United States v. Rodriguez (125 F. Supp. 3d 1216, 2015)

United States District Court for the District of New Mexico 2015-08-24

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant’s Motion to Strike the Expert Testimony of Bryan Acee, filed June 25, 2015 (Doc. 81)(“MIL”). The Court held a hearing on July 2, 2015. The primary issues are: (i) whether the anticipated testimony of Plaintiff United States of America’s proposed expert witness, Federal Bureau of Investigation (“FBI”) special agent Bryan Acee, is allowable expert testimony under rule 702 of the Federal Rules of Evidence, where he is expected to explain, in detail, the inner workings of a single drug cartel; (ii) whether Acee’s anticipated testimony violates rule 704’s prohibition on ultimate-issue testimony, where he is expected to opine that Defendant Ernesto Rodriguez’ behavior was consistent with a knowing drug smuggler and inconsistent with innocent explanations; (iii) whether the unfair prejudicial impact of Acee’s expected testimony substantially outweighs its probative value under rule 403, where he is expected to testify about acts of violence and public corruption committed by a drug cartel of which Rodriguez, the sole Defendant in the trial, is not a member; and (iv) whether the United States’ disclosure of Acee’s opinions satisfies rule 16(a)(1)(G) of the Federal Rules of Criminal Procedure, where it provided a seven-page notice twenty-six days, before trial and made Acee available for an evidentiary hearing four. days before trial. As to the first issue, although Acee’s anticipated testimony falls within a generally accepted and appropriate category of law enforcement expert testimony, the Court will place significant limitations on its scope to prevent Acee’s expert testimony from becoming a summary of the evidence or a circumvention of the United States’ burden to prove its case with admissible evidence. As to the second issue, the Court concludes that Acee’s anticipated testimony does,not violate rule 704, because he will not opine directly on Rodriguez’ knowledge, or lack thereof, of the marijuana that was hidden in the vehicle in Rodriguez’ possession. As to the third issue, the Court concludes that some of Acee’s anticipated testimony — that which relates to the Juarez Cartel’s acts of violence and public corruption in Mexico— fails the rule 403 balancing test and will be excluded. As to the fourth and final issue, the Court concludes that, while there were shortcomings in the United States’ Notice of Expert Witness Testimony, filed June 10, 2015 (Doc. 61)(“Notice”), the evidentiary hearing that the Court conducted the week before trial mitigated these deficiencies. The Court will thus grant the MIL in part and deny it in part.

FACTUAL BACKGROUND

The Court sets forth these facts as the United States alleges them in its Superseding Indictment, filed July 24, 2014 (Doc. 9)(“Indictment”), and the United States’ Response to Defendant’s Appeal of Detention Order, filed April 20, 2015 (Doc. 36)(“Detention Appeal”), bearing in mind, of course, that Rodriguez is presumed innocent of all charges, see Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976)(“The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” (citing Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 39 L.Ed. 481 (1895))). The Court recites the United States’ version of the facts merely because the high burden of proof placed on it necessitates that it have a cogent, internally consistent version of events, and not out of any predisposition to believe the United States’ side of the story. See In re Winship, 397 U.S. 358, 365, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)(“[W]e explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”).

In late 2013, the FBI was conducting an investigation involving the Vincente Carrillo Fuentes Organization, also known as the Juarez Cartel or La Linea. See Indictment ¶ 1, at 1; Detention Appeal at 1. Undercover agents were in contact with members of the Juarez Cartel and were arranging for the importation of cartel-produced cocaine and marijuana into the United States. See Detention Appeal at 1. Members of the Juarez Cartel. provided the FBI with a 2004 Dodge Durango sport utility vehicle (“SUV”), and the undercover source was instructed to register the vehicle. See Detention Appeal at 1. Afterward, the undercover source would return the vehicle to Juarez Cartel representatives in Mexico, who would load it with marijuana and cocaine, and then transport it back into the United States with the drugs hidden inside. See Detention Appeal at 1. The FBI installed a tracking device in the SUV, and in December, 2013, a member of the Juarez Cartel took possession of the SUV and took it into Mexico. See Detention Appeal at 1-2.

