Full opinion text
MEMORANDUM OPINION AND ORDER JAMES 0. BROWNING, District Judge. THIS MATTER comes before the Court on the Defendants’ Motion in Limine to Exclude Unqualified Expert Testimony II, filed July 16, 2012 (Doc. 73) (“Motion in Limine”). The Court held hearings on July 25 and July 30, 2012. The primary issues are: (i) whether United States Marshal Robert Almonte, the United States Marshall for the Western District of Texas, is qualified to present expert testimony on whether Santa Muerte materials are tools of the trade of drug traffickers; (ii) whether Almonte’s expert testimony would be helpful to the finder of fact; (iii) whether Almonte’s proposed expert testimony is sufficiently reliable for the Court to permit him to testify before a jury; (iv) whether Almonte’s proposed testimony is improper profile evidence; (v) whether the Court should exclude the evidence under the First Amendment to the United States Constitution; (vi) whether the Court should exclude Almonte’s testimony under rule 403 of the Federal Rules of Evidence; and (vii) whether the Court should exclude Almonte’s testimony on the basis that Plaintiff United States of America has not provided sufficient information regarding his proposed testimony in its notice under rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure. The Court will deny the Motion in Limine. Almonte is sufficiently qualified to give an expert opinion based on his training, experience, and skill. Almonte’s testimony about the tools of the trade of drug organizations as they relate to individuals who worship Santa Muerte would be helpful to the jury. Almonte’s proposed expert testimony is sufficiently reliable for the Court to permit him to testify before a jury. Almonte’s proposed testimony is not improper profile evidence. Neither the First Amendment to the United States Constitution’s Establishment Clause nor the Free Exercise Clause require exclusion of this evidence. Because the risk of unfair prejudice does not substantially outweigh the probative value of Almonte’s testimony, the Court will not exclude his testimony under rule 403. Lastly, the Court finds that the United States’ notice under rule 16(a)(1)(E), with the additional disclosures at the two hearings, is sufficient to comply with that rule. FACTUAL BACKGROUND The Court recites the basic allegations of the case as stated in an affidavit attached to the Criminal Complaint, filed June 29, 2011 (Doc. 1). “On June 28, 2011, ... New Mexico State Police Sergeant Arsenio Chavez was on patrol on Interstate 40 near the 134 mile marker traveling westbound.” Affidavit of Ivar Helia at 2 (executed June 29, 2011), filed June 29, 2011 (Doc. 1) (“Helia Aff.”). “Chavez observed a gray Chevrolet pickup traveling too closely behind a UPS Commercial Motor vehicle.” Helia Aff. at 2. “Chavez pulled up behind the vehicle, engaged his emergency equipment, and initiated a traffic stop.” Helia Aff. at 2. “After making contact with the driver,” Defendant Rafael Goxcon-Chagal, Chavez asked Goxcon-Chagal for his identification. Helia Aff. at 2. Goxcon-Chagal “appeared as if he did not know where the documentation was in the vehicle and fumbled through the contents of the center console then the glove box.” Helia Aff. at 2. Goxcon-Chagal “provided an Oklahoma driver’s license with an address in Tulsa, Ok.” Helia Aff. at 2. Goxcon-Chagal had a “Nevada license plate” on the vehicle he was driving. Helia Aff. at 2. “The registration indicated the owner of the vehicle was Julio Lopez with an address in Las Vegas, Nevada along with recently purchased insurance.” Helia Aff. at 2. While Goxcon-Chagal “was looking for the documents, Sgt. Chavez noted the following: strong chemical odor emanating from the vehicle, air freshener hanging from rear view mirror,” and Goxcon-Chagal “seemed not to know exactly where the documents were located in the vehicle.” Helia Aff. at 2. Goxcon-Chagal informed the officer that he “was en route to OMahoma from Las Vegas, Nevada where he has been working.” Helia Aff. at 2. Goxcon-Chagal “advised he was traveling back to Oklahoma for a ten-day vacation.” Helia Aff. at 2. “He identified the passenger,” Defendant Maria Vianey Medina-Copete, “as his wife.” Helia Aff. at 2. Goxcon-Chagal “had a hard time identifying the owner of the vehicle and all he could say was the owner was a friend of his in Nevada.” Helia Aff. at 2. Goxcon-Chagal and Medina-Copete eventually consented to a search of the vehicle. See Helia Aff. at 3-4. “K-9 Marco, who is trained and certified to detect” various drug odors, “was deployed by Sgt. Chavez and subsequently alerted both to the exterior and interior of the vehicle.” Helia Aff. at 4. “A follow-up hand search by Sgt. Chavez located a false compartment behind the passenger side air bag.” Helia Aff. at 4. “Upon removing the airbag a plastic piece which had been affixed to the airbag compartment was removed and revealed two packages of white glass-like substances which appeared to be methamphetamine.” Helia Aff. at 4. “The total weight of both packages was approximately 1003.4 grams.” Helia Aff. at 4. The United States also alleges that “officers recovered a Santa Muerte statute and a document from the vehicle that contained a Santa Muerte prayer.” Response to Motion in Limine to Exclude Expert Testimony II at 5, filed July 23, 2012 (Doc. 75) (“Response”). PROCEDURAL BACKGROUND On May 10, 2012, the United States filed its United States’ Notice of Intention to Offer Expert Testimony. See Doc. 62 (“Notice”). The Notice provides that the United States will offer Almonte as an expert witness “regarding the use of ‘patron saints’ by drug traffickers, with specific attention towards Santa Muerte, and how Santa Muerte prayers and icons are ‘tools of the trade’ for many drug traffickers.” Notice at 1. The Notice relates that “Marshal Almonte has over 25 years of combined state and federal law enforcement experience, much of it devoted to narcotics enforcement.” Notice at 1. “He currently serves as the United States Marshal for the Western District of Texas, which encompasses San Antonio and El Paso.” Notice at 1. The United States asserts that “Marshal Almonte has studied various patron saints throughout Mexico for many years.” Notice at 1-2. The United States represents: His experience in this area, comprising hundreds, if not thousands of hours of study, has led Marshal Almonte to create and produce a law enforcement training video; “Patron Saints of the Mexican Drug Underworld,” and he is currently writing a book on this topic. Marshal Almonte has trained several thousand law enforcement officers on this topic throughout the United States over the last seven years. Marshal Almonte has been previously qualified as an expert in federal court on this topic, including at least one such instance in the District of New Mexico. Marshal Almonte’s expert testimony, specifically regarding Santa Muerte, has been previously accepted by the district court for the Western District of Texas as admissible evidence. See United States v. Javier Guererro, et al., Criminal No. 09-820 AM, Doc. 454; [sic] Marshal Almonte’s biography