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Media Alerts - United States v. Holmes and 8th Circuit
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July 22, 2014
  United States v. Holmes and 8th Circuit
Headline Eighth Circuit panel affirms district court discretionary decision to permit U.S. Marshall to testify as expert on the iconography of the Mexican drug underworld

Area of Law Evidence

Issue(s) Presented Whether the district court abused its discretion when it permitted a U.S. Marshall to give expert testimony on the subject of narco-saint iconography

Brief Summary A jury convicted Defendants Holmes and Rendon of "conspiracy to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. ยงยง 841(a)(1), (b)(1)(A), and 846." The district court permitted a U.S. Marshall to testify at trial. The Marshall "linked to drug trafficking several images and shrines in the home of Rendon [and another alleged co-conspirator]." The Marshall focused on the image of Jesus Malverde, a "'narco saint' hailed as a 'Mexican Robin Hood,'" as one indicator of drug activity. The Defendants objected to the testimony, but the Eighth Circuit panel concluded that the district court did not abuse its discretion in permitting the Marshall's opinion.

The Defendants argued that the district court's decision to admit the testimony constituted reversible error on several grounds. They argued first that the Marshall was unqualified as an expert. But the Eighth Circuit panel concluded that the Marshall's study and travel experiences, his self-published materials, and his law-enforcement trainings established sufficient qualifications. The Defendants argued next that the Marshall's opinion was unreliable because of the many non-drug traffickers who have statues of Malverde. But the panel concluded that the reliability rate of the Marshall's "non-scientific" opinion could be based upon the Marshall's own observations and experiences. The Defendants then argued that the Marshall's opinion was irrelevant and unfairly prejudicial. But the panel cited to other Eighth Circuit opinions accepting "expert testimony on the modus operandi of drug dealers." The Defendants then finally argued that the Marshall's testimony constituted impermissible "drug courier profile evidence." But the panel distinguished between drug-courier profile evidence (which explains the "investigative techniques" law enforcement uses to identify drug couriers) and "modus operandi" evidence (which explains the "paraphernalia of drug trafficking)." As a result, the panel affirmed the district court's ruling and the jury conviction.

Judge Kelly concurred in the ultimate result, but disagreed with the panel majority on the admission of the Marshall's testimony. First, Judge Kelly concluded that the Marshall's opinion was in reality not modus operandi testimony but actually drug-courier profiling. Second, Judge Kelly concluded that the Marshall's opinion, while perhaps based on personal knowledge and experience, was not produced from his law enforcement knowledge and experience but rather from self-study and self-publication activities.

The full text of the opinion may be found at Text

Panel Circuit Judges Gruender, Benton, and Kelly

Date of Issued Opinion May 12, 2014

Decided Affirmed

Docket Number 13-1660

Counsel Alexander D. Morgan, for the United States; James Phillips, for Defendant Holmes; Richard Eugene Holiman, for Defendant Rendon

Author Circuit Judge Benton

Case Alert Circuit Supervisor Bradley G. Clary, Clinical Professor of Law, University of Minnesota Law School

    Posted By: Bradley Clary @ 07/22/2014 11:01 AM     8th Circuit  

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