IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50606

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SERGIO TOSTADO, also known as Sergio Tostado-Becerra,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 4:12-CR-31-1

Before JONES, WIENER, and GRAVES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Sergio Tostado was charged by indictment with

aiding and abetting the possession with the intent to distribute less than 50

kilograms of marijuana. That indictment accused Tostado of knowingly

transporting marijuana through a border checkpoint in Alpine, Texas. Tostado

proceeded to trial on the issue of intent, insisting that he had driven the load of

drugs in his capacity as a confidential informant (CI) for the government and

that he never intended to distribute the drugs. A jury convicted Tostado, and

United States Court of Appeals

Fifth Circuit

F I L E D

December 5, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

 Case: 12-50606 Document: 00512462194 Page: 1 Date Filed: 12/05/2013
No. 12-50606

the district court sentenced him to 41 months of imprisonment and a three-year

term of supervised release. 

In his first issue on appeal, Tostado contends that the district court erred

in admitting expert-opinion testimony from Wade Sparks, a special agent with

the Drug Enforcement Administration (DEA), arguing that the testimony was

impermissible profile evidence. A profile is “a compilation of characteristics that

aid law enforcement officials in identifying persons who might be” involved in

a particular type of enterprise. United States v. Sanchez-Hernandez, 507 F.3d

826, 831 (5th Cir. 2007) (internal quotation marks and citation omitted). In drug

trafficking cases, “qualified narcotics agent[s] typically may testify about the

significance of certain conduct or methods of operation unique to the drug

business so long as the testimony is helpful and its relevance is not substantially

outweighed by the possibility of unfair prejudice or confusion.” United States v.

Gonzalez-Rodriguez, 621 F.3d 354, 363 (5th Cir. 2010). Testimony offered for the

purpose of proving the defendant’s guilt by comparing him to a generic profile,

however, is pure profile evidence, which is inadmissible under Federal Rule of

Evidence 702. United States v. Montes-Salas, 669 F.3d 240, 248 (5th Cir. 2012);

Sanchez-Hernandez, 507 F.3d at 833.

The testimony Tostado challenges is the agent’s reply to the prosecutor’s

questions regarding what would happen to him if, as a DEA agent, he should try

to transport a load of drugs through a checkpoint without prior approval, as

Tostado had done. Agent Sparks answered: 

If I did that on my own as Mr. Tostado did, I would be placed in

secondary just as he was. My car would be searched as he was. I

would hope I would be thrown in a cell as he was. And I would be

sitting at the same table at trial as he is.

Tostado asserts that Sparks’s testimony was impermissible profile evidence

because it indicated that a “good” CI follows the instructions of his handler and

that the jury should convict him regardless of his actual intent because he did

not follow his handler’s instructions. Tostado thus contends that the testimony

2

 Case: 12-50606 Document: 00512462194 Page: 2 Date Filed: 12/05/2013
No. 12-50606

constituted an expert opinion on the ultimate issue of intent, in violation of

Federal Rule of Evidence 704. See Fed. R. Evid. 704(b) (“In a criminal case, an

expert witness must not state an opinion about whether the defendant did or did

not have a mental state or condition that constitutes an element of the crime

charged or of a defense. Those matters are for the trier of fact alone.”). The

untoward effect of the testimony was amplified, he contends, when the

prosecutor reiterated it during closing argument.

We review the district court’s decision to admit testimony for an abuse of

discretion, and such a decision is subject to a harmless error analysis. United

States v. Setser, 568 F.3d 482, 494 (5th Cir. 2009). We disagree with Tostado’s

characterization of Sparks’s testimony as suggesting that the jury should convict

regardless of Tostado’s actual intent in bringing the drugs through the

checkpoint. We note, additionally, that this testimony was given on the heels of

Sparks’s explanation of the planning, coordination, and multiple levels of prior

approval that one required by the DEA for a government actor to bring a load of

drugs through a border checkpoint. “[B]ecause the ‘overall context’ of the

[challenged] testimony establishes that the statements were part of the agent’s

‘legitimate background testimony’ about how” an undercover operation works,

it did not cross the “fine but critical line” into the impermissible territory of pure

profile evidence. See Montes-Salas, 669 F.3d at 250 (internal quotation marks

and citation omitted). Further, to the extent that Sparks’s testimony is

considered profile evidence, it was permissible because it was “used to rebut the

defendant’s innocent explanation for his behavior.” See id. at 248. We conclude

that the district court did not abuse its discretion in admitting the challenged

testimony. See Setser, 568 F.3d at 494.

In his second issue, Tostado challenges the district court’s application at

sentencing of a two-level adjustment, under U.S.S.G. § 3C1.1, for obstruction of

justice. In particular, he challenges the ruling that he committed perjury. 

3

 Case: 12-50606 Document: 00512462194 Page: 3 Date Filed: 12/05/2013
No. 12-50606

The district court concluded that Tostado’s trial testimony that he was

bringing the drugs through the checkpoint in his capacity as a CI and that he

had no intent of distributing the drugs was false. That factual finding is one

that we review for clear error. See United States v. Juarez-Duarte, 513 F.3d 204,

208 (5th Cir. 2008). Tostado testified that, from the instructions he received

when he was signed up as a CI, he understood that he could not possess

contraband without the prior knowledge and consent of his controlling agent,

and that he could not take any independent action on behalf of the government. 

In light of the record, the district court’s finding of perjury is plausible and is not

clearly erroneous. See id. Tostado thus has not shown that the district court

erred in applying the § 3C1.1 adjustment. See § 3C1.1 & comment nn.2 & 4(B);

United States v. Dunnigan, 507 U.S. 87, 94-96 (1993).

AFFIRMED.

4

 Case: 12-50606 Document: 00512462194 Page: 4 Date Filed: 12/05/2013