                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 17 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-10536

              Plaintiff - Appellee,              D.C. No. 2:10-cr-01257-GMS-1

       v.
                                                 MEMORANDUM *
MARCO VENEGAS-REYNOSO,

              Defendant - Appellant.

                    Appeal from the United States District Court
                             for the District of Arizona
                     G. Murray Snow, District Judge, Presiding

                       Argued and Submitted March 14, 2013
                             San Francisco, California

Before: FISHER and NGUYEN, Circuit Judges, and GARBIS, Senior District
        Judge.**

      Marco Venegas-Reynoso (“Reynoso”) appeals his convictions for

possession with intent to distribute and importation of cocaine into the United

States. At trial, the primary issue before the jury was whether Reynoso knew the


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
         The Honorable Marvin J. Garbis, Senior United States District Judge for
the District of Maryland, sitting by designation.
vehicle he drove into the United States had a large amount of cocaine hidden

within it or whether he was simply an unknowing drug courier, commonly referred

to as a “blind mule.” Reynoso contends the district court erred in (1) admitting the

government’s expert witness testimony on the “structure and operations of drug

trafficking organizations” in contravention of our holding in United States v.

Vallejo, 237 F.3d 1008, opinion amended on denial of reh’g, 246 F.3d 1150 (9th

Cir. 2001); (2) admitting the government’s expert witness testimony on the non-

use of blind mules by drug traffickers over Reynoso’s Federal Rule of Evidence

704(b) objection; (3) denying his motion for a new trial based on newly discovered

evidence of a criminal complaint involving a blind mule scheme (the Chavez

complaint); and (4) failing to find that the government committed a Brady

violation warranting a new trial by not disclosing the Chavez complaint. We have

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

       We review a district court’s evidentiary decisions for an abuse of discretion.

United States v. Varela-Rivera, 279 F.3d 1174, 1178 (9th Cir. 2002). The district

court did not abuse its discretion in concluding that the expert’s testimony relating

to the structure and operations of drug trafficking organizations complied with

Federal Rules of Evidence 401 and 403. We rejected the argument that Vallejo and

its progeny created a per se rule of inadmissibility as to this type of testimony in


                                           2
United States v. Sepulveda-Barraza, 645 F.3d 1066, 1070-72 (9th Cir. 2011).1 The

testimony was probative and not unfairly prejudicial because it “went right to the

heart of [Reynoso’s] defense that he was simply an unknowing courier,” United

States v. Murillo, 255 F.3d 1169, 1177 (9th Cir. 2001), overruled on other grounds

as recognized in United States v. Mendez, 476 F.3d 1077, 1080 (9th Cir. 2007),

and provided support for the expert’s opinion regarding the non-use of blind mules

by drug traffickers. See Sepulveda-Barraza, 645 F.3d at 1072.

      With respect to the explicit portions of the expert’s testimony relating to the

non-use of blind mules by drug traffickers, we have some concerns that this

testimony ventured close to drawing, in effect, the ultimate conclusion for the jury

that Reynoso had knowledge of the cocaine in violation of Federal Rule of

Evidence 704(b). However, in United States v. Murillo, we approved under Rule

704(b) the admission of expert testimony by a law enforcement official as to the

non-use of blind mules where the expert limited the testimony to his personal

experience with drug traffickers and an explanation, based on his experience, of

why drug traffickers would not use blind mules. 255 F.3d at 1178. In light of our


      1
       Unlike the testimony at issue in Vallejo and related cases, the testimony of
the government’s expert related primarily to the modus operandi of drug couriers
involved with drug trafficking organizations. See United States v. Murillo, 255
F.3d 1169, 1177-78 (9th Cir. 2001) (distinguishing drug courier modus operandi
testimony from testimony at issue in Vallejo).

                                          3
decision in Murillo, we cannot say the district court’s decision to permit blind mule

expert testimony was “illogical, implausible, or without support in inferences that

may be drawn from the record.” United States v. Hinkson, 585 F.3d 124, 1263 (9th

Cir. 2009) (en banc).

      Even if we were to hold that the district court did err in this respect, the error

would be harmless in light of the other evidence presented showing guilt. This

included evidence that the border patrol officials found over a million dollars’

worth of cocaine hidden in a spare tire mounted under the truck driven by Reynoso

in a manner that rendered removal of the tire by officials particularly difficult and

that Reynoso did not appear surprised when confronted with information as to the

discovered drugs.

      We affirm the district court’s denial of Reynoso’s Federal Rule of Criminal

Procedure 33 motion for a new trial based on newly discovered evidence of the

Chavez complaint, in which the government charged individuals with importing

marijuana through the use of blind mules. We review the district court’s decision

for an abuse of discretion. Hinkson, 585 F.3d at 1263. The district court correctly

concluded that, assuming the Chavez complaint constituted “newly discovered

evidence” within the meaning of Rule 33, it did not warrant a new trial under the

test articulated in United States v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005).


                                           4
At most, the Chavez complaint would merely impeach the government’s expert by

showing a situation, albeit vastly different from Reynoso’s case,2 in which the

government accused drug traffickers of importing contraband through blind mules.

By no means would this impeachment evidence render the expert’s direct

testimony “totally incredible.” See United States v. Davis, 960 F.2d 820, 825 (9th

Cir. 1992).

      The district court did not plainly err by failing to find that the government’s

non-disclosure of the Chavez complaint constituted a Brady violation warranting a

new trial.3 The government only has a Brady obligation to disclose exculpatory

information in its “possession.” See United States v. Price, 566 F.3d 900, 908 (9th

Cir. 2009). There is no evidence suggesting that the prosecution, or any agents

involved in Reynoso’s prosecution, had actual or constructive knowledge of the

unrelated out-of-district Chavez case at any time before Reynoso filed his new trial

motion or that any agent involved in Reynoso’s prosecution – in the district of

Arizona – was also involved in the Chavez case in the district of Texas. See

generally United States v. Bryan, 868 F.2d 1032, 1036-37 (9th Cir. 1989).


      2
       The Chavez complaint contains allegations of a sophisticated marijuana
smuggling scheme.
      3
       Reynoso did not present his Brady claim to the district court. Thus, we
may only review for plain error under Federal Rule of Criminal Procedure 52(b).

                                          5
Moreover, the Chavez complaint was filed on July 1, 2011, after the conclusion of

Reynoso’s trial. Hence, the only information that could have been provided to the

defense at the time of trial by an “all knowing” prosecutor would have been that in

another district, the government was investigating a tip of a drug importation

scheme involving blind mules in circumstances substantially different from those

presented in Reynoso’s case.4

      Finally, we believe it is unlikely that going forward the government will

present expert testimony from law enforcement officials to the effect that drug

traffickers do not, and would not ever, utilize blind mules to import large quantities

of drugs into the United States. In view of the Chavez complaint, such a statement

would not be truthful. As stated in the recent unpublished decision in United

States v. Flores, No. 11-50431, 2013 WL 681155, at *2 (9th Cir. Feb. 26, 2013),

“[w]e trust that the government will not submit expert testimony that it knows is

inaccurate.”

      AFFIRMED.




      4
          Even if the prosecution came into “possession” of the Chavez complaint
after it had been filed, it is difficult to say Reynoso suffered any prejudice by the
prosecution’s failure to disclose the complaint since Reynoso’s counsel learned of
the filing on July 13, 2011, and filed the new trial motion on August 3, 2011.

                                           6
