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Ninth Circuit Reverses Conviction for Conspiracy to Smuggle Drugs Based Solely on ‘Drug Courier Profile’

by Christopher Zoukis

The U.S. Court of Appeals for the Ninth Circuit reversed a defendant’s conviction for conspiracy to import and distribute marijuana because the government provided no evidence of drugs or a conspiracy. The May 7, 2018, opinion also emphasized that expert witness testimony of “drug courier profiles” alone is insufficient to establish guilt.

Pragedio Espinoza-Valdez was captured by U.S. Border Patrol agents as he sat on a mountaintop in the Vaiva Hills area of Arizona. The area is a known drug trafficking corridor, and when agents apprehended Espinoza-Valdez, they found a Motorola radio, batteries, toilet paper, wet wipes, food, and carpet shoes. The agents believed that Espinoza-Valdez was working as a spotter for a drug trafficking operation. The agents were unable to find any illegal drugs, nor did they know who Espinoza-Valdez was working with.

Despite a near-total lack of evidence, the government charged Espinoza-Valdez with conspiracy to import and conspiracy to distribute marijuana. At trial, Border Patrol Commander Bobby Garcia testified as an expert on trafficking organizations. He stated smuggling groups are watched over by spotters, who often carry encrypted Motorola radios and carpet shoes (to disguise their footprints). Garcia said in his opinion, Espinoza-Valdez was a drug trafficking scout. Based on Garcia’s testimony and a previous encounter with Border Patrol (which did not result in charges or a conviction), Espinoza-Valdez was convicted.

The Ninth Circuit reversed, finding that the government failed to prove the existence of any conspiracy or drugs.

The Court said in order to establish a conspiracy, the government must prove, beyond a reasonable doubt, “(1) an agreement to accomplish an illegal objective, and (2) the intent to commit the underlying offense.” Here, the government presented “no evidence as to what (if anything) was specifically agreed to, who agreed to it, or what any agreement was intended to accomplish.” The government also presented “no evidence of drugs that actually passed through or were intended to pass through that area under Espinoza-Valdez’s watch.”

The Court also noted that the evidence that was presented – Garcia’s expert testimony about the profile of a drug courier – is admissible for only limited purposes. Such evidence, instructed the Court, “is inherently prejudicial because of the potential it has for including innocent citizens as profiled drug couriers and because simply matching a defendant to a drug profile may unfairly suggest to the jury that otherwise innocuous conduct or events demonstrate criminal activity.” For these reasons, “[t]he government may not rely on expert testimony of drug courier profiles alone to establish guilt.”

Because that is precisely what the government did in this case, reversal was required.

“While it is possible, perhaps even probable, that Espinoza-Valdez was on the mountaintop to act as a scout for drug traffickers, a reasonable suspicion or probability of guilt is not enough,” wrote the Court. “Guilt, according to the basic principles of our jurisprudence, must be established beyond a reasonable doubt. Here, it was not: Viewing the entirety of the evidence in the light most favorable to the government, there was insufficient evidence upon which a reasonable mind might fairly find the existence of a conspiracy to import and distribute marijuana – or of Espinoza-Valdez’s agreement to join such a conspiracy – beyond a reasonable doubt.”

Accordingly, the Court reversed the district court’s judgment. See: United States v. Espinoza-Valdez, 889 F.3d 654 (9th Cir. 2018). 

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Related legal case

United States v. Espinoza-Valdez



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