UNITED STATES DISTRICT COURT
_______________ DISTRICT OF TEXAS		
________________ DIVISION

UNITED STATES OF AMERICA	                 §
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V.	                                                                 §		NO. _____________
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_______________________	                             §
	
DEFENDANT’S RESPONSE TO GOVERNMENT’S NOTICE 
AND DEFENDANT’S MOTION IN LIMINE

	NOW COMES Defendant_______________, by and through her undersigned attorney, and responds to the Government’s Notice and Summary of Testimony of Law Enforcement Witness and respectfully moves this Court to exclude in limine the testimony of Government’s law enforcement witness,___________, pursuant to Federal Rules of Evidence §§ 403, 602,  and 701–04.
I

Statement of Relevant Facts

	________________ is charged with (name of offense).  It is anticipated that the central issue in this litigation will be whether ________________ had knowledge of the contraband hidden in the vehicle she drove.  The trial in this case is scheduled for (date).  This Court’s General Discovery Order requires the Government to supply the defense with notice and “a written summary of testimony” it intends to offer under rules 702, 703, or 705 (the rules governing expert testimony).  The summary must include the witnesses’ opinions, the bases and reasons for those opinions, and the witnesses’ qualifications.
	The Government advised defense counsel, through its Notice and Summary of Testimony of Law Enforcement Witness ________________, that it intends to call Lieutenant ________________ as a “law enforcement” witness.  ________________, who has worked as a Department of Public Safety patrol trooper and narcotics officer, is expected to testify to various conclusions, including that “cocaine is purchased in Mexico for approximately $650 per kilogram. . . . and sold for approximately $15,000 per kilogram” once in San Antonio. (Gov.’t’s Notice at 5–6.)  ________________ is also to testify that the further one transports cocaine out of Texas, the more the price increases.  (Id.)  ________________ files this Motion in Limine, asking the Court to exclude ________________’s testimony because its probative value is substantially outweighed by its danger of unfairly prejudicing and misleading the jury.  Clarely stated, this testimony should be excluded under Federal Rule of Evidence 403.  ________________ also moves to exclude any related “drug courier profile” testimony.  Such testimony is not within the ambit of expert testimony, and would be improper under Fifth Circuit precedent.
II

