Guillermo Vallejo claims he did not know that forty kilograms of marijuana were hidden in the white Honda that he drove across the Mexican border into the United States.
Vallejo, a California high school student, met a purported car importer at a swap meet. The importer, named Bebo, hired Vallejo to transport the car into the United States for fifteen dollars.
Crossing Border: What 40 Kilos?
Vallejo’s friend, Francisco Harrera, accompanied him to meet Bebo. Harrera thought that Bebo would have a car for him to drive as well. Although confusion surrounds why, Harrera ultimately stayed behind, and Vallejo crossed the border on his own.
At the Calexico port of entry, customs inspectors found the marijuana meticulously concealed under the back seat, behind the back seat rest, behind the rear quarter panels, and in the dashboard.
Two Languages, Two Cars, Too Confusing
Customs Agent Pina asked Vallejo whether he wanted to speak in English or Spanish. Vallejo replied that he spoke both languages. With an interpreter present, Agent Pina explained each Miranda right in English, and Vallejo initialed a DEA form to confirm that he understood. Inspectors continued to question Vallejo in Spanish. Vallejo’s answers alternated between English and Spanish.
Agent Pina and Vallejo recounted the interrogation differently, especially surrounding the issue of why Harrera did not drive a second car across the border.
According to Vallejo, neither he nor Harrera knew of the marijuana in the white Honda. Harrera did not drive another car into the United States because Bebo, the importer, did not have another car for him to drive.
According to Pina, Vallejo’s statements prove that he knew there was marijuana in the car, and amount to a confession. Vallejo said Harrera became suspicious that Bebo was importing drugs, not cars, and decided not to drive a second car across the border. Harrera’s suspicion must have made Vallejo aware of the drugs in the white Honda.
In the Federal Southern District Court of California the jury convicted Vallejo of importation and possession with intent to distribute marijuana. Vallejo was sentenced to twenty-one months in custody and appealed to the United States Court of Appeals for the Ninth Circuit.
The expert testimony of the psychologist would have inextricably linked the issue of Vallejo’s knowledge with the issue of his language difficulties.
Testimony Rambles into “Toolies”
One basis for Vallejo’s appeal was that the District Court excluded testimony of his school psychologist and Director of Special Education. Vallejo offered this testimony to explain how language difficulties caused inconsistencies between his and Agent Pina’s recollections of the interrogation. According to Vallejo, his language difficulties caused Agent Pina to misperceive his alleged confession.
The Government argued that “Vallejo was simply lying.”
The District Court held that the psychologist’s testimony was “totally irrelevant and remote” and ruled it inadmissible:
[I]f you had an examining doctor who could give a medical opinion, psychological opinion, because of his examination of the Defendant, his IQ scores, and his testing that he’s done with him—and I’ve permitted those people to testify.
This guy—this person hasn’t done any of these things and I’m not going to permit him to start rambling off into the toolies about things that he doesn’t know would specifically apply to this Defendant or not. So the answer is no.”
To the contrary, the Court of Appeals said the answer is yes.
“In fact, the Supreme Court has consistently held to the contrary. In Daubert, the Court stated that ‘an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.’” The expert testimony of the psychologist would have inextricably linked the issue of Vallejo’s knowledge with the issue of his language difficulties.
Deception or Misperception? Psychologist’s Call
The Court of Appeals ruled that the testimony was admissible under Rule 702 of the Federal Rules of Evidence. Rule 702 first requires that expert testimony must “address an issue beyond the common knowledge of the average layman.” (U.S. v. Morales, 1997) The psychologist’s testimony went beyond the layman’s common knowledge. It would have explained the unique problems that a former special education student such as Vallejo might encounter when communicating in a high-pressure situation such as an interrogation.
The testimony was pertinent to explaining discrepancies in Pina and Vallejo’s recollections of the interrogation. If the jury accepted this explanation, they could assume that neither Vallejo nor Agent Pina was lying, but merely perceiving the communication differently.
The testimony was pertinent to explaining discrepancies in Pina and Vallejo’s recollections of the interrogation. If the jury accepted this explanation, they could assume that neither Vallejo nor Agent Pina was lying, but merely perceiving the communication differently.
The District Court emphasized that the psychologist never personally examined Vallejo. The Court of Appeals, following Daubert, stated that a personal physical examination is not a prerequisite for expert testimony. Rule 703 provides that an expert witness may base opinion or inference on facts or data “perceived by or made known to the expert at or before the hearing." Whether an expert personally examines a defendant is relevant only to the weight, not to the admissibility, of the testimony.
This expert examined documentation covering ten years of educational and psychological records pertaining to Vallejo. These records, combined with the witness’s observations at trial and a background in psychology, were sufficient basis for an opinion. The Court of Appeals held the testimony admissible under Rule 703.
Finally, the Court ruled the testimony admissible under Rule 403. The probative nature of the testimony outweighed any negative effect, and the government failed to prove that the testimony would confuse, mislead, or prejudice the jury.
Holding: The Ninth Circuit reversed and remanded for a new trial on the basis of the exclusion of the psychologist’s testimony. The Court held that the trial court abused its discretion. “As testimony regarding Vallejo’s ability to understand and communicate in English directly addressed the issue of Vallejo’s knowledge, we hold the error was not harmless.”
Postscript: Crim Pro 101
The Court of Appeals refused to speculate whether the testimony would have affected a preliminary ruling that Vallejo knowingly and intelligently waived his Miranda rights. The reason: Vallejo’s attorney did not timely offer the testimony in regard to the Miranda waiver. Is this indicative of a communication problem on Vallejo’s part, or on the part of his attorney? After all, where are language difficulties more relevant than to an understanding of Miranda rights?