In February, 2014, FBI agents conducted an international controlled delivery from Juarez, Mexico to Albuquerque, New Mexico. See Detention Appeal at 2. The SUV was delivered to the undercover agent on the Bridge of the Americas in El Paso, Texas. See Detention Appeal at 2. The undercover agent then drove the vehicle to Albuquerque and met with Rodriguez, who was going to take possession of the vehicle. See Detention Appeal at 2. A high-ranking member of the Juarez Cartel — co-Defendant Jorge Olivas Nevarez, more commonly known as “Compa Chuy” — had provided Rodriguez’ telephone number to the undercover agent. Detention Appeal at 2. See Indictment at 1. Rodriguez met with the undercover agent and instructed the agent to follow him to a hotel to spend the night, and he also paid the undercover agent $2,890.00, which he had received from co-Defendant Guadalupe Prieto. See Detention Appeal at 2; Indictment at 1. Rodriguez indicated that he would pay the undercover agent the rest of the money owed to him in the morning. See Detention Appeal at 2. While FBI agents were conducting surveillance on Rodriguez, they observed him doing what appeared to them to be counter-surveillance runs — also known as heat runs — which consisted of him driving around in such a way that he would recognize any law enforcement surveillance vehicles following him. See Detention Appeal at 2. The FBI took possession of the SUV later that evening once Rodriguez had left the area, and an intensive search of the vehicle revealed approximately eighty-seven kilograms — or roughly 192 pounds — of marijuana. See Detention Appeal at 2.

PROCEDURAL BACKGROUND

A federal grand jury indicted Rodriguez — along with eleven co-Defendants, who remain at large in Mexico — on July 24, 2014. See Indictment at 1. The Indictment charges Rodriguez with a single count of possession of fifty kilograms or more of marijuana with intent to distribute it — a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). See Indictment at 8. Police in Santa Teresa, New Mexico, arrested Rodriguez on March 13, 2015, see Arrest Warrant, filed March 18, 2015 (Doc. 27), and his trial is currently set to begin July 6, 2015.

The United States filed its Notice on June 10, 2015, disclosing Acee and his anticipated testimony. See Notice at 1. The Notice first describes Acee and his qualifications. See Notice at 1-2. Acee is a special agent in the FBI’s Albuquerque division, where he primarily investigates Mexican drug cartels, Mexican drug trafficking organizations, and gang/criminal enterprises. See Notice at 1. He has been a law enforcement officer for sixteen years, six of which were with the FBI. See Notice at 2. He has undergone more than 800 hours of “formal training in the area of drug, firearm, and money laundering investigations,” including over forty formal classes. Notice at 2. He has participated in “several hundred drug investigations,” and the FBI has designated him a “subject matter expert” on the Juarez Cartel. Notice at 2. He handles a large number of often high-level informants in the Juarez Cartel, and he has debriefed numerous others, and reviewed “hundreds of hours” of intercepted telephone and radio communications among Juarez Cartel members. Notice at 2.

The Notice discloses the following opinions: (i) “that the quantity of marijuana seized in this case is a distributable amount, as opposed to a personal use amount,” Notice at 3; (ii) “the value of the marijuana,” Notice at 3; and (iii) “that the manner in which the marijuana was packaged in addition to the items seized with controlled substances is consistent with distribution,” Notice at 3. Acee also intends to offer testimony describing

the duties of different individuals involved in a marijuana trafficking scheme, a general overview of the business aspects of a marijuana trafficking scheme and how it involves the coordinated efforts of several different people to include people that do, among other things, the following: grow the marijuana, harvest the marijuana, package the marijuana, sell the marijuana, buy the marijuana, arrange for transportation of the marijuana, load the marijuana, transport the marijuana, unload the marijuana, stash the marijuana and distribute the marijuana.

Special Agent Acee may also testify that each of these roles is generally separate and distinct in a marijuana trafficking scheme, but that sometimes people have multiple tasks.

Notice at 3. The Notice concludes its disclosure. portion with the following: “Lastly, Special Agent Acee is expected to testify consistent with the introductory language contained in the ... [Ijndictment in this case.” Notice at 3. The Indictment’s “introductory language” contains no information about Rodriguez or any of the other Defendants in this case; it is, instead, an almost encyclopedic summary of the Juarez Cartel’s history and, in broad • strokes, its operations. See Indictment ¶¶1-10, at 1-6. .The Notice does not describe the basis for or the reasoning behind any of the proffered opinions . or topics of testimony— except, of course, insofar as Acee’s qualifications themselves form the basis for his testimony.

At a hearing on June 19, 2015, see Clerk’s Minutes, filed June 19, 2015 (Doc. 122), the Court heard a motion that Rodriguez had filed almost two months earlier seeking to strike the introductory language in the Indictment, see Defendant’s Motion to Strike Surplusage from the Redacted, Superseding Indictment, ' filed April 30, 2015 (Doc.- 42): The Court concluded that it would not strike any of the Indictment, but that the introductory information about the Juarez Cartel would be prejudicial to Rodriguez, and, thus, the Court would not read that portion of the Indictment to the venire (before voir dire) or to the jury (in its instructions). See Transcript of Hearing at 3:15-4:10 (taken June 19, 2015) (“[I]t’s a little early, for the Court to start striking portions from the [•I]ndictment[, but] we can probably read only Count 7 to the. jury, and just see if they know Mr. Rodriguez[ or] anything ábout just the bare bones of this casé — ”).

