
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1264                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              HECTOR JULIO FELIX MONTAS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                     Coffin and Campbell, Senior Circuit Judges.                                          _____________________                                 ____________________            Rafael F. Castro Lang for appellant.            _____________________            Esther Castro  Schmidt,  Assistant  United States  Attorney,  with            ______________________        whom  Guillermo  Gil,  United States  Attorney,  and  Jose  A. Quiles-              ______________                                  ________________        Espinosa, Senior Litigation Counsel, were on brief for appellee.        ________                                 ____________________                                   December 7, 1994                                 ____________________               COFFIN,  Senior Circuit  Judge.   Hector Julio  Felix Montas                        _____________________          appeals  his  conviction after  jury  trial  for possession  with          intent to  distribute  cocaine.    He raises  three  issues:  the          sufficiency  of the  evidence to  support the  jury  verdict, the          appropriateness of the district judge's conduct during the trial,          and the admission of expert testimony concerning the use of false          names  by airplane  drug couriers.   While we are  given pause by          some aspects of the case, we conclude that there is no reversible          error.                                          Background                                      __________               On June  30, 1993, a dog used by a United States Customs K-9          unit detected drugs in  two suitcases checked onto a  flight from          San Juan, Puerto Rico,  to New York City.  The  two bags had been          checked  in  the  name  of  Miguel  Rivera  ("Rivera")  and  bore          identification tags  with Rivera's name written by hand.  Customs          inspectors located a third  bag checked in Rivera's name,  but no          cocaine  was  detected  therein.   This  third  bag  also had  an          identification tag affixed to it, which bore the handwritten name          of Pedro Felix followed  by defendant's address.  All  three bags          had  consecutive claim  tag numbers.   Airline  records indicated          that Felix  and Rivera had  purchased their tickets,  checked in,          and checked their  bags, at the  same time.   They also had  been          assigned adjacent seats on the flight.1                                        ____________________               1 In its brief the government misleadingly asserts that "the          name of Miguel Rivera appeared on all three" bags.  By failing to          explain what only a close reading of the trial transcript reveals          -- that  the airline  placed tags with  Rivera's computer-printed                   ___________          name on  the bags  -- the government  implies the existence  of a                                         -2-               Upon detection of the  presence of drugs, Customs inspectors          rushed to the  flight gate  to locate Rivera  and Felix.   Though          many of the passengers already had boarded, they  found defendant          in  the gate area and asked to  see his ticket and boarding pass.          Defendant  showed them these documents, which were in the name of          "Felix,  P.," and they detained him.   Defendant asked why he was          being held and was told "because the dog has detected the odor of          narcotics on your bags."   Supervisory Customs Inspector Irizarry          went to search the  plane for Rivera, telling Inspector  Ramos to          stay  and watch  defendant closely because  he thought  he looked          nervous and was getting  ready to throw away something he  had in          his  pants pocket.  This prediction  proved prescient, for, after          watching  defendant  take his  hands in  and  out of  his pockets          several  times, Ramos observed  what he  described as  a crumpled          piece  of   paper  fall  from  defendant's  back.    Ramos  said,          "something fell from you."   Defendant replied: "Not me.   That's          not  mine."  Ramos picked  up the crumpled  papers and discovered          that they  were the claim checks for the three pieces of luggage,          two of which  contained the  cocaine.  Defendant  was taken  into          custody, where he  was found to  be in possession of  a Dominican          Republic passport and other identification in the name  of Hector          Julio Felix Montas.                 There  is conflicting evidence  on what happened  next.  The          government contends that  Irizarry and  another Customs  official                                        ____________________          stronger connection among the bags, and of the defendant to them,          than is warranted.                                           -3-          entered the  plane and determined that no  passenger named Rivera          was  aboard.  Defendant argues that Rivera  was on the plane when          it  took off  and disembarked  with the  other passengers  in New          York, noting that this  theory finds support in testimony  by DEA          Agent Ivan Rios  at a preliminary hearing.  Rios,  who arrived on          the scene  after defendant  was detained, testified  that Customs          officials  told him that Rivera had taken  off on the flight.  