                                                                                     FILED
                                                                         United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                             Tenth Circuit

                             FOR THE TENTH CIRCUIT                               April 2, 2018
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                              No. 17-2056
v.                                                  (D.C. No. 5:15-CR-02622-KG-5)
                                                           (D. New Mexico)
JAVIER AMADOR-FLORES,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, MURPHY, and McHUGH, Circuit Judges.
                 _________________________________


       After a jury trial, Javier Amador-Flores was convicted of conspiring to distribute

methamphetamine and sentenced to 120 months’ imprisonment. He now appeals, arguing

for the first time that the district court should not have allowed one of the government’s

witnesses to offer expert opinion testimony about the drug-trafficking industry. Because

Mr. Amador-Flores never made this argument to the trial judge, we review only for plain

error. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                   I.    BACKGROUND

                                    A. Factual History

       On May 6, 2015, after a day’s work in the oil fields, Mr. Amador-Flores returned

home to find federal law enforcement agents scouring his property for evidence of drug

trafficking. This perhaps was not totally unexpected, for two of Mr. Amador-Flores’s

close friends, with whom he communicated regularly, were drug traffickers. One of them

was Jose Manuel Trujillo, a.k.a. “Paisa,” whom Mr. Amador-Flores knew as “the main

boss” of a drug-trafficking organization spanning from California to Texas, if not farther.

R. Vol. III at 205. Two days prior, Paisa had offered Mr. Amador-Flores $2000 to deliver

eight pounds of methamphetamine to a buyer in New Mexico. Mr. Amador-Flores says

he declined Paisa’s offer, as he always did when his friends tried to enlist him in their

drug-trafficking schemes.

       The deal went forward, but on this occasion Paisa’s buyer turned out to be an

undercover federal agent. And on May 6, while Mr. Amador-Flores was at work, federal

agents executed a buy-bust sting at an abandoned bar outside Hobbs, New Mexico. They

seized Paisa’s methamphetamine and arrested three people in connection with the

attempted sale.1 One of the arrestees was Myrna Orozco, Mr. Amador-Flores’s girlfriend.

Ms. Orozco confessed that additional drugs might be found at the home she shared with

Mr. Amador-Flores in Denver City, Texas, about thirty-five miles northeast of Hobbs.

After she consented to a search, officers found methamphetamine and drug paraphernalia


       1
           Paisa was not present and, so far as we know, he remains a fugitive.

                                               2
stored in vehicles and sheds on their shared property. When Mr. Amador-Flores came

home, agents told him they were conducting a narcotics investigation and asked whether

he was involved. Mr. Amador-Flores denied any involvement.

       After reviewing the evidence, the government concluded that Mr. Amador-Flores

was in fact a willing participant in the drug-trafficking conspiracy.

                                 B. Procedural History

       On July 23, 2015, a grand jury returned a one-count indictment charging Paisa,

Ms. Orozco, Mr. Amador-Flores, and two others with a single violation of conspiring to

distribute 500 grams and more of a mixture and substance containing a detectable amount

of methamphetamine, contrary to 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and in violation

of § 846.

       Mr. Amador-Flores was tried alone. The government’s first witness was Special

Agent Rene Robles, the lead case agent for the investigation into Paisa’s drug-trafficking

organization. In relevant part, Agent Robles testified as follows:

       Q. Did you find it consistent—His statement about the May 4th call from
       Paisa, offering him, you know, $2,000 to, you know, do this deal in place of
       Joel Dominguez-Morales, did you find that to be consistent with what you
       typically see in these type of investigations for someone who never is
       involved in drug trafficking?

       A. No.

       Q. And could you explain why?

       A. Yes. You know, typically when a drug coordinator or a drug trafficker,
       when he’s looking for, whether it be drivers or couriers, if he goes to them
       for that, it’s more than likely because he’s used them before, especially if
       dealt with on a regular basis.