Rodriguez filed the MIL fifteen days after the United States filed the Notice, asking the Court to strike “in part” Acee’s testimony. MIL at 1. Rodriguez seeks to bar Acee from offering expert testimony on four grounds: (i) .that Acee’s anticipated testimony is not a suitable topic for expert testimony in this case, see MIL ¶ 5, at 4; (ii) that the United States’ Notice of Expert-Witness Testimony, which is the only document relating to Acee’s testimony that the United States has filed, constitutes an inadequate disclosure of Acee’s opinions and his basis for holding them, see MIL ¶ 3, at 3; (iii) that the ultimate-issue doctrine bars Acee’s testimony, see MIL ¶ 6, at 4; and (iv) that the unfair prejudicial impact of Acee’s testimony substántially outweighs its probative value, see MIL ¶4, at 3^4. Rodriguez argues that the United States

never explains how Special Agent Acee’s recitation of the facts contained in “the introductory language contained in the .... [I]ndictment” will assist the trier of fact in determining Mr. Rodriguez’s guilt. Nor does the Government describe why a description of the Juarez Drag Cartel is even necessary in this .case, especially since there is no evidence that Mr. Rodriguez is a member of the Cartel. Finally and most significantly, because Special Agent Acee did not prepare an expert witness report particular to this case or disclose the basis for his opinions on the Juarez Drug Cartel, there is simply no way for this Court to perform its gate keeping function to determine whether Special Agent Acée’s opinions are both relevant and reliable.

Like the situation which the Court confronted in United States v. Thomas R. Rodella, No. CR 14-2783 JB [101 F.Supp.3d 1075, 2015 WL 1906117] (D.N.M.2015)(Browning, J), here it is unclear how Special Agent Acee arrived at his proffered expert opinions supporting the introductory paragraphs of the Superseding Indictment. There is simply no indication in the Government’s Notice of what, if any, methodology Special Agent Acee used in arriving at his opinions, there is no explanation for how his experience leads -him to reach the conclusions he will offer, how that experience is reliably applied to the facts of the case or why that experience: is a sufficient basis for the opinion. Instead, it appears that Special Agent Acee’s opinions arrive fully formed in perfect conformity to the facts of this case immune from any challenge to the basis of his opinion or his methodology. The Rules of Evidence will not countenance such “expert” testimony.

In addition, Mr. Rodriguez objects to Special Agent Acee’s proffered testimony because it is nothing more than the functional equivalent of an F.B.I. Special Agent’s testimony that Mr. Rodriguez had knowledge of the smuggling scheme, in violation of Rule 704(b). Mr. Rodriguez insists that Special Agent Acee’s testimony is nothing, more than a ruse to undermine Mr. Rodriguez’s efforts to disprove the only disputed element in this case, ie., knowledge, by presenting improper association evidence to, suggest, ipse dixit, that everyone who interacts with the Juarez Drug Cartels knows he is interacting with the Juarez Drug Cartel. There is simply no basis for this outrageous conclusion.

MIL at 6 (quoting Notice at 3).

The United States responded six days after Rodriguez filed the MIL — five days before the start of trial. See United States’ Response to Defendant’s Motion to Strike the Expert Testimony of Bryan Acee (Doc. -81), filed July 1, 2015 (Doc. 100)(“Response”). It contends that,

to the extent that Defendant challenges Special Agent Acee’s qualifications, the United States has provided; defense counsel with his curriculum vitae....

As for relevancy, the defense in this case is ' that Defendant did not have knowledge that there were drugs hidden inside the vehicle involved in this undercover operation. Thus, his knowledge is 'truly the only contested issue. '

The anticipated' expert testimony from Special Agent Bryan Acee will include members and associates of the Juarez Cartel would not let a stranger or a person that is not trusted by the Cartel take possession of the vehicle. Additionally, Defendant’s actions in the undercover investigation are inconsistent with a “car deal” and are consistent with that of a person involved in a narcotics transaction. For instance, Defendant conducts counter surveillance on the vehicle involved and goes as far as making “heat runs.” As such, the proposed testimony is relevant and is properly subject to Special Agent Bryan Acee’s specialized knowledge, training and experience of over 15 years in dealing with narcotic traffickers and over six years in investigating the Juarez Cartel. Notably, the Court of Appeals for 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)(affirming admissibility of a DEA Special Agent’s expert testimony regarding the players involved in a drug trafficking organization);

As to Defendant’s argument that the proposed testimony is prejudicial, evidence is “not unfairly prejudicial simply because it is damaging to an opponent’s case.” United States v. Caraway, 584 F.3d 1290, 1301 (10th Cir.2008). In this case, the relevancy outweighs any prejudice given that the United States has the burden to prove Defendant’s knowledge.

