                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                                                           F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                              August 4, 2003
                              FOR THE FIFTH CIRCUIT
                                                                        Charles R. Fulbruge III
                                                                                Clerk

                                  No. 01-21250
                                Summary Calendar



UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

                                     versus

JULIO A. RAMOS,

             Defendant-Appellant.



             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. H-99-CR-457-4


Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Julio     A.     Ramos    appeals    his    jury    trial   convictions         of

conspiracy     to    possess    cocaine    and    marijuana      with    intent      to

distribute and possession of cocaine with intent to distribute.

Ramos contends that he is entitled to reversal because, pursuant to

Daubert,   the      district    court    rejected       his   proffer    of     expert




     *
      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this opinion should not be published and is not precedent except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.
testimony that a voice on an inculpatory audiotape was not that of

Ramos.1

     This court “review[s] the district court’s determination of

admissibility of expert testimony under Daubert for abuse of

discretion.”2     If we find an abuse of discretion, we “review the

error under the harmless error doctrine, affirming the judgment[]

unless the ruling affected substantial rights of the complaining

party.”3    A qualified person may testify as an expert “if (1) the

testimony is based upon sufficient facts or data, (2) the testimony

is the product of reliable principles and methods, and (3) the

witness has applied the principles and methods reliably to the

facts of the case.”4 Daubert holds that Rule 702 imposes a special

obligation upon the district court to “ensure that any and all

scientific testimony or evidence admitted is not only relevant, but

reliable.”5       The   proponent   must   prove   reliability   by   a

preponderance of the evidence.6


     1
          See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993).
     2
          Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir.
2002).
     3
       Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th
Cir. 2003).
     4
         FED. R. EVID. 702.
     5
         509 U.S. at 589.
     6
       Moore v. Ashland Chem. Co., 151 F.3d 269, 276 (5th Cir.
1998) (en banc).

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     The district court excluded the testimony of Ramos’s expert

because Ramos failed to show that it passed muster under Rule 702

and the criteria in Daubert.7      The district court’s decision to

exclude the testimony was not based on an erroneous interpretation

of Rule 702 or Daubert, or on a clearly erroneous assessment of the

expert’s proposed testimony.       Accordingly, the ruling did not

constitute an abuse of discretion.

     Assuming arguendo that there was error, Ramos still is not

entitled to relief because exclusion of the expert’s testimony did

not affect his substantial rights.      By his expert’s testimony,

Ramos sought to challenge only the admissibility of one tape that

contained his voice; Ramos did not challenge the admissibility of

the other tapes that contained his voice or of the tapes that

contained voices of other coconspirators talking about Ramos’s

involvement in the conspiracy.      Without any reliance on the one

challenged tape, the Government presented overwhelming evidence of

Ramos’s guilt.8

     Ramos also contends, for the first time on appeal, that he is

entitled to reversal because he was denied his Sixth Amendment



     7
         See 509 U.S. at 592-95.
     8
       Cf. United States v. Washington, 44 F.3d 1271, 1283 (5th
Cir. 1995) (“[E]ven if admitting any or all of the questioned
opinion testimony had been error, reversal would not be
required.... [T]he government presented overwhelming evidence
establishing Washington’s guilt; thus any error that the court may
have made in admitting those snippets of opinion was harmless.”).

                                   3
right to present a defense.   The Eighth Circuit rejected a similar

challenge in United States v. Bahena after concluding that the

Daubert rule is not arbitrary and the application of Daubert in

that case was not “disproportionate to its purpose, in the sense

that it might [have] unreasonably restrict[ed] the defendant’s

right to present evidence in his own defense.”9   The same is true

in Ramos’s case.   Accordingly, Ramos’s Sixth Amendment rights were

not violated by the district court’s Daubert ruling.

     AFFIRMED.




     9
         223 F.3d 797, 808-10 (8th Cir. 2000).

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