BLOG BULLETS:

• The Ninth Circuit has held in multiple cases that it’s not an abuse of discretion for district courts to admit agent “expert” testimony that drug traffickers never use “blind mules.”
• Two recent unpublished Ninth Circuit opinions raise doubt about this testimony, by revealing information in the government’s possession that “blind mules” do exist and noting the government’s representation that it’s no longer using agent “expert” testimony that they don’t exist.
• Keep this in mind when considering a “blind mule” defense, both for purposes of guiding a request for Brady material and reinforcing an argument that the district court should exercise its discretion in your case to exclude any proffered agent testimony about “blind mules.”

 

NOW THE BLOG:

One of the defenses that sometimes gets presented in drug smuggling cases is what we call the “blind mule” defense – that the defendant was just a “mule” carrying the drugs across the border and that he or she was “blind” to the fact that the drugs were in his or her car – or suitcase, or wherever they might happen to be (hopefully not including something as hard to explain as strapped to his or her body).  In response to, or sometimes in anticipation of, this defense, the government often calls agents as so-called “experts” on drug trafficking methods to testify that drug traffickers never actually use “blind mules.”  Examples of disappointing Ninth Circuit opinions upholding the admissibility of such testimony include United States v. Sepulveda-Barraza, 645 F.3d 1066 (9th Cir. 2011) and United States v. Murillo, 255 F.3d 1169, 1177-78 (9th Cir. 2001).

A couple of unpublished Ninth Circuit opinions that raise doubt about such testimony – at least in its absolute “never” form – came to my attention a couple of months ago through e-mails from CJA panel attorney Rebecca Jones.  I thought I’d share the opinions, and some of the additional materials I found through follow-up, with those of you who may want to present this defense and challenge such testimony.  The opinions, which aren’t controlling authority because they’re unpublished, are United States v. Flores, 510 Fed. Appx. 594 (9th Cir. 2013), and United States v. Venegas-Reynoso, 524 Fed. Appx. 373 (9th Cir. 2013).

Each of these opinions follow the earlier, published opinions by holding that it wasn’t an abuse of discretion for the district courts to admit this expert testimony.  (For the point that this doesn’t mean the district courts were required to admit the testimony, because “not an abuse of discretion” often means it would have been reasonable for the court to have decided the question either way, see a prior post on the abuse of discretion standard titled “The Case Law They Cite is About the Abuse of Discretion, not the Exercise of Discretion” in the March 2013 link at the right.)  But the opinions each offer an interesting caveat.  As explained in the first of the opinions:

At oral argument, counsel for the government acknowledged that evidence that blind mules exist came to the attention of his office after this trial came to a close.  He also represented that, to his knowledge, the office was no longer putting on testimony to the effect that blind mules do not exist.  We trust that the government will not submit expert testimony that it knows is inaccurate.

Flores, 510 Fed. Appx. at 595.  And as explained in the second opinion, in which the defendant had sought a new trial based on newly discovered evidence not disclosed by the government in the form of a criminal complaint filed in a Texas case in which the government itself alleged the use of blind mules, see Venegas-Reynoso, 524 Fed. Appx. at 376:

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 the government will not submit expert testimony that it knows is inaccurate.”

Venegas-Reynoso, 524 Fed. Appx. at 377.

Equally interesting is an exhibit to the reply brief in the Flores case and the oral argument in that case.  The reply brief had a memo attached to it, linked here, in which the government disclosed other information in its possession about the use of “blind mules,” albeit not in the form of allegations by the government itself.  And the oral argument in the Flores case, which you can listen to on the Ninth Circuit website and is linked here had some very interesting comments from Judge Trott.  He commented at two points during the argument (go to minute counters 5:55 and 12:40 of the oral argument linked above) that he saw blind mule cases all the time when he was a U.S. Attorney in the 1970’s and 1980’s.  He also pushed the prosecutor in the case for two or three minutes (which can of course be an eternity in oral argument) about the presentation of apparently false – or at least inaccurate – evidence in gaining the conviction in this case.  (Go to minute counter 10:45 of the oral argument linked above.)

This information suggests several things to consider in a blind mule case.  First, using the Sudikoff standard discussed in several past posts (see “Another Update on a Not So Recent Discovery Post” in the June 2015 link at the right and the prior posts noted therein), we should demand detailed information from the government about its knowledge of the use of blind mules, including, but not limited to, the information in the memo attached to the reply brief in the Flores case and the information that led the government to make the allegations it made in the complaint referenced in the Venegas-Reynoso case.  Second, we should use this information to support motions to exclude contrary testimony by so-called “expert” witnesses for the government.

Third, we might consider calling experts of our own, to testify that drug traffickers sometimes do use “blind mules.”  One great expert that comes to mind after listening to the Flores oral argument is Judge Trott, though I don’t suppose he’d agree to help us that way.  A more realistic alternative might be one of the agents who testified or prepared the complaint in the Texas case described in the Venegas-Reynoso case, though one generally wants to avoid using adverse, uncooperative witnesses as experts.  (Still, if one had a transcript of prior testimony . . . .)  In the alternative, one might consider recruiting retired agents who now work as defense experts and/or investigators – and/or retired drug traffickers who don’t mind coming forward.  In this latter vein – and as further confirmation that “blind mules” do exist – there’s a book I once read, written by a former (hopefully retired) drug trafficker named Jerry Kamstra, about the “adventures of a drug smuggler.”  See Jerry Kamstra, Weed: Adventures of a Drug Smuggler 288-89 (1974) (describing recruitment of hitchhikers to drive vehicles across border without knowledge of drugs in vehicles); id. at 349 (“Sometimes mules are unsuspecting dupes, and their cars are used without their knowledge.”).  Perhaps we could recruit Mr. Kamstra – or someone like him (maybe one of our clients who wants to go straight) – as an expert on “blind mules.”

Hope you’ve enjoyed reading this post as much as I’ve enjoyed writing it.