When may a government expert tell the jury that a defendant possessed religious paraphernalia allegedly connected to drug trafficking, as evidence that the defendant likely knew that drugs were present in the car? A May 2014 decision from the Eighth Circuit and a decision last week from the Tenth Circuit disagree on this. From United States v. Medina-Copete (10th Cir. July 2, 2014) (some paragraph breaks added):

In assessing [United States Marshal Robert] Almonte’s qualifications, the district court relied on familiar precedent holding that “a drug dealer’s tools of the trade” are an appropriate subject for expert testimony. The district court acknowledged that “Almonte’s proposed testimony is somewhat different from a typical case where a law enforcement officer seeks to testify on tools of the drug trade,” but it nonetheless concluded that Almonte’s testimony could be helpful to the jury, in part because “[d]rawing the connection between a religious icon and drug trafficking is not a straightforward matter.” On appeal, the government asserts that “[t]he Santa Muerte evidence related solely to the tools of the drug traffickers’ trade.”

Further inquiry into the analogy of religious veneration to “tools of the trade” would have been appropriate. In McDonald, the tools of the trade we listed included “a single-edge razor blade, a pager or beeper, and a loaded pistol …[,] $990 cash and $20 in food stamps.” We explained that “the razor blade is at least circumstantial evidence suggesting Defendant possessed the means to cut the rock cocaine and thus intended to distribute.” We also explained how expert testimony with respect to the money and food stamps was useful to the jury: “Without understanding the drug trade is a cash-and-carry business, and that both cash and food stamps are the medium of exchange in a drug transaction, the basic evidence would leave a juror puzzled.” In United States v. Robinson, 978 F.2d 1554 (10th Cir. 1992), we discussed the relationship between tools of the trade and physical evidence indicating gang membership. Our decision in Robinson affirmed the district court’s decision to permit an expert to testify about gang affiliation, holding that “associational evidence may be directly relevant on … conspiracy,” and noting “the uncontroverted evidence that the main purpose of the Crips was to traffic in crack cocaine.”

Missing from the district court’s discussion of Almonte’s qualifications is any discussion of how his Santa Muerte testimony could legitimately connect Medina’s prayer to drug trafficking. There is no evidence that Santa Muerte iconography is “associational,” nor was there any allegation that the “main purpose” of Santa Muerte veneration “was to traffic in” narcotics. Almonte testified that there may be “millions” of followers of Santa Muerte, but he proffered no manner of distinguishing individuals who pray to Santa Muerte for illicit purposes from everyone else. His data comes from his work as a narcotics detective and his compilation of “several cases from law enforcement officers throughout the United States where these items have been involved in drug trafficking and other criminal activity.” Mere observation that a correlation exists — especially when the observer is a law enforcement officer likely to encounter a biased sample — does not meaningfully assist the jury in determining guilt or innocence.

We are also perplexed by the government’s argument that Santa Muerte veneration is a tool of the drug trade. “[T]ools of the trade” are “means for the distribution of illegal drugs.” The government has persistently failed to explain how the Santa Muerte iconography in this case was a “means for the distribution of illegal drugs.” [Footnote: The district court cited with approval another district court that held, “Jesus Malverde paraphernalia can be considered as ‘tools of the trade’: these items are perfectly legal, and yet can be used illegitimately in a drug trafficking scheme." reject such a broad definition of “tools of the trade," which would logically include literally every legal item used or carried by a person who is committing a drug distribution offense. Our precedent requires some showing that a “tool of the trade" can be used as a “means for the distribution of illegal drugs."] And in the context of proposed expert testimony about “tools of the trade,” the trial court’s gatekeeping function should include an inquiry about how the alleged tool serves as a means of distribution. The district court erred by making no such inquiry in this case….

[T]he government’s inability at every stage of litigation to explain precisely how Santa Muerte can be “used” elucidates the poor fit between our “tools of the trade” jurisprudence and Almonte’s purported area of expertise. It also highlights that further inquiry by the district court would have revealed that Almonte’s testimony would not properly “help the trier of fact to understand the evidence or to determine a fact in issue.” …

The district court’s failure to fully examine how Almonte’s testimony would assist the jury also affected its reliability analysis. We begin by acknowledging that “the Rule 702 inquiry [is] a flexible one. Daubert [the leading federal precedent on expert evidence] makes clear that the factors it mentions do not constitute a definitive checklist or test. And Daubert adds that the gatekeeping inquiry must be tied to the facts of a particular case.” As we have held, “the reliability criteria enunciated in Daubert are not to be applied woodenly in all circumstances.” Despite the flexibility granted to district courts, the text of Rule 702 requires that they ensure that proffered expert testimony be “based on sufficient facts or data” and “the product of reliable principles and methods.”