He          also  testified that, by  the time authorities  were contacted in          New  York, the passengers already had disembarked.  In any event,          no Rivera was ever apprehended.               The jury convicted defendant of  the single count with which          he was charged, possession with intent to distribute cocaine.                                      Discussion                                      __________               We address the three claims of error in turn.          I.   Sufficiency of the Evidence               ___________________________               In assessing the sufficiency of the  evidence to support the          jury's guilty verdict, we read the record and draw all reasonable          inferences  therefrom   in  the  light  most   favorable  to  the          prosecution.  United States v. Loder,  23 F.3d 586, 589 (1st Cir.                        _____________    _____          1994).  We must affirm  if, based on the evidence viewed  in this          way, a  rational fact finder  could have  found defendant  guilty          beyond a reasonable doubt.  Id.                                      ___               The evidence adduced at trial was sufficient  to sustain the          verdict.   Though the  bags containing  cocaine  were checked  to          Rivera and bore identification labels with  Rivera's hand-written          name, the record shows that defendant was linked to these bags in                                         -4-          several ways.  First, he possessed the claim checks for the bags,          making reasonable the inference  that he planned to pick  them up          upon  arrival  in New  York.   Possession  of such  claim checks,          because  they  "represent  [the]   legal  right  to  reclaim  the          luggage," is sufficient to  show constructive possession over the          luggage itself.  United  States v. Ocampo-Guarin, 968 F.2d  1406,                           ______________    _____________          1410  (1st  Cir.  1992).    Second,  when  he  was  detained,  he          intentionally  threw away  the claim  checks.   Such  evidence is          highly probative that he was conscious of his own guilt.   Third,          defendant and  Rivera bought  their tickets together,  checked in          together,  and checked  their  bags together.    This could  show          nothing  more than that the two men were co-travellers, but, when          taken  together with  the other  evidence, it  also  supports the          inference that either Rivera  never existed and defendant created          his persona as  part of a scheme to avoid  detection, or that the          two men  were cohorts  in a  smuggling endeavor.   In  any event,          based on the totality of the evidence, a rational jury could find          defendant guilty beyond a reasonable doubt.               Defendant  argues that  all  of this  evidence is  perfectly          consistent  with innocence.   He  submits that  he possessed  the          claim checks  for the bags  containing cocaine  only because  the          airline  clipped both  his and  Rivera's checks  onto  his ticket          jacket, as the airline representative testified is sometimes done          when two passengers  check in  together.  He  points out that  he          threw  away the checks  only after  being told  that the  odor of          narcotics was detected in  "his" bags.  He says  he then realized                                         -5-          for  the  first  time  that  Rivera's  bags  must  have contained          narcotics.  Throwing away  the checks, he contends, was  simply a          natural human reaction to avoid the erroneous conclusion  that he          was   involved.     He   also  stresses   that  the   handwritten          identifications  tags showed  that  the cocaine-filled  bags were          Rivera's and the unoffending bag was his.               This  argument  fails for  two basic  reasons.   First, even          assuming the plausibility of  defendant's explanations, it is not          a prerequisite of conviction that the prosecution adduce evidence          to preclude  "every reasonable hypothesis of  innocence."  United                                                                     ______          States v.  Gonzalez-Torres, 980  F.2d 788,  790 (1st  Cir. 1992).          ______     _______________          Moreover, defendant made this same argument -- that  the evidence          showed nothing  more than  that he  was an innocent  co-traveller          with  Rivera  --  to the  jury.    Because  there was  sufficient          evidence  to make  reasonable a  finding of  guilt, the  jury was          entitled to discredit his theory of innocence.  See, e.g., id.                                                           ___  ____  ___          II.  The Judge's Conduct               ___________________               Defendant next urges us to  reverse because, he asserts, the          district judge became "a partisan of the government's case," thus          depriving him  of a  fair  trial.   See, e.g.,  United States  v.                                              ___  ____   _____________          Wilensky, 757 F.2d 594, 598 (3d Cir. 1985) (criminal trial unfair          ________          when "the judge's role loses its color of neutrality and tends to          accentuate and emphasize the prosecutor's case"), cited in United                                                            ________ ______          States v.  