                                              3
R. Vol. III at 234. Mr. Amador-Flores did not object to the admission of this testimony.

       Agent Robles also testified that Mr. Amador-Flores told him he had once wired

money to Mexico on Paisa’s behalf. That led to the following trial exchange:

       Q. Okay. Why was it significant to you that Mr. Amador-Flores admitted to
       wiring money for Paisa?

       A. Well, again, you know, in my experience in drug-trafficking
       organizations or criminal enterprises, it’s not rare to see co-conspirators or
       suspects transfer money or deposit money, number one, to avoid immediate
       possession of the money on themselves if encountered by law enforcement;
       and, number two, to make it easier or faster to get money from one location
       to another.

Id. at 215. Mr. Amador-Flores did not object to the admission of this testimony either.

       The jury returned a guilty verdict, and the district court sentenced Mr. Amador-

Flores to 120 months’ imprisonment. This direct appeal timely followed.

                                   II.   DISCUSSION

       Mr. Amador-Flores argues that Agent Robles advanced opinion testimony

admissible only if given by an expert witness. Agent Robles was not offered as an expert

witness. Pointing to that disconnect, Mr. Amador-Flores asks us to remand so that he may

have a new trial.

       A district court’s decision to admit expert or lay testimony is ordinarily reviewed

for abuse of discretion. United States v. Brooks, 736 F.3d 921, 929 (10th Cir. 2013). That

is only so, however, when the district court admitted testimony over a party’s timely

objection. Because Mr. Amador-Flores did not object at trial, the district court did not

have an opportunity to consider the merits of his argument in the first instance. In other

words, his argument was forfeited. Fortunately for Mr. Amador-Flores, the Federal Rules

                                             4
of Criminal Procedure vest us with some discretion to consider forfeited arguments for

the first time on appeal. See Fed. R. Crim. P. 52(b) (“A plain error that affects substantial

rights may be considered even though it was not brought to the court’s attention.”). But

our discretion in these circumstances is “limited.” United States v. Olano, 507 U.S. 725,

731 (1993). When a criminal defendant “did not make a contemporaneous objection to

the admission of testimony, as was . . . the case here,” we review a district court’s

decision to admit that testimony only for plain error. Brooks, 736 F.3d at 929–30. Mr.

Amador-Flores asks us to implement plain error review here.

       “To satisfy the plain error standard, a defendant must show that (1) the district

court erred; (2) the error was plain; (3) the error affects the defendant’s substantial rights;

and (4) the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Sabillon-Umana, 772 F.3d 1328, 1333 (10th Cir. 2014).

The parties dispute all four prongs. But we need not resolve all of their disagreements.

That is because the criminal defendant “has the burden to prove that each of the four

requirements is satisfied; failure on any one requires affirmance.” United States v.

Beierle, 810 F.3d 1193, 1200 (10th Cir. 2016). In this case, our analysis begins with the

first prong and ends with the second. Because Mr. Amador-Flores has failed to

demonstrate that any error was plain, we need go no further.

                                  A. First Prong—Error

       “The first limitation on appellate authority under Rule 52(b) is that there indeed be

an ‘error.’” Olano, 507 U.S. at 732. “Deviation from a legal rule is ‘error’ unless the rule

has been waived.” Id. at 732–33. “Waiver is different from forfeiture. Whereas forfeiture

                                               5
is the failure to make the timely assertion of a right, waiver is the ‘intentional

relinquishment or abandonment of a known right.’” Id. at 733 (quoting Johnson v. Zerbst,

304 U.S. 458, 464 (1938)). Mr. Amador-Flores’s failure to object was forfeiture, not

waiver; he did not intentionally relinquish or abandon his rights under the Federal Rules

of Evidence. To whatever extent the district court deviated from those rules, it erred in

doing so.

       Mr. Amador-Flores claims that the district court erred in admitting certain

testimony from Agent Robles in violation of Federal Rule of Evidence 701. In particular,

he argues that Agent Robles’s testimony “about what was typical in drug cases was

expert testimony, as it relied on the agent’s specialized knowledge. It could not come in

through a witness, like Agent Robles, who was neither offered nor qualified as an

expert.” Appellant’s Br. 24.