Lastly, Special Agent Acee’s testimony will not invade the province of the jury. Special Agent Acee will not be testifying that Defendant had actual knowledge of the drugs. Although Special Agent Acee is a fact witness, the United States will separate his factual testimony from his expert testimony.

Response at 4-5 (citations omitted).

The Court held a hearing — on the MIL and a number of other pretrial motions— on July 2, 2015. See Transcript of Hearing (taken July 2, 2015)(“Tr.”). Rodriguez stated that he had no problem with the bulk of Acee’s anticipated testimony but that he did not want Acee to testify on the ultimate issue, to which the Court, responded:

THE COURT: You keep saying the ultimate issue of fact. Is that what you mean that the thing you most fear from Mr. Acee is that he’s going to say that this organization he’s going to opine based on his experience that the organization is not going to entrust a load of marijuana this size to somebody that is not knowledgeable about what’s going on.

MR. PORI: Yes, Your Honor.

THE COURT: Is that — that’s the thing that’s coming out of his mouth that you fear the most.

MR. PORI: Yes.

Tr. at 32:19-33:5 (Court, Pori). The United States indicated that it did indeed intend to elicit testimony from Acee that Rodriguez’ actions were inconsistent with those of a blind mule. See Tr. at 35:7-16 (Armijo). It also stated that it still intended to have Acee testify to the facts outlined in the introductory portion of the Indictment, despite the Court declining to read those passages to the jury. See Tr. at 36:23-37:25 (Court, Armijo). Rodriguez stated that he had “no objection to [Acee] ... testifying in general about the sociological aspects of this criminal organization,” Tr. at 39:13-15 (Pori), but that, “when you tran[s]form[ ] from sociologist into case agent, testifying as an expert that these facts fit precisely with the manner of the cartel in his expert opinion[,] that’s objectionable testimony,” Tr. at 39:21-25 (Pori).

The Court then held an evidentiary hearing to examine Acee; the dual purpose of calling Acee to the stand was to analyze his expertise pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (“Daubert”), and to allow Rodriguez to fully cross-examine Acee on his testimony, thus alleviating any deficiencies in the Notice. See Tr. at 42:3-11 (Court)(“I need to hear ... [and] probably Mr. Pori needs to hear[,] so we make sure that we’re not surprised at trial ... [,] what his testimony [is] ... [and] what he’s going to say so that ... Mr. Pori [can] attack the basis for it, and then I’ll make a determination ... under Daubert .... ”). On direct examination, Acee gave his qualifications and stated that he was the case agent assigned to investigate the case that resulted in Rodriguez’ arrest. See Tr. at 45:4-12 (Armijo, Acee). Acee stated that neither he nor anyone else with the FBI task force he led knew Rodriguez before the day of his apprehension. See Tr. at 46:5-14 (Acee). He said that the FBI had sent an undercover agent to talk to a known Juarez Cartel higher-up in Mexico, and that the higher-up — named Compa Chuy — had told the undercover agent that the agent would receive a telephone call from Compa Chuy’s “contact.” Tr. at 46:5-14- (Acee). Acee testified that Rodriguez called and arranged to meet with the undercover agent at a motel. See Tr. at 46:20-25 (Acee). Acee then described what he deemed to be Rodriguez’ incriminating behavior, ie., behavior indicating that Rodriguez knew the nature of the activity in which he was engaged:

[Rodriguez] indicated to them that he had some money for them to check into a room, and to wait, I don’t know his exact words as I sit here but basically directing the undercover and the informant to wait in the hotel room and just relax while he and another gentleman took care of the vehicle. There was some statement about waiting till someone got off work. So the undercover and the informant did in fact use that money to rent a room, and went to that room or went to get something to-eat, kind of in that order in that general area while we maintained surveillance on both the load vehicle as well as • the defendant, and once the load vehicle had been directed to the motel parking lot, the defendant then left the immediate area and this is from my watching the defendant as well as the aircraft video, does what I would refer to as a heat run in law enforcement speak.

