UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

UNITED STATES OF AMERICA,

Plaintiff - Appellee, 

v. 

EFRAIN GONZALEZ-PEREZ, 

Defendant - Appellant. 

No. 13-2147 

 (D.C. No. 1:12-CR-01085-LH-1) 

(D. N.M.) 

 

ORDER AND JUDGMENT*

Before KELLY, O'BRIEN, and MATHESON, Circuit Judges.

A jury convicted Efrain Gonzalez-Perez of illegally transporting an alien, Daniel 

Perez-Soto. He claims the indictment must be dismissed because the government 

permitted an important witness to voluntarily return to Mexico without first affording him 

an opportunity to depose the witness. He also alleges his trial was riddled with problems, 

 

*

 This order and judgment is an unpublished decision, not binding precedent. 10th 

Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. 

It is appropriate as it relates to law of the case, issue preclusion and claim preclusion. 

Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). 

Citation to an order and judgment must be accompanied by an appropriate parenthetical 

notation B (unpublished). Id. 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 5, 2014

Elisabeth A. Shumaker 

Clerk of Court
- 2 - 

including translation errors and the admission of improper hearsay and expert testimony. 

None of his arguments pass muster. We affirm. 

I. BACKGROUND 

 In the summer of 2011, “John Smith”1

 was arrested in Texas and charged with 

illegal transportation of an alien. In exchange for dismissal of the charges, Smith agreed 

to cooperate with the FBI.2

 He did so, in part, by identifying Gonzalez-Perez as someone 

he had worked with in the past to smuggle illegal aliens into this country. 

 On March 9, 2012, Gonzalez-Perez called Smith regarding the transportation of an 

illegal alien from El Paso, Texas, to Albuquerque, New Mexico. He told Smith he would 

be in contact to confirm the individual’s location in El Paso. Two days later, on March 

11, 2012, he called Smith, with words to the effect that “the fucker’s still there.” 

(Appellant’s App’x at 114.) This phone conversation was recorded and played for the 

jury. Gonzalez-Perez had used the Spanish term “cabrόn,” which FBI Agent John 

Wardle, a Spanish speaker, told the jury is a derogatory term meaning “fucker.” 

(Appellant’s App’x at 130.) 

 On March 14, 2012, Gonzalez-Perez again called Smith, this time to give him a 

telephone number he could use to contact the individual in El Paso. He told Smith to 

refer to the individual as “Daniel tocayo.” (Appellant’s App’x at 114.) This conversation 

 

1

 “John Smith” and the other confidential informant involved in this case, “James 

Jones,” were allowed to testify under pseudonyms to protect their true identities. 

2

 At the time of trial (January 28, 2013), the FBI had paid Smith a total of $5,000 

for his services and expenses in this and other cases. 
- 3 - 

was also recorded and played for the jury. In his testimony, Wardle explained the use of 

the Spanish word “tocayo” is significant because it refers to someone who shares the 

same last name as the speaker and Gonzalez-Perez and the individual in El Paso, later 

identified as Perez-Soto, share the same surname—Perez. 

 Later that day, Smith found Perez-Soto in El Paso and drove him to a motel in Las 

Cruces, New Mexico. After showing Perez-Soto where he would be picked up in the 

morning, Smith secured him in a motel room and left with the room key. 

 The next morning, “James Jones,” another confidential informant working for the 

FBI, collected Perez-Soto from the motel in a flatbed tractor-trailer. After Jones and 

Perez-Soto passed through the Border Patrol checkpoint just outside of Las Cruces,3

Gonzalez-Perez called Smith to inform him “they were done at the store,” meaning Jones 

and Perez-Soto had made it through the checkpoint.4

 (Appellant’s App’x at 119.) 

 As Jones and Perez-Soto continued their journey north to Albuquerque, GonzalezPerez made a number of telephone calls to Smith. In one of those calls, he informed 

Smith he was going to change his location because of his concern about looking 

“suspicious.” (Appellant’s App’x at 119.) In another call, Gonzalez-Perez told Smith he 

had paid $800 to get Perez-Soto across the border and he would profit very little from the 

operation. 

 

3

 The FBI obtained permission from the United States Border Patrol for Jones and 

Perez-Soto to pass through the checkpoint undetected. But, to maintain the ruse that 

Jones was a legitimate alien smuggler, the FBI instructed Jones to hide Perez-Soto in the 

sleeper compartment of the truck’s cab before passing through the checkpoint. 