The Probative Value of  ________________’s Proposed Testimony Is Substantially Outweighed by its Danger of Unfairly Prejudicing and Misleading the Jury
	Federal Rule of Criminal Evidence 403 provides for exclusion of evidence when its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.  The Court should exclude ________________’s testimony because its probative value is substantially outweighed by the danger of unfairly prejudicing and misleading the jury.   Evidence of  the street value of cocaine presents a significant danger of inflaming or misleading the jury.  The proposed testimony consists of conclusions regarding the estimated sale and  resale value of cocaine—including its value in localities other than the one in which the alleged offense occurred.  The total proposed value results in sums beyond the amount of money an average juror could reasonably expect to earn in a year.  Such large numbers create a substantial danger that the jury will punish the accused for the magnitude of the overall drug economy and the problems that it engenders. Cf. United States v. Rosario-Peralta, 199 F.3d 552, 565 (1st Cir. 1999) (recognizing danger such evidence can present). 
	By contrast, the probative value of such evidence is always low because it is not reasonable to infer knowledge of hidden drugs solely from the value of hidden contraband, because such evidence is in equipoise. That is, such evidence equally supports an inference of knowledge and an inference of lack of knowledge. Cf. United States v. Littrell, 574 F.2d 828, 833 (5th Cir. 1978) (recognizing “it might be an asset” to smugglers for courier to “be uninformed”); United States v. Cavin, 39 F.3d 1299, 1305 (5th Cir, 1994) (circumstantial evidence that equally supports inference of guilt and innocence cannot support conviction).   
	More significantly, however, under the unique circumstances of ________________’s case the probative value of this evidence is particularly low.  The typical case in which this form of circumstantial evidence might be probative is when the defendant is asserting that he had no personal relationship with the drug supplier and that he was simply duped into being a “blind mule” by an offer to drive a vehicle across the border in exchange for a fee.  See, e.g., United States v. Ramos-Garcia, 184 F.3d 463, 465, 466 (5th Cir. 1999).  Street value evidence is thought to counter such a defense because a supplier would be unlikely to entrust such a valuable and uninsurable load to someone with whom he had no prior relationship and over whom he held no specific threat for non-compliance.  See, e.g., United States v. Mendoza-Medina, 346 F.3d 121, 128 (5th Cir. 2003)(discussing street value and drug courier profile testimony). 
	________________’s case is unique.  She readily acknowledges that she had a prior relationship with the one who supplied the vehicle, her ex-husband.  She was married to him for many years, and during that time he inflicted extraordinary physical and emotional abuse upon her.  Because he held the kind of sway over her that an abuser typically holds over a battered woman, his assurance that she would deliver the car as instructed did not depend on her knowing that she was carrying a valuable load of contraband.  Because the probative value of the drug’s street value is very low under these particular circumstances, and because the danger of prejudicing and misleading the jury with this type of testimony is substantial, the Court should exclude this testimony.  
	III
	Alternatively, the Court should, on the facts of this case, limit testimony about the street value of cocaine to the streets of San Antonio. Testimony about values in other locations, even if the agent personally knows the prices in those other locations, would be based on speculation about where the seized drug might have ended up. Cf. Fed. R. Evid. 602 (witness must have personal knowledge); Fed. R. Evid. 701–03 (opinion testimony must be based on facts and rational perceptions).  By speculating that the seized cocaine might have ended up far from the border in a place with higher street values, an agent can create the appearance that a person was transporting something far more valuable than he actually was.  Such speculative inflation cannot be helpful to the jury; indeed, it may mislead them.  Even more importantly, such speculative inflation cannot be the basis for an inference of knowing possession.  Convictions must be based on evidence and reasonable inferences from the evidence.  They cannot be based on inferences from speculation. Cf. United States v. Crain, 33 F.3d 480, 487 (5th Cir. 1994).  For all these reasons, ________________ requests that the Court exclude the proposed testimony regarding the street value of the seized cocaine, as well as any related evidence regarding the supply and demand of controlled substances.  Alternatively, ________________ asks that the Court limit evidence of street value to the value of the cocaine in San Antonio.  
IV
Elicitation of Drug Courier Profile Evidence is Improper
	________________’s final request is that the Court exclude drug courier profile testimony and evidence.1  It is an abuse of discretion for a District Court to admit the “expert” testimony of law enforcement witness’s who testify about a typical drug courier profile.  See Mendoza-Medina, 346 F.3d 121, 127–28 (citing United States v. Gutierrez-Farias, 294 F.3d 657, 661–63 (5th Cir. 2002)).  Such evidence includes, but is not limited to, evidence as to the recruitment of drug couriers, as to the amount of drugs that couriers will typically transport depending upon their experience, and as to practice of couriers of bringing children along to mask drug trafficking offenses.  Id. at 127–28.  Such evidence also includes even indirect assertions that drivers know they are carrying drugs.  Id. at 129. The admission of this testimony is erroneous because law enforcement witnesses are incompetent to testify as to the mental state or motive of the defendant, and because such testimony violates Federal Rule of Evidence 704(b), which prohibits witnesses from stating an opinion as to whether the defendant had the mental state constituting an element of the crime charged.  Guiterrez-Farias, 294 F.3d 657, 663 & n. 5 (discussing Fed. R. Evid. 704(b)); see also United States v. Masat, 896 F.2d 88, 93 (5th Cir. 1990).  As directed by Rule 704(b), Mendoza-Medina, and Gutierrez-Farias, the Court should carefully limit any testimony of Lieutenant ________________ to exclude this type of impermissible profile-type testimony.
PRAYER

	WHEREFORE, PREMISES CONSIDERED, ________________ prays that this Honorable Court exclude the proposed testimony of  the Government’s law enforcement witness, ________________ on the issue of street value of cocaine and related issues of supply and demand from the trial in this matter.  Alternatively, ________________ asks that this Court limit this testimony to the street value of cocaine in the environs of San Antonio.   Finally, ________________ respectfully requst that this Court exclude any “drug courier profile” testimony.
						Respectfully submitted.

						________________________								Name
						State Bar No.
						Address
						City, State
						Telephone
						Fax
						Attorney for Defendant

CERTIFICATE OF SERVICE

	I certify that I served a copy of the foregoing Defendant's Response to Government’s Notice and Defendant’s Motion in Limine upon ___________________, United States Attorney for the _______________ District of Texas (ATTN: Assistant United States Attorney __________________), by courier to his office at _______________, on ______________________________.

						_________________________________	
						Attorney for Defendant		

UNITED STATES DISTRICT COURT

________________ DISTRICT OF TEXAS

__________________ DIVISION

UNITED STATES OF AMERICA	                 §
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V.	                                                                 §		NO. ______________
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__________________________	                 §

O R D E R

	On this date came on to be considered the Defendant's Response to Government’s Notice and Defendant’s Motion in Limine, and the Court having considered the premises, is of the opinion that the same should be and is hereby GRANTED.  
	It is therefore ORDERED this ______ day of _______________, 20___ that the testimony of Government’s expert witness, ________________, be excluded from the trial of this matter.

						
						United States District Judge