                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 14-3162
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                        RICHARD CARABALLO-RODRIGUEZ,
                                                                      Appellant
                                      _____________

                       Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                 (No. 2:08-cr-00328-002)
                       District Judge: Honorable Cynthia M. Rufe

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  November 9, 2015

           Before: CHAGARES, SHWARTZ and RENDELL, Circuit Judges.

                                (Filed: December 2, 2015)
                                      ____________

                                        OPINION*
                                      ____________

CHAGARES, Circuit Judge.

       Richard Caraballo-Rodriguez was convicted of one count of conspiracy to

distribute and possess with the intent to distribute more than five kilograms of cocaine, in



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
violation of 21 U.S.C. § 846, and one count of possession of more than five kilograms of

cocaine with intent to distribute, and aiding and abetting possession with intent to

distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2.

This case presents the question of whether the District Court plainly erred in admitting

portions of the expert testimony of a narcotics agent under Federal Rule of Evidence

704(b). We hold that the District Court did not plainly err in admitting the expert

testimony, and we will affirm the judgment of the District Court.

                                             I.

       We write solely for the parties and therefore recite only the facts necessary to our

disposition. We have previously summarized the factual background of this matter in

United States v. Caraballo-Rodriguez, 726 F.3d 418 (3d Cir. 2013) (en banc), and we

assume familiarity with that decision.

       Briefly, Caraballo-Rodriguez was arrested after he picked up two suitcases

containing cocaine at the Philadelphia airport. Prior to his arrival at the Philadelphia

airport, Drug Enforcement Administration (“DEA”) agents were alerted that he and co-

defendant Luis Deya-Diaz would arrive on a flight from Puerto Rico, having paid for

their last-minute one-way tickets in cash and having no checked or carry-on luggage. At

the airport, DEA agents observed the two men meet a third man at the baggage carousel.

Together, the three men collected multiple suitcases from the carousel, brought them to a

car parked in the garage, and then entered a separate car parked nearby. The DEA agents

alerted state police to stop both vehicles. After receiving consent to search one of the



                                              2
vehicles, the state police discovered the suitcases, which contained several bricks of

cocaine.

       At Caraballo-Rodriguez’s trial, the Government called Alan Basewitz, a narcotics

agent, to testify as an expert regarding the typical characteristics of drug couriers.

Basewitz testified:

              [Couriers] are trusted individuals. The couriers, if you’re transporting a
       significant amount, their addresses or families and information are known to the
       person who is either coordinating or supplying. The inverse is not true, in most
       instances. And they have to be trusted because of the amounts that they ferry back
       and forth, both if it’s cash, depending on which direction you’re heading, or if it’s
       drugs.

              . . . Sometimes [couriers] are not told the exact type of drug. Quite often
       during my proffers and interviews and intelligence information through
       conversations with informants and cooperators and other law enforcement and
       most through my personal interactions with these individuals, they know it’s
       drugs. They may not know the type, depending on the group. They may not know
       the weight. But, they know or should have known that it’s drugs.

               There is an exception to that, when there is what’s known as the blind mule.
       But, the blind mule only occurs, in my expertise and experience, in situations
       that’s dissimilar from those that are present today.

Supplemental Appendix (“Supp. App.”) 622-23.

       In addition to Basewitz, the Government called Deya-Diaz as a witness, who

testified that although he did not initially know the contents of the suitcases, once he

picked them up, he “guess[ed]” they contained drugs based on their weight. Supp. App.

428-29. Deya-Diaz added, “[c]ommon sense, drugs. Who else would take five thousand

dollars to pick up a suitcase full of clothes?” Supp. App. 435. The Government also

introduced phone records indicating that both Deya-Diaz and Caraballo-Rodriguez had



                                              3
been in significant contact with the same phone number in the days preceding their flight

to Philadelphia.

       After his conviction, Caraballo-Rodriguez filed a post-trial motion for acquittal.

The District Court granted the motion, holding that the Government’s evidence was

insufficient to support an inference that Caraballo-Rodriguez knew the suitcases

contained drugs as opposed to other contraband. The Government appealed the District

Court’s decision. In an en banc decision, we vacated the District Court’s order and held

that the Government’s evidence — which included “Caraballo-Rodriguez’s travel plans,

Deya-Diaz’s testimony, the phone records [of Deya-Diaz and Caraballo-Rodriguez],

Agent Basewitz’s expert testimony, and the jury’s own common sense” — was sufficient

to support the conviction. Caraballo-Rodriguez, 726 F.3d at 434.

       After remand, the District Court sentenced Caraballo-Rodriguez to the statutory

minimum term of imprisonment. Caraballo-Rodriguez timely appealed. On appeal,

Caraballo-Rodriguez challenges the admission of the Government’s expert testimony.

                                             II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have

jurisdiction pursuant to 28 U.S.C. § 1291.

