of drug traf-
fickers. At trial, the government's expert testified that sophis-
ticated narcotics traffickers do not entrust 300 kilograms of
cocaine to someone who does not know what he is transport-
ing.
We review a district court's decision to admit expert testi-
mony for abuse of discretion. United States v. VonWillie, 59
F.3d 922, 928-29 (9th Cir. 1995). A trial court abuses its dis-
cretion when it bases its decision on an erroneous view of the
law. United States v. Rahm, 993 F.2d 1405, 1410 (9th Cir.
1993).
[8] If specialized knowledge will assist the trier of fact in
understanding the evidence or determining an issue, a quali-
fied expert witness may provide opinion testimony on the
issue in question. Fed. R. Evid. 702. The expert testimony that
drug traffickers do not use unknowing transporters was
clearly probative of Cordoba's knowledge that he possessed
narcotics. See United States v. Castro, 972 F.2d 1107, 1111
(9th Cir. 1992) ("[E]xperts testified that the amount of
cocaine, valued in the millions of dollars, would have never
been entrusted to an unknowing dupe. Based on that testi-
mony the jury reasonably could have found that Castro know-
ingly possessed the cocaine."), cert. denied, 507 U.S. 944,
113 S. Ct. 1350, 122 L. Ed. 2d 731 (1993). The district court
did not abuse its discretion in finding that the probative value
of the expert's testimony outweighed any prejudicial effect.
[9] Cordoba further contends that the expert testimony con-
stituted improper drug courier profile testimony. A drug cou-
rier profile is a somewhat informal compilation of character-
istics believed to be typical of persons unlawfully carrying
narcotics, commonly used by agents as a basis for reasonable
suspicion to stop and question a suspect. United States v. Lui,
106
941 F.2d 844, 847 (9th Cir. 1991). Drug courier profile testi-
mony is inherently prejudicial and admissible only in limited
circumstances. United States v. Lim, 984 F.2d 331, 334-35
(9th Cir.), cert. denied, 508 U.S. 965, 113 S. Ct. 2944, 124 L.
Ed. 2d 692 (1993). However, testimony that drug traffickers
do not entrust large quantities of drugs to unknowing trans-
porters is not drug courier profile testimony. None of the
expert testimony in this case was admitted to demonstrate that
Cordoba was guilty because he fit the characteristics of a cer-
tain drug courier profile. In addition, the testimony was prop-
erly admitted to assist the jury in understanding modus
operandi in a complex criminal case. See id. at 335.
[10] Cordoba also argues that Daubert governs the admis-
sion of expert testimony regarding the modus operandi of nar-
cotics traffickers. However, Daubert applies only to the
admission of scientific testimony. See Daubert, 509 U.S. at
582, 113 S. Ct. at 2790. In order to qualify as scientific
knowledge, an inference or assertion must be derived from the
scientific method. The government expert testified on the
basis of specialized knowledge, not scientific knowledge.
Thus, Daubert is inapplicable.
IV.
We affirm all rulings except for the district court's decision
to exclude the polygraph examination under Rule 702 and
Brown without conducting a particularized inquiry under
Daubert. This case is remanded to the district court to conduct
individualized inquiries under Rules 702 and 403 to determine
whether Cordoba's unstipulated polygraph evidence is admis-
sible. If the district court concludes that the unstipulated poly-
graph evidence is inadmissible under Rule 702 or 403, the
district court may reinstate the judgment of conviction. See
United States v. Kiser, 716 F.2d 1268, 1274 (9th Cir. 1983).
VACATED and REMANDED.
107
End Document