United States v. Modesto Ozuna ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2480
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ODESTO O ZUNA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 757—John F. Grady, Judge.
A RGUED D ECEMBER 10, 2008—D ECIDED A PRIL 6, 2009
Before P OSNER, K ANNE, and R OVNER, Circuit Judges.
K ANNE, Circuit Judge. On July 28, 2003, agents of the
Drug Enforcement Agency stopped a tractor-trailer
driven by Modesto Ozuna. After searching the trailer,
allegedly pursuant to Ozuna’s consent, the agents found
200 kilograms of cocaine. Ozuna was later arrested and
indicted for possession with the intent to distribute
more than five kilograms of cocaine. The district court
initially suppressed the evidence from the search because
the government had failed to prove by a preponderance
2 No. 07-2480
of the evidence that Ozuna consented to the search. It
later reopened the suppression hearing to consider the
testimony of two handwriting experts regarding whether
a signature on the consent form belonged to Ozuna. Based
on this new evidence, the court vacated its prior order
and found the evidence admissible. Ozuna appeals the
district court’s decision to reopen the suppression
hearing and its reliance on the government’s handwriting
expert. He also appeals the district court’s decision to
exclude certain testimony he wished to present at trial.
We now affirm.
I. B ACKGROUND
In July 2003, Agent Michael Lumpkin of the Drug
Enforcement Agency informed DEA agents in Chicago
that two drug distributors, Claudio Aguilar and Mario
Garcia, were orchestrating a drug exchange in the
Chicago area using a tractor-trailer registered to “Ozuna’s
Express.” On July 28, the Chicago agents pulled over
Modesto Ozuna, who was driving a tractor-trailer bearing
the name “Ozuna’s Express.” A search of the trailer,
purportedly pursuant to Ozuna’s consent, revealed
200 kilograms of cocaine hidden among a load of limes.
Ozuna was taken to a DEA office, where, according to
agents, he admitted that he was transporting illegal
drugs. Ozuna told the agents that he wished to cooperate
against Aguilar, so he was allowed to return to Texas
for that purpose. Ozuna was released but was arrested
again in August 2004. He was subsequently indicted
No. 07-2480 3
for possession with intent to distribute more than five
kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1).
During the proceedings that followed, the government
and Ozuna recited different versions of the events sur-
rounding Ozuna’s apprehension and arrest. Disagreement
regarding these facts led to a number of evidentiary
challenges that have become the subject of this appeal.
A. Ozuna’s Motions to Suppress the Seized Cocaine
On January 12, 2005, Ozuna filed a motion to suppress
the 200 kilograms of cocaine seized from his vehicle,
arguing that he did not consent to the trailer’s search.1 On
March 2, 2005, the court held a suppression hearing,
at which DEA Special Agent Robert Glynn and Ozuna
both testified as to their recollections of the search on
July 28, 2003.
Glynn testified that, pursuant to information received
from Lumpkin, he and other agents began surveillance
of Aguilar and Garcia at O’Hare airport. Agents watched
Aguilar and Garcia drive to a hotel, where they also saw
Ozuna, who was driving a tractor-trailer. Based upon
what they witnessed and information received from
Agent Lumpkin, the agents stopped Ozuna’s tractor-trailer.
1
Ozuna also argued that the agents lacked reasonable
suspicion to stop the tractor-trailer and that his stop resulted
in an arrest without probable cause, but only the question of
his consent is relevant to this appeal.
4 No. 07-2480
Glynn and Task Force Officer William McKenna ap-
proached the driver’s door of the vehicle. According to
Glynn, he asked for Ozuna’s consent to search the
trailer, and Ozuna agreed. Ozuna told the agents that
the trailer was locked, and Glynn permitted him to
retrieve the key from the cab. Ozuna then unlocked the
trailer door.
Glynn testified that he retrieved a DEA consent-to-
search form from his car and read it to Ozuna. Ozuna
signed the form, which Glynn and McKenna also signed
as witnesses. The agents searched the trailer and discov-
ered the cocaine. They then took Ozuna to the DEA office
in Chicago.
