     Case: 12-50606       Document: 00512462194         Page: 1     Date Filed: 12/05/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         December 5, 2013
                                       No. 12-50606
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SERGIO TOSTADO, also known as Sergio Tostado-Becerra,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:12-CR-31-1


Before JONES, WIENER, and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Sergio Tostado was charged by indictment with
aiding and abetting the possession with the intent to distribute less than 50
kilograms of marijuana.          That indictment accused Tostado of knowingly
transporting marijuana through a border checkpoint in Alpine, Texas. Tostado
proceeded to trial on the issue of intent, insisting that he had driven the load of
drugs in his capacity as a confidential informant (CI) for the government and
that he never intended to distribute the drugs. A jury convicted Tostado, and


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-50606

the district court sentenced him to 41 months of imprisonment and a three-year
term of supervised release.
      In his first issue on appeal, Tostado contends that the district court erred
in admitting expert-opinion testimony from Wade Sparks, a special agent with
the Drug Enforcement Administration (DEA), arguing that the testimony was
impermissible profile evidence. A profile is “a compilation of characteristics that
aid law enforcement officials in identifying persons who might be” involved in
a particular type of enterprise. United States v. Sanchez-Hernandez, 507 F.3d
826, 831 (5th Cir. 2007) (internal quotation marks and citation omitted). In drug
trafficking cases, “qualified narcotics agent[s] typically may testify about the
significance of certain conduct or methods of operation unique to the drug
business so long as the testimony is helpful and its relevance is not substantially
outweighed by the possibility of unfair prejudice or confusion.” United States v.
Gonzalez-Rodriguez, 621 F.3d 354, 363 (5th Cir. 2010). Testimony offered for the
purpose of proving the defendant’s guilt by comparing him to a generic profile,
however, is pure profile evidence, which is inadmissible under Federal Rule of
Evidence 702. United States v. Montes-Salas, 669 F.3d 240, 248 (5th Cir. 2012);
Sanchez-Hernandez, 507 F.3d at 833.
      The testimony Tostado challenges is the agent’s reply to the prosecutor’s
questions regarding what would happen to him if, as a DEA agent, he should try
to transport a load of drugs through a checkpoint without prior approval, as
Tostado had done. Agent Sparks answered:
      If I did that on my own as Mr. Tostado did, I would be placed in
      secondary just as he was. My car would be searched as he was. I
      would hope I would be thrown in a cell as he was. And I would be
      sitting at the same table at trial as he is.
Tostado asserts that Sparks’s testimony was impermissible profile evidence
because it indicated that a “good” CI follows the instructions of his handler and
that the jury should convict him regardless of his actual intent because he did
not follow his handler’s instructions. Tostado thus contends that the testimony

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                                   No. 12-50606

constituted an expert opinion on the ultimate issue of intent, in violation of
Federal Rule of Evidence 704. See Fed. R. Evid. 704(b) (“In a criminal case, an
expert witness 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. Those matters are for the trier of fact alone.”). The
untoward effect of the testimony was amplified, he contends, when the
prosecutor reiterated it during closing argument.
      We review the district court’s decision to admit testimony for an abuse of
discretion, and such a decision is subject to a harmless error analysis. United
States v. Setser, 568 F.3d 482, 494 (5th Cir. 2009). We disagree with Tostado’s
characterization of Sparks’s testimony as suggesting that the jury should convict
regardless of Tostado’s actual intent in bringing the drugs through the
checkpoint. We note, additionally, that this testimony was given on the heels of
Sparks’s explanation of the planning, coordination, and multiple levels of prior
approval that one required by the DEA for a government actor to bring a load of
drugs through a border checkpoint. “[B]ecause the ‘overall context’ of the
[challenged] testimony establishes that the statements were part of the agent’s
‘legitimate background testimony’ about how” an undercover operation works,
it did not cross the “fine but critical line” into the impermissible territory of pure
profile evidence. See Montes-Salas, 669 F.3d at 250 (internal quotation marks
and citation omitted).     Further, to the extent that Sparks’s testimony is
considered profile evidence, it was permissible because it was “used to rebut the
defendant’s innocent explanation for his behavior.” See id. at 248. We conclude
that the district court did not abuse its discretion in admitting the challenged
testimony. See Setser, 568 F.3d at 494.
      In his second issue, Tostado challenges the district court’s application at
sentencing of a two-level adjustment, under U.S.S.G. § 3C1.1, for obstruction of
justice. In particular, he challenges the ruling that he committed perjury.



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                                    No. 12-50606

      The district court concluded that Tostado’s trial testimony that he was
bringing the drugs through the checkpoint in his capacity as a CI and that he
had no intent of distributing the drugs was false. That factual finding is one
that we review for clear error. See United States v. Juarez-Duarte, 513 F.3d 204,
208 (5th Cir. 2008). Tostado testified that, from the instructions he received
when he was signed up as a CI, he understood that he could not possess
contraband without the prior knowledge and consent of his controlling agent,
and that he could not take any independent action on behalf of the government.
In light of the record, the district court’s finding of perjury is plausible and is not
clearly erroneous. See id. Tostado thus has not shown that the district court
erred in applying the § 3C1.1 adjustment. See § 3C1.1 & comment nn.2 & 4(B);
United States v. Dunnigan, 507 U.S. 87, 94-96 (1993).
      AFFIRMED.




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