and curriculum vitae is attached. Notice at 2. Almonte’s curriculum vitae notes that he: (i) worked for the El Paso, Texas Police Department from 1978 to 2003; (ii) served as an instructor for both general police training and drug enforcement training in various capacities from 1990 to 2007; (iii) worked, in the private sector, as a law enforcement trainer and consultant from 2004 to 2010; (iv) served as the executive director of the Texas Narcotic Officers Association from 2006 to 2010; and (v) has served as the United States Marshal for the Western District of Texas since 2010. See Curriculum Vitae of Robert R. Almonte at 1, filed May 10, 2012 (Doc. 62-1) (“Curriculum Vitae”). His Curriculum Vitae notes that he received a bachelor of science degree, summa cum laude, in Criminal Justice Administration from Park University. See Curriculum Vitae at 1. Almonte has published two books: (i) Evolution of Narcotics Investigations in 2004; and (ii) Managing Covert Operations in 2004. See Curriculum Vitae at 1. He has developed a law enforcement training video entitled Patron Saints of the Mexican Drug Underworld. See Curriculum Vitae at 1. He has testified in three federal cases, all in 2011, on the topic of Santa Muerte. See Curriculum Vitae at 1-2. Almonte relates that he has the following research interests: While working as a narcotics detective, I learned that Mexican drug traffickers were praying for protection from law enforcement. They prayed to various religious icons and many of these traffickers also utilized an advisor known as a “curandero” for guidance and to perform “blessings” on themselves as well as their drug loads. In 2003, I began conducting extensive research on how the Mexican drug traffickers involve the spiritual world in their activity. Mexican drug traffickers pray to various recognized and non-recognized religious icons that are known as their “patron saints”. These “patron saints” or icons include; Jesus Malverde, Santa Muerte, San Simon, Juan Soldado, St. Jude, The Virgin of Guadalupe, San Ramon, San Toribio Romo, Nino de Atocha and others. I have visited several shrines of their patron saints throughout Mexico, Spain, and the United States. I have compiled several cases from law enforcement officers throughout the United States where these items have been involved in drug trafficking and other criminal activity. I created and produced a law enforcement training video; “Patron Saints of the Mexican Drug Underworld”, and I am currently writing a book on this topic. Over the last seven years, I have conducted training throughout the United States for several thousand law enforcement officers. I have testified in federal and state court concerning various icons. Curriculum Vitae at 2. He has spoken as a lecturer or provided presentations for over fifty-five different state and federal law enforcement organizations. See Curriculum Vitae at 3-4. On July 16, 2012, the Defendants filed their Motion in Limine. See Doc. 73. They argue that Almonte “is not qualified to render an expert opinion regarding patron saints of drug traffickers.” Motion in Limine at 6. They assert that Almonte’s opinions are unreliable, and that the Court should exclude that evidence under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and rule 702 of the Federal Rules of Evidence. See Motion in Limine at 6. They argue: The proposed testimony of United States Marshal Robert Almonte does not pass these requirements. The prosecution has provided no information about the agent’s methodology or the data on which he intends to base his testimony. The prosecution provides only the agent’s general qualifications as a law enforcement officer. Under such conditions, admission of the testimony would be clear error. Motion in Limine at 8. The Defendants contend that “[t]he sole purpose of United States Marshal Robert Almonte’s expert testimony and self-serving testimony regarding patron saints of drug traffickers is solely to bolster the prosecution’s case by the use of his self-proclaimed expert theories that the defendants are guilty.” Motion in Limine at 6. They argue that the expert testimony is “irrelevant.” Motion in Limine at 8. The Defendants assert that the proposed expert testimony “would not assist the jury in fairly discerning the facts of this case, as required by Rule 702.” Motion in Limine at 9. They also contend that the Court should exclude the evidence under rule 403, because the testimony is “overly prejudicial” and “would have minimal, if any, probative value.” Motion in Limine at 9. They argue that the evidence is improper “profile evidence, which is inadmissible as substantive proof.” Motion in Limine at 10. They assert that Almonte’s proposed testimony “amounts to little more than telling the jury what conclusion to reach.” Motion in Limine at 11. The Defendants contend that the United States’ Notice is deficient under rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure “based on the sparse information the prosecution has proffered regarding United States Marshal Robert Almonte’s testimony.” Motion in Limine at 13-14. On July 23, 2012, the United States filed its Response to the Motion in Limine. See Doc. 75. The United States asserts that “Santa Muerte is not a saint, and the Catholic church does not recognize it as such.” Response at 7 (emphasis in original). The United States refers to Santa Muerte and other saints it asserts are important in the drug trafficking community as “narco-saint[s].” Response at 7. The United States represents that it “plans to introduce, through its own expert, that Santa Muerte is also revered by many law-abiding people, and the presence of Santa Muerte paraphernalia, without more, does not automatically mean somebody is involved in drug trafficking.” Response at 7. The United States relates that it will not, “as Defendants suggest, introduce testimony regarding Santa Muerte as profile evidence, but rather as a common tool of the drug trade.” Response at 7. The United States asserts that it “will establish, through its expert, that many drug traffickers, particularly couriers, pray to Santa Muerte for protection from law enforcement and prosperity in their drug dealing.” Response at 7-8. The United States notes that, like “many, many, other items,” possession of materials relating to Santa Muerte may be “perfectly legal, but can [also] be used illegitimately in a drug trafficking scheme.” Response at 8. It gives as examples “otherwise innocuous scales, glass pipes, and plastic baggies.” Response at 8 (citing United States v. Triana, 477 F.3d 1189, 1195 (10th Cir.2007)). The United States asserts that the Defendants “gloss[ ] over [Almonte’s] extensive experience and research regarding Santa Muerte and other patron saints in the drug smuggling context,” and improperly shift the focus to “whether his experience and research has been subject to peer review.” Response at 8. The United States notes that “Almonte’s testimony regarding Santa Muerte has been previously accepted by the district court for the Western District of Texas as admissible.” Response at 9 (citing United States v. Javier