Ozuna disputed much of Glynn’s testimony. He stated
that on July 28, he drove a tractor-trailer loaded with
mangoes and limes from Texas to Chicago. He claimed that
the agents cut him off while he was driving, pointed a
weapon at his head, demanded that he exit the truck,
and handcuffed him. Ozuna maintained that he never
gave the agents consent to search the tractor-trailer, did not
retrieve the keys from the tractor or unlock the trailer,
and did not sign the consent-to-search form. He denied
knowledge of the cocaine found in the trailer.
At the close of the suppression hearing, the district
court granted Ozuna’s motion to suppress. After ruling
that the DEA was justified in stopping the tractor-trailer,
the court held that the government had failed to prove
by a preponderance of the evidence that Ozuna
voluntarily consented to the search of the trailer. Upon
comparing the signature on the consent form to Ozuna’s
No. 07-2480 5
known signatures, the court was not convinced that Ozuna
had actually signed the form. It also expressed doubt
regarding portions of Glynn’s testimony, due to the
serious risks the agents would have faced had the search
occurred as Glynn described. Ultimately the court deter-
mined that, although it was a close question, it was not
persuaded by the greater weight of the evidence that
the government’s version of events was true, and it
granted the motion.
Following the hearing, the government submitted the
consent-to-search form for fingerprint and handwriting
analysis. Ozuna’s fingerprints were not on the form, but
a handwriting expert concluded that the signature was
Ozuna’s. On March 14, 2005, the government filed a
motion to reconsider or supplement the suppression
hearing with additional testimony from its handwriting
expert. The district court denied the motion to reconsider
and requested a response from Ozuna regarding the
motion to supplement the hearing. In response, Ozuna
argued that the additional testimony would not relate
to the issue of whether the search was consensual, and
that if the hearing were reopened, it would be prejudicial
to allow the testimony of the government’s handwriting
expert without appointing an impartial handwriting
expert to conduct an independent review of the evidence.
He later filed an additional objection to the govern-
ment’s use of expert handwriting testimony on the
ground that it did not meet the requirements of Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
The court granted Ozuna leave to hire an expert and
conducted hearings to consider the testimony of both
handwriting experts.
6 No. 07-2480
The defense expert, Ellen Schuetzner, explained that
there were several inconsistencies and “voids” within the
pen strokes that could indicate forgery. She had not,
however, examined the document prior to its treatment
for fingerprint analysis, and she noted that the
chemical treatment or a faulty pen could also have
resulted in these inconsistencies. After comparing and
contrasting the questioned signature and known signa-
tures, Schuetzner concluded that there were “indications”
Ozuna may have signed the form, which she described
as a “very weak opinion of authorship.”
James Regent, the prosecution’s expert, testified that he
had concluded with his “highest degree of confidence” that
Ozuna had signed the questioned document. He ex-
plained that the writing appeared natural, that he did not
find evidence of simulation, and that all dissimilarities
between the questioned and known signatures were
within the expected range of variation.
On June 24, 2005, the court vacated its prior ruling and
denied Ozuna’s motion to suppress. The court explained
that it gave little credence to Regent’s conclusion that
Ozuna had in fact signed the form. Instead, the court
found the testimony of both witnesses useful in con-
ducting its own evaluation of the signatures. After examin-
ing the questioned and known signatures, the court
concluded by a preponderance of the evidence that
Ozuna had signed the consent-to-search form. Based on
this conclusion, the court found Ozuna’s testimony to the
contrary untruthful. Because of the court’s adverse deter-
mination regarding Ozuna’s credibility, it found, not-
No. 07-2480 7
withstanding its previous reservations, that Glynn’s
testimony regarding the search was more likely true
than not and held that Ozuna had consented to the search.
On January 12, 2006, Ozuna filed a motion to reconsider
the denial of his motion to suppress. In this motion, Ozuna
argued that he had new evidence that would support
his testimony and discredit that of Agent Glynn. He also
maintained that the court’s reliance on handwriting
testimony was improper. The court held another hearing
to consider additional evidence regarding the search,
but it ultimately denied Ozuna’s motion.
