FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 18-10482 Plaintiff-Appellee, D.C. No. v. 4:17-cr-00894- JGZ-BGM-1 ENRIQUE VALENCIA-LOPEZ, Defendant-Appellant. OPINION Appeal from the United States District Court for the District of Arizona Jennifer G. Zipps, District Judge, Presiding Argued and Submitted March 5, 2020 Phoenix, Arizona Filed August 19, 2020 Before: Michael Daly Hawkins, John B. Owens, and Mark J. Bennett, Circuit Judges. Opinion by Judge Bennett; Dissent by Judge Owens 2 UNITED STATES V. VALENCIA-LOPEZ SUMMARY * Criminal Law The panel vacated convictions for four drug felonies in connection with the defendant’s transportation and importation of marijuana, and remanded for a new trial, in a case in which the defendant, who claimed that he acted under duress, argued that the district court erred in allowing an ICE supervisory special agent’s testimony. The defendant claimed that armed gunmen seized his truck in Mexico and held him at gunpoint for several hours, during which time a confederate (or confederates) of the gunmen drove the truck away and returned; and that the gunmen told the defendant to continue driving and pretend nothing had happened or they would kill him and his family. The ICE special agent testified as an expert for the government. A key part of his testimony was that the likelihood drug trafficking organizations would entrust a large quantity of illegal drugs to the driver of a commercial vehicle who was forced or threatened to comply was “[a]lmost nil, almost none.” The panel held that, in allowing the special agent to testify, the district court abused its discretion by not properly fulfilling its gatekeeping role under Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 1999), where it made no * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. VALENCIA-LOPEZ 3 reliability findings, as required by Fed. R. Evid. 702, about the special agent’s testimony, and where the record contains no evidence as to why the special agent’s experience and knowledge equals reliability for the “almost nil, almost none” testimony. The panel explained that dismissing an argument as “going to the weight, not admissibility” of the expert’s testimony is not a reliability determination; and noted that before the special agent said those words on the witness stand, the government had never told the court or the defendant that the special agent would so testify. The panel wrote that even if it were to consider the special agent’s explanations of his experience after he was qualified as an expert, such as on cross-examination, that evidence still does not explain the methodology by which he reliably concluded that drug trafficking organizations almost never use coerced drivers. The panel concluded that the error was not harmless. Dissenting, Judge Owens wrote that even if the district court erred by not explicitly finding reliability (an issue he doesn’t reach), ...
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