                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            June 8, 2006
                                       TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                            Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                                 No. 05-4093
                                                   (D. Ct. No. 2:04-CR-410-02-DB)
 MARCOS ANTONIO REYEZ,                                         (D. Utah)

               Defendant - Appellant.



                              ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, BALDOCK, and KELLY, Circuit Judges.




      Following a jury trial, Defendant-Appellant Marcos Antonio Reyez was convicted

of possession with intent to distribute methamphetamine in violation of 21 U.S.C.

§ 841(a)(1) and sentenced to 188 months’ imprisonment. Mr. Reyez challenges his

conviction on the ground that the District Court improperly admitted expert testimony

relating to his state of mind. We have jurisdiction under 28 U.S.C. § 1291 and we

AFFIRM.




      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
                                   I. BACKGROUND

       On May 31, 2004, Utah Highway Patrol Trooper Ryan Bauer observed a white

Jeep Cherokee traveling seventy-two miles per hour in a sixty-five mile per hour zone.

After Trooper Bauer pulled over the Jeep, he approached the passenger’s side of the

vehicle to avoid oncoming traffic near the driver. He explained to Mr. Reyez, the

passenger, and Jose Garcia, the driver, that he pulled them over for speeding. Mr. Garcia

handed over his driver’s license, which had been issued by the state of Nebraska. He

stated that the two men were traveling from California to Nebraska to visit relatives for a

couple of days.

       During the traffic stop, Trooper Bauer smelled what he described as an

“overwhelming” odor of motor oil—a smell that, based on his experience, indicated

mechanical problems with the vehicle or that the oil was being used to mask the scent of

drugs. When he asked Mr. Garcia about the smell and whether he was having trouble

with the Jeep, Mr. Garcia indicated the vehicle was fine and that he did not notice the

smell. Trooper Bauer also noticed that both Mr. Garcia and Mr. Reyez were shaking

badly and that neither man would make eye contact with him.

       Trooper Bauer verified the legitimacy of Mr. Garcia’s driver’s license and issued

him a warning ticket for speeding. The trooper then asked Mr. Garcia to step out of the

Jeep and walk toward the rear of the vehicle. After making additional inquiries about the

smell of oil, Trooper Bauer asked Mr. Garcia if he could look in the vehicle. Mr. Garcia

opened the hatchback and began showing Trooper Bauer some of the contents in the rear

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of the vehicle. Trooper Bauer noticed, however, that Mr. Garcia made a special effort to

avoid showing him one box by pushing it between a speaker and the backseat. Trooper

Bauer also noticed two opened containers of laundry detergent. He found the latter

suspicious since there were only two passengers and a few articles of clothing strewn

around the vehicle. He also knew, based on his experience, that laundry detergent was

sometimes used to mask the scent of drugs. Trooper Bauer then asked for permission to

search the Jeep, and Mr. Garcia consented.

       Trooper Bauer ordered the men to stand near the front of the Jeep next to a large

construction barrel. The trooper then conducted a dog sniff of the vehicle while Mr.

Garcia and Mr. Reyez conversed and paced at the front of the vehicle. The dog alerted to

the box wedged between the speaker and the backseat. Trooper Bauer opened the box

and discovered two packages wrapped in black electrical tape. The trooper cut into one

of the packages and found that it contained layers of tape, oil, plastic wrap, and mustard.

The last layer was a vacuum-sealed package containing a substance he recognized as

methamphetamine.

       The trooper called for backup and asked Mr. Garcia to come over to the rear of the

Jeep so he could be taken into custody. He then ordered Mr. Garcia to put his hands on

his head; after Trooper Bauer repeated his request several times, Mr. Garcia acquiesced.

As Mr. Garcia was being handcuffed, Mr. Reyez began to approach the trooper and Mr.

Garcia. Trooper Bauer ordered Mr. Reyez to return to the front of the vehicle, but he

continued on his path. Trooper Bauer repeated the order and pulled his pepper spray from

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his belt. Still not heeding the trooper’s warnings, Mr. Reyez walked to the rear of the

Jeep and peered into the open hatchback where the drugs were visible. After the trooper

threatened to deploy his dog, Mr. Reyez finally retreated to the front of the Jeep. Trooper

Bauer ordered Mr. Reyez to get to his knees.