Q. What is a heat run?

A. It’s, it would be defined as counter surveillance or surveillance detection runs, and I can describe in general what .that is or specifically in this incident what I recognized and would call ought to be a, when we see these type of things we want to tell the ground units to back off. Because we’re dealing with perhaps a more experienced crook or someone who could easily pick us up and burn this whole operation down and [t]hat’s the point of having an aircraft up is we don’t have to have the ground units in close for that kind of thing. So I directed the ground units to actually give him some room and let the aircraft take over and we’ll see that in the video— So what the defendant did is he took kind of a s[l]ow long route to ultimate his ultimate destination point which was directly across the street where he positioned his vehicle, .and then watched the load vehicle, and just sat there watching it no some time. After that, of course we continued surveillance, and then the defendant went to a couple other locations, at one point he went to a home depot to a restaurant, none of which he stayed at very long. In fact that when he went to the restaurant he just parked in the back, sat there for a few moments, watching cars pass by, seeing if other vehicles turned into the parking lot, aind then left that area.

Q. Did you also later on see him meet with another individual?

A. I did.

Q. And what happened there?

A. That individual was someone that I immediately recognized, we’ve discussed or you’ve discussed the Court’s discussed and that was Guadalupe Prieto, a very well known subject, a target of my investigation. He’s been characterized as sort of the cartel’s broker or point of contact for the State of New Mexico as well as other areas of. the country and interestingly enough when he met the defendant in this circumstance it was in a vehicle, we had seen before arid had met with other informants and' other undercovers as to immediately myself and task force officer did he that’s at the same time are kind of stepping on each other on the radio, this is Prieto- We know his car. He’s calling out thé plate, saying we know the car and at the same time I’m cutting into his transmission, “That’s Prieto, he just drove by me,”

Q. And what is the interaction between the two of them?

A. They have like • a door to door brief meeting and exchange that we later íearned was currency, exchange of money to be paid to the undercover for driving the vehicle up.

Q. And is' that in any way consistent behavior with in your opinion as to illegal drug activity?

A. It is, and I say that because it’s foolish to expose the entire organization to some unknown character or driver.

Tr. at 47:1-48:21 (Acee, Armijo); id. at 49:22-51:3 (Armijo, Acee).

On cross-examination, Acee admitted that he had, in his many years of law enforcement, had some experience with blind mules, ¿a, that they exist, and the drug cartels occasionally use them. See Tr. at 70: -22-23 (Pori, Acee). Acee stated that he had seen blind mules “three or four” times, but that the cartels used blind mules only in two situations. Tr. at 70:25 (Acee). First, Acee testified that, when the driver does not have trué control of the load — namely, commercial tractor-trailer drivers 'who drop off their hauls without opening or knowing anything about their contents — the ‘cartel might have an insider at the drop-off point but use a legitimate, innocent driver. See Tr. at 78:3-10 (Acee). Second, Acee said that, if the cartel uses a blind mule in other situations — those in which the cartel would have to retrieve the drugs from the vehicle itself, rather than relying on the mule to drop off a detachable, closed load — they will always track the vehicle as it travels, either through in-person surveillance or GPS tracking.- See 78:15-17 (Acee).

After receiving testimony, the Court stated that it would prohibit references to the cartel’s operations in Mexico, except to the extent that Rodriguez desires to bring them up to bolster his case that a sophisticated drug-trafficking organization tricked him into unknowingly delivering drugs — a defense that obviously benefits from showing the jury other ways in which the organization employs sophisticated and devious means of getting drugs into the United States; the Court also stated that it would remove the first name on the Indictment, which belongs to the head of the Juarez Cartel, whom some jurors might recognize. See Tr. at 127:14-25 (Court). The Court also told the United States that Acee could testify that Rodriguez’ driving was consistent with heat runs, but, if Acee so testified, he must also testify that it could be consistent with a number of other, innocent explanations, like being drunk or lost. See Tr. at 110:10-17 (Court). The Court also stated that it would not allow Acee to draw the final conclusion that Rodriguez’ conduct, overall, was inconsistent with that of a blind mule. See Tr. at 104:2-13 (Court). Last, Rodriguez stated that the hearing satisfied his request for fuller disclosure and dropped his contention that the United States’ disclosure of Acee’s testimony was inadequate under rule 16(a)(1)(G). See Tr. at 108:3-14 (Court, Pori)(“[Y]es, that addresses my disclosure issues.”)..

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 “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:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable -principles and methods; and

(d)the expert has reliably applied the : principles and methods 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 proposed testimony meets the pertinent admissibility requirements. 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 Electric 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 Daubert Standard.

