United States of America, Plaintiff-appellee, v. Carlos Alberto Pereda-aleman, Defendant-appellant, 57 F.3d 1081 (10th Cir. 1995)

Before ANDERSON and HOLLOWAY, Circuit Judges, and ELLISON² , District Judge.

Carlos Alberto Pereda-Aleman appeals his conviction on one count of possession with intent to distribute less than fifty kilograms of marijuana, in violation of 21 U.S.C. 841(a) (1). He contends that the district court erred in excluding certain opinion evidence from the jury on the basis that Pereda-Aleman had failed to comply with 28 C.F.R. 16.21-16.29 which provide for compelling the testimony of government employees. We affirm.

Driving a car with Colorado license plates, Pereda-Aleman entered a border patrol checkpoint on Interstate 25, north of Las Cruces, New Mexico, on August 11, 1993. According to the testimony of the agent on duty, Pereda-Aleman's hand trembled as he handed over his immigration document, and initially Pereda-Aleman fidgeted in his seat, without answering the agent's questions about the car ownership. Finally, Pereda-Aleman responded that he had borrowed the car from a friend, although he did not know the friend's name or address. R. Vol. IV at 12-15. Pereda-Aleman consented to a canine sniff, following which marijuana was discovered in the car's panels.

At trial Pereda-Aleman, a mechanic, testified that the car had been left with him for minor repairs, that he was on his way to return it to the owner when he was stopped, and that he did not know that the car had drugs in it.

In support of his lack of knowledge defense, Pereda-Aleman sought to subpoena DEA Agent Ernest Mertens. According to the defense proffer, Agent Mertens is an expert in drug enforcement who had testified in a previous, unrelated case and who would have testified in this case that "it is not at all unusual for the driver of a vehicle containing contraband to have no knowledge of such contraband," that "it is common in smuggling operations to have a driver who is innocent," and that "it is common for persons involved in ... smuggling drugs to use other persons ... to insulate the actual drug smuggler himself." R. Vol. III at 7-8.

The government moved to quash the subpoena, arguing (1) that Pereda-Aleman had failed to comply with the requirements for calling a government employee as a witness as set forth in 28 C.F.R. 16.21-16.29,³  R. Vol. I, Doc. 32 at 2-8; and (2) that the testimony was irrelevant, id. at 9. The district court agreed on both points and quashed the subpoena. R. Vol. III at 5.

Pereda-Aleman's argument on appeal is directed solely to procedural compliance. Noting that Agent Mertens' appearance mooted any argument regarding procedural compliance, however, the government does not pursue that issue in its brief. Instead, the government directs its argument solely to the issue of relevance, contending that the district court's decision should be affirmed because the testimony was properly excluded on that basis, thus making it unnecessary to address any other basis.

We review the district court's decision to exclude evidence for abuse of discretion, and we reverse only for manifest error. United States v. Simpson, 7 F.3d 186, 188 (10th Cir. 1993) (citing Salem v. U.S. Lines Co., 370 U.S. 31, 35 (1962)).

The government contends that Mertens' testimony in the previous, unrelated case is irrelevant to the present case because completely different facts were involved, and because Mertens had no specific information about Pereda-Aleman's case or his state of mind. Our review of the record discloses that Mertens' proffered testimony would not have addressed "specific facts" of Pereda-Aleman's case, but would instead have been in the form of an "expert" hypothetical. He simply would have testified that, as a general proposition, it is common for the driver of a vehicle not to know drugs are in the car. R. Vol. III at 4.

The admissibility of expert testimony is governed by Fed.R.Evid. 702 which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Id. (emphasis added).

One "consideration under Rule 702--and an ... aspect of relevancy--is whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.' " Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2796 (1993) (quoting United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)). Thus, the "helpfulness' standard requires a valid ... connection to the pertinent inquiry as a precondition to admissibility." Id.; cf. United States v. Simpson 7 F.3d 186, 188-89 (10th Cir. 1993) (upholding exclusion under Rule 704 when the "expert merely states an opinion on an ultimate issue without adequately exploring the criteria upon which the opinion is based," so that "the jury is provided with no independent means by which it can reach its own conclusion or give proper weight to the expert testimony").

Pereda-Aleman sought to admit opinion testimony which was not related to the facts of his case. Such an opinion would not be helpful to a jury deciding whether he personally had knowledge. Accordingly, the district court did not abuse its discretion in denying Pereda-Aleman's request to present the expert testimony.

AFFIRMED.