       Trooper Bauer returned his attention to Mr. Garcia, who had not yet been

handcuffed fully. But before the trooper could lock the handcuffs, Mr. Garcia threw his

hands in the air and ran toward the driver’s door of the Jeep. Mr. Reyez then rose from

his knees and ran to the passenger door. Both men got inside the vehicle with Trooper

Bauer chasing after Mr. Garcia. The trooper climbed onto the running board and reached

into the window to grab Mr. Garcia, who had already started the Jeep and began pulling

away. Trooper Bauer jumped off, and the two men drove away with the hatchback still

open. The drugs that had been sitting on the rear of the vehicle fell off onto the road.

Tests later determined that the Jeep contained 2.369 kilograms of methamphetamine.

       A chase followed. After approximately twenty minutes and after reaching speeds

of ninety miles per hour, another officer was able to spike the Jeep’s tires. Undeterred,

Mr. Garcia continued driving until the rubber fell loose from the tires’ rims. Once the

damaged vehicle slowed to about twenty miles per hour, it veered across a median, went

down a dirt embankment, and crashed through a fence into a field. With the vehicle still

moving, both Mr. Garcia and Mr. Reyez jumped out and ran from the officers. Mr. Reyez

was caught and arrested; Mr. Garcia was never located.

       During Mr. Reyez’s trial for possession with intent to distribute methamphetamine,

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the Government—over Mr. Reyez’s objection—elicited expert testimony from Trooper

Bauer and Agent Brent Dunlap, an investigator for the Utah Department of Public Safety

who had interviewed Mr. Reyez after his arrest, relating to whether Mr. Reyez knew that

the Jeep contained methamphetamine. Mr. Reyez was convicted, and he now appeals the

admission of that expert testimony.

                                      II. DISCUSSION

A.     Standard of Review

       We review a district court’s decision to admit expert testimony for an abuse of

discretion. United States v. Dazey, 403 F.3d 1147, 1171 (10th Cir. 2005). Decisions that

are “arbitrary, capricious, whimsical, or manifestly unreasonable” constitute an abuse of

discretion. United States v. Hernandez-Herrera, 952 F.2d 342, 343 (10th Cir. 1991).

Even if we conclude that the court abused its discretion, however, reversal is not

warranted if the error is harmless—that is, if it did not have “a substantial influence on

the outcome or leaves one in grave doubt as to whether it had such effect.” United States

v. Turner, 285 F.3d 909, 914 (10th Cir. 2002) (alteration omitted).

B.     Merits

       To obtain a conviction for possession of methamphetamine with intent to distribute

under 21 U.S.C. § 841(a)(1), the Government must prove beyond a reasonable doubt that

Mr. Reyez (1) possessed methamphetamine; (2) knew he possessed methamphetamine;

and (3) intended to distribute methamphetamine. See United States v. Harris, 369 F.3d

1157, 1163 (10th Cir. 2004). In this case, the Government elicited expert testimony from

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Trooper Bauer and Agent Dunlap related to the second element—whether Mr. Reyez

knew the Jeep contained methamphetamine. The following colloquy took place between

the Government and Trooper Bauer:

       Q: Now, based upon your training and experience, where people have not
       had knowledge, have they tended to follow your commands or do they
       disregard your commands?

       A: Those who tend to show the innocent behavior when we are trying to
       make a determination on charges and so forth, and in reviewing this case in
       my mind over and over again, that is one of the things I keep coming back
       to, is the fact that at the moment that I tried to take the driver into custody,
       Mr. Reyez made a concerted effort to come back and disobey my
       commands, and then following that, the fact that he disobeyed my
       commands later and also continued to run.

       Later, the Government asked Agent Dunlap:

       Q: Based upon the questions that you posed to the defendant, did you
       develop some factors that would cause you to believe that the defendant
       knew the methamphetamine was located in the vehicle prior to the stop?

       After an objection was overruled, the question was repeated and answered:

       Q: What overt acts did you observe from the defendant that would cause
       you to believe that he had knowledge that the drugs were in the car?

       A: Prior to his interview I did watch the videotape that Trooper Bauer had
       taken of the traffic stop. In just watching him interfere with Trooper Bauer
       during the arrest and trying to distract Trooper Bauer, and just his reaction
       when he was told that there were drugs in the vehicle and how he was
       curious and just not very excited about it and defensive about it. The fact
       that he was also fleeing kind of led me to believe that he had knowledge of
       it.