The district court acknowledged its role in determining “whether the witness’ conclusion represents an ‘unfounded extrapolation’ from the data.” But it failed to account for the complete absence of data supporting Almonte’s testimony, instead conflating Almonte’s “experience” with the “facts or data” contemplated by the text of Rule 702. Judge Kelly of the Eighth Circuit, concurring in a case involving testimony by Almonte, highlighted one of the problems with allowing Almonte to testify as an expert based on his experience:

Marshal Almonte’s conclusions are not the product of his personal law enforcement knowledge and experience — he did not gather the information about these prayers and beliefs through surveillance, wiretaps, or even interviews of persons involved in this type of drug trafficking. Instead, Marshal Almonte calls upon his own self-study of the “iconography of the Mexican drug underworld,” his observations of such icons in narcotics cases, his “four or five” trips to Mexico, and his self-published materials and training seminars on the subject.

United States v. Holmes (8th Cir. May 12, 2014). In [an earlier precedent], we held that “police officers can acquire specialized knowledge of criminal practices and thus the expertise to opine on such matters.” But witnesses “relying solely or primarily on experience … must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” Fed. R. Evid. 702 advisory committee’s note (2000 Amendment). Nothing in the record provides the necessary connection.

Almonte served for roughly 25 years as a police officer in El Paso, and during that time he “learned that Mexican drug traffickers were praying for protection from law enforcement.” More than ten years ago, he began “conducting extensive research on how the Mexican drug traffickers involve the spiritual world in their activity.” That research includes “visit[ing] several shrines of their patron saints throughout Mexico, Spain, and the United States” and “compil[ing] several cases from law enforcement officers throughout the United States where these items have been involved in drug trafficking and other criminal activity.” We have already noted the absence of any explanation about how “visit[ing] several shrines” or “compil[ing] several cases” leads Almonte to the conclusions he reached in this case. We are forced to conclude that Almonte’s “opinion evidence [was] connected to existing data only by the ipse dixit of the expert.” …

Our colleagues in the United States Court of Appeals for the Eighth Circuit recently held that a district court did not abuse its discretion when it decided that Almonte was qualified to render expert testimony about Jesus Malverde, which the court described as “a ‘narco-saint’ hailed as a ‘Mexican Robin Hood.’” Holmes. The Eighth Circuit held that the Jesus Malverde opinion provided evidence of a “modus operandi” and was admissible based on Almonte’s experience in law enforcement. Citing Eighth Circuit precedent allowing law enforcement officers to testify “about the drug trafficking connection of otherwise innocuous household items,” such as Ziploc bags, our colleagues held that “even if many with Malverde statues are not affiliated with the drug trade, narco-saint iconography may be an indicator of drug trafficking.”

We find the analogy lacking. The potential “drug-trade application” of Ziploc bags is quite apparent: They can be used to package narcotics for distribution or sale. Neither the Eighth Circuit nor the government in the present case points us to any conceivable “drug-trade application” of Santa Muerte or Jesus Malverde. We have already quoted the opinion of the concurring judge, who would have held Almonte’s testimony was erroneously admitted but concluded the error was harmless. The concurrence’s analysis of Almonte’s qualifications is far more persuasive than the majority’s assertion that Almonte has sufficient “personal knowledge and experience” to expertly opine on religious practices as they could conceivably relate to the drug trade….

Almonte should not have been permitted to testify under Fed. R. Evid. 702 because his experience did not render him qualified as an expert on the connection between Santa Muerte worship and drug trafficking, his knowledge did not assist the jury, and his opinion was not based on the proper application of reliable principles and methods. Because we hold that Almonte should not have been permitted to testify under Rule 702 and proceed to vacate the relevant convictions, we do not need to consider the appellants’ challenges to his testimony pursuant to the First Amendment or Rules 403 or 704(b).

And here’s the contrary view, from the majority opinion in United States v. Holmes (8th Cir. May 12, 2014) (some paragraph breaks added):

Holmes and Rendon attack Almonte’s testimony, arguing that the testimony was (a) given by an unqualified expert, (b) unreliable, (c) irrelevant, (d) unfairly prejudicial, and (e) improper “drug courier” profile evidence. This court reviews the district court’s decision to admit expert testimony for abuse of discretion, according it substantial deference.