Guererro, No. DR-09-CR-820(1, 5)-AM, Order at 1-6 (W.D. Tex. May 10, 2011), filed July 23, 2012 (Doc. 75-1) (“Guererro Opinion”)). The United States notes that the United States District Court for the Western District of Texas “found that Marshal Almonte had invested thousands of hours of research on this topic, and lectured on the precise subject at hundreds of law enforcement seminars across the country.” Response at 9 (citing Guererro Opinion at 3). The United States relates that the Western District of Texas found that Almonte “ ‘is treated as a Santa Muerte expert among the law enforcement community1 [and] qualified him as an expert, despite the defendants’ challenge that his methodology had not been subjected to peer review.” Response at 9 (quoting Guererro Opinion at 4). The United States notes that the United States Court of Appeals for the Tenth Circuit has addressed similar matters and has referred to Jesus Malverde as a saint who “is considered a patron saint by some drug traffickers.” Response at 9 (quoting United States v. Lopez-Gutierrez, 334 Fed.Appx. 880 (10th Cir.2009) (unpublished)). The United States asserts that the Court has also referred to Jesus Malverde as “widely known as the patron saint of drug dealers, or the ‘narco saint.’ ” Response at 9 (quoting United States v. Pena-Macedo, No. 07-1336, 2008 WL 3992135 (D.N.M. Apr. 28, 2008) (Browning, J.)). The United States argues that the United States Court of Appeals for the Eighth Circuit “has recognized that Santa Muerte is ‘commonly used by drug traffickers for protection.’ ” Response at 10 (quoting United States v. Penar-Ponce, 588 F.3d 579, 582 (8th Cir.2009)). The United States represents that Almonte “will testify that both Santa Muerte and Jesus Malverde are narco-saints, and are used in the same manner as tools of the trade by drug traffickers.” Response at 10. The United States notes that the Honorable William P. Johnson, United States District Judge for the District of New Mexico, has found Almonte to be a sufficiently qualified expert on this issue and that his opinions regarding Jesus Malverde were sufficiently reliable. See Response at 10 (quoting United States v. Bobadilla-Campos, 839 F.Supp.2d 1230, 1235, 1237-38 (D.N.M. 2012) (Johnson, J.)). The United States asserts that courts have recognized that any harmful effect from the admission of this testimony is avoidable if Almonte brings out that many law-abiding individuals honor Santa Muerte and Jesus Malverde. See Response at 11. The United States contends that “a jury is unlikely to understand the significance of such evidence absent such testimony.” Response at 12. At the hearing on July 25, 2012, the parties stated that they would prefer to have a separate hearing on the Motion in Limine regarding Santa Muerte but provided some arguments on the motion. The Defendants stated that, if the Court will allow Almonte’s expert testimony regarding Santa Muerte, they may need their own expert to rebut his testimony. See Transcript of Hearing at 37:19-25 (taken July 25, 2012) (Riggs) (“July 25, 2012 Tr.”). The Defendants related that they have been looking for an expert for several months but have been unable to find one. See July 25, 2012 Tr. at 38:25-39:5 (Riggs). Goxcon-Chagal asserted that the evidence goes only towards his codefendant. See July 25, 2012 Tr. at 39:13-22 (Gandert). The Defendants also asserted that presenting this evidence implicates freedom of religion. See July 25, 2012 Tr. at 39:13-40:7 (Gandert). The United States related that it is not necessary to use the word profile. See Tr. at 26:24-25 (Torrez). The United States noted that Almonte is still in the process of writing a book on narco saints. See Tr. at 45:23-25 (Stanford). The United States informed the Court that it would provide a copy of the law enforcement training video Almonte has developed to the Defendants within twenty-four hours. See Tr. at 45:18-20 (Stanford). The Defendants argued that it is necessary to distinguish between Jesus Malverde and Santa Muerte, because Jesus Malverde has a closer association with narcotics trafficking. See July 25, 2012 Tr. at 47:22-49:1 (Court, Gandert). The United States emphasized that these subtle considerations make this topic a better one to have an expert flesh out for the jury. See July 25, 2012 Tr. at 49:4-50:1 (Stanford). At the hearing on July 30, 2012, the parties reiterated many of the same arguments they raised at the hearing on July 25, 2012. The Defendants emphasized that the cases on which the United States relies are distinguishable on the basis that this case involves one main issue — whether the Defendants knew they were transporting drugs. See Transcript of Hearing at 3:18-4:2 (taken July 30, 2012) (Riggs) (“July 30, 2012 Tr.”). The Defendants noted that they are willing to stipulate to many issues in the case. See July 30, 2012 Tr. at 4:10-20 (Riggs). They assert that various terms, such as narco saint and tools of the trade, are objectionable on the basis that they invade the province of the jury. See July 30, 2012 Tr. at 6:25-8:2 (Riggs). The Defendants argued that injecting religion into the case implicates a variety of concerns. See July 30, 2012 Tr. at 8:3-7 (Riggs). The Defendants noted that, while Almonte has an impressive resume, his experience is only on the law enforcement side. See July 30, 2012 Tr. at 8:14-23 (Riggs). The Defendants assert that there are additional concerns about the reliability of Almonte’s proposed testimony given that there are so few experts in this field. See July 30, 2012 Tr. at 8:24-9:16 (Riggs). Goxcon-Chagal emphasized that the evidence relates only to his co-defendant. See July 30, 2012 Tr. at 14:21-23 (Gandert). The United States reiterated that it planned to have Almonte testify that a significant number of law-abiding citizens also worship Santa Muerte. See July 30, 2012 Tr. at 15:6-14 (Stanford). The Defendants acknowledged that the Catholic faith has not recognized Santa Muerte as a saint. See July 30, 2012 Tr. at 15:15-17 (Gandert). They elaborated that Santa Muerte still has religious meaning even if the Catholic faith does not recognize Santa Muerte as a saint. See July 30, 2012 Tr. at 15:15-16:2 (Gandert). The Court related that, although rule 610 bars evidence of a witness’ religious beliefs for credibility purposes, the Court is not aware of any authority construing that rule to include matters such as evidence offered to prove intent to commit a crime. See July 30, 2012 Tr. at 16:3-15 (Court). The Court stated that the limitations stated in rule 610 are such that it likely does not conflict with the First Amendment. See July 30, 2012 Tr. at 16:3-15 (Court). The Defendants emphasized that the evidence is unfairly prejudicial in light of its low probative value and that presenting the evidence would encroach on their religious freedom. See July 30, 2012 Tr. at 16:16-18:4 (Gandert). The United States analogized to a case where a defendant killed an individual to sacrifice the person for religious purposes and related that evidence like that Almonte intends to present helps elucidate a defendant’s intentions. See July 30, 2012 Tr. at 