B. Ozuna’s First Trial
Ozuna’s first trial took place from August 7 to August 10,
2006. Among numerous witnesses, the government
called Agent Lumpkin, who testified about his contacts
with the Chicago-based DEA agents and his interactions
with Ozuna after he was released to cooperate with the
government. Lumpkin described his efforts to locate
Ozuna after he fled prosecution, as well as Ozuna’s
subsequent arrest and confession.
Ozuna called his ex-girlfriend, Oney Rios, and her sister,
Jessica Rios, to testify about their contacts with Agent
Lumpkin. Both Rios sisters claimed that Lumpkin had
called them to ask about Ozuna and made various
threats when he believed they were being uncooperative.
For example, Oney testified that Lumpkin had asked her
to lie, threatened to charge her with crimes related to the
200 kilograms of cocaine, and asked her if she wanted
8 No. 07-2480
to spend the rest of her life in jail. Jessica stated that
Lumpkin had threatened to tell her employer of her
former career as a “dancer at night.”
During the government’s rebuttal case, Lumpkin
testified that he had contacted both Rios sisters during his
pursuit of Ozuna. He stated that he had agreed to help
Oney Rios with a felony warrant that was out for her
arrest and admitted to having heated words with her
when she was uncooperative. He denied, however,
making any improper threats.
On August 11, 2008, the court declared a mistrial after
the jury was unable to reach a unanimous verdict.
C. Ozuna’s Second Trial
Ozuna’s second trial took place from November 2
through November 9, 2006. At this trial, the govern-
ment narrowed the focus of its case-in-chief. The govern-
ment called numerous witnesses who testified to the
surveillance conducted on July 28, 2003, the stop and
search of Ozuna’s truck, the discovery of the cocaine, and
Ozuna’s confession and decision to cooperate with the
DEA. However, it did not call Agent Lumpkin and
did not present evidence about Ozuna’s flight from
prosecution or his confession at the time of his arrest a
year later.
During the defense’s case-in-chief, Ozuna sought to
introduce numerous pieces of evidence that he claimed
were relevant to the credibility of the agents involved in
the investigation and the government’s case. These in-
No. 07-2480 9
cluded (1) testimony regarding Lumpkin’s contacts
with the Rios sisters; (2) questioning regarding the
alleged fabrication of a DEA-6 form 2 memorializing
Lumpkin’s discussion with Jessica Rios; (3) testimony
from Andreas Macias, whose previous identification of
Ozuna the defense claimed the government falsified; and
(4) Lumpkin’s testimony from a previous proceeding
regarding his interactions with truck drivers carrying
cocaine. The defense argued that this evidence was neces-
sary to support its theory that the government was at-
tempting to convict Ozuna at any cost. The district court
refused to admit this evidence based on Federal Rule
of Evidence 403 and because it was irrelevant.
On November 9, 2006, the jury found Ozuna guilty. He
was sentenced to twenty-five years’ imprisonment, fol-
lowed by five years of supervised release.
II. A NALYSIS
The issues Ozuna raises on appeal fall into two catego-
ries. First, Ozuna asserts that the district court erred by
considering the handwriting experts’ testimony and
subsequently denying Ozuna’s motion to suppress the
seized cocaine. Second, Ozuna argues that the district
court improperly excluded evidence that he claims was
necessary to present his theory of defense. We discuss
each issue in turn.
2
Although the parties do not define or explain a “DEA-6” form,
it is apparently a report in which agents memorialize their
interviews during an investigation.
10 No. 07-2480
A. Consideration of the Handwriting Evidence and the
Motion to Suppress the Seized Cocaine
Ozuna challenges the district court’s decision to deny
his motion to suppress after considering expert hand-
writing testimony. He first argues that the district court
erred in reopening the suppression hearing and allowing
the government to present new evidence that was avail-
able to it at the time of the original hearing. Next, he
claims that the district court erred in failing to conduct a
Daubert analysis. Because he maintains that handwriting
comparison techniques are not sufficiently reliable, he
argues that the district court should not have considered
the expert testimony at the hearing.