Corgain, 5  F.3d 5,  9 (1st Cir.  1993).   The judge's          ______     _______          allegedly improper conduct consists of questioning  a prosecution          witness and admonishing the prosecutor on her trial strategy in a                                         -6-          manner  reflecting  adversely  on  defendant's  case.    We  have          reviewed these matters, as well as the entire record, and find no          conduct by the judge warranting reversal.               The role of a federal trial judge, of course, is not limited          to that  of a "mere umpire."   United States v.  Polito, 856 F.2d                                         _____________     ______          414, 418 (1st Cir. 1988).  Instead, the judge "is the governor of          the  trial for assuring its  proper conduct."   Desjardins v. Van                                                          __________    ___          Buren Community Hosp., 969  F.2d 1280, 1281 (1st Cir.  1992) (per          _____________________          curiam)  (quoting Quercia  v. United  States, 289  U.S. 466,  469                            _______     ______________          (1933)).  In the exercise of this power, a trial judge has                "the prerogative, and at times  the duty, of eliciting facts               he  deems necessary to the clear presentation of issues.  To               this end he may examine witnesses who testify, so long as he               preserves  an attitude  of impartiality  and guards  against               giving  the jury the impression  that the court believes the               defendant is guilty."            United States v. Paz Uribe, 891 F.2d 396, 400-401 (1st Cir. 1989)          _____________    _________          (quoting Llach  v. United States,  739 F.2d 1322,  1329-1330 (8th                   _____     _____________          Cir. 1984)).  An  appellate court, when asked to  reverse because          of asserted  improper conduct  by a  trial judge, must  "consider          isolated incidents in  light of  the entire transcript  so as  to          `guard against magnification on appeal of instances which were of          little importance in their  setting.'"  Aggarwal v.  Ponce School                                                  ________     ____________          of Medicine, 837 F.2d 17, 22  (1st Cir. 1988) (quoting Glasser v.          ___________                                            _______          United States, 315 U.S. 60, 83 (1942)).              _____________               Preliminarily, we note  that defense counsel  never objected          to any of the court's  conduct about which he now complains.   We          therefore review  the issue for plain error  only.  Fed. R. Crim.          P. 52(b);  United States  v. Gonzalez-Torres,  980 F.2d 788,  791                     _____________     _______________                                         -7-          (1st Cir. 1992).   To satisfy this standard, defendant  must show          that there was error, that  it was clear or obvious, and  that it          affected a substantial right.  United States v. Olano, 113 S. Ct.                                         _____________    _____          1770,  1776-78 (1993).  "[E]rror rises to this level only when it          is `so  shocking that  [it] seriously affect[ed]  the fundamental          fairness   and  basic  integrity  of  the  proceedings  conducted          below.'"  United States v. Ortiz, 23 F.3d 21, 26  (1st Cir. 1994)                    _____________    _____          (quoting United States v. Olivo-Infante, 938 F.2d 1406, 1412 (1st                   _____________    _____________          Cir. 1991)) (internal quotations omitted).               The   first   alleged  impropriety   concerns   the  court's          questioning  of   a   prosecution  witness   during  her   cross-          examination.    Sandra Roman,  who worked  for  the airline  as a          ticket agent at the San Juan airport, testified that she sold two          tickets  in the  names  of Miguel  Rivera  and Pedro  Felix,  and          checked in three bags under Rivera's name, at 5:45 in the morning          of the flight.   On cross-examination,  defense counsel tried  to          advance the  theory that Rivera  was allowed to  take off  on the          flight to  New York  and  disembark there.    He handed  Roman  a          document captioned "passenger list"  and asked whether "the names          that you find here would  be the names of the passengers  on that          particular flight?"   Roman replied  in an ambiguous  manner2 and          the court  asked  whether  the people  on  the  "passenger  list"          actually  boarded the  plane.   Roman answered:  "This is  not my          area, okay?   So I am not very expert on  the information in this          list.   I  really  work  at  the  counter, so  I  work  with  the                                        ____________________               2 The transcript shows she answered by stating "aha."                                         -8-          reservation, not with the list."  When defense counsel  persisted          in  inquiring further  about the  list, the  court finally  asked          Roman: "Do you know whether that list means  that all the persons          boarded the plane?"  Roman replied:               I am not sure.  Okay, there  is a list that says -- what  is               called the on list.  That is the one that all the passengers               are on board, and it doesn't look -- I don't think it's this               one.  