       As Caraballo-Rodriguez did not object to the expert testimony at trial, we review

the admission of the expert testimony for plain error. To establish plain error, Caraballo-

Rodriguez must show that (1) the District Court erred; (2) the error was clear or obvious,

rather than subject to reasonable dispute; and (3) the error affected the appellant’s

substantial rights, which in the ordinary course means affected the outcome of the

                                              4
proceedings. United States v. Marcus, 560 U.S. 258, 262 (2010); United States v. Tai,

750 F.3d 309, 313-14 (3d Cir. 2014). If all three elements are established, the Court may

exercise its discretion to award relief. See United States v. Olano, 507 U.S. 725, 736

(1993). That discretion should be exercised only in cases where the error “seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id.

(quotation marks omitted); see also United States v. Stinson, 734 F.3d 180, 184 (3d Cir.

2013).

                                             III.

         Caraballo-Rodriguez argues that Basewitz’s testimony is inadmissible under

Federal Rule of Evidence 704(b). Under Rule 704, an expert witness in a criminal case

“must not state an opinion about whether the defendant did or did not have a mental state

or condition that constitutes an element of the crime charged or of a defense.” Fed. R.

Evid. 704(b). However, “[e]xpert testimony is admissible if it merely supports an

inference or conclusion that the defendant did or did not have the requisite mens rea, so

long as the expert does not draw the ultimate inference or conclusion for the jury and the

ultimate inference or conclusion does not necessarily follow from the testimony.” United

States v. Watson, 260 F.3d 301, 309 (3d Cir. 2001) (quotation marks and alteration

omitted).

         Caraballo-Rodriguez challenges Basewitz’s testimony because “‘if the jury found

that Caraballo-Rodriguez shared the typical attributes of couriers, the direct inference

from Basewitz’s testimony would be that he, like all couriers, knew or should have

known that his suitcase contained drugs.’” Caraballo-Rodriguez Br. 16-17 (quoting the

                                              5
District Court’s post-trial acquittal order in United States v. Cordero, 815 F. Supp. 2d

821, 845 (E.D. Pa. 2011)). In support of this argument, Caraballo-Rodriguez points to

Watson, 260 F.3d 301. In Watson, we held that under Rule 704, experts can testify

“concerning the modus operandi of individuals involved in drug trafficking” or “the

common practices of drug dealers.” Id. at 308-09. We noted, however, that “Rule 704(b)

may be violated when the prosecutor’s question is plainly designed to elicit the expert’s

testimony about the mental state of the defendant or when the expert triggers the

application of Rule 704(b) by directly referring to the defendant’s intent, mental state, or

mens rea.” Id. at 309 (citation omitted). Such a violation may occur if the prosecution

makes “repeated invocation of the word ‘intent’” in questioning the expert. Id. But we

have also found no such violation when a prosecutor’s questions were “hypothetical,

rather than specific, questions regarding the intent of individual defendants on trial,” and

when “no evidence was presented that [the expert] had any direct relationship with the

investigation or the defendants and, therefore, there was no potential for the jury to

conclude that [the expert] had any special insight into the thoughts or intent of the

defendants.” United States v. Davis, 397 F.3d 173, 179 (3d Cir. 2005) (holding that the

district court did not abuse its discretion in allowing expert testimony suggesting that the

facts of the case were “consistent” with an “intent to distribute”).

       The District Court did not commit an error when it admitted Basewitz’s testimony

that in his experience through proffers and interviews, couriers often “know or should

have known that it’s drugs.” Supp. App. 623. As in Davis, the prosecutor’s questions

were not plainly designed to elicit testimony about the mental state of the defendant. The

                                              6
prosecutor asked Basewitz: “Now, with regard to the couriers, how are they recruited?”

Supp. App. 621. In asking this question, the prosecutor did not reference Caraballo-

Rodriguez; nor did the prosecutor use words or phrases (such as “intent” or “knowledge”)

that could be reasonably interpreted as seeking to elicit testimony regarding Caraballo-

Rodriguez’s mental state. Similarly, Basewitz did not refer to Caraballo-Rodriguez in his

testimony. Instead, he spoke in general terms about his personal interactions with drug

couriers other than Caraballo-Rodriguez. He also testified that he was not, in any way,

involved in this particular investigation and trial. Basewitz framed his testimony in such

a way that supported an inference that Caraballo-Rodriguez had the requisite knowledge

about the contents of the suitcases, but that “ultimate inference or conclusion does not

necessarily follow from [his] testimony.” Watson, 260 F.3d at 309 (quotation marks

omitted). Thus, the District Court did not commit plain error because admission of

Basewitz’s testimony was proper.1

                                            IV.

       For the foregoing reasons, we will affirm the District Court’s judgment of

conviction and sentence.




1
  Even if there were a clear or obvious error, Caraballo-Rodriguez has not satisfied the
third prong of the plain error standard — that any such error affected the outcome of the
proceedings. As we noted in our en banc decision, the Government’s evidence included
more than just Basewitz’s testimony; other evidence supporting the conviction included
Caraballo-Rodriguez’s travel plans, Deya-Diaz’s testimony, similar phone records of
Caraballo-Rodriguez and Deya-Diaz, and the jury’s own common sense. See Caraballo-
Rodriguez, 726 F.3d at 434.
                                             7