1. Reopening the Suppression Hearing
This court has generally given wide latitude to district
courts to reopen suppression hearings for consideration
of newly obtained evidence. See, e.g., United States v. Scott,
19 F.3d 1238, 1243 (7th Cir. 1994); United States v. Duran,
957 F.2d 499, 505-06 (7th Cir. 1992). Ozuna claims that this
same latitude is not warranted where the evidence was
available at the time of the previous hearing. In fact, he
argues that the government should never be allowed to
supplement a suppression hearing unless the evidence
is newly acquired. He asserts that because the govern-
ment could have subjected the document to handwriting
analysis prior to the first hearing, it should not have
been allowed to present this evidence at the second
hearing. We find this argument unpersuasive.
No. 07-2480 11
As we have previously recognized, society has a strong
interest in admitting all relevant evidence. United States v.
Regilio, 669 F.2d 1169, 1177 (7th Cir. 1981). Thus, a defen-
dant is entitled to suppression only in cases of constitu-
tional violations, and the district court remains free
throughout the trial to reconsider its previous orders
suppressing evidence. Id. Because of society’s interest,
we have never required the government to justify a
request for reconsideration of a prior ruling. See id.; see
also United States v. Bayless, 201 F.3d 116, 131 (2d Cir. 2000)
(opining that the Seventh Circuit has rejected “a rule
requiring the government . . . to proffer a justification
for its failure to present the relevant evidence at the
original suppression hearing”). We now likewise decline
to impose a justification requirement to reopen a sup-
pression hearing. Instead, we hold that this decision
lies within the sound discretion of the district court.
We are not the only circuit to reach this conclusion. See
In re Terrorist Bombings of the U.S. Embassies in E. Afr., 552
F.3d 177, 196 (2d Cir. 2008); see also United States v. Rabb,
752 F.2d 1320, 1323 (9th Cir. 1984) (citing Reglio with
approval and holding that “[a] criminal defendant
acquires no personal right of redress in suppressed evi-
dence”), abrogated on other grounds by Bourjaily v. United
States, 483 U.S. 171 (1987). For example, the Second Circuit
has held that “on a motion to reopen a suppression hear-
ing, there is no bright-line rule that necessarily and invari-
ably requires the government to provide a reasonable
justification for its failure to offer relevant evidence at
an earlier suppression proceeding.” In re Terrorist
Bombings, 552 F.3d at 196. Because of the policy
12 No. 07-2480
favoring introduction of lawfully obtained evidence, the
Second Circuit stated that “ ‘vague notions of unfairness . . .
ought not [to] control.’” Id. (second alteration in origi-
nal) (quoting Bayless, 201 F.3d at 132). Instead, the
court noted that the government’s justification for the
delay was merely one factor to consider, leaving the
ultimate determination to the discretion of the district
court. Id. at 196-97.
Several of our sister circuits have, however, adopted
rules requiring the government to justify reconsidering,
reopening, or supplementing suppression hearings. See,
e.g., United States v. Dickerson, 166 F.3d 667, 679 (4th Cir.
1999), rev’d on other grounds, 530 U.S. 428 (2000); United
States v. Villabona-Garnica, 63 F.3d 1051, 1055 (11th Cir.
1995); McRae v. United States, 420 F.2d 1283, 1288 (D.C. Cir.
1969). These circuits most often cite justifications of
judicial economy and a desire to avoid “piecemeal litiga-
tion.” See Dickerson, 166 F.3d at 679; see also McRae, 420
F.2d at 1288 (noting that “[t]o allow the loser at a pretrial
suppression hearing to demand a de novo determination
at trial” would defeat the purposes of promoting judicial
efficiency and ensuring that trials not be interrupted or
delayed). Rather than cite these cases, Ozuna points to
concerns about fairness, noting that “repeated litigation
imposes on the defense the impossible burden of con-
ducting multiple hearings with limited resources.”
These policy concerns are justified, but we do not
believe that a bright-line rule is the sole way to protect
them. By leaving the matter to the district court’s discre-
tion, the court remains free to refuse to reopen the sup-
No. 07-2480 13
pression hearing or to decline to consider the govern-
ment’s evidence if the government is wasting judicial
resources or proceeding in a way that is unfair to the
defendant. At the same time, adopting a more flexible
approach protects society’s interest in ensuring a com-
plete proceeding where the court considers all relevant,
constitutionally obtained evidence. Thus, “a district court
should be permitted, in the exercise of its discretion and
in light of the totality of the circumstances, to determine
whether its suppression ruling should stand.” In re
Terrorist Bombings, 552 F.3d at 197.