18:21-19:10 (Stanford). The United States emphasized that this evidence does not mean that the Defendants are automatically guilty of drug trafficking, but related that the jury should have the evidence before it to more fully understand the context behind the Defendants’ actions. See July 30, 2012 Tr. at 19:11-22 (Stanford). The United States also asserted that it is inaccurate to describe Almonte as the only expert on this topic, given that an online computer search can reveal several others who are qualified to testify on these matters. See July 30, 2012 Tr. at 19:23-20:6 (Stanford). The United States argued that, in every case where courts have admitted similar testimony, the underlying issue was whether the charged individuals were trafficking drugs. See July 30, 2012 Tr. at 20:7-24 (Stanford). The United States emphasized that the Defendants can easily resolve any improper inferences the jury might draw from the evidence through effective cross-examination. See July 30, 2012 Tr. at 20:25-21:7 (Stanford). The United States related that it could instruct Almonte to avoid using the term narco saint. See July 30, 2012 Tr. at 22:3-23:3 (Court, Stanford). The United States asserted that the number of individuals who honor Santa Muerte outside of the drug-trafficking context is a matter that goes to the weight of the evidence rather than its reliability. See July 30, 2012 Tr. at 23:17-25 (Court, Stanford). The Defendants also proposed that Almonte not use the term drug trafficking. See July 30, 2012 Tr. at 26:9-13 (Gandert). The Court stated that it was inclined to permit the evidence .and to believe that the Defendants’ arguments go towards the weight of the evidence. See July 30, 2012 Tr. at 26:24-27:14 (Court). LAW REGARDING DRUG ORGANIZATION TESTIMONY The Tenth Circuit “has repeatedly held that in narcotics cases, expert testimony [by a law enforcement officer] can assist the jury in understanding transactions and terminology.” United States v. Walker, 179 Fed.Appx. 503, 507 (10th Cir.2006) (unpublished) (quoting United States v. Quintana, 70 F.3d 1167, 1171 (10th Cir.1995)). “This rule is based on the Tenth Circuit’s recognition that the modus operandi of drug organizations, the value of drug quantities, the language of narcotics dealers, and the tools of the narcotics trade ‘are not subjects with which most jurors are familiar.’ ” United States v. Hernandez-Mejia, No. 05-0469, 2007 WL 2219411, at *4 (D.N.M. Apr. 30, 2007) (Browning, J.) (quoting United States v. McDonald, 933 F.2d 1519, 1522 (10th Cir.1991)). Other Circuit Courts of Appeal are in accord. See United States v. Martinez, 476 F.3d 961, 967 (D.C.Cir.2007) (“Expert testimony about the methods of drug organizations is common in drug cases.”); United States v. Robles-Rosas, 27 Fed.Appx. 897, 899 (9th Cir.2001) (unpublished) (holding that the district court did not abuse its discretion in permitting testimony regarding the modus operandi of drug organizations); United States v. Gastiaburo, 16 F.3d 582, 589 (4th Cir.1994) (“[Testimony on the modus operandi of criminals ‘is commonly admitted,’ particularly regarding the methods of drug dealers.”). More specifically, in cases involving possession with intent to distribute, the Tenth Circuit has held that “testimony with regard to the significance of a quantity of drugs possessed is specialized knowledge that assists the jury in understanding a fact at issue.” United States v. Mundy, 97 Fed.Appx. 844, 846 (10th Cir. 2004) (unpublished). “Tools of the trade may necessitate the appearance of an expert witness if the jury could not understand the significance of the possession of those items.” United States v. Becker, 230 F.3d 1224, 1231 (10th Cir.2000). The Tenth Circuit has held that it was appropriate for the government to present evidence regarding “typical indica of drug trafficking activity” in a case where the government sought “to identify for the jury common red flags suggestive of an illicit pharmaceutical operation.” United States v. Lovem, 590 F.3d 1095, 1102 (10th Cir.2009). The Tenth Circuit has “upheld the admission of expert testimony detailing the significance of ‘a drug dealer’s tools of [the] trade: a single-edge razor blade, a pager or beeper, and a loaded pistol.’ ” United States v. Becker, 230 F.3d at 1231 (alteration in original). The Tenth Circuit has also upheld “the admission of expert testimony to ‘explainf ] the meaning of the physical evidence’ officers ‘found at the arrest scene ... where the narcotics were confiscated.” United States v. Becker, 230 F.3d at 1231. The Tenth Circuit found it permissible for an officer to testify “about the common features of drug transactions to assist the jury in understanding the nature of the drug business,” including “that most drug organizations are closed and secretive and that it would be unusual for a person who was not otherwise involved in the operation to be present during the transaction.” United States v. Wilson, 276 Fed.Appx. 859, 860-61 (10th Cir.2008) (unpublished). The United States Court of Appeals for the Fourth Circuit has recognized that a person may properly be qualified as an expert “in the field of investigative drug trafficking” in a given geographical area. United States v. Wilson, 484 F.3d 267, 273 (4th Cir.2007). LAW REGARDING EXPERT TESTIMONY “Since the Supreme Court of the United States decided Daubert v. Merrell Dow Pharmaceuticals, Inc., trial courts have had the responsibility to make certain that proffered experts will assist the jury in understanding the evidence and in determining the factual issues it must decide.” United States v. Gutierrez-Castro, 805 F.Supp.2d 1218, 1224 (D.N.M.2011) (Browning, J.). “The Court now must not only decide whether the expert is qualified to testify, but, under Daubert v. Merrell Dow Pharmaceuticals, Inc., whether the opinion testimony is the product of a reliable methodology.” United States v. Gutierrez-Castro, 805 F.Supp.2d at 1224. “Daubert v. Merrell Dow Pharmaceuticals, Inc. requires a court to scrutinize the proffered expert’s reasoning to determine if that reasoning is sound.” United States v. Gutierrez-Castro, 805 F.Supp.2d at 1224. 1. Rule 702. Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Fed.R.Evid. 702. Rule 702 thus requires the trial court to “determine whether the expert is proposing to testify to (1) scientific, technical, or other specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” United States v. Muldrow, 19 F.3d 1332, 1337 (10th Cir.1994). Rule 702 uses a liberal definition of “expert.” Fed.R.Evid. 702 advisory committee’s note to 1972 proposed rules (“[Wjithin the scope of this rule are not only experts in the strictest sense of the word, e.g. physicians, physicists, and architects, but also the large group sometimes called ‘skilled’ witnesses, such as bankers or landowners testifying to land values.”). An expert is “required to possess such skill, experience or knowledge in that particular field as to make it appear that his opinion would rest on substantial foundation and would tend to aid the trier of fact in his search for truth.” LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir.2004). The proponent of expert testimony has the burden of establishing by a preponderance of the evidence that the pertinent admissibility requirements are met. See Morales v. E.D. Etnyre & Co., 382 F.Supp.2d 1252, 1266 (D.N.M.2005) (Browning, J.) (citing Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987)). Once the trial court has determined that expert testimony would be helpful to the trier of fact, a witness “may qualify as an expert by knowledge, skill, experience, training, or education and ... the expert ... should not be required to satisfy an overly narrow test of his own qualifications.” Gardner v. Gen. Motors Corp., 507 F.2d 525, 528 (10th Cir.1974) (internal quotation marks omitted). Courts should, under the Federal Rules of Evidence, liberally admit expert testimony, see United States v. Gomez, 67 F.3d 1515, 1526 (10th Cir.1995) (describing rule 702 as a “liberal standard”), and the trial court has broad discretion in deciding whether to admit or exclude expert testimony, see Werth v. Makita Elec. Works, Ltd., 950 F.2d 643, 647 (10th Cir.1991) (noting the trial court’s decision will not be overturned “unless it is manifestly erroneous or an abuse of discretion”). 2. The Standard in Daubert v. Merrell Dow Pharmaceuticals, Inc. In its gatekeeper role, a court must assess the reasoning and methodology underlying an expert’s opinion, and determine whether it is both scientifically valid and relevant to the facts of the case, i.e., whether it is helpful to the trier of fact. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 594-95, 113 S.Ct. 2786; Witherspoon v. Navajo Ref. Co., LP, No. 03-1160, 2005 WL 5988649, at *2 (D.N.M. July 18, 2005) (Black, J.) (citing Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir.2003)). The Supreme Court articulated a non-exclusive list of factors that weigh into a district court’s first-step reliability determination, including: (i) whether the method has been tested; (ii) whether the method has been published and subject to peer review; (iii) the error rate; (iv) the existence of standards and whether the witness applied them in the present case; and (v) whether the witness’ method is generally accepted as reliable in the relevant medical and scientific community. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 594-95, 113 S.Ct. 2786. The court is also to consider whether the witness’ conclusion represents an “unfounded extrapolation” from the data; whether the witness has adequately accounted for alternative explanations for the effect at issue; whether the opinion was reached for the purposes of litigation or as the result of independent studies; or whether it unduly relies on anecdotal evidence. See Witherspoon v. Navajo Ref. Co., LP, 2005 WL 5988649 at *3 (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)). The Tenth Circuit stated the applicable standard in Norris v. Baxter Healthcare Corp.: Rule 702 requires the district court to “ensure that any and all scientific testimony or evidence is not only relevant, but reliable.” [Bitler v. A.O. Smith Corp., 391 F.3d 1114, 1120 (10th Cir. 2004)] (quoting Daubert, 509 U.S. at 589, 113 S.Ct. 2786) This obligation involves a two-part inquiry. Id. “[A] district court must [first] determine if the expert’s proffered testimony ... has ‘a reliable basis in the knowledge and experience of his [or her] discipline.’ ” Id. (quoting Daubert, 509 U.S. at 592, 113 S.Ct. 2786). In making this determination, the district court must decide “whether the reasoning or methodology underlying the testimony is scientifically valid.... ” Id. (quoting Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786). Second, the district court must further inquire into whether proposed testimony is sufficiently “relevant to the task at hand.” Daubert, 509 U.S. at 597, 113 S.Ct. 2786.... 397 F.3d 878, 883-84 (10th Cir.2005) (footnote omitted). “The second inquiry is related to the first. Under the relevance prong of the Daubert analysis, the court must ensure that the proposed expert testimony logically advances a material aspect of the case.... The evidence must have a valid scientific connection to the disputed facts in the case.” Norris v. Baxter Healthcare Corp., 397 F.3d at 884 n. 2 (citing Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir.1995) (on remand from the Supreme Court), and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 591, 113 S.Ct. 2786). If the expert’s proffered testimony fails on the first prong, the court does not reach the second prong. See Norris v. Baxter Healthcare Corp., 397 F.3d at 884. In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Supreme Court expanded the rules under Daubert v. Merrell Dow Pharmaceuticals to nonscientific expert testimony. See 526 U.S. at 141, 119 S.Ct. 1167 (“We conclude that Daubert’s general holding — setting forth the trial judge’s general ‘gatekeeping’ obligation — applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.”). The Supreme Court recognized in Kumho Tire Co. v. Carmichael that the factors from Daubert v. Merrell Dow Pharmaceuticals will not apply to all cases: Our emphasis on the word may thus reflects Daubert’s description of the Rule 702 inquiry as a flexible one. Daubert 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. Kumho Tire Co. v. Carmichael, 526 U.S. at 150, 119 S.Ct. 1167 (internal quotation marks omitted). In conducting its review under Daubert v. Merrell Dow Pharmaceuticals, Inc., the court must focus generally on “principles and methodologies, and not on the conclusions generated.” Armeanu v. Bridgestone/Firestone N. Am., Tire, LLC, No. 05-0619, 2006 WL 4060665, at *11 (D.N.M. Sept. 26, 2006) (Browning, J.) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 595, 113 S.Ct. 2786). “Despite this focus on methodology, ‘an expert’s conclusions are not immune from scrutiny ... and the court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Armeanu v. Bridgestone/Firestone N. Am., Tire, LLC, 2006 WL 4060665, at *11 (alterations omitted) (internal quotation marks omitted). The proponent of the expert’s opinion testimony bears the burden of establishing that the expert is qualified, that the methodology he or she uses to support his or her opinions is reliable, and that his or her opinion fits the facts of the case and thus will be helpful to the jury. See Norris v. Baxter Healthcare Corp., 397 F.3d at 881. As the Tenth Circuit noted in Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193 (10th Cir.2002): Because the district court has discretion to consider a variety of factors in assessing reliability under Daubert, and because, in light of that discretion, there is not an extensive body of appellate case law defining the criteria for assessing scientific reliability, we are limited to determining whether the district court’s application of the Daubert manifests a clear error of judgment or exceeds the bounds of permissible choice in the circumstances ____ Thus, when coupled with this deferential standard of review, Daubert’s effort to safeguard the reliability of science in the courtroom may produce a counter-intuitive effect: different courts relying on the essentially the same science may reach different results. 