4

 The record does not reveal how Gonzalez-Perez came to know of their progress. 
- 4 - 

 Jones drove Perez-Soto to a truck stop in Albuquerque where Gonzalez-Perez was 

waiting in his pickup truck. After Gonzalez-Perez paid Jones $1,200,5

 he and Perez-Soto 

left in the pickup. As they were leaving the truck stop, Gonzalez-Perez called Smith to 

tell him “it’s done.” (Appellant’s App’x at 125.) The entire trip—from El Paso to 

Albuquerque—was observed by either FBI or Border Patrol agents.6

 After the two men left the truck stop, a Border Patrol agent stopped the pickup. 

When the agent inquired about their citizenship, Gonzalez-Perez stated he was a lawful 

permanent resident. Perez-Soto neither made a claim of U.S. citizenship nor provided 

any documentation showing he was lawfully in this country. The agent took both men 

into custody. 

 After his arrest, Gonzalez-Perez called Smith to tell him it was “fucked up.” 

(Appellant’s App’x at 125.) He had been arrested, but had said nothing to the agents; he 

did not know what Perez-Soto may have told them. He told Smith to no longer contact 

him on his telephone number and suggested that Smith dispose of his phone. 

 FBI Agent John Wardle interviewed Perez-Soto, who disclosed the following. He 

first provided purely historical information. He had first entered the United States in 

1989 and had lived in Los Angeles, California, for nine years. In 1997, he moved to 

Cactus, Texas. At one time, he had a work authorization permit. In 2008 or 2009, his 

 

5

 Agent Wardle testified that in his experience the price for transporting an illegal 

alien from El Paso to Albuquerque is approximately $1,200. 

6

 The FBI also took pictures of Gonzalez-Perez and Perez-Soto walking from the 

flatbed trailer to Gonzalez-Perez’s pickup truck and of Perez-Soto getting into the pickup. 
- 5 - 

vehicle was stopped by an officer who discovered he was using his uncle’s driver’s 

license. Facing deportation, he agreed to leave voluntarily. In July 2011, he surrendered 

his work authorization permit and returned to Mexico. But a few months later, he 

decided to return to Cactus where his son, a U.S. citizen, was living. But then his 

statement took a peculiar turn; one contrary to what Wardle knew about the case. PerezSoto claimed to have traveled to Juarez, Mexico, where he paid someone $50 to show 

him where to safely cross the border. After arriving in El Paso, he paid $1,500 to a 

smuggler who gave him a ride in the trunk of his car to Albuquerque. He claimed to have 

been living with cousins at a house near the Flying J in Albuquerque for approximately 

thirty days prior to his arrest. He said a truck driver friend told him about a man named 

Efrain (presumably Efrain Gonzalez-Perez) who would give him a job. His friend took 

him to the truck stop to meet with Efrain. Efrain picked him up at the truck stop so 

Efrain could familiarize him with the job.

 Perez-Soto’s biographical information and fingerprints were entered into the 

Border Patrol’s ENFORCE and IDENT computer programs. The results showed PerezSoto had been voluntarily returned to Mexico in 2009 after being apprehended in 

Oklahoma City and was now illegally in this country. The Border Patrol subsequently 

offered him the opportunity to voluntarily return to Mexico, an offer he readily accepted.7

 

He was not available for trial and his whereabouts are unknown. 

 

7

 “The benefit of being permitted to voluntarily depart as opposed to being 

deported is that a formally deported illegal alien faces criminal penalties for merely 

(Continued . . . ) 
- 6 - 

 Gonzalez-Perez was indicted two months later with transporting an illegal alien in 

violation of 8 U.S.C. § 1324(a)(1)(A)(ii). After a two-day trial, the jury returned a guilty 

verdict. The judge sentenced Gonzalez-Perez to ten months imprisonment. 

II. DISCUSSION 

 Gonzalez-Perez presents five arguments: (1) the indictment must be dismissed 

because the testimony of Perez-Soto, a material witness, was unavailable due to 

government agents permitting him to return to Mexico; their acts, he says, violated his 

Fifth Amendment due process rights and his Sixth Amendment right to compulsory 

process; (2) through FBI Agent Wardle’s testimony the government impermissibly 

introduced Perez-Soto’s post-arrest statements concerning his immigration status; (3) 

Border Patrol Agent Brian Knoll improperly offered expert opinion that he had the 

requisite mental state to commit the offense, a violation of Rule 704(b) of the Federal 

Rules of Evidence (Rule 704(b)); (4) Wardle made two translation errors resulting in an 

unfair trial; and (5) the cumulative effect of these errors requires reversal of his 

conviction. 

