United States v. Jimenez-Chaidez

96 F.4th 1257

UNITED STATES of America, Plaintiff-Appellee, v. Jose Pablo JIMENEZ-CHAIDEZ, Defendant-Appellant.

No. 22-50069

United States Court of Appeals, Ninth Circuit

Argued and Submitted July 19, 2023 Pasadena, California

Filed March 25, 2024

Appeal from the United States District Court for the Southern District of California Todd W. Robinson, District Judge, Presiding, D.C. No. 3:19-cr-04034-TWR-1

Jessica Agatstein (argued), Elana R. Fogel, and Sara M. Peloquin, Assistant Federal Public Defenders, Federal Defenders of San Diego, San Diego, California, for Defendant-Appellant.

Daniel E. Zipp (argued), Assistant United States Attorney, Appellate Section Chief, Criminal Division; Derek Ko, Assistant United States Attorney; Deborah E. Bercovitch, Special Assistant United States Attorney; Randy S. Grossman, United States Attorney; United States Department of Justice, United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

Before: Jacqueline H. Nguyen and Danielle J. Forrest, Circuit Judges, and Richard D. Bennett,^* District Judge.

Opinion by Judge Forrest;

Partial Dissent by Judge Bennett

OPINION

FORREST, Circuit Judge:

Jose Jimenez-Chaidez drove large amounts of methamphetamine and cocaine into the United States from Mexico. He appeals his drug importation conviction and resulting sentence, arguing that the district court (1) admitted improper propensity evidence, (2) erroneously allowed an FBI agent to testify about the extraction of data from a cellphone as a lay witness rather than an expert witness, (3) failed to determine the reliability of a drug-valuation expert, and (4) applied the wrong legal standard in denying him a minor-role sentencing reduction under U.S.S.G. § 3B1.2. We have jurisdiction under 28 U.S.C. § 1291. We affirm Jimenez's conviction, but we vacate his sentence and remand for resentencing.

I. BACKGROUND

In September 2019, Jimenez was living in Tecate, Mexico and had been working at a bakery in Southern California. He crossed the United States/Mexico border five to six days a week. On September 10, Jimenez entered the United States through the Tecate Port of Entry. In the post-primary screening area, a border patrol canine indicated that drugs were present in Jimenez's car. Officers found cocaine and methamphetamine hidden in the trunk and the modified gas tank. Jimenez was charged with knowingly importing cocaine and methamphetamine under 21 U.S.C. §§ 952, 960. At trial, Jimenez's counsel argued that Jimenez did not know the drugs were in his car, and he was just a "blind mule."

A. Evidence of Prior Smuggling

Before Jimenez's trial, the Government interviewed Alejandro Ramos, a prisoner who had pleaded guilty to importing methamphetamine. Ramos stated he worked as a "scout" in the same organization as Jimenez and, on several prior occasions, including multiple times in May 2019, had met Jimenez in the United States to unload drugs from Jimenez's car. The Government moved in limine to admit Ramos's testimony, border crossing records, and evidence from Ramos's phone to demonstrate Jimenez's knowledge and intent to import drugs on the day he was arrested. After thorough argument, the district court granted the Government's motion, finding that the evidence made "[Jimenez]'s relevant knowledge and intent more probable than it would be without the other act evidence." The district court also concluded that the danger of unfair prejudice from the evidence of Jimenez's other smuggling activity did not substantially outweigh its probative value.

At trial, Ramos testified that he knew Jimenez from a garage in Tecate, Mexico where cars were modified to carry drugs across the border. Jimenez left his car at the garage and picked the car up after its gas tank was modified to carry drugs. Ramos also testified that he worked as a scout approximately ten times when Jimenez drove drugs across the border, including multiple times in May 2019. Ramos would arrive at Jimenez's workplace in the United States where Jimenez's car was parked and contact Jimenez to exchange car keys. Ramos would then drive Jimenez's car to another location, unload the drugs, and then return the car to Jimenez's work. Jimenez was paid for the transport when he returned to Tecate.

In addition to Ramos's testimony, the Government introduced records showing that Ramos and Jimenez crossed into the United States within 90 minutes of one another on May 21, May 22, and May 30, 2019, and that Ramos's cell phone was near Jimenez's workplace on these dates during the time Jimenez was working. It also introduced evidence of the significant value of the drugs found in Jimenez's car to suggest it was unlikely Jimenez did not know they were present.