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 an$ relevant to the facts of the case, ie., whether it is helpful to the trier of fact. See Daubert, 509 U.S. at 594-95, 113 S.Ct. 2786; Witherspoon v. Navajo Ref. Co., LP, No. CIV 03-1160 BB/LAM, 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, 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 expert reached the opinion 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 United States Court of Appeals for 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 Pharmaceuticals, Inc., 43 F.3d 1311, 1315 (9th Cir.1995) (on remand from the Supreme Court); Daubert, 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 extended the applicability of the Daubert standard to non-seientific 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 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, the court must focus generally on “principles and methodologies, and not on the conclusions generated.” Armeanu v. Bridgestone/Firestone N. Am., Tire, LLC, No. CIV 05-0619 JB/DJS, 2006 WL 4060665, at *11 (D.N.M. Sept. 26, 2006) (Browning, J.)(citing Daubert, 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. 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. 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 (citation omitted).

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. CIV 05-1083 JB/WPL, 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 Corp., 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) (Sparr, J.)(“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 Truck Ins. Exch. v. MagneTek, Inc., 360 F.3d 1206, 1213 (10th Cir.2004)(“The district court noted that [the expertj’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.

The restrictions in Daubert apply to both “novel” expert testimony and “well-established propositions.” Daubert, 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, 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, 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...." Att’y 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.” Att’y 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 Att’y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d at 780 (“The case law indicates that the courts are not unfamiliar with the [polymerase chain reaction] methodology, and in fact some courts have indicated their acceptance of it.”).

4. The Prohibition on Using Expert Testimony to Bolster Other Witnesses’ Credibility.

“The credibility of witnesses is generally not an appropriate subject for expert testimony.” United States v. Toledo, 985 F.2d 1462, 1470 (10th Cir.1993). See United States v. Ganadonegro, 805 F.Supp.2d 1188, 1213 (D.N.M.2011) (Browning, J.)(excluding expert testimony on whether defendant’s confession was credible).

There are several reasons for the prohibition against expert testimony on other witness’ credibility. Such testimony: (1) “usurps a critical function of the jury”; (2) “is not helpful to the jury, which can make its own determination of credibility”; and (3) when provided by “impressively qualified experts on the credibility of other witnesses is prejudicial and unduly influences the jury.”

United States v. Hill, 749 F.3d 1250, 1258 (10th Cir.2014) (quoting United States v. Toledo, 985 F.2d at 1470). The bar on credibility-bolstering expert testimony is grounded in a number of evidentiary rules. See United States v. Charley, 189 F.3d 1251, 1267 n. 21 (10th Cir.1999) (en banc). Expert testimony that vouches for the credibility of other witnesses lacks “relevance [under rule 401] and would not ‘assist the trier of fact as required by Rule 702.’ ” United States v. Adams, 271 F.3d 1236, 1246 (10th Cir.2001) (quoting United States v. Charley, 189 F.3d at 1267). See United States v. Harry, 20 F.Supp.3d 1196, 1242-13 (D.N.M.2014) (Browning, J.)(concluding that expert’s testimony was not relevant if expert testified that 'Witness’ demeanor suggested that the witness was not subjected to a sexual assault, because the testimony impermissibly went to the witness’ credibility). '

Courts have also held that testimony which vouches for the credibility of a witness violates, othqr evidentiary rules, such as Rule 608(a)(1) or Rule .403. Some courts have held that, although Rule 608(a)(1) “permits testimony concerning a witness’s general character or reputation for truthfulness,” it “prohibits any testimony as to a witness’s truthfulness on a particular occasion.” State v. Rimmasch, 775 P.2d 388, 391 (Utah 1989)(construing Utah R. Evid. 608); see also United States v. Azure, 801 F.2d 336, 341 (8th Cir.1986); State v. Wood, 194 W.Va. 525, 460 S.E.2d 771, 778 (W,Va.1995) (construing W. Va. R. Evid. 608); People v. Koon, 713 P.2d 410, 412 (Colo.Ct.App.1985) (construing Colo,, R. Evid. 608). And at least one court has held, in a sexual abuse ease, that testimony that bolsters the credibility of the complaining witness violates Rule 403’s balancing test. United States v. Funds Held in the Name or for the Benefit of John Hugh Wetterer, 991 F.Supp. 112, 120-21 (E.D.N.Y.1998).