A. Release of Perez-Soto to Mexico 

 The government’s release of Perez-Soto to Mexico triggered two pretrial motions 

by Gonzalez-Perez—a motion to dismiss the indictment and a motion in limine to 

preclude the government from offering into evidence any of Perez-Soto’s post-arrest 

 

returning to the United States.” United States v. Iribe-Perez, 129 F.3d 1167, 1173 n.5 

(10th Cir. 1997) (citing, e.g., 8 U.S.C. § 1326). 
- 7 - 

statements concerning his nationality, immigration status, or the manner of his entry into 

the United States. 

 The district judge took the motion to dismiss under advisement until the close of 

the evidence, at which time he denied it. Relevant here, he decided Gonzalez-Perez had 

failed to demonstrate bad faith on the part of the government—it disclosed Perez-Soto’s 

statements to the defense, it provided a reasonable explanation for why it did not deem 

the statements exculpatory (his statements about living in Albuquerque for a month prior 

to his arrest were patent lies exposed by the constant surveillance of him traveling from 

El Paso to Albuquerque) and nothing indicated the government had departed from normal 

deportation procedures in allowing Perez-Soto to voluntarily depart to Mexico. 

 The judge granted the motion in limine. He concluded (and the government 

agreed) Perez-Soto’s inculpatory post-arrest statements concerning his immigration status 

were inadmissible because they constituted testimonial statements by an unavailable 

witness who the defendant, Gonzalez-Perez, had not had a prior opportunity to crossexamine. 

1. Motion to Dismiss Indictment 

 We review the denial of a motion to dismiss an indictment for an abuse of 

discretion; we will not disturb the decision “unless there is a distinct showing it was 

based on a clearly erroneous finding of fact or an erroneous conclusion of law or 

manifests a clear error of judgment.” United States v. Barajas-Chavez, 358 F.3d 1263, 

1267 (10th Cir. 2004) (citation and quotation marks omitted). To obtain dismissal of an 

indictment based on the government’s deportation of a witness, the defendant must show: 
- 8 - 

“(1) the government acted in bad faith by allowing a witness with potentially exculpatory 

information to depart; and (2) the voluntary departure of the absent witness prejudiced 

him by eliminating testimonial evidence that ‘would be both material and favorable to the 

defense.’”8

 United States v. Iribe-Perez, 129 F.3d 1167, 1173 (10th Cir. 1997) (quoting 

United States v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982), and citing Arizona v. 

Youngblood, 488 U.S. 51, 58 (1988)). Because the government agents did not act in bad 

faith, we need not address the particulars of Perez-Soto’s possible testimony. 

 “The presence or absence of bad faith by the police for purposes of the Due 

Process Clause must necessarily turn on the police’s knowledge of the exculpatory value 

of the evidence at the time it was lost or destroyed.” Youngblood, 488 U.S. at 56 n.*. 

Negligence is not enough to establish bad faith. Id. at 58. There must be (1) willful 

conduct motivated by a desire to obtain a tactical advantage over the defense or (2) a 

departure from the government’s normal deportation procedures. Cf. California v. 

Trombetta, 467 U.S. 479, 488 (1984) (holding State’s failure to retain breath samples did 

not state a constitutional violation because in failing to preserve those samples, the state 

officers “were acting in good faith and in accord with their normal practice” and there 

was no allegation of “official animus towards respondents or of a conscious effort to 

suppress exculpatory evidence”); Taylor v. Illinois, 484 U.S. 400, 415-17 (1988) (defense 

witness was properly excluded based on discovery order violation which was “both 

 

8

 The same standard applies when the government facilitates a voluntary 

departure. See United States v. Morales-Quinones, 812 F.2d 604, 608-09 (10th Cir. 

1987); see also Iribe-Perez, 129 F.3d at 1173 n.6 
- 9 - 

willful and blatant” and where circumstances showed defense counsel “was deliberately 

seeking a tactical advantage”); see also United States v. Chaparro-Alcantara, 226 F.3d 

616, 624 (7th Cir. 2000) (stating bad faith requires “official animus or a conscious effort 

to suppress exculpatory evidence”) (quotations omitted); United States v. Pena-Gutierrez, 

222 F.3d 1080, 1085 (9th Cir. 2000) (concluding a showing of bad faith requires proof 

the government departed from its normal deportation procedures or deported the witness 

to gain an unfair tactical advantage over the defendant at trial). 