To corroborate Ramos's testimony, the Government called FBI Special Agent Edasi to testify about location data extracted from Ramos's cellphone. Jimenez objected to Agent Edasi's testimony because the Government failed to disclose him as an expert witness before trial. In response, the Government explained that it was offering Agent Edasi only as a lay witness "in his capacity as a forensic examiner who looked at a phone and found some items." The district court clarified: "So he plugged in the phone and it downloaded, and he's going to say what was on the phone?" The Government responded affirmatively, and Jimenez's counsel dropped her objection.

Agent Edasi testified that he extracted data from Ramos's phone using a software tool called Cellebrite. He explained that Cellebrite is used for performing data extractions, and it also has tools for "analyzing and parsing data," or interpreting digital code "in a language that's easy to understand." Following this discussion, Jimenez's counsel objected to Agent Edasi's testimony about the examination under Federal Rule of Criminal Procedure 16¹ and Federal Rule of Evidence 702.² The district court overruled the objection.

Agent Edasi explained that he retrieved Ramos's cell phone from evidence, isolated it from network connections, and then connected it to Cellebrite "to extract the data." After connecting the phone to Cellebrite, the data was parsed and analyzed to create a report. Agent Edasi testified that the Cellebrite report could be understood without any knowledge of software. The report contained information about Ramos's phone, including his Apple ID and phone number; information about the contacts saved in the phone; and location data showing where the phone had been. The location-data report contained time-stamped GPS coordinates from a frequently visited locations database. Agent Edasi explained that he entered the GPS coordinates from the report into Google Maps to identify the location and that the coordinates showed that Ramos's phone was near Jimenez's workplace on May 21, 22, and 30, 2019, during Jimenez's shifts.

B. Drug Value

FBI Special Agent Lewenthal testified about the value of the drugs found in Jimenez's vehicle when Jimenez was arrested. The Government intended for Agent Lewenthal to testify as an expert witness but failed to properly disclose him as an expert before trial. The district court conditionally allowed Agent Lewenthal's testimony but gave defense counsel "wide latitude" to examine Agent Lewenthal before the court determined if he was qualified as an expert. Agent Lewenthal testified to his extensive law enforcement experience: nearly thirty years working for Border Patrol and Homeland Security, specific drug training, and participation in 600-700 narcotics investigations. He also testified that he calculated the wholesale and retail value of the drugs in Jimenez's car by speaking to one informant and three law enforcement officers working in the area and by consulting a publication that compiled drug prices reported by law enforcement. After Jimenez's counsel questioned Agent Lewenthal about his qualifications, the district court designated him an expert, and Agent Lewenthal offered his opinion regarding the value of the drugs: over $60,000 of methamphetamine and nearly $250,000 of cocaine. Jimenez later renewed his objection to Agent Lewenthal's qualification as an expert and questioned the method by which he calculated drug values. The district court declined to strike Agent Lewenthal's testimony based on the Government's failure to provide an expert disclosure.

C. Sentencing

The jury found Jimenez guilty. At sentencing, Jimenez argued that he qualified for a minor-role reduction under U.S.S.G. § 3B1.2. The district court considered the five factors listed in the Guidelines and declined to grant Jimenez the requested reduction. The district court sentenced Jimenez to 86 months' imprisonment with five years of supervised release. Jimenez timely appealed.

II. DISCUSSION

A. Prior Acts

Jimenez first argues that the evidence of his prior drug transports in May 2019 was improper propensity evidence. Courts may not admit evidence of a defendant's prior acts to suggest that the defendant is more likely guilty of the charged crime because of his past behavior (i.e., the "propensity inference"). Fed. R. Evid. 404(b)(1). But the same evidence may be admissible for other purposes, including to prove knowledge and intent. Fed. R. Evid. 404(b)(2). To admit evidence of prior acts, courts proceed in two steps. First, the court determines whether the prior-act evidence is admissible for a proper purpose under Rule 404(b)(2). United States v. Holiday, 998 F.3d 888, 895 (9th Cir. 2021), vacated, — U.S. —, 142 S. Ct. 2857, 213 L.Ed.2d 1083 (2022), aff'd in pertinent part, 53 F.4th 501 (9th Cir. 2022). Second, if the evidence is admissible for a non-propensity purpose, the court determines whether the evidence nonetheless should be excluded under Rule 403 as unduly prejudicial. Id. We review the district court's "[e]videntiary rulings admitting evidence of other acts under Federal Rule of Evidence 404(b) . . . for an abuse of discretion," although we review whether such evidence is relevant to the crime charged de...