There is  another list with all the  reservations that               we have  for the flight.  So I'm not  sure which one is this               one, if this is  the on list, what  we call the on list,  or               the  list of  all  the people  that  had reserved  for  that               flight.               Defense   counsel   continued   to    cross-examine   Roman,          successfully  eliciting   that,  when  two  passengers  check  in          together  with luggage,  sometimes  both of  their baggage  claim          checks  are  clipped to  one  passenger's  ticket  jacket.   This          testimony  was obviously  helpful  to defendant  because it  made          plausible his assertion that he possessed the incriminating claim          checks simply due to the innocent  fact of his having checked  in          with Rivera.  The  prosecution tried to discredit this  theory on          redirect  by  suggesting that,  since  the bags  were  checked in          Rivera's name, the baggage claim  checks would have been  clipped          to his  ticket jacket, not defendant's.   On recross-examination,          the defense  rebutted this  suggestion by eliciting  that baggage          checks  may be clipped to  one of the  passenger's ticket jackets          regardless of  which passenger  actually checked  the bags.   The          judge then asked Roman:               THE COURT:     When somebody  goes to  the counter to  buy a                              ticket  or two tickets  or three  tickets, do                              you need to have the physical presence of the                              two or  three persons  there, or can  the one                              person buy the three tickets?                                         -9-               THE WITNESS:   One   person  can  buy  however  number  [of]                              ticket[s] he wants.               THE COURT:     And I can go  with my wife, for  example, and                              say "Here I am to check in."   My wife may be                              in the bathroom or buying something and I can                              check   in  and  you   don't  see   her  face                              physically, correct?               THE WITNESS:   No.               Later, during  oral argument outside the  jury's presence on          the  defense motion for a  judgment of acquittal,  the court made          certain statements that defendant argues show the court's bias in          favor  of  the prosecution.   In  essence,  the court  chided the          prosecutor  for failing  to produce  the "on  list" to  which Ms.          Roman  referred, and for failing to have someone from the airline          testify that  no one named Rivera ever turned in a boarding pass.          The court  explained that  it thought  this evidence  was crucial          because "it is entirely possible that [Rivera is] a no[n] entity.          It's  entirely possible that somebody bought a ticket in his name          not to use  it."  The prosecutor responded that  she had called a          Customs  inspector  who  testified  that no  Miguel  Rivera  ever          checked in at the gate.                THE COURT:     I understand  he said that.  But the truth of                              the matter  is  that  it  would  have  looked                              better  if  someone  from  American  Airlines                              would have come to verify that same fact. . .                              .   I  do think  your case  contains elements                              enough  for it to go  before the jury.  . . .                              But the truth  of the matter is  that you are                              missing a very  important element,  extremely                              important.   Don't be surprised if  you get a                              defendant's verdict in this case.               MS. CASTRO:    Okay.  Thank you, your Honor.                                         -10-               THE COURT:     As a matter of fact, you want me to tell you,                              I don't  think Miguel Rivera was  ever at the                              airport, but that's besides the point.                                    We  find  the court's  questions  concerning  the "passenger          list"  to have been entirely  appropriate.  The  defense tried to          prove  that Rivera must have  boarded the plane  because his name          was on the  list.  By its questions, the  court elicited that the          list under review may not have been the "on list," i.e., the list          of  passengers who actually boarded,  but rather, only  a list of          those who  had made  a  reservation for  the flight.   Thus,  the          effect  of  the  court's  questioning  was  to  clarify  the true          significance of the document  for the jury, which is,  of course,          entirely proper.  See, e.g., Corgain, 5 F.3d at 9; Paz Uribe, 891                            ___  ____  _______               _________          F.2d  at 401.   No  judicial bias  inheres in  the fact  that the          premise  of defendant's theory,  that Rivera's  name on  the list          meant he boarded the plane, was shown to be more dubious than the          defense wanted the jury to believe.                With  the benefit of hindsight, we could take issue with the          court's questions  regarding the  possibility of checking  in for          other passengers in their  absence.  