       Mr. Reyez argues that Trooper Bauer’s and Agent Dunlap’s expert testimony

violated Fed. R. Evid. 704(b), which states:



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       No expert witness testifying with respect to the mental state or condition of
       a defendant in a criminal case may state an opinion or inference as to
       whether the defendant did or did not have the mental state or condition
       constituting an element of the crime charged or of a defense thereto. Such
       ultimate issues are matters for the trier of fact alone.

The Rule does not preclude expert testimony on “facts or opinions from which the jury

could conclude or infer the defendant had the requisite mental state.” United States v.

Richard, 969 F.2d 849, 855 (10th Cir. 1992). Rather, the Rule only prohibits an “expert[]

from expressly stating the final conclusion or inference as to a defendant’s actual mental

state.” Id. at 854; see also United States v. Dunn, 846 F.2d 761, 762 (D.C. Cir. 1988) (“It

is only as to the last step in the inferential process—a conclusion as to the defendant’s

actual mental state—that Rule 704(b) commands the expert to be silent.”); United States

v. Foster, 939 F.2d 445, 454 (7th Cir. 1991) (testimony that “merely assist[s] the jury in

coming to a conclusion as to [the defendant’s] mental state [and does] not make that

conclusion for [the jury]” is permissible under Rule 704(b)).

Put another way, “[a] prohibited ‘opinion or inference’ under Rule 704(b) is testimony

from which it necessarily follows, if the testimony is credited, that the defendant did or

did not possess the requisite mens rea.” United States v. Morales, 108 F.3d 1031, 1037

(9th Cir. 1997).

       Given this standard, Agent Dunlap’s statement that Mr. Reyez’s behavior “led me

to believe that [Mr. Reyez] had knowledge” of the presence of methamphetamine in the

Jeep clearly runs afoul of Rule 704(b). Such testimony “expressly stat[es] the final

conclusion or inference as to a defendant’s actual mental state,” see Richard, 969 F.2d at

                                            -7-
854. The District Court therefore abused its discretion in admitting the opinion.

       In contrast to Agent Dunlap’s statement, Trooper Bauer’s testimony does not so

clearly implicate Rule 704(b). Nevertheless, that the trooper’s answer is not a model of

clarity does not shield it from the constraints of the Rule. Because Trooper Bauer

prefaced his comments about Mr. Reyez’s non-cooperation with the statement that

“[t]hose who tend to show innocent behavior when we are trying to make a determination

on charges and so forth . . .”, we cannot say that the statement is a simple recitation that

Mr. Reyez actively disobeyed his commands during the traffic stop and ensuing chase

rather than an improper opinion as to Mr. Reyez’s mens rea.

       We need not, however, decide this precise issue because even assuming the

District Court abused its discretion in permitting Trooper Bauer’s testimony as well as

Agent Dunlap’s testimony, we find such error to be harmless. Indeed, a review of the

entire record shows that the Government presented a compelling case against Mr. Reyez,

even in the absence of the testimony. Trooper Bauer testified about the overwhelming

odor of oil in the Jeep, which to him possibly indicated the presence of drugs. The jury

was permitted to smell the opened package of methamphetamine to determine for

themselves the strength of the scent. The import of such evidence is that the jury could

infer that Mr. Reyez actually could detect the odor—although he denied he could smell it

during his post-arrest interview—and also knew it was being used to mask the scent of

the methamphetamine. In addition, testimony at trial showed that Mr. Reyez was shaking

and refused to make eye contact with Trooper Bauer, that Mr. Reyez and Mr. Garcia were

                                             -8-
taking a four-day drive from California to Nebraska to visit relatives for only a couple of

days, that despite such a long journey the men had no luggage, and that despite the

absence of luggage or many clothes the men were carrying two open containers of

detergent—another agent used to mask the smell of drugs. Moreover, the jury was shown

the video recording of the stop, in which Mr. Garcia and Mr. Reyez are shown to be

engaging in a conversation just minutes before they ran back into the vehicle and sped

away. The video also details Mr. Reyez’s repeated noncompliance with Trooper Bauer’s

orders, interference with Mr. Garcia’s arrest, and flight from pursuing officers—all

conduct that indicates Mr. Reyez was fully aware of the packages of methamphetamine in

the rear of the Jeep. We therefore affirm the conviction despite the District Court’s error

because the error did not substantially influence the jury’s verdict. See Turner, 285 F.3d

at 914.

                                   III. CONCLUSION

          For the foregoing reasons, we AFFIRM.

                                          ENTERED FOR THE COURT,


                                          Deanell Reece Tacha
                                          Chief Circuit Judge




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