                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellant,
 v.
                                                         No. 98-2259
 JESUS MANUEL RODRIGUEZ,

       Defendant-Appellee.


                                      ORDER
                              Filed September 28, 1999


Before BRORBY, EBEL and HENRY, Circuit Judges.


      Appellant’s motion to publish the order and judgment filed on September 1,

1999, is granted. The published opinion is attached to this order.

                                             Entered for the Court
                                             PATRICK FISHER, Clerk of Court

                                                   By:
                                                          Keith Nelson
                                                          Deputy Clerk
                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                    PUBLISH
                                                                             SEP 1 1999
                   UNITED STATES COURT OF APPEALS
                                                                      PATRICK FISHER
                                                                               Clerk
                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellant,
 v.
                                                        No. 98-2259
 JESUS MANUEL RODRIGUEZ,

       Defendant-Appellee.


                 Appeal from the United States District Court
                       for the District of New Mexico
                          (D.C. No. CR-98-436-LH)


James R.W. Braun, Assistant United States Attorney (John J. Kelly, United States
Attorney, with him on the briefs), Las Cruces, New Mexico, for Plaintiff-
Appellant.

Barbara A. Mandel, Assistant Federal Public Defender (Ann Steinmetz, Federal
Public Defender, and Shari Lynn Allison, Research and Writing Specialist, with
her on the briefs), Las Cruces, New Mexico, for Defendant-Appellee.


Before BRORBY, EBEL and HENRY, Circuit Judges.


EBEL, Circuit Judge.



      After indicting Defendant-Appellee Jesus Manuel Rodriguez (“Rodriguez”)

on one count of illegal importation and one count of illegal possession of
marijuana, the government notified Rodriguez of its intent to introduce expert

testimony as to the domestic street value of the 51 kilograms of marijuana that he

was accused of illegally importing and possessing. Rodriguez filed a motion in

limine pursuant to Fed. R. Evid. 403 to exclude the government’s expert

testimony regarding the value of the seized marijuana, which the district court

granted. The government appeals, and we reverse and remand.



                                 BACKGROUND

      On May 27, 1998, Rodriguez, driving alone in a 1992 Chevrolet truck that

he did not own, entered the Columbus, New Mexico Port of Entry. There,

Customs Inspector Fernando Vidalez had his suspicion piqued when he observed

that the bolts to the gasoline tank had been recently removed. Using a fiber optic

scope to probe the inside of the truck’s gas tank, Inspector Vidalez noticed

several packages wrapped in plastic. This led to a full-blown search of the

truck’s gas tank, which revealed 127 plastic-wrapped packages containing

approximately 112 pounds (51 kilograms) of marijuana.

      On June 17, 1998, Rodriguez was indicted on two drug related charges.

Count I of the indictment charged Rodriguez with “unlawfully, knowingly and

intentionally import[ing] 50 kilograms and more of marijuana . . . into the United

States of America from . . . the Republic of Mexico,” in violation of 21 U.S.C. §§


                                        -2-
952(a), 960(a)(1) & (b)(3), and 18 U.S.C. § 2. Count II of the indictment charged

Rodriguez with “unlawfully, knowingly and intentionally possess[ing] with intent

to distribute 50 kilograms and more of marijuana,” in violation of 21 U.S.C. §§

841(a)(1) & (b)(1)(C), and 18 U.S.C. § 2.

      Prior to trial, the government notified Rodriguez that it intended to call

expert witness United States Customs Special Agent Miguel Briseno to testify that

the domestic street value of the 51 kilograms of seized marijuana was

approximately $78,400. Rodriguez responded by filing a motion in limine to

exclude the government’s expert testimony pursuant to Fed. R. Evid. 403. In the

motion, Rodriguez maintained that the government sought to admit evidence

regarding the value of the marijuana in order to establish that Rodriguez had the

requisite knowledge of the drugs in the truck’s gas tank. (“[T]he Government

will argued [sic] that based on the value of the marijuana, no drug organization

would entrust an amount of narcotics worth this much to someone who did not

know the drugs were in the vehicle.”) Rodriguez claimed, however, that the value

of the seized marijuana was not relevant to the issue of his knowledge and that

any probative value the expert testimony might have would be substantially

outweighed by unfair prejudice.