Having determined that a district court may, in its
discretion, reopen a suppression hearing even where the
evidence was previously available, we consider whether
the district court’s decision to do so in this case was
proper. Although this court has not articulated a
standard by which we review a district court’s decision
to reopen a suppression hearing and reconsider a prior
ruling, 3 we believe it is clear from the preceding analysis
that our review is for abuse of discretion.4
3
We have previously ruled on this issue but have never
declared the applicable standard of review. See, e.g., Scott, 19
F.3d at 1243; Duran, 957 F.2d at 505-06. We have, however,
applied an abuse of discretion standard to reopen a hearing
where the district court had not yet ruled on the issue.
United States v. Wanigasinghe, 545 F.3d 595, 598 (7th Cir. 2008).
4
Ozuna argues that because our analysis does not require the
determination of underlying facts, review should be de novo.
This argument is meritless. The district court’s decision to
(continued...)
14 No. 07-2480
The district court did not abuse its discretion in reopen-
ing the suppression hearing and considering the hand-
writing testimony. We have noted that reopening a sup-
pression hearing may be appropriate when the proffered
evidence calls the credibility of a witness into question. See
Scott, 19 F.3d at 1243; Duran, 957 F.2d at 506. In this case,
the handwriting comparison testimony had a direct
bearing on Ozuna’s credibility. If this testimony showed
that he had, in fact, signed the consent form, it would
mean that he had perjured himself at the previous hear-
ing. This information would assist the district court
in determining whose version of the search to believe,
resulting in a more accurate ruling on the motion
to suppress.
Furthermore, there is no evidence that the government
was engaged in a deliberate strategy to proceed in a
piecemeal fashion or otherwise waste judicial resources.
It does not appear from the record that the signature
was clearly at issue until the first suppression hearing.
Only then did the court express its doubts regarding
its authenticity. After noting that this was a close issue,
the court determined that the government had not met
its burden of proof. The government then responded by
requesting handwriting and fingerprint analyses. This
4
(...continued)
reopen the suppression hearing involved questions of whether
evidence was relevant to a witness’s credibility. Such decisions
are clearly factual rather than legal, rendering de novo review
inappropriate. See United States v. Hernandez-Rivas, 513 F.3d
753, 758 (7th Cir. 2008).
No. 07-2480 15
was an entirely reasonable course of action given the
court’s ruling.
Finally, we note that Ozuna has not convinced us that
he was harmed in any way by the fact that the hand-
writing testimony was presented at the second, rather
than the first, suppression hearing. Ozuna argues that
repeated litigation imposes the “impossible burden” on
the defense of conducting multiple hearings with
limited resources. But the court’s decision to reopen the
hearing did not prevent Ozuna from presenting any
evidence or making any arguments. Indeed, he called
his own handwriting expert, and his counsel extensively
cross-examined the government’s witness. Although the
document was damaged by the government’s fingerprint-
ing analysis before Ozuna’s handwriting expert could
examine it, this was not a result of reopening the sup-
pression hearing. Had the government presented the
evidence at the first suppression hearing, the document
still would have been subjected to chemical treatment
before it was turned over to Ozuna. Given these con-
siderations, the district court did not abuse its discretion
in reopening the suppression hearing.
2. Failure to Conduct a Daubert Analysis
Ozuna claims that even if reopening the suppression
hearing was proper, the district court erred by failing to
conduct a Daubert analysis prior to considering the hand-
writing testimony. In Daubert, the Supreme Court held
that it was the duty of the trial judge to examine expert
evidence before trial to “ensure that any and all scientific
16 No. 07-2480
testimony or evidence admitted is not only relevant, but
reliable.” 509 U.S. at 589. Thus, the district court serves
a “gatekeeping” function to prevent expert testimony
from carrying more weight with the jury than it deserves.
Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000);
see also Daubert, 509 U.S. at 595 (“Expert evidence can
be both powerful and quite misleading because of the
difficulty in evaluating it.” (quotations omitted)).
Ozuna argues that Daubert applies with full force in
suppression hearings, just as it does in trials, but he
cites no law that effectively supports this contention.
In fact, he concedes that the Rules of Evidence do not
apply at pre-trial admissibility hearings. See United States
v. Matlock, 415 U.S. 164, 172-73 (1974); United States v.
Severson, 49 F.3d 268, 271 n.2 (7th Cir. 1995). Rule 104(a)
makes this explicit. When ruling on admissibility, a
district court judge “is not bound by the rules of evidence
except those with respect to privileges.” Fed. R. Evid.
104(a). We see no persuasive reason to disregard the
Rules of Evidence and impose a new requirement on
district court judges to conduct a Daubert analysis
during suppression hearings.
The only case Ozuna cites in support of his argument
is United States v. Posado, 57 F.3d 428 (5th Cir. 1995). There,
the district court had applied a per se rule against con-
sidering polygraph evidence at any time, including a
suppression hearing. Id. at 432. The Fifth Circuit reversed,
holding that a per se rule against admissibility was no
longer viable after the Supreme Court’s decision in
Daubert. Id. at 433. But no language in Posado supports
No. 07-2480 17
the argument that a district court must conduct a
Daubert analysis at a pre-trial suppression hearing. The
Fifth Circuit merely held that district courts could not
be prohibited from considering that evidence or assessing
its reliability. See id. In fact, the court noted that the
Rules of Evidence are relaxed in a suppression hearing
because “[a] district court judge is much less likely than
a lay jury to be intimidated by claims of scientific
validity into assigning an inappropriate evidentiary
value to [scientific] evidence.” Id. at 435.
In other words, the primary rationale behind Daubert
is not applicable in a suppression hearing. The purpose of
Daubert was to require courts to serve as gatekeepers
so that unreliable expert testimony does not carry too
much weight with the jury. Smith, 215 F.3d at 718. Judges,
on the other hand, are less likely to be swayed by experts
with insufficient qualifications. Posado, 57 F.3d at 435; see
also In re Salem, 465 F.3d 767, 776-77 (7th Cir. 2006) (uphold-
ing a bankruptcy court’s finding that “[t]he gatekeeping
function that Daubert talks about is most pointedly at
issue in a jury trial where a jury might be misled by an
expert who doesn’t have sufficient qualifications” (quota-
tions omitted)). For this reason, we have held that a
court conducting a bench trial could make reliability
determinations as the evidence was presented throughout
the trial, rather than during a formal pre-trial Daubert
hearing. In re Salem, 465 F.3d at 777. Nothing in the
Rules of Evidence or our case law prohibits a judge from
taking a similar course of action during a suppression
hearing.
18 No. 07-2480
Because the district court was not required to conduct a
Daubert hearing, we review its consideration of the
expert testimony for an abuse of discretion. Cf. Deputy
v. Lehman Bros., Inc., 345 F.3d 494, 505 (7th Cir. 2003)
(“[I]f the district court properly applied Daubert, we
review the court’s decision to admit or exclude expert
testimony only for an abuse of discretion.” (quotations
omitted)). The district court in this case carefully consid-
ered the handwriting testimony. It chose to credit some
of the experts’ analyses and discredit certain conclusions
that it found unconvincing. It then used the expert testi-
mony to guide its own analysis and determine whether
Ozuna had signed the consent form. This was a reason-
able use of the district court’s discretion, and the deci-
sion to admit the seized cocaine was proper.
B. The Exclusion of Ozuna’s Proffered Evidence
As another basis for his appeal, Ozuna claims that the
court’s decision to exclude several pieces of evidence
undermined his ability to present his theory of defense.
Ozuna maintains that most of this evidence was relevant
to show that the government would go to “any lengths,”
including fabricating evidence, to apprehend and
convict him. Ozuna also argues that Agent Lumpkin’s
testimony at a prior suppression hearing was relevant
to Ozuna’s knowledge that the trailer contained cocaine.5
5
Ozuna seems to indicate that Lumpkin’s testimony regarding
his experience with truck drivers hauling cocaine is also
(continued...)