 In support of his bad faith argument, Gonzalez-Perez claims Agent Wardle knew 

Perez-Soto could offer potentially exculpatory evidence and released him so the 

government would gain a tactical advantage. He doth protest too much. 

 At the time of his release, Wardle knew Perez-Soto claimed to have been living in 

Albuquerque for a month prior to his arrest and to have been driven to the truck stop in 

Albuquerque by a friend in order to meet Gonzalez-Perez regarding a job opportunity. 

But Wardle knew several other important things: this story directly contradicted his own 

observation of Perez-Soto being picked up in El Paso the day before his arrest and driven 

to Albuquerque by Jones on the day of his arrest; Gonzalez-Perez’s payment of $1,200 to 

Jones for Perez-Soto’s transportation; the recorded telephone conversations in which 

Gonzalez-Perez is arranging for Perez-Soto’s transportation by Smith; and his complaints 

of making little profit from the transaction. Wardle was confronted with a potential 

witness who was almost certainly lying about those matters and the transparent lies could 

be easily disproved. We cannot fault him for believing Perez-Soto’s testimony would not 

be helpful to either the government or the defense. 
- 10 - 

 But credibility determinations are for the jury. See United States v. Davis, 473 

F.2d 1023, 1025 (10th Cir. 1973). Conceivably, had Perez-Soto not been allowed to 

voluntarily depart the country, his testimony could have been preserved and presented to 

the jury and, although highly unlikely, the jury could have chosen to believe him in spite 

of the other evidence. In an abundance of caution the more prudent practice might have 

been for Wardle to detain Perez-Soto until defense counsel could preserve his testimony 

before he was permitted to voluntarily depart. 

 Nevertheless, the tipping point is bad faith, not merely negligence. Contrary to 

Gonzales-Perez’s speculation, there is no credible evidence of Wardle willfully (rather 

than negligently) releasing Perez-Soto in order for the government to gain a tactical 

advantage at trial. He did not try to conceal the statements. And the government’s case 

also took a hit—Perez-Soto’s unavailability for trial prevented it from introducing a 

recorded telephone conversation between Perez-Soto and Smith in some degree 

implicating Gonzalez-Perez in the illegal transportation. Moreover, there is no indication 

the government departed from its normal deportation practices in allowing Perez-Soto to 

depart. 

 Grasping at a slender reed, Gonzalez-Perez urges us to follow the Ninth Circuit’s 

decision in United States v. Leal-Del Carmen. In that case, the court adopted a per se 

rule: “When the government doesn’t know what a witness will say, it doesn’t act in bad 

faith by deporting him. But if the government interviews the witness or has other 

information suggesting that he could offer exculpatory evidence, the government may not 

deport him without first giving defense counsel a chance to interview him [and the 
- 11 - 

opportunity to decide whether to seek his retention pending trial].” 697 F.3d 964, 970 

(9th Cir. 2012). It reasoned: “The government is uniquely empowered to deport 

witnesses and thus put them outside the reach of defense counsel and the district court. It 

may not use that power to give itself an unfair advantage.” Id. at 971. 

 We decline to follow the Ninth Circuit. A per se rule requiring the government to 

always detain alien witnesses with potentially exculpatory information unduly interferes 

with the immigration laws enacted and to be executed by the political branches of our 

government. Moreover, a per se rule essentially presumes bad faith on the part of the 

government. The presence of bad faith must be proved, not its absence.

2. Motion in Limine 

 The judge granted (without objection) Gonzalez-Perez’s motion in limine seeking 

to exclude the post-arrest statements Perez-Soto made to Wardle concerning his 

immigration status. He concluded the statements were inadmissible under Crawford v. 

Washington, 541 U.S. 36 (2004), because they were testimonial statements, made by an 

unavailable witness, not subject to cross-examination or even questioning. The 

government nevertheless introduced the following statements at trial: 

 [Prosecutor]: [D]id you interview [Perez-Soto] after he was arrested? 

 [Agent Wardle]: I did. 

 [Prosecutor]: Okay. Can you tell me what information he gave you? 

 [Agent Wