IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA )

)

vs. ) Criminal Case No. 2:06-cr-200-CSC

)

ROSA E. RINCON )

DEFENDANT’S THIRD MOTION IN LIMINE

COMES NOW Defendant, by and through counsel, and prays that this Court will Order

in limine that the government refrain from arguing, eliciting testimony, or offering evidence of

any sort – particularly “expert” testimony – as to “drug courier profiles,” i.e., the possession of

cellular telephones, mode of dress, demeanor, and so forth, that would tend to establish that

Defendant Rincon “fit the profile” of a drug courier.

Such testimony would be inherently prejudicial and admissible only in limited

circumstances, such as to establish reasonable suspicion for a Terry stop. As the Court of

Appeals for the Eleventh Circuit has held:

There is no doubt that most circuits have concluded that the use of drug courier

profiles to establish reasonable suspicion should be viewed critically. See United

States v. Berry, 636 F.2d 1075 (5th Cir. Unit B 1981). We concur in this

conclusion. Drug courier profiles are inherently prejudicial because of the

potential they have for including innocent citizens as profiled drug couriers.

Generally, the admission of this evidence is nothing more than the introduction of

the investigative techniques of law enforcement officers. Every defendant has a

right to be tried based on the evidence against him or her, not on the techniques

utilized by law enforcement officers in investigating criminal activity. Drug

courier profile evidence is nothing more than the opinion of those officers

conducting an investigation. Although this information is valuable in helping drug

agents to identify potential drug couriers, we denounce the use of this type of

evidence as substantive evidence of a defendant's innocence or guilt. See United

States v. Hall, 653 F.2d 1002 (5th Cir. Unit A 1981); United States v. Berry, 636

F.2d 1075 (5th Cir. Unit B 1981).

Case 2:06-cr-00200-WHA-CSC Document 48 Filed 09/25/2006 Page 1 of 3
U.S. v. Hernandez-Cuartas, 717 F.2d 552, 555 (11th Cir.,1983).

Defendant Rincon fully expects that the government will attempt to introduce “expert”

testimony from government agents about the personal characteristics of drug traffickers, and that

such testimony will be carefully tailored to focus on any characteristics that Ms. Rincon may

share with drug traffickers.

Defendant Rincon has the right to expect that she will be tried on what SHE may or may

not have done, not on what persons who may share some of her personal characteristics may have

done. Proceeding from the general to the specific in this instance would be harshly prejudicial

and would violate Ms. Rincon’s Sixth Amendment right to a fundamentally fair trial by saddling

her with the sins of persons she might resemble in some superficial way.

WHEREFORE, the premises considered, Defendant prays that the Court will order in

limine that the government be prohibited from offering or alluding to such evidence in any way

or by any means, and that the government be directed to instruct its witnesses that they not refer

in any way, either directly or by implication, to their opinion that Defendant Rincon fits the

“profile” of a drug trafficker or drug courier.

RESPECTFULLY SUBMITTED, this __23rd__ day of September, 2006.

/s/ JAY LEWIS

Law Offices of Jay Lewis, L.L.C.

P.O. Box 5059

Montgomery, Alabama 36103

(334) 263-7733 (Voice)

(334) 832-4390 (Fax)

J-Lewis@JayLewisLaw.com

ASB-2014-E66J

Attorney for Defendant

Case 2:06-cr-00200-WHA-CSC Document 48 Filed 09/25/2006 Page 2 of 3
CERTIFICATE OF SERVICE

I hereby certify that on the _23rd_ day of September, 2006, I electronically filed the

foregoing with the Clerk of the Court using the CM/ECF system which will send notification of

such filing to the following parties or counsel:

Terry Moorer

Office of the United States Attorney

One Court Square, Suite 201

Montgomery, AL 36104

/s/ JAY LEWIS

Law Offices of Jay Lewis, L.L.C.

P.O. Box 5059

Montgomery, Alabama 36103

(334) 263-7733 (Voice)

(334) 832-4390 (Fax)

J-Lewis@JayLewisLaw.com

ASB-2014-E66J

Attorney for Defendant

Case 2:06-cr-00200-WHA-CSC Document 48 Filed 09/25/2006 Page 3 of 3