United States v. Charley, 189 F.3d at 1267 n. 21. See United States v. Benally, 541 F.3d 990, 995 (10th Cir.2008)(affirming district court’s exclusion of vouching testimony under rule 403’s balancing test). The bar on bolstering a witness’ testimony extends only to expert testimony concerning the witness’ credibility and not to expert testimony that is consistent with another witness’ testimony. See United States v. Charley, 189 F.3d at 1264. In United States v. Charley, the Tenth Circuit held, en banc, that the district court did not err in permitting an expert witness to testify that the actions and symptoms of two girls were consistent with those of a sexual assault victim. See 189 F.3d at 1264. The expert’s testimony was consistent with the two girls’ testimony that they had been sexually assaulted. See 189 F.3d at 1258. The Tenth Circuit held, however, that the district court erred in permitting a psychiatrist to testify that he believed the girls were sexually assaulted, based on statements the girls made to the psychiatrist, because the testimony “was essentially vouching for [the girls’] truthfulness.” 189 F.3d at 1267.

In United States v. Chaco, 801 F.Supp.2d 1200 (D.N.M.2011) (Browning, J.), the Court permitted a doctor to testify that an examination of a sexual assault victim did not show any signs of sexual assault but that the majority of physical examinations on sexually assaulted prepubescent girls result in normal findings. See 801 F.Supp.2d at 1216. The Court permitted the doctor to testify that the examination, which resulted in no evidence of sexual abuse, was still consistent with the victim being sexually abused. See 801 F.Supp.2d at 1216. The Court excluded, however, testimony from the doctor that the victim had been sexually assaulted, because the doctor knew that the victim was sexually assaulted based on statements that the victim made to the doctor. See 801 F.Supp.2d at 1216. The Court reasoned that permitting the doctor to testify that the victim had been sexually assaulted would serve to impermissibly vouch for the witness’ credibility. See 801 F.Supp.2d at 1216 (citing United States v. Velarde, 214 F.3d 1204, 1211 n. 6 (10th Cir.2000)), The Court concluded, however, that the doctor’s testimony that the examination results were consistent with that of a sexual assault victim was based on the doctor’s knowledge and experience, and was, thus, permissible expert testimony. See United States v. Chaco, 801 F.Supp.2d at 1216. Similarly, in United States v. Harry, 20 F.Supp.3d 1196 (D.N.M.2014) (Browning, J.), the Court allowed a SANE nurse to testify that a sexual assault victim’s injuries were consistent with her version of events — that the defendant raped her. See 20 F.Supp.3d at 1238-39. The Court noted that the expert could not determine whether the sex was consensual or whether the defendant was the alleged abuser. See United States v. Harry, 20 F.Supp.3d at 1239-40. The Court, however, excluded the testimony of another expert, who sought to testify that the victim’s demeanor during the sexual-assault examination suggested that she was not assaulted, because the credibility of witnesses was not an appropriate subject for expert testimony. See United States v. Harry, 20 F.Supp.3d at 1240-43.

LAW REGARDING EXPERT TESTIMONY BY LAW ENFORCEMENT OFFICERS

“[P]olice officers can testify as experts based on their experience ‘[because the average juror is often innocent of the ways of the criminal underworld,’ ” United States v. Kamahele, 748 F.3d 984, 998 (10th Cir.2014)(alteration in United States v. Kamahele but not in quoted source) (citation omitted), and “because it is likely to assist the trier of fact to understand an otherwise unfamiliar enterprise,” United States v. Wilson, 276 Fed.Appx. 859, 861 (10th Cir.2008) (unpublished). See United States v. Quintana, 70 F.3d 1167, 1171 (10th Cir.1995)(“This Court has repeatedly held that in narcotics cases, expert testimony can assist the jury in understanding transactions and terminology.” (citing United States v. Garcia, 994 F.2d 1499 (10th Cir.1993); United States v. Sturmoski 971 F.2d 452, 459 (10th Cir.1992); United States v. McDonald, 933 F.2d 1519, 1522-23 (10th Cir.1991); Specht v. Jensen, 853 F.2d 805, 809 (10th Cir.1988))). 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. CR 05-0469 JB, 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 Circuits 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)(“[T]estimony on the modus operandi of criminals ‘is commonly admitted,’ particularly regarding the methods of drug dealers.”). For example, 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). The Tenth Circuit has also recognized that, when a defendant denies awareness, the value of drugs found is relevant to the issue of a defendant’s knowledge of the presence of the drugs within the vehicle. See United States v. Rodriguez, 192 F.3d 946, 949 (10th Cir.1999) (citing United States v. Hooks, 780 F.2d 1526, 1532 (10th Cir.1986)).