      The government responded to Rodriguez’s motion in limine by arguing

that: (1) Rodriguez’s claim that the value of the seized marijuana was irrelevant


                                        -3-
to the issue of Rodriguez’s knowledge was “directly contrary to Tenth Circuit

authority,” (citing United States v. Jones, 44 F.3d 860, 876 (10th Cir. 1995)

(holding that district court did not abuse its discretion in admitting testimony

regarding the value of cocaine because “expert testimony regarding the value of

drugs is relevant to prove the drugs were intended for distribution”)); (2) the

value testimony was highly probative of Rodriguez’s knowledge because “it is

reasonable to conclude that no one would allow a person to unknowingly drive

around in a truck containing approximately $78,400.00 worth of marijuana,”

(citing United States v. Castro, 972 F.2d 1107, 1111 (9th Cir. 1992)

(“Government experts testified that that amount of cocaine, valued in the millions

of dollars, would have never been entrusted to an unknowing dupe.”)); and (3) the

probative value of the evidence was not substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or by considerations of economy of

time, because testimony regarding the value of the marijuana would speak directly

to whether Rodriguez knowingly imported and possessed the marijuana with the

intent to distribute it, which was the central issue of the case.

      On September 22, 1998, the district court granted Rodriguez’s motion and

ordered excluded “all testimony by expert witnesses regarding the street value of

the drugs seized,” under Fed. R. Evid. 403. In granting the motion, the district

court stated:


                                          -4-
      [T]he Government’s position that expert testimony as to the street
      value of the drugs seized demonstrates that Mr. Rodriguez knew the
      drugs were in the truck requires several inferential leaps. The
      Government’s basic theory is that the drugs are so valuable that no
      one would entrust them to an unknowing dupe. Yet, the opposite
      inference is just as likely: the drugs at issue here are so valuable no
      one would knowingly drive them across the border himself. An
      individual who does not know the drugs are present is less likely to
      appear nervous when speaking with law enforcement officers and
      may therefore be more likely to successfully deliver the drugs. The
      opposite inference is based on the presumption that drug smugglers
      conduct their business with the same considerations as legitimate
      merchants or private individuals, a presumption which lacks an
      evidentiary foundation and belies common sense.
            The links in the chain which would connect this expert
      testimony to Mr. Rodriguez’s state of mind are weak and attenuated.
      The probative value of the evidence is accordingly relatively low.

Balanced against what the district court considered insubstantial probative value,

the court recognized that “evidence of the street value of the drugs seized is likely

to confuse, mislead and inflame the jury,” because the expert testimony “may

carry an extra authoritative weight in the minds of jurors, [and] risks that jurors

will attach undue significance to the evidence or convict merely based on their

belief that the defendant is somehow connected to a ‘drug ring.’” Further, the

district court observed: “The evidence presents a substantial risk of unfair

prejudice in that it may lead the jury to convict because they believe that Mr.

Rodriguez is a ‘bad man’ or is involved with ‘serious drug dealers,’ not because

the Government has proved the offenses alleged beyond a reasonable doubt.”




                                         -5-
      The day after the district court filed its order granting Rodriguez’s motion,

the government filed its notice of appeal in the district court, which contained a

certification that the “appeal is not taken for purpose of delay and that the

evidence suppressed is a substantial proof of fact material in the proceedings.” 1

      We have jurisdiction pursuant to 18 U.S.C. § 3731, and we now reverse and

remand.



                                      MERITS

      “We review a district court’s decision on Rule 403 for abuse of discretion.”

United States v. Castillo, 140 F.3d 874, 884 (10th Cir. 1998). “However, despite

the discretion afforded the district court, we have previously cautioned, ‘Rule 403

is an extraordinary remedy and should be used sparingly.’” United States v.

Roberts, 88 F.3d 872, 880 (10th Cir. 1996) (quoting Wheeler v. John Deere Co.,

862 F.2d 1404, 1408 (10th Cir. 1988)).

      The government asserts that the district court abused its discretion under

Fed. R. Evid. 403 by excluding the proffered expert testimony as to the value of


      1
        Pursuant to 18 U.S.C. § 3731, courts of appeals have jurisdiction to hear
appeals brought by the United States in criminal cases “from a decision or order
of a district court suppressing or excluding evidence . . . not made after the
defendant has been put in jeopardy and before the verdict or finding on an
indictment or information, if the United States attorney certifies to the district
court that the appeal is not taken for purpose of delay and that the evidence is a
substantial proof of a fact material in the proceeding.”

                                         -6-
the marijuana seized from the gas tank of the truck that Rodriguez was driving.

In resolving whether the district court abused its discretion in excluding the

government’s proffered evidence, we must examine the interplay of Fed. R. Evid.

401 and Fed. R. Evid. 403. Cf. United States v. Levine, 970 F.2d 681, 688-89

(10th Cir. 1992) (“We review relevancy questions utilizing a two step analysis.

First we ask: is the evidence relevant under Fed. R. Evid. 401, and, if so, should

the evidence be excluded as unfairly prejudicial under Fed. R. Evid. 403?”

(footnotes omitted)).

      Fed. R. Evid. 401 defines “relevant evidence” as “evidence having any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence.” Here, the government claims that the proffered expert

testimony regarding the street value of the marijuana was relevant to prove that

Rodriguez had knowledge of the presence of the marijuana in the truck that he

was driving because no drug smuggler/dealer would place such a valuable load in

the truck of an unknowing driver.

      This court has recognized that the value of drugs found in a vehicle driven

by a defendant is relevant to the issue of that defendant’s knowledge of the

presence of the drugs in the vehicle. See United States v. Hooks, 780 F.2d 1526,

1532 (10th Cir. 1986) (DEA agent testimony that PCP found in truck driven by


                                         -7-
defendant was worth $10,000 “supports the jury’s finding that appellant

knowingly possessed the PCP, since it is unlikely that the owner of the truck, or

anyone else, would have left such a valuable substance in the truck”).

      In accord with Hooks, here we hold that evidence of the value of the seized

marijuana was relevant to Rodriguez’s knowledge of the drugs’ presence, in that

the expert testimony would have at least a “tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” Accordingly, we find that

the excluded expert testimony was relevant under Fed. R. Evid. 401.

      Next, we turn to Fed. R. Evid. 403, which provides that relevant evidence

“may be excluded if its probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.”

      As we have noted, the district court concluded that the probative value of

the government’s proffered expert testimony was “relatively low,” based on its

observation that equal and opposite inferences could be drawn from testimony

regarding the value of the seized marijuana. We disagree. Here, Rodriguez’s

knowledge of the existence of the drugs in the truck apparently will be the critical

issue in dispute in the trial. It appears that there is no direct evidence of his


                                          -8-
knowledge, and thus the importance of any indirect evidence of his state of

knowledge becomes magnified. The fact that conflicting inferences may be

drawn from the value of the drugs is something left up to the parties to argue at

trial, but it does not detract from the probative value of the evidence itself.

Indeed, to the contrary, here both sides appear prepared to argue the probative

value of this evidence at trial.

      We have often recognized not only the relevance but also the importance of

evidence of the value of the drugs in similar situations. See Hooks, 780 F.2d at

1532; see also United States v. Amaya-Sanchez, No. 97-2079, 1997 WL 774771,

at **3 (10th Cir. Dec. 17, 1997) (unpublished disposition) (finding evidence

sufficient to support conviction and stating, “it strains credulity to think that the

owner of such a large amount of marijuana, worth over $100,000, would hide it in

a truck and then loan that truck to an innocent Mr. Amaya-Sanchez, who would

have at the least jeopardized the shipment once the truck encountered problems

across the border.”), cert. denied, 118 S. Ct. 1177 (1998); United States v.

