The U.S. Supreme Court heard oral arguments Tuesday in a case originating out of San Diego that could limit the government’s ability to tell jurors that “blind mule” drug couriers are a rarity. The court’s decision in the case, which centers around knowledge of a crime, could also have wider implications for defendants in other kinds of cases when there are questions of criminal intent.
The case, Delilah Guadalupe Diaz v. United States of America, hinges on whether law enforcement experts can tell a jury that most drug couriers know when they have drugs hidden in their vehicles or whether such testimony is too general and wrongly asserts to the jury that specific defendants knew they had the drugs.
The San Diego defense attorney who first represented Diaz and raised the issue at trial sat at the petitioner’s counsel table Tuesday during oral arguments.
“I think it’s going to be a close decision with strange bedfellows,” Danielle Iredale told the Union-Tribune by phone after the hearing. “I don’t think the split is necessarily going to be along the typical ideological lines.”
The case has major implications for the San Diego region, where federal prosecutors charge hundreds of people each year with illegally importing drugs across the border. The most common defense for such charges is the blind mule argument, in which defendants argue they were unaware that smugglers hid drugs in their vehicle.
The government has acknowledged that Mexican drug-smuggling groups sometimes use the vehicles of unwitting victims — such as students or workers who cross the border at routine and predictable times — but maintain that such cases are rare. San Diego defense attorneys contend the use of blind mules is more common than the government will admit and beneficial to smugglers who can track the drug load with a hidden GPS, don’t have to pay the driver and need not worry about the driver snitching, stealing the drugs or acting nervous during inspections.
“It was incredible to see the arguments that I made, that my colleagues make all the time, be considered by the justices,” said Iredale, who made the trip to Washington, D.C., with her 3-week-old daughter in tow. “It was a really moving experience to hear the Supreme Court justices ask about this specific trial. To be able to bring this issue to light is really meaningful, because this is such a huge percentage of our cases in this district.”
Federal authorities arrested Diaz, a U.S. citizen, in August 2020 at the San Ysidro Port of Entry after finding some 60 pounds of methamphetamine concealed within the doors of her vehicle. She maintained from the beginning that the car belonged to her boyfriend and she didn’t know about the drugs.
A U.S. Custom and Border Protection officer inspects drivers’ documents in November 2021 at the San Ysidro Port of Entry.
(Alejandro Tamayo/The San Diego Union-Tribune)
Before trial, Iredale unsuccessfully attempted to block the testimony of a Department of Homeland Security agent who was to testify that drug-trafficking organizations typically don’t use blind mules because it’s too risky. “In most circumstances, the driver knows they are hired,” the agent testified during trial.
The jury convicted Diaz, who then appealed to the 9th U.S. Circuit Court of Appeals. Diaz lost that appeal, which renewed her argument that the DHS agent’s testimony violated a rule of federal evidence — 704(b) — that deals with mens rea, or criminal intent.
The rule states in part that “an expert witness must not state an opinion” about the defendant’s state of mind. Congress amended the rule to its current form through the Insanity Defense Reform Act of 1984 in response to the acquittal of President Ronald Reagan’s would-be assassin, John Hinckley Jr. A jury found Hinckley not guilty by reason of insanity after hearing conflicting testimony about whether he met the legal standard for insanity.
In blind mule cases, the issue becomes not whether the driver is insane, but whether the driver knows he or she is committing a crime. Over the years, courts in the U.S. have reached differing conclusions to establish opposing precedent.
Federal prosecutors in California and Arizona, part of the 9th Circuit, can introduce the more generalized testimony that “most” drivers know they’re importing drugs. But federal prosecutors in Texas, which is part of the 5th U.S. Circuit Court of Appeals, cannot elicit such testimony because the 5th Circuit has held that it’s too vague and generalized — an expert can only testify about a specific courier’s knowledge and cannot say that “most” couriers know they’re smuggling drugs.
“Has the federal government had any trouble convicting drug traffickers in the 5th Circuit?” Justice Neil Gorsuch asked Diaz’s attorney, Jeffrey Fisher, on Tuesday.
“Not to my knowledge,” answered Fisher, a Stanford law professor and the co-director of the university’s Supreme Court Litigation Clinic. “And, of course, the government’s had 20 years to bring this issue up if it didn’t like the 5th Circuit law. So I think it works pretty well in the 5th Circuit.”
Fisher asked the court to adopt the 5th Circuit’s interpretation of the rule, arguing it allows testimony that infers criminal intent but bars testimony that assigns criminal intent. In a pre-argument brief, he wrote that the 5th Circuit “allows expert testimony regarding the modus operandi of drug smuggling,” which might cause jurors to infer a defendant had knowledge of the operation, but it prohibits “generalizations that most drivers know there are drugs in their vehicles.”
Some justices questioned whether there was a meaningful difference.
“All the expert has to do is … tweak the way he says something and the exact same testimony can come in,” Justice Elena Kagan said.
Some of the justices, including Gorsuch and Samuel Alito, also pondered whether other federal evidentiary rules could be applied to keep out the more generalized testimony.
“There are other rules that take care of the extreme cases,” Alito said. Justice Sonia Sotomayor responded that relying on those other rules “is inviting, I think, even more chaos … among courts.”
The government’s attorney, Assistant Solicitor General Matthew Guarnieri, warned the justices that siding with Diaz could have unintended consequences, since the rule in question pertains to the type of testimony that both the government and the defense can present in a case.
“Whatever the court says in this case will also govern future expert testimony offered by the defense on issues like insanity or battered women’s syndrome,” Guarnieri said.
Iredale, who had never before attended Supreme Court oral arguments, said she wanted to “pocket and take home the civility” of the proceedings even in the face of serious differences of opinion. “Everybody was incredibly gracious,” she said. “I thought it was lovely.”
She came away from the hearing believing that Gorsuch, a President Donald Trump appointee, and Sotomayor, a President Barack Obama appointee, were likely aligned in Diaz’s favor. She noted that Kagan asked tough questions to both sides.
There is no set timetable for when the justices will decide on the case, though the court typically releases decisions throughout the summer ahead of its next session, which begins in October.
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