Although early cases dealing with this genre of expert testimony articulated the standard of admissibility as being whether the expert testimony is “necessary” to achieve jury understanding, United States v. Robinson, 978 F.2d 1554, 1563 (10th Cir.1992) (“[G]ang-related items may necessitate the appearance of an expert witness if the jury could not understand the significance of possession of these items.” (emphasis added) (citation omitted)); id. at 1564-65 (“[T]he expertise of this particular witness was necessary. ... The average juror would fail to recognize the ‘significance of this evidence without the particular background knowledge’ of gangs and the philosophy of gang membership. ‘Without [the expert testimony], the basic evidence would leave a juror puzzled.’ ” (emphases added)(quoting United States v. McDonald, 933 F.2d at 1522)), more recent cases — perhaps as a result of the broader liberalization of expert testimony that accompanying the replacement of the Frye v. United States, 293 F. 1013 (D.C.Cir.1923), standard with the Daubert, standard— articulate the standard as being whether the expert testimony “.will assist the trier of fact,” United States v. Rodriguez-Felix, 450 F.3d 1117, 1122 (10th Cir.2006) (emphasis added), or whether it. will be “helpful to the jury,” United States v. Kamahele, 748 F.3d at 997.

There are special concerns attendant to law enforcement expert testimony. The Court will first describe United States v. Medina-Copete, 757 F.3d 1092 (10th Cir.2014)(“Medina-Copete”), which appears to be the sole case from the Tenth Circuit — which has generally broadly approved expert testimony by.law enforcement officers — reversing a district court for allowing such testimony. Second, the Court will describe the special dangers of expert testimony by law enforcement officers as other Circuits, particularly the United States Court of Appeals for the Second Circuit, have outlined them.

1. Medina-Cópete and Tools of the Trade.

It ' is noteworthy ' that the Tenth Circuit routinely identifies - so-called tools of the drug trade — such as razor blades, pagers and beepers, pistols, and food stamps — as being particularly appropriate subjects of law enforcement-expert testimony, see, e.g., United States v. Becker, 230 F.3d 1224, 1231 (10th Cir.2000); United States v. McDonald, 933 F.2d at 1522, but law enforcement expert testimony is by no means limited to tools of the trade. The Tenth Circuit has upheld law enforcement expert testimony describing drug-dilution practices and street names for drug weights, see United States v. Quintana, 70 F.3d at 1171, stating that the defendant fits the “profile” of someone who commits the crime with which the defendant is charged, United States v. Becker, 230 F.3d at 1231, and explaining general procedures followed at drug transactions, such as that “outsiders [are] not .... allowed to count and handle money,” United States v. Wilson, 276 Fed.Appx. at 861. “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 indicia 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. Lovern, 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 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 ‘explain[ ] 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)(Williams, J., joined by Niemeyer & Gregory, JJ.).

In most of the Tenth Circuit’s cases, there appears to be no analytical distinction between “tools of the trade” testimony and other law enforcement expert testimony — the former is simply a prominent genus of the latter. That said, the Court can find only one case in which the Tenth Circuit held that a district court abused-its discretion by permitting law enforcement expert testimony—Medina-Copete—and that case reversed the Court at least in part on the basis that the subject about which the law enforcement expert witness testified was not a tool of the trade. Medina-Copete appears to be not only the sole Tenth Circuit case reversing a district court for allowing law enforcement expert testimony, but the only case even holding that a district court abused its discretion in admitting such testimony. In that case, the Tenth Circuit reversed the Court’s decision to allow an expert witness — the United States Marshal. for .the Western District of Texas — to testify that a prayer card recovered from the defendants suggested their involvement in the drug trade. See Medina-Copete, 757 F.3d at 1099. The prayer card venerated Santa Muerte, a figure whom the Roman Catholic Church does not recognize as a Saint and who is widely referred to — by the Marshal and in popular culture — as a “narco saint." 757 F.3d at 1101. The case is an unusual one, in which the-Tenth Circuit, for the first time, appeared to suggest that tools-of-the-trade testimony is analytically distinct fi*om other expert testimony. See Medina-Copete, 757 F.3d at 1102-03. Alternatively, the Tenth Circuit may have simply been saying that- a prayer card is not a tool of the trade, while implicitly conceding that tools of the trade often support-expert testimony. Either way, while the Court had ruled that Santa -Muerte’s association with the drug trade — the pseudo-saint is widely popular among the drug cartels, but plays virtually no role in law-abiding citizens’ lives — was a worthy topic of expert testimony, the Tenth Circuit wanted something more:

In assessing 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 “[djrawing 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, we discussed the relationship between tools of the trade and physical evidence indicating gang membership. 978 F.2d at 1563 (stating that gang-related items were “similar to” tools of the trade). 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 th