After all, neither  side had          broached this  topic with Roman,3 so it  is difficult to see what          confusion  or  ambiguity  in  the  mind  of  the   jury  required          clarification.    Further,  the   testimony  the  judge  elicited                                        ____________________               3  The prosecutor may have attempted to make this point when          one  of the customs inspectors  testified earlier that  day.  She          asked him whether either  Rivera or Felix could have  checked the          bags.  The court  sustained defense counsel's objection, stating:          "We  have to  wait  for  the  American  Airlines  person."    The          prosecutor never took up the issue when Roman later testified.                                         -11-          apparently did  little more  than highlight the  possibility that          Rivera was  never at the airport.  It showed that it was possible          for  the defendant, acting alone, to have bought the two tickets,          checked  in  for himself  and Rivera,  and  checked in  the three          pieces of  luggage under Rivera's  name --  a theory that,  as we          know from the judge's later comments, he himself believed.                     While this  testimony perhaps more properly  would have been          elicited  by the  prosecutor  than the  judge,  we do  not  think          defendant's  right to  a fundamentally  fair trial  was affected.          First,  the fact that it is possible  to buy tickets and check in          for another passenger is collateral to the ultimate determination          of defendant's  guilt or innocence.   Second,  in eliciting  this          testimony, the  judge did  not expressly  display an attitude  of          partiality  or tip  his hand  to the  jury concerning  his belief          about Rivera's  existence or defendant's guilt or innocence.  See                                                                        ___          Paz  Uribe, 891  F.2d at 400-401.   Nor  do we think  there was a          __________          significant  risk that the jury perceived any partiality based on          the fact of asking these questions.  If any such risk existed, it          was  ameliorated by the court's  instruction to the  jury, at the          beginning of the trial,  that "[n]othing that I may  say, nothing          that I may do, is intended  by me as indicating what your verdict          should be."   As already noted, the  judge's comment that he  did          not believe Rivera was ever at the airport took place outside the          jurors' presence  and thus could not possibly have affected their          verdict.    Further,  in  the  context  of  the  court's  overall          supervision of the trial, the challenged conduct amounted to very                                         -12-          little.  See Polito, 856 F.2d at 418.  The  judge's few questions                   ___ ______          on this score  were not  the type of  serious departure from  the          wide boundaries of the judicial role that requires  reversal, and          certainly not where there was no objection below.               Finally,  defendant  complains  that,  by  pointing  out the          failure to show conclusively that no Rivera was aboard, the court          gave  the prosecutor a suggestion of valuable trial strategy at a          time when she still could have used it to  her benefit.  But this          argument ignores that the court expressly ruled that it would not          allow  the  government  to  re-open  its  case  to  correct   the          deficiency.  There was,  in fact, no further evidence  offered by          the prosecution and thus no prejudice to the defendant.          III. Admission of Expert Testimony               _____________________________               The defendant also asserts that the court erred in admitting          certain  expert testimony  under  Fed. R.  Evid.  702 because  it          concerned a subject within an average juror's understanding.  The          testimony was  given by  the government's case  agent, DEA  Agent          Rios.  We reproduce it in its entirety.               Q.   Based  on your  experience,  was it  unusual that  this                    person  who  has  been  detained  as  Pedro  Felix  was                    carrying  a passport  identifying himself  with another                    name?                    Mr. Castro Lang:    Objection,  your  Honor.   Leading,                                        number    one.       Second,   it's                                        requesting the witness to speculate                                        about  matters  that  are   not  in                                        evidence.                    The Court:          Let  me say this:  You can rephrase                                        the question.               Q:   Have you participated in many airport cases?                                         -13-               A:   Yes, ma'am.               Q.   Have  you participated  in  cases  where suitcases  are                    involved containing narcotics?               A.   Yes, Ma'am.                    Mr. Castro Lang:    Objection, Your Honor.                    The Court:          Grounds?                    Mr. Castro Lang:    We    are    dealing   with    this                                        interception.          Were    they                                        interceptions  that were  unrelated                                        to  this  case?    