* This order and judgment is not binding precedent, except

under the doctrines of law of the case, res judicata, and

collateral estoppel. The court generally disfavors the citation

of orders and judgments; nevertheless, an order and judgment may

be cited under the terms and conditions of 10th Cir. R. 36.3.

 

** The Honorable Thomas M. Reavley, United States Court of

Appeals, Fifth Circuit, sitting by designation.

UNITED STATES COURT OF APPEALS

Filed 8/26/96

TENTH CIRCUIT

 

UNITED STATES OF AMERICA, )

)

Plaintiff-Appellee, )

v. ) No. 95-2254

) (D.C. No. 95-086)

DULCES CARDENAS-TARANGO, ) (D. of New Mexico)

)

Defendant-Appellant. )

 

ORDER AND JUDGMENT*

 

Before TACHA, REAVLEY** and LUCERO, Circuit Judges.

 

A jury found Cardenas guilty of possession with intent to

distribute not less than 50 kilograms of marijuana. 21 U.S.C. §§

2, 841(a)(1) and 841(b)(1)(D). He was sentenced to 27 months of

imprisonment and three years of supervised release. Cardenas

appeals two evidentiary issues from his trial. We will affirm.

Through a series of fortuitous events federal border patrol

officers discovered that Cardenas and an unidentified passenger
2

in Cardenas’s truck were in a “lead” vehicle attempting to thwart

border agents and transport 50 kilograms of marijuana west. The

marijuana was contained in a second vehicle, following Cardenas

at some distance. Apparently a common practice, the idea was for

the two automobiles to travel together with the drugs in the

second vehicle. If they approached an active border patrol

station, the first vehicle would warn the second vehicle either

by returning to a fixed point or by contacting the other vehicle

by radio or phone. Shortly after Cardenas and his passenger

successfully passed through the border checkpoint, a truck driver

notified border patrol agents at the checkpoint that a maroon

vehicle had turned around on the freeway. Believing that this

may be a vehicle attempting to avoid the checkpoint, several

agents went to investigate. After searching unsuccessfully for

the maroon car, the border agents discovered that Cardenas’s

vehicle had turned around on the freeway sometime after passing

through the checkpoint. Suspicious of Cardenas’s actions, an

agent in an unmarked car followed Cardenas. Cardenas briefly

pulled into a rest area, and when he exited, a Maroon car was

following him. By the time Cardenas and the maroon car were

stopped, Cardenas’s passenger was nowhere to be found. 

At trial the driver of the maroon vehicle fingered Cardenas

and the unidentified passenger as the men who had promised to pay

him $1000 to drive the vehicle. Cardenas, however, contended

that his passenger had asked him for a ride, and that he had no
3

knowledge of the existence of the maroon vehicle which had been

following him. Cardenas testified that the reason he had turned

around after passing through the border station was that the

passenger had been ill during the trip, and that after passing

through the border checkpoint the passenger had expressed a

desire to return to El Paso, Texas. The jury chose not to

believe Cardenas.

Cardenas appeals two evidentiary rulings. He asserts that

both were crucial to his defense, that is, that the passenger,

and not Cardenas was the mastermind behind the smuggling of the

marijuana. We review the trial court’s evidentiary rulings for

an abuse of discretion. United States v. Gonzales-Acosta , 989

F.2d 384, 388-89 (10th Cir.1993). We will address each

evidentiary ruling in turn.

Cardenas attempted to illustrate that he was poor and that

he did not have sufficient funds to be a drug “kingpin” involved

in the transportation of approximately $85,000 in marijuana. To

support this contention, Cardenas offered a photograph of the

exterior of his home, testimony from his landlord concerning the

amount of rent he paid, and his delay in making those rent

payments. However, when Cardenas attempted to introduce

photographs of the interior of his apartment, the court sustained

the government’s objection. The district court determined that

the photographs were more prejudicial than their limited
4

probative value. Fed. R. Crim. Evid. 403. As the district court

pointed out, this may very well have been Cardenas’s first drug

transaction. Nevertheless, to the extent that it is relevant,

the district court did not abuse its discretion in refusing to

admit those photographs.

Next, Cardenas asserts that the trial court erred in not

permitting his “cultural expert” to testify. Cardenas called

Felipe Peralta to the stand to testify concerning the behavior of

“poor Mexicans” when confronted by police. The evidence appears

to have been offered to explain Cardenas’s exchange with officers

just before he was arrested. During that exchange, Cardenas

appeared “nervous” and he apparently changed his story several

times. The district court excluded the expert’s testimony under

Rule 403. We note that it does not take a cultural expert to

explain to a jury that an individual may act nervous when he

speaks with an officer, or that some individuals may attempt to

give an answer that they believe the officer desires to hear. 

This is even more true when a defendant takes the stand and has

the ability to explain why he acted this way to the jury. 

“[W]here as here expert testimony is offered on an issue that a

jury is capable of assessing for itself, it is plainly within the

trial court’s discretion to rule that testimony inadmissible

because it would not even marginally ‘assist the trier of fact’ .

. . .” Thompson v. State Farm Fire and Cas. Co. , 34 F.3d 932, 941
5

(10th Cir. 1994). A “cultural expert” offers little aid to the

jury’s decision regarding Cardenas’s credibility in this case, 
6

therefore, the district court did not abuse its discretion in

excluding the evidence.

AFFIRMED. 

Entered for the Court

Thomas M. Reavley

Circuit Judge