United States v. Ruben Taren-Palma, United States of America v. Ismael Calderon-Perez

dissenting in part.

While I concur in affirming Taren-Palma’s conviction, I believe that the district court’s allowing expert testimony regarding Calderon-Perez’ use of a firearm during the commission of the offenses for which he was convicted is reversible error, and I dissent on that basis.

Clearly, in order to be admissible, expert testimony must not be unduly prejudicial under Federal Rule of Evidence 403. “A trial court should not routinely admit [expert testimony], but should carefully weigh the testimony’s probative value against its possible prejudicial effect.” United States v. Espino sa, 827 F.2d 604, 612 (9th Cir.1987), cert. denied, 485 U.S. 968 , 108 S.Ct. 1243 , 99 L.Ed.2d 441 (1988). Applying this principle, this court has held that expert testimony is only admissible to establish the modus oper- *537 andi of crimes in complex cases, and that in simple cases, such evidence is unduly prejudicial. See United States v. Lim, 984 F.2d 331, 334-35 (9th Cir.1993), cert. denied, — U.S. -, 113 S.Ct. 2944 , 124 L.Ed.2d 692 (1993); United States v. Lui, 941 F.2d 844, 848 (9th Cir.1991) (citing United States v. Johnson, 735 F.2d 1200, 1202 (9th Cir.1984)). While Lim and Lui…

Ruben Taren-Palma appeals his conviction and sentence for conspiracy to possess with the intent to distribute cocaine, in violation of 21 U.S.C. §§ 846 , 841(a)(1) and 841(b)(l)(A)(ii). Ismael Calderon-Perez appeals his conviction and sentence for conspiracy to possess with the intent to distribute cocaine, in violation of 21 U.S.C. §§ 846 , 841(a)(1) and 841(b)(l)(A)(ii), and for unlawfully carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924 (e). We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm.

FACTS

On August 2, 1991, Drug Enforcement Administration Special Agent Yvonne Kaminski and Detective Larry Flick of the Phoenix Police Department, acting on information received from a confidential informant, Pat Seely¡ met with Taren-Palma and Seely at Taren-Palma’s apartment in Phoenix, Arizona, to negotiate a cocaine purchase. Seely had met with Taren-Palma on July 31, 1991 and told Taren-Palma about out-of-state friends interested in purchasing ten kilograms of cocaine. Kaminski and Flick were operating undercover and posing as those friends. At the meeting, Kaminski and Flick told Taren-Palma that they were from Omaha, Nebraska and were…

997 F.2d 525 37 Fed. R. Evid. Serv. 888 UNITED STATES of America, Plaintiff-Appellee, v. Ruben TAREN-PALMA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ismael CALDERON-PEREZ, Defendant-Appellant. Nos. 92-10085, 92-10110. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 2, 1993. Decided June 10, 1993. Jared O. Smith, Tempe, AZ, Craig Mehrens, Mehrens & Pearce, Phoenix, AZ, for defendants-appellants. Peter Jarosz, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before: FARRIS, POOLE, and WIGGINS, Circuit Judges. PER CURIAM: 1 Ruben Taren-Palma appeals his conviction and sentence for conspiracy to possess with the intent to distribute cocaine, in violation of 21 U.S.C. §§ 846 , 841(a)(1) and 841(b)(1)(A)(ii). Ismael Calderon-Perez appeals his conviction and sentence for conspiracy to possess with the intent to distribute cocaine, in violation of 21 U.S.C. §§ 846 , 841(a)(1) and 841(b)(1)(A)(ii), and for unlawfully carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924 (c). We have jurisdiction…