If   that's  the                                        situation, I object.                    The Court:          Overruled.               Q.   And in these situations  where you have intervened with                    individuals who had narcotics in their  suitcases, what                    has  been  your  experience  as  to the  names  on  the                    suitcases and the names on the individuals?                    Mr. Castro Lang:    Objection, your Honor.                    The Court:          Overruled.               A.   My experience  has been that possibly 99 percent of the                    previous  cases I've had as a special agent of the Drug                    Enforcement  Administration,  cases related  to airport                    seizures like  this particular one, have  been that the                    person is travelling under an assumed name.               Q.   By "travelling under an assumed name," what do you mean                    by this?               A.   They  use a  different name  in their flight  ticket in                    order to avoid -- a different name in the flight ticket                    in comparison to the  name that is the real  name.  For                    instance, in an ID -- they  will use an ID if they have                    one, Okay?  And they will place a different name in the                    flight ticket which  would in turn put a different name                    also in the claim tags and also in the claim checks.               Q.   Are you  telling us that there would be one name on the                    suitcases --                           A.   Correct[], different  from his  real name, in  order to                    avoid  any  kind  of linking  between  that  particular                    suitcase, the name on  that particular suitcase, to his                    real person, to his real name.                                         -14-               Q.   And why would he want to avoid that?               A.   Well, that's obvious  right there.  Because  if you are                    ever caught with a controlled substance in a particular                    suitcase and  you  get  asked  your name,  you  show  a                    different ID to the name on the label, and in  that way                    you will try to avoid being caught.               On  summation,  the  prosecutor  emphasized  the  similarity          between defendant's conduct and  the conduct that Rios attributed          to  "99 percent"  of the  drug smugglers  caught in  his previous          cases:               And then you  remember the testimony of  the case agent               in this  case, Mr. Ivan Rios.  He told you he's been --               he's  intervened  in   many  airport  cases   involving               suitcases.   He  also told  you, ladies  and gentlemen,               that  in  99  percent  of   the  cases  in  which  he's               intervened, the  person is travelling under  an assumed               name,  like the defendant here, P.  Felix, when in fact               his name is Hector Julio Felix Montas.               And  he  also told  you  that  besides travelling  under  an               assumed  name,  like  the   defendant  here,  based  on  his               experience, the names  that appear on  the suitcases do  not               correspond to the name of the person arrested.               And  I said, "Well, isn't  that unusual?   Why is that,               Mr.  Rios?"   And  he said,  "No,  that's not  unusual.               That's  very common.   Because  in  case the  person is               arrested, he doesn't want  his name on those suitcases.               He doesn't want to be connected to those suitcases."               We have quoted the record so extensively to show that, while          defense counsel  objected to  Agent Rios's  testimony, he  did so          only on the  grounds of leading, speculation,  and -- as  best we          can understand his last  objection -- relevance.  At no  time did          he object to this testimony on the basis either that it was not a          proper subject of  expert testimony  under Fed. R.  Evid. 702  or          that  it was unfairly  prejudicial under Fed.  R. Evid.  403.  No          objection of any kind was registered to the prosecutor's argument                                         -15-          on  summation.   Thus, we  review these  matters for  plain error          only.   See United States v. Castiello, 915 F.2d 1, 3-4 (1st Cir.                  ___ _____________    _________          1990); United States v. Gonzalez-Sanchez, 825 F.2d 572,  583 n.27                 _____________    ________________          (1st Cir. 1987) ("Without a timely objection stating the specific          grounds therefor, our review is limited to plain error.").               The initial test for determining the admissibility of expert          testimony is  laid out in Fed. R. Evid. 702.   Under Rule 702, an          expert may  testify concerning  "scientific, technical,  or other          specialized  knowledge" if it "will  assist the trier  of fact to          understand the evidence or to determine a fact in issue."  As the          Advisory Note to the Rule states:               There  is no more certain test  for determining when experts               may  be  used than  the  common  sense  inquiry whether  the               untrained   layman   would   be   qualified   to   determine               intelligently and  to the  best degree the  particular issue               without  enlightenment  from  those  having   a  specialized               understanding of the subject involved in the dispute.          