Almonte was properly qualified. A witness may be qualified by knowledge, skill, experience, training, or education. For about a decade, Almonte studied the iconography of the Mexican drug underworld. He observed icons in hundreds of narcotics cases and traveled to numerous Mexican shrines. Almonte has self-published materials on the subject and has conducted law-enforcement trainings on recognizing it.

The defendants emphasize Almonte’s lack of formal education about narco-saint iconography, but that is not required under Rule 702. In drug cases, courts frequently admit expert testimony relating to the modus operandi of drug dealers, where the expert witness is a law-enforcement officer whose only qualification is experience in the field.

Holmes and Rendon challenge the reliability of Almonte’s testimony, arguing that his methodology has an impermissibly high rate of error. In Daubert the Supreme Court made trial judges the gatekeepers to exclude unreliable scientific testimony. In Kumho Tire Co. v. Carmichael (1999), the Court stated that this gatekeeper function applies to all expert testimony, not just testimony based in science.

Daubert established a non-exclusive checklist for trial courts to use in assessing the reliability of expert testimony. The checklist includes: (1) whether the theory or technique can and has been tested, (2) whether it has been subjected to peer review, (3) whether there is a high known or potential rate of error, and (4) whether the theory or technique enjoys general acceptance within a relevant scientific community…. [D]epending upon “the particular circumstances of the particular case at issue,” these factors might apply in assessing the reliability of nonscientific expert testimony. Holmes and Rendon focus on the third Daubert factor, asserting that Almonte’s testimony is unreliable because he acknowledged a high rate of error because many not associated with drug trafficking have statues of Malverde.

Holmes and Rendon … exaggerate the importance of error rates in non-scientific evidence. Almonte’s testimony is non-scientific evidence, and not all of the Daubert factors necessarily apply. Kumho Tire. Expert testimony must rest on reliable principles and methods, but the “relevant reliability concerns may focus upon personal knowledge or experience” rather than scientific foundations. This court has repeatedly approved of law enforcement officials testifying as experts on the modus operandi of drug dealers.

Law-enforcement officers may testify about the drug trafficking connection of otherwise innocuous household items. In [one past case], an officer testified as an expert about the significance of Ziploc bags in the drug trade. Although most users of Ziploc bags are not drug dealers, the bags have drug-trade application. Similarly, even if many with Malverde statues are not affiliated with the drug trade, narco-saint iconography may be an indicator of drug trafficking. The reliability of such evidence comes not from scientific foundations but from Almonte’s personal knowledge and experience. The district court did not abuse its discretion in finding Almonte’s expert testimony reliable.

Holmes and Rendon assert that Almonte’s testimony was irrelevant and unfairly prejudicial. This court has approved as relevant and helpful expert testimony on the modus operandi of drug dealers. The standard for relevancy is low. Evidence should be admitted if it has any tendency to make a fact of consequence more or less probable. Fed. R. Evid. 401.

In this case, where the government must prove a drug-trafficking conspiracy, drug iconography in the defendant’s home is highly relevant. Holmes and Rendon believe that the evidence was unfairly prejudicial because it encouraged guilt from improper reasoning, but Almonte testified that the iconography alone does not indicate drug trafficking activity. The district court properly balanced the probative value of the evidence against its prejudicial effect….

Neither opinion discussed whether introducing such evidence of religious practice would violate the Free Exercise Clause; the issue likely wasn’t raised in Holmes, and didn’t have to be decided given the reversal in Medina-Copete. A person’s constitutionally protected behavior can often be used as evidence of crime; indeed, people’s constitutionally protected speech can often be so used (see this post for citations). Query whether there are any limits, though, on using religious practice that is allegedly disproportionately engaged in by criminals — assuming there is indeed enough admissible evidence of such disproportion — as evidence that the person engaging in the practice is indeed a criminal.

Finally, note that the question of admissibility of evidence is separate from sufficiency of evidence. Evidence may be admissible even if it, by itself, only has a slight tendency to indicate guilt, and doesn’t by itself prove guilt beyond a reasonable doubt. The government is entitled to prove its case using the aggregate of evidence, each individually insufficient but sufficient when viewed together — indeed, most criminal prosecutions operate precisly that way.