Pohlman, No. 95-2239, 1996 WL 534161, at **2 (10th Cir. Sept. 20, 1996)

(unpublished disposition) (in rejecting a sufficiency of the evidence claim, the

court stated: “The jury could have reasonably inferred that [the defendant] had

knowledge based on a combination of [her] repeated trips through the Truth or

Consequences checkpoint to learn the practices and procedures of the checkpoint,


                                          -9-
her use of [her daughter] as a smokescreen to divert the agents’ suspicions of her

as a marijuana courier, her nervousness and agitation when stopped at the

checkpoint, and her possession of over $150,000 worth of merchandise.”

(emphasis added)), cert. denied, 519 U.S. 1132 (1997). Other circuits agree with

the relevance and importance of value evidence to prove knowledge. See United

States v. Pollock, 926 F.2d 1044, 1050 (11th Cir. 1991) (finding evidence

sufficient to sustain a conviction of possession with intent to distribute, and

noting: “The most significant evidence supporting [the defendant’s] knowing

possession with intent to distribute is the large value of the cocaine. A jury

reasonably could conclude that no drug smuggler would entrust a shipment worth

a million dollars to an outsider.”); Gaylor v. United States, 426 F.2d 233, 235 (9th

Cir. 1970) (concluding that evidence of drug value “was properly admitted as

refuting the possibility that a stranger could have placed such a valuable cargo in

a vehicle in the hope that the vehicle could be followed and the cocaine later

recovered in the United States”); but see United States v. Littrell, 574 F.2d 828,

833 (5th Cir. 1978) (“[I]t might be an asset for . . . a courier to be uninformed

about the nature of his delivery, since he would have no reason to be nervous or

apprehensive about a task he believed to be perfectly legitimate.”).

      Next we balance the significant relevance of this evidence against the

asserted unfair prejudice that would result to Rodriguez if it is admitted. As


                                         - 10 -
noted, the district court found that the proffered expert testimony posed a danger

of unfairly prejudicing Rodriguez by risking a conviction based on a belief that he

associated with bad people or because he “is somehow connected to a ‘drug

ring.’” However, “the unfair prejudice aspect of Rule 403 cannot be equated with

testimony which is simply unfavorable to a party,” United States v. Flanagan, 34

F.3d 949, 953 (10th Cir. 1994) (internal quotation omitted), and here, evidence of

the value of the drugs directly addresses an element of the offense — Rodriguez’s

knowledge. If that evidence is interpreted by the jury to connect Rodriguez to a

drug ring or to bad people who smuggle drugs, that cannot be considered “unfair”

prejudice since that is at the core of the criminal charges against him.

      “Evidence is unfairly prejudicial if it makes a conviction more likely

because it provokes an emotional response in the jury or otherwise tends to affect

adversely the jury’s attitude toward the defendant wholly apart from its judgment

as to his guilt or innocence of the crime charged.” Roberts, 88 F.3d at 880

(internal quotations omitted). Here, we see no potential that the value of the

seized drugs could serve to provoke an unfair emotional response against

Rodriguez “wholly apart from [the jury’s] judgment as to his guilt or innocence of

the crime charged.” He is accused of importing and possessing the very drugs

that the government now wishes to value. Valuation is simply one of the

descriptive ways of describing those drugs and the jury will know, in any event,


                                        - 11 -
that there were 127 plastic-wrapped packages of marijuana totaling 112 pounds or

51 kilograms. In light of this evidence that both sides agree may be introduced,

we do not see how the introduction of evidence that this much marijuana has a

street value of $78,400 could be unfairly prejudicial.

      Fed. R. Evid. 403 allows the exclusion of relevant evidence only if its

“probative value is substantially outweighed by the danger of unfair prejudice.”

Here, notwithstanding the deference that we owe to the trial court, we conclude

that it was an abuse of discretion to exclude the evidence of value of the

marijuana under Fed. R. Evid. 403.

      Accordingly, we REVERSE the district court’s order in limine excluding

the evidence of the value of the seized marijuana and we REMAND for further

proceedings.




                                        - 12 -