No. 07-2480 19
The court suppressed all of this evidence, either because
it was irrelevant or because its probative value was out-
weighed by one of the concerns listed in Rule 403.
The district court has broad discretion to control the
admission of evidence. United States v. Khan, 508 F.3d 413,
417 (7th Cir. 2007). “Evidence is relevant and therefore
admissible if it has ‘any tendency to make the existence
of any fact that is of consequence to the determination
of the action more probable or less probable than it
would be without the evidence.’” United States v. Van
Allen, 524 F.3d 814, 825 (7th Cir. 2008) (quoting Fed. R.
Evid. 401). Under Rule 403, however, even relevant evi-
dence may be excluded if its probative value is substan-
tially outweighed by, for example, the danger of unfair
prejudice. Fed. R. Evid. 403. Thus, a district court
may exclude collateral or irrelevant evidence where its
tendency to mislead and confuse the jury substantially
outweighs its probative value. United States v. Jackson, 540
F.3d 578, 588 (7th Cir. 2008). We review a district court’s
evidentiary determinations for an abuse of discretion and
reverse only “when no reasonable person could take the
5
(...continued)
relevant to his theory of government fabrication. However, the
substance of his argument makes clear that he is truly arguing
that the testimony went to knowledge. Because we view the
evidence as more relevant to Ozuna’s knowledge than his
conspiracy theory, we analyze it separately. At any rate, this
evidence does not change our analysis, see infra Part II.B.2,
that Ozuna did not present convincing evidence to support a
theory that the government fabricated evidence against him.
20 No. 07-2480
view adopted by the trial court.” Khan, 508 F.3d at 417(quotations omitted). With this framework in mind, we
now turn to Ozuna’s arguments.
1. Evidence of the Government’s Allegedly Improper Con-
duct
Ozuna points to evidence that he claims demonstrates
that the government fabricated evidence to obtain a
conviction. These include Agent Lumpkin’s interactions
with the Rios sisters, an allegedly fabricated DEA-6
form memorializing Lumpkin’s conversation with Jessica
Rios, and testimony about an allegedly orchestrated
identification of Ozuna by Macias.6 The district court held
that all of this evidence was not material to Ozuna’s
guilt or innocence or was only tangentially related to
the case at hand and excluded it. We conclude that this
was not an abuse of discretion.
None of Ozuna’s proffered evidence was relevant to
his conduct on July 28, 2003, nor the evidence the gov-
ernment presented at trial. Ozuna simply made vague
allegations of improper government conduct without
ever connecting that conduct to his apprehension or the
6
Ozuna also sought to enter into evidence various portions
of the DEA manual. He claims that the agents’ violation of
certain protocols supports his theory of government fabrica-
tion. Each portion of the manual is tangential to this case, and
as such, this argument is meritless and does not warrant
further consideration.
No. 07-2480 21
search of his trailer. He did not make any connection
whatsoever between the allegedly improper actions and
the agents who were directly involved in the search. Thus,
nothing about the evidence had any tendency to make
more or less likely any fact of consequence to Ozuna’s
guilt. See Fed. R. Evid. 401. Instead, presenting this evi-
dence would likely have confused the jury with tangen-
tially related facts. Excluding the evidence was therefore
not an abuse of discretion.
Ozuna correctly notes that even the Rules of Evidence
cannot be used to deprive a defendant of his due process
right to present a complete defense. See Holmes v. South
Carolina, 547 U.S. 319, 324-27 (2006); United States v.
Harris, 942 F.2d 1125, 1130-31 (7th Cir. 1991). We have
held that “a defendant is entitled to have the jury con-
sider any theory of the defense that is supported by the
law and that has some foundation in the evidence.” United
States v. Wiman, 77 F.3d 981, 985 (7th Cir. 1996) (emphasis
added) (quotations omitted).