       Rule 701 governs opinion testimony by lay witnesses. It provides that if a witness

is not testifying as an expert—and Agent Robles was not—then “testimony in the form of

an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b)

helpful to clearly understanding the witness’s testimony or to determining a fact in issue;

and (c) not based on . . . specialized knowledge within the scope of Rule 702.” Fed. R.

Evid. 701. That means that if Agent Robles’s testimony was within the scope of Rule

702, which governs expert testimony, it was necessarily inadmissible under Rule 701. See

Fed. R. Evid. 701(c); United States v. Yeley-Davis, 632 F.3d 673, 684 (10th Cir. 2011)

(“[A] person may testify as a lay witness only if his opinions or inferences do not require

any specialized knowledge and could be reached by any ordinary person.” (emphasis

                                               6
added)); see also James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1216 (10th

Cir. 2011) (“[A] party simply may not use Rule 701 as an end-run around the reliability

requirements of Rule 702. . . . Preventing such attempts is the very purpose of subsection

(c).” (alterations in original) (quoting Hirst v. Inverness Hotel Corp., 544 F.3d 221, 227–

28 (3d Cir. 2008))). To testify from “specialized knowledge,” a witness first “must be

qualified as an expert under Rule 702,” which in turn requires a trial court to “make

certain findings to fulfill its gatekeeper role.” Yeley-Davis, 632 F.3d at 684 (emphasis

added). The introduction of expert testimony generally also requires certain pretrial

disclosures, see Fed. R. Crim. P. 16(a)(1)(G), which the government did not provide as to

Agent Robles.

       Our threshold question, then, is whether the testimony Mr. Amador-Flores

challenges on appeal was based on specialized knowledge. To Mr. Amador-Flores, that’s

an easy yes, because Agent Robles compared what happened in this case to “what [i]s

typical in drug investigations generally,” Appellant’s Brief 25, a comparison that could

only be made by someone with specialized knowledge of drug investigations. See Yeley-

Davis, 632 F.3d at 684 (explaining that the district court abused its discretion when it

allowed a lay witness to testify about how cell phone towers operate).

       The government concedes, as it must, that Agent Robles’s testimony was

“couched in terms of his experience,” but it nevertheless characterizes his testimony as “a

lay observation” that required “limited specialized knowledge, if any.” Appellee’s Br. 25.

The government argues essentially that Agent Robles’s testimony was so obvious that it

was not a product of specialized knowledge and was thus admissible under Rule 701. See

                                             7
James River, 658 F.3d at 1214 (“Rule 701 allows lay witnesses to offer observations that

are common enough and require a limited amount of expertise, if any.” (internal

quotation marks and alterations omitted)). Mr. Amador-Flores principally focuses on the

following exchange:

       Q. Did you find it consistent—His statement about the May 4th call from
       Paisa, offering him, you know, $2,000 to, you know, do this deal in place of
       Joel Dominguez-Morales, did you find that to be consistent with what you
       typically see in these type of investigations for someone who never is
       involved in drug trafficking?

       A. No.

       Q. And could you explain why?

       A. Yes. You know, typically when a drug coordinator or a drug trafficker,
       when he’s looking for, whether it be drivers or couriers, if he goes to them
       for that, it’s more than likely because he’s used them before, especially if
       dealt with on a regular basis.

R. Vol. III at 234.

       The government emphasizes the monetary value of the transaction, which was

more than $100,000. In light of that fact, the government contends one need not be cop or

criminal to understand that when the stakes are high, you trust the task to the veteran, not

the novice. Mr. Amador-Flores in turn stresses that Agent Robles “expressly compared

this case to other drug cases,” something he could only do with specialized experience.

Appellant’s Reply Br. 5. From that assessment, Mr. Amador-Flores concludes the

“comparisons were necessarily expert opinions.” Id. That conclusion does not follow,

however, unless Agent Robles was actually applying his specialized knowledge or

experience in order to arrive at his given opinion. If he was not, then his comparison to


                                             8
other cases is nothing more than an attempt to give gravitas to his unremarkable, non-

expert observations.