289 F.3d at 1206. As the United States Court of Appeals for the Ninth Circuit noted in Claar v. Burlington Northern Railroad Co., 29 F.3d 499 (9th Cir.1994): Coming to a firm conclusion first and then doing research to support it is the antithesis of this method. Certainly, scientists may form initial tentative hypotheses. However, scientists whose conviction about the ultimate conclusion of their research is so firm that they are willing to aver under oath that it is correct prior to performing the necessary validating tests could properly be viewed by the district court as lacking the objectivity that is the hallmark of the scientific method. 29 F.3d at 502-503. Once reliability is established, however, it is still within the district court’s discretion to determine whether expert testimony will be helpful to the trier of fact. In making that determination, the court should consider, among other factors, the testimony’s relevance, the jurors’ common knowledge and experience, and whether the expert’s testimony may usurp the jury’s primary role as the evaluator of evidence. Ram v. N.M. Dep’t of Env’t, No. 05-1083, 2006 WL 4079623, at *10 (Dec. 15, 2006) (Browning, J.) (citing United States v. Rodriguez-Felix, 450 F.3d 1117, 1123 (10th Cir.2006)). An untested hypothesis does not provide a scientific basis to support an expert opinion. See Norris v. Baxter Healthcare Co'rp., 397 F.3d at 887 (“[A]t best, silicone-associated connective tissue disease is an untested hypothesis. At worst, the link has been tested and found to be untenable. Therefore, there is no scientific basis for any expert testimony as to its specific presence in Plaintiff.”); In re Breast Implant Litig., 11 F.Supp.2d 1217, 1228 (D.Colo.1998) (“An untested hypothesis cannot be a scientifically reliable basis for an opinion on causation.”). A court is not required “to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. The court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). See Hollander v. Sandoz Pharm. Corp., 289 F.3d 1193, 1209 (10th Cir.2002) (noting a lack of similarity between animal studies and human studies); Tyler v. Sterling Drug, Inc., 19 F.Supp.2d 1239, 1244 (N.D.Okla.1998) (“Test results on animals are not necessarily reliable evidence of the same reaction in humans.”). Courts have excluded experts’ opinions when the experts depart from their own established standards. See Track Ins. Exch. v. MagneTek, Inc., 360 F.3d 1206, 1213 (10th Cir.2004) (“The district court noted that [the expert’s opinion did not meet the standards of fire investigation [the expert] himself professed he adhered to.”); Magdaleno v. Burlington N. R.R. Co., 5 F.Supp.2d 899, 905 (D.Colo. 1998) (“In sum, [the expert’s methodology is not consistent with the methodologies described by the authors and experts whom [the expert] identifies as key authorities in his field.”). 3. Necessity of Evaluating an Issue Under Daubert v. Merrell Dow Pharmaceuticals, Inc. The restrictions in Daubert v. Merrell Dow Pharmaceuticals apply to both “novel” expert testimony and “well-established propositions.” 509 U.S. at 593 n. 11, 113 S.Ct. 2786 (“Although the Frye decision itself focused exclusively on ‘novel’ scientific techniques, we do not read the requirements of Rule 702 to apply specially or exclusively to unconventional evidence.”). “Of course, well-established propositions are less likely to be challenged than those that are novel, and they are more handily defended.” Daubert v. Merrell Dow Pharm., 509 U.S. at 593 n. 11, 113 S.Ct. 2786. “Indeed, theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice under Federal Rule of Evidence 201.” Daubert v. Merrell Dow Pharm., 509 U.S. at 593 n. 11, 113 S.Ct. 2786. “[W]hen experts employ established methods in their usual manner, a district court need not take issue under Daubert ....” Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 780 (10th Cir.2009). “[H]owever, where established methods are employed in new ways, a district court may require further indications of reliability.” Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d at 780. Whether courts have accepted theories underlying an expert’s opinion is a relevant consideration in determining whether expert testimony is reliable. See Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d at 780 (“The case law indicates that the courts are not unfamiliar with the PCR methodology, and in fact some courts have indicated their acceptance of it.”). EXPERT TESTIMONY ON ULTIMATE ISSUES Rule 704 of the Federal Rules of Evidence states: (a) In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue. (b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone. Fed.R.Evid. 704. “Traditionally, there was a general doctrine that witnesses could not give their opinion or conclusions on an ultimate issue of fact.” Vondrak v. City of Las Cruces, No. 05-0172, 2009 WL 3241555, at *10 (D.N.M. Aug. 25, 2009) (Browning, J.). “The stated justification was sometimes that such testimony usurps the function or invades the province of the jury.” Vondrak v. City of Las Cruces, 2009 WL 3241555, at *10 (quoting 1 K. Broun, McCormick on Evidence § 12 (6th ed. 2006 update)). The Federal Rules of Evidence reflect that the ultimate-issue rule has been abolished. See United States v. Smith, 156 F.3d 1046, 1054 (10th Cir.1998). Although rule 704(a) permits an expert to testify about areas that embrace an ultimate issue, there are some other limitations, aside from those expressed in rule 704(b), regarding testimony on ultimate issues. More specifically, the Tenth Circuit has stated: “[A]n expert may not state legal conclusions drawn by applying the law to the facts.” A.E. by and Through Evans v. Indep. Sch. Dist. No. 25, of Adair Cnty., Okla., 936 F.2d 472, 476 (10th Cir.1991). “Rule 704(b) prohibits an expert from expressly stating the final conclusion or inference as to a defendant’s mental state; it does not prevent an expert from testifying to facts or opinions from which the jury could conclude or infer that the defendant had the requisite mental state.” United States v. Ganadonegro, No. 09-0312, 2012 WL 592170, at *5 (D.N.M. Feb. 17, 2012) (Browning, J.) (citing United States v. Torres, 53 F.3d 1129, 1141-42 (10th Cir.1995)). The restrictions in rule 704(b) do not apply to lay witnesses, see United States v. Goodman, 633 F.3d 963, 968 (10th Cir.2011), although the lay witnesses’ testimony must still be helpful to the trier of fact to satisfy rule 701, see Fed.R.Evid. 701(b). “[Rules 701, 702, and 403] afford ample assurances against the admission of opinions [under rule 704] which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day.” United States v. Barile, 286 F.3d 749, 759-60 (4th Cir.2002). Pursuant to rule 704, it is the task of the courts “to distinguish [helpful] opinion testimony that embraces an ultimate fact from [unhelpful] opinion testimony that states a legal conclusion.” United States v. Perkins, 470 F.3d 150, 158 (4th Cir.2006) (internal quotation marks omitted). In making that determination, a court should consider whether the question tracks the language of the legal principle or statute at issue, and then consider whether any terms employed have a specialized legal meaning. See United States v. Perkins, 470 F.3d at 158. LAW REGARDING CRIMINAL RULE 16 “A defendant is entitled, under some circumstances, to request a written summary of expert testimony the United States intends to use in its case-in-chief.” United States v. Gutierrez-Castro, 805 F.Supp.2d at 1227. Rule 16 provides in relevant part: Expert witnesses. — At the defendant’s request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. If the government requests discovery under subdivision (b)(l)(C)(ii) and the defendant complies, the government must, at the defendant’s request, give to the defendant a written summary of testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial on the issue of the defendant’s mental condition. The summary provided under this subparagraph must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications. Fed.R.Crim.P. 16(a)(1)(G). Rule 16 similarly provides that a defendant must produce a summary of expert testimony under some circumstances: Expert witnesses. — The defendant must, at the government’s request, give to the government a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial, if— (i) the defendant requests disclosure under subdivision (a)(1)(G) and the government complies; or (ii) the defendant has given notice under Rule 12.2(b) of an intent to present expert testimony on the defendant’s mental condition. This summary must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications. Fed.R.Crim.P. 16(b)(1)(C). LAW REGARDING RULE 610 Rule 610 provides: “Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.” Fed.R.Evid. 610. As a leading evidence treatise has stated: “The rule [stated in rule 610] does not bar evidence that is offered to prove something other than the effect of the witness’s religion on his or her credibility.... Evidence as to a defendant’s religious affiliations was properly admitted when it established a possible motive in a criminal case.” 4 J. Weinstein & M. Berger, Weinstein’s Federal Evidence § 610.03[2], at 610-4 to 610-5 (2d ed. 2012) (citing United States v. Hoffman, 806 F.2d 703, 708 (7th Cir.1986)). In United States v. Hoffman, the United States Court of Appeals for the Seventh Circuit addressed a district court’s decision to admit evidence of a defendant’s religious affiliation to establish “a possible motive for his sending the letter.” United States v. Hoffman, 806 F.2d at 708. The Seventh Circuit noted that the evidence of the defendant’s religious affiliation “was probative of whether [he] intended the letter to constitute a ‘true threat.’ ” United States v. Hoffman, 806 F.2d at 708. The Seventh Circuit also stated that “the district court’s thorough and extensive voir dire and the court’s excusing of two jurors who might have been prejudiced against the defendant because of his religious affiliation” effectively removed “any possible prejudice that might have resulted from such evidence.” United States v. Hoffman, 806 F.2d at 708. The Seventh Circuit explained why admitting the evidence was proper: The district court record reveals that the evidence concerning Hoffman’s religious beliefs was introduced to establish “the context of the statement (the letter) and the wilfulness of the defendant in making it.” Contrary to the assertion of the dissent, the government did not rely solely on the defendant’s affiliation with Reverend Moon to establish the intent of Hoffman to threaten the President. The government introduced additional evidence dealing with Hoffman’s dissatisfaction with the continued confinement of Reverend Moon. The government established this fact through testimony from Hoffman’s mother, thus allowing the jury to reject or infer that Hoffman might very well have had a motive in threatening the President. The law is eminently clear that the court may receive evidence as to the defendant’s motive. As the Fifth Circuit held in Reid v. United States, 136 F.2d 476 ... (1943), where the government introduced evidence as to previous pro-German statements of the defendant: “[ejvidence as to appellant’s pro-German attitude was relevant to the issue as to whether the statements against the President were knowingly and willfully made, and was admissible.” Id. See also United States v. Patillo, 438 F.2d 13, 16 (4th Cir.1971) (in prosecution under § 871 “trier of fact may ... consider all relevant facts concerning the background of the defendant, his motives, the manner in which the threat was made, and the reaction of those who heard the threat and thus have an opportunity to form an opinion about the speaker’s present intention to injure the President of the United States.”) Proof of motive is not required of the government under sec. 871, and is nothing more than an evidentiary aid to the jury in its fact-finding process of rendering a verdict of guilt or innocence. Evidence of Hoffman’s motive is probative of Hoffman’s intent that his (Hoffman’s) letter in fact constituted a “true threat” in the eyes of those who received the letter. Hoffman’s mother testified that “I think he (Hoffman) was concerned about many things. One, that a religious leader had been imprisoned, and he thought that he’s (Reverend Moon) highly principled, and he did not think this is right.” Hoffman’s mother further testified that Hoffman believed that the Reverend Moon should have been pardoned by the President and released from confinement. Obviously since Hoffman believed that Reverend Moon was wrongly imprisoned, and President Reagan could have pardoned him and thus was responsible for Moon’s continued imprisonment, he had a motive to harm the President: retaliation. The question of whether Hoffman had a motive to harm the President was presented to the jury with evidence from which they could reasonably accept or reject the inference that the defendant intended his threat to be taken as a serious threat to retaliate against the government (the President) for Reverend Moon’s continued confinement. The jury could reasonably conclude that Hoffman intended the violent language and the graphic drawing he used in his letter to the President as a serious expression of a true threat to inflict harm upon the President. We hold that the probative value of the evidence of Hoffman’s prior religious affiliation was not substantially outweighed by its alleged prejudicial impact and thus it was properly admitted in evidence. United States v. Hoffman, 806 F.2d at 708-10. The United States Court of Appeals for the Eleventh Circuit has stated: “A person’s beliefs, superstitions, or affiliation with a religious group is properly admissible where probative of an issue in a criminal prosecution.” United States v. Beasley, 72 F.3d 1518, 1527 (11th Cir.1996). The Eleventh Circuit explained: It seems clear from the record that the Yahweh religion was not on trial. The evidence regarding the religion was relevant, because religious teachings were used to justify, rationalize, and promote crime. Appellants argue strenuously that the contested evidence violated Federal Rule of Evidence 610, which prohibits using religion to impeach a witness’s credibility. The appellants’ argument is misguided. The government agrees that it would have been improper to attack witnesses’ credibility with their religious beliefs by suggesting that, because of those beliefs, their testimony was untrustworthy. However, in this case, the government inquired into Yahweh practices and beliefs in an effort to show the background of the RICO enterprise, which the defendants used to carry out acts of murder and arson. The evidence was relevant to show how Yahweh exerted influence and control over the members and how he used his preachings to justify heinous crimes. United States v. Beasley, 72 F.3d 1518, 1527 (11th Cir.1996). In an unpublished decision, the United States Court of Appeals for the Sixth Circuit quoted approvingly the Eleventh Circuit’s holding from United States v. Beasley. See United States v. Shalom, 113 F.3d 1236, 1997 WL 225514, at *4 (6th Cir.1997) (unpublished table decision) (“Although we have not previously addressed the issue of error arising from a prosecutor’s mention of a defendant’s religious beliefs, we agree with the Eleventh Circuit’s conclusion.... ”). The United States Court of Appeals for the Second Circuit similarly concluded that it was proper for a district court to admit evidence regarding “Unification Church practices,” because “it was inevitable” some of that evidence “would creep into the trial” given the central issue in the trial regarding the defendant’s “control over the activities of other church officials.” Accord United States v. Sun Myung Moon, 718 F.2d 1210, 1233 (2d Cir.1983) (“The central issue for the jury to decide was whether the Tong II stock and Chase Manhattan Bank accounts belonged to the Church or to Moon personally.”). In the context of proposed voir dire questions, the Court has stated the following about rule 610 and the problems that come with permitting inquiry into religious matters in a case: Congress and the courts have been particularly sensitive to not introduce religious views unnecessarily into cases. Rule 610 of the Federal Rules of Evidence prohibits a party [from attacking] the credibility of a witness because of his religious views or lack thereof: “Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced.” If witnesses cannot be so challenged, the Court should be cautious about permitting the parties to question prospective jurors along similar lines. On the other hand, a defendant should be able, while remaining sensitive to undue intrusion into a prospective juror’s religious beliefs, views, and practices, to inquire whether a juror has any view, religious or otherwise, that would preclude him from being a fair and impartial juror in this case. If there is someone that is prejudiced for or against someone of a particular faith, the defendant should be able to detect that attitude. United States v. Sandoval, No. 04-02362, 2006 WL 1304955, at *5 (D.N.M. Feb. 1, 2006) (Browning, J.). LAW REGARDING RULE 403 Rule 403 provides: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. Under rule 403, the trial court must weigh the proffered evidence’s probative value against its potential for unfair prejudice. See United States v. Record, 873 F.2d 1363, 1375 (10th Cir.1989). “[I]t is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter [under rule 403].” United States v. Pettigrew, 468 F.3d 626, 638 (10th Cir.2006) (quoting United States v. Sides, 944 F.2d 1554, 1563 (10th Cir.1991)). The Tenth Circuit has recently reminded district courts that they should be “mindful” that “exclusion of evidence under Rule 403 that is otherwise admissible under the other rules is an extraordinary remedy and should be used sparingly.” United States v. Smalls, 605 F.3d 765, 787 (10th Cir. 2010). The decision to admit or exclude evidence pursuant to rule 403 is within the trial court’s discretion, see United States v. Lugo, 170 F.3d 996, 1005 (10th Cir.1999), and the trial court’s discretion to balance possible unfair prejudice against probative value is broad, see United States v. Bice-Bey, 701 F.2d 1086, 1089 (4th Cir. 1983); United States v. Masters, 622 F.2d 83, 87-88 (4th Cir.1980). As the Supreme Court recently noted: In deference to a district court’s familiarity with the details of the case and its greater experience in evidentiary matters, courts of appeals afford broad discretion to a district court’s evidentiary rulings.... This is particularly true with respect to Rule 403 since it requires an “on-the-spot balancing of probative value and prejudice, potentially to exclude as unduly prejudicial some evidence that already has been found to be factually relevant.” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008) (quoting 1 S. Childress & M. Davis, Federal Standards of Review § 4.02, at 4-16 (3d ed. 1999)). See United States v. Abel, 469 U.S. 45, 54, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984) (“Assessing the probative value of [proffered evidence], and weighing any factors counseling against admissibility is a matter first for the district court’s sound judgment under Rules 401 and 403....”). Evidence may be unfairly prejudicial if it would likely provoke an emotional response from the jury or would otherwise tend to adversely affect the jury’s attitude toward a particular matter. See United States v. Rodriguez, 192 F.3d 946, 951 (10th Cir.1999). Evidence is not unfairly prejudicial merely because it damages a party’s case. See United States v. Caraway, 534 F.3d 1290, 1301 (10th Cir. 2008); United States v. Curtis, 344 F.3d 1057, 1067 (10th Cir.2003); United States v. Martinez, 938 F.2d 1078, 1082 (10th Cir.1991). Rather, “[t]o be unfairly prejudicial, the evidence must have ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’” United States v. Caraway, 534 F.3d at 1301 (quoting Fed. R.Evid. 403 advisory committee’s note). ANALYSIS The Court will deny the Motion in Li-mine. Almonte is sufficiently qualified to give an expert opinion based on his training, experience, and skill. Almonte’s testimony about the tools of the trade of drug organizations as they relate to individuals who worship Santa Muerte would be helpful to the jury. Almonte’s proposed expert testimony is sufficiently reliable for the Court to permit him to testify before a jury. Almonte’s proposed testimony is not improper profile evidence. Neither the Establishment Clause nor the Free Exercise Clause require exclusion of this evidence. Because the risk of unfair prejudice does not substantially outweigh the probative value of Almonte’s testimony, the Court will not exclude his testimony under rule 403. Lastly, the Court finds that the United States’ notice under rule 16(a)(1)(E), with the additional disclosures at the two hearings, is sufficient to comply with that rule. I. ALMONTE IS QUALIFIED TO PROVIDE EXPERT TESTIMONY. The Defendants contend that Almonte is not qualified to provide expert testimony. Once the trial court has determined that expert testimony would be helpful to the trier of fact, a witness “may qualify as an expert by ‘knowledge, skill, experience,