The problem with Ozuna’s argument is that the theory
that his conviction resulted from fabricated evidence
has no foundation. As noted above, the excluded evidence
had no bearing on what occurred on July 28, 2003. Had
the government presented the allegedly fabricated evi-
dence in its case-in-chief, our analysis may have been
different. For example, if the government had used
Macias’s identification against Ozuna, certainly a claim
that his identification was manufactured or orchestrated
by the government would be relevant. Similarly, the Rios
sisters’ testimony was proper in the first trial because
22 No. 07-2480
Lumpkin had testified about the events after Ozuna’s flight
from prosecution. However, the government confined
its case in this trial to the facts surrounding the search of
his tractor-trailer. Ozuna has failed to connect any of his
proffered evidence to the government’s actions at that
time or the agents involved in the search. Thus, the
district court did not abuse its discretion in excluding
the evidence.
2. Lumpkin’s Testimony Regarding His Interactions with
Truck Drivers
During a suppression hearing on April 24, 2006, the
district court questioned Agent Lumpkin about Ozuna’s
release. The purpose of this inquiry was to determine
whether Aguilar, who had orchestrated the drug sale,
would have been suspicious that Ozuna was cooperating
with law enforcement because he was released after the
cocaine was seized. Lumpkin stated that sometimes
when trucks travel from Mexico to the United States,
their drivers are unaware of what the warehouse had
put into their trailers when loading produce. He further
commented:
A tractor-trailer holds 60 to 70,000 pounds, and
in four small boxes of . . . what they say could be
limes, they have commingled in there 50 or 80 or a
couple hundred kilos of coke; you may not know.
I mean, through my training and experience of
working on the border, sometimes they—these
guys don’t know. And they followed all the rules,
No. 07-2480 23
they checked their produce and checked it out and
they have got the lock on the back and they’re
doing their job and sometimes it’s not working
for them.
Thus, Lumpkin noted, it would be reasonable for Aguilar
to think that the agents had believed Ozuna when he
said he didn’t know the cocaine was in the truck.
Ozuna sought to admit this testimony at his trial. The
district court refused. The judge noted that the fact that a
truck driver might not know about the presence of con-
trolled substances is self-evident and that expert testi-
mony was not needed. He also commented that the
circumstances regarding the situation Lumpkin described
and Ozuna’s situation were different. Ozuna had no
paperwork for the limes, so they had no legitimate destina-
tion; their only purpose was to conceal the cocaine. Ozuna
claims that this was an “obvious” abuse of discretion
because “[t]he admission of this testimony would make
Mr. Ozuna’s claim that he did not know about the
narcotics in the truck seem more likely to the jury.”
We disagree.
The district court did not abuse its discretion in deter-
mining that Lumpkin’s testimony was not helpful to the
jury. Lumpkin was not addressing whether it was
possible that Ozuna actually knew about the cocaine.
Instead, the purpose of describing this scenario was to
determine whether Aguilar would have suspected
Ozuna’s cooperation with law enforcement because he
was released. He concluded that Aguilar may have be-
lieved Ozuna’s story because sometimes truck drivers are
24 No. 07-2480
unaware their trucks contain cocaine when they are
legitimately transporting produce. Admitting this testi-
mony would have allowed the jury to take Lumpkin’s
remarks out of context. It was therefore not an abuse
of discretion to exclude them.
Furthermore, even if this was an error, it was harm-
less. An error is harmless when it does not affect
the outcome of the trial, in other words, where we are
“convinced that the jury would have convicted even
absent the error.” United States v. Ortiz, 474 F.3d 976, 982
(7th Cir. 2007), cert. denied, 128 S. Ct. 51 (2007). This testi-
mony was one hypothetical postulation about some
truck drivers in scenarios factually different from Ozuna’s.
It had little probative value into Ozuna’s specific circum-
stance. The jury was informed by Ozuna’s arguments
and common sense that some truck drivers could be
unaware that their trucks contain cocaine. We are con-
vinced that the jury would have convicted Ozuna even if
it had been allowed to consider Lumpkin’s testimony.
III. C ONCLUSION
The district court did not err in reopening the suppres-
sion hearing to consider the handwriting testimony. The
court was not required to conduct a Daubert analysis, and
its ruling in light of the expert testimony at the hearing
was not an abuse of discretion. Finally, the court did not
err in excluding Ozuna’s proffered evidence. We A FFIRM .
4-6-09