Fed. R. Evid. 702 advisory committee's note (quoting Ladd, Expert                                                                     ______          Testimony, 5 Vand.  L. Rev.  414, 418 (1952));  United States  v.          _________                                       _____________          Lamattina,  889  F.2d 1191,  1194 (1st  Cir.  1989).   A district          _________          judge, who sees and  hears the challenged evidence first  hand in          the context  of the  overall trial,  enjoys  broad discretion  in          determining the admissibility  of expert testimony; an  appellate          court  will overturn such a determination only if it represents a          manifest abuse  of discretion.   United States v.  Echeverri, 982                                           _____________     _________          F.2d 675, 680 (1st Cir. 1993).                 Even if  admissible under  Rule 702, expert  testimony still          may be excluded under Fed. R. Evid. 403 if its probative value is          substantially  outweighed  by the  risk  of  unfair prejudice  it                                         -16-          creates.   See  Castiello,  915 F.2d  at  3-4; United  States  v.                     ___  _________                      ______________          Hensel, 699 F.2d 18, 38 (1st Cir. 1983).  Accord United States v.          ______                                    ______ _____________          Castillo, 924  F.2d  1227, 1232  n.9  (2d Cir.  1991).   The  403          ________          inquiry  also is left to the sound discretion of the trial court,          an appellate court substituting its judgment "only  rarely -- and          in  extraordinarily  compelling  circumstances."   Newell  Puerto                                                             ______________          Rico,  Ltd. v.  Rubbermaid Inc., 20  F.3d 15, 21  (1st Cir. 1994)          ___________     _______________          (quoting  Freeman v. Package  Machinery Co., 865  F.2d 1331, 1340           _______  _______    ______________________          (1st Cir. 1988)) (internal quotation omitted).               We have admitted expert testimony regarding the operation of          criminal schemes and activities in a variety of contexts, finding          such testimony helpful to juries in understanding some obscure or          complex aspect  of the  crime.   See Echeverri,  982 F.2d at  680                                           ___ _________          (expert may "identify an otherwise inscrutable document as a drug          ledger  and explain  its  contents"); Castiello,  915  F.2d at  3                                                _________          (statement  phrased  in drug  world  jargon "was  not  so readily          comprehensible to the  layman that it could not  bear elucidation          by a  law enforcement agent knowledgeable in the ways of the drug          world");  United States v. Angiulo, 897 F.2d 1169, 1189 (1st Cir.                    _____________    _______          1990) (expert  testimony that defendants played  certain roles in          criminal  activities is  helpful  to jury  because  of the  crime          family's "extensive  criminal organization . .  ., the complexity          of the interrelationships within the organization, and the use of          criminal   jargon  by   defendants   in  their   conversations");          Lamattina,  889 F.2d at 1194 (expert may translate the meaning of          _________          jargon used in conversation related to a loansharking transaction                                         -17-          that  jury "would probably have  been at a  loss to understand");          United  States  v. Ladd,  885 F.2d  954,  959-60 (1st  Cir. 1989)          ______________     ____          (expert may testify that type of packaging and number of packages          of  drugs is  consistent with  distributive intent,  not personal          use, because "jurors are not expected to be familiar with the . .          . workings of the  heroin community"); United States v.  Angiulo,                                                 _____________     _______          847  F.2d  956, 973-75  (1st  Cir. 1988)  (expert  testimony that          defendants  were  close  associates  of  organized  crime  family          assisted  jury in  light of  family's complex  structure); United                                                                     ______          States v. Rivera Rodriguez, 808 F.2d 886, 888 (1st Cir. 1986) (to          ______    ________________          help jurors understand the significance of an instrument called a          "sifter-grinder"  found  in  defendant's possession,  expert  may          testify  that it is used to adulterate cocaine); Hensel, 699 F.2d                                                           ______          at 38 (since "smuggling  tons of marijuana is a  complex matter,"          expert  testimony about  drug smugglers'  methods would  help the          jury understand the evidence).                This  case is distinguishable.  Unlike those cases, here the          expert  testified about matters  that were  readily intelligible.          We believe that an average juror can assess intelligently whether          an inference of guilt should be drawn from defendant's travelling          under the  name  of  "P.  Felix" without  expert  testimony  that          airline drug  smugglers check  their bags  and buy their  tickets          under  false  names to  avoid detection.    Cf. United  States v.                                                      ___ ______________          Weiner,  3 F.3d 17, 21-22 (1st Cir.  1993) (error to admit expert          ______          testimony of "a routine inference that the jury could draw on its          own").   Indeed, in  a telling  slip  of the  tongue, the  expert                                         -18-          himself belied  the claim:  when  asked why  smugglers would  use          false names, he responded, "Well, that's obvious . . . . to avoid          being caught."  Expert testimony on a subject that is well within          the  bounds of a jury's  ordinary experience generally has little          probative value.  On the other hand, the risk of unfair prejudice          is real.   By appearing to put the expert's  stamp of approval on          the government's  theory, such  testimony might unduly  influence          the  jury's own assessment of the inference that is being urged.4          See Scott v. Sears, Roebuck &  Co., 789 F.2d 1052, 1055 (4th Cir.          ___ _____    _____________________          1986)  (expert  testimony  is  unfairly   prejudicial  "when  the                                        ____________________               4 Defendant relies heavily on language in two Second Circuit          decisions that seemed to  extend the limits imposed by  Rules 702          and  403.  In  Castillo, 924  F.2d at  1234, the  court declared:                         ________          "[W]e take serious issue  with the Government's use of  an expert          witness  to propound  the impermissible  theory that  appellants'          guilt could be inferred from  the behavior of unrelated persons."          Accord United  States v. Cruz, 981  F.2d 659, 663 (2d  Cir. 1992)          ______ ______________    ____          ("[G]uilt  may not  be  inferred from  the  conduct of  unrelated          persons.").                This pronouncement seems to us too broad to be workable.  By          definition, even the most  acceptable expert testimony concerning          the modus operandi of  a criminal scheme distills a  pattern from          the behavior of unrelated persons.  In fact, in more recent cases          the Second  Circuit itself has  stressed the narrower  grounds of          decision in Castillo  and Cruz, namely  that experts "`cannot  be                      ________      ____          used solely to bolster the credibility of the  government's fact-          witnesses by mirroring their version of events,'" and that, while          the operations of  drug dealers  is a proper  subject for  expert          testimony, such  operations normally must  have "esoteric aspects          reasonably  perceived as  beyond the  ken of  the jury."   United                                                                     ______          States v. Tapia-Ortiz, 23  F.3d 738, 740 (2d Cir.  1994) (quoting          ______    ___________          Cruz, 981 F.2d at 664 and citing Castillo, 924 F.2d at 1232); see          ____                             ________                     ___          also  United States  v. Taylor,  18 F.3d  55, 59  (2d Cir.  1994)          ____  _____________     ______          (stressing  that  "[e]xpert  testimony   may  be  used  `on  some          occasions to explain even  non-esoteric matters, when the defense          seeks  to  discredit  the   government's  version  of  events  as          improbable,'" quoting Cruz, 981 F.2d at 664).                                ____                                         -19-          evaluation of the commonplace by an expert witness might supplant          a jury's independent exercise of common sense").                   As  we have noted, the trial court enjoys vast discretion in          deciding whether to  admit expert testimony  under Rules 702  and          403.  We believe that  this evidence was on the very margin of --          and probably  beyond -- what  is acceptable.  But  as also noted,          Rules 702  and 403 were not raised as grounds of objection below.          We  conclude that admitting  this testimony was  not plain error.          See Olano, 113 S. Ct. at 1776-78 (plain error requires error that          ___ _____          was clear or obvious  and affected a substantial right).   First,          we  find  the relevant  inquiries --  was  the jury  competent to          assess the  evidence intelligently without  the expert testimony,          what is the probative weight of the testimony, what are the risks          of  prejudice, and which  is greater -- to  be subtle rather than          obvious  and clear.  Indeed,  for this reason  it is particularly          important  for counsel to call to the trial court's attention the          bases  of such evidentiary challenges  so that the  court has the          opportunity   to  carefully  consider   them.    Second,  without          minimizing the  risks associated  with this testimony,  we cannot          say  that its  admission was  "`so shocking  that [it]  seriously          affect[ed] the  fundamental fairness  and basic integrity  of the          proceedings  conducted below.'"    Ortiz, 23  F.3d  at 26.    The                                             _____          admission of this evidence,  therefore, does not require reversal          in this case.               Affirmed.               _________                                         -20-