       The line between Rule 701 and Rule 702 is hazy, and Agent Robles’s testimony is

somewhere near it.2 We need not and do not decide on which side of that blurred line his

testimony belongs.

       Mr. Amador-Flores also objects, again for the first time on appeal, to one other

portion of Agent Robles’s testimony:

       Q. Okay. Why was it significant to you that Mr. Amador-Flores admitted to
       wiring money for Paisa?

       A. Well, again, you know, in my experience in drug-trafficking
       organizations or criminal enterprises, it’s not rare to see co-conspirators or
       suspects transfer money or deposit money, number one, to avoid immediate
       possession of the money on themselves if encountered by law enforcement;
       and, number two, to make it easier or faster to get money from one location
       to another.

R. Vol. III at 215.

       Mr. Amador-Flores again argues that by invoking his “experience in drug-

trafficking organizations or criminal enterprises,” Agent Robles made “another

comparison to other cases, which those who did not have experience with other drug

cases could not make.” Appellant’s Br. 28–29. The government concedes that

“observations about wiring money may be less common to the ordinary person than are

observations about the level of familiarity a person would likely have with someone to

       2
        For instance, had the district court admitted Agent Robles’s testimony under
Rule 701 over Mr. Amador-Flores’s objection, it might have clarified for the jury that
Agent Robles’s opinion was not borne out of his expertise and should not be given undue
weight.

                                             9
whom they would entrust a $104,000 cash transaction.” Appellee’s Br. 35. But it would

still have us hold that Agent Robles’s observations are “common enough” to come within

Rule 701.

       Again, we need not and do not decide whether this testimony was erroneously

admitted. Instead, we assume without deciding that the district court erred in admitting

both excerpts of testimony. We consider next whether those errors were plain.

                              B. Second Prong—Plain Error

       “The second limitation on appellate authority under Rule 52(b) is that the error be

‘plain.’” Olano, 507 U.S. at 734. “Error is ‘plain’ if it is obvious or clear, i.e., if it is

contrary to well-settled law.” United States v. Hill, 749 F.3d 1250, 1258 (10th Cir. 2014)

(quotation omitted). “In general, for an error to be contrary to well-settled law, either the

Supreme Court or this court must have addressed the issue.” Id. (quotation omitted).

“However, in certain circumstances, the weight of authority from other circuits may make

an error plain even absent a holding from this court or the Supreme Court.” Id. (internal

quotation marks omitted).

       Where, as here, a defendant challenges a non-constitutional evidentiary ruling

normally reviewed only for abuse of discretion, the “plainness” prong is especially

daunting. “For the admission of evidence to constitute plain error, the evidence must have

been so obviously inadmissible and prejudicial that, despite defense counsel’s failure to

object, the district court, sua sponte, should have excluded the evidence.” Brooks, 736

F.3d at 934 (quoting United States v. Williams, 527 F.3d 1235, 1247 (11th Cir. 2008)). In

our view, Agent Robles’s testimony was not “so obviously inadmissible and prejudicial

                                                10
that” the trial judge must have intervened on his own initiative to put a stop to it. The

testimony was not obviously inadmissible under Rule 701, see supra, Section II(A), and

Mr. Amador-Flores concedes that it would have been admissible under Rule 702 had it

been elicited from a designated expert. See Oral Arg. 12:24–12:28 (“If the government

had wanted to introduce this as expert testimony, they easily could have.”). Nor was the

testimony obviously prejudicial. We have no cause to believe these excerpts of Agent

Robles’s lengthy testimony were particularly persuasive to the jury or even that the

challenged testimony contributed to the jury’s verdict at all. That neither Mr. Amador-

Flores’s counsel nor the trial judge commented on Agent Robles’s testimony at any time

in the district court proceedings is itself some indication that his testimony was not

obviously prejudicial. We hold therefore that any presumed error was not plain.

                                   III. CONCLUSION

       Because we have concluded the district court did not plainly err, we decline to

reach the third or fourth prong of the plain-error test.

       The district court’s judgment is AFFIRMED.

                                               Entered for the Court


                                               Carolyn B. McHugh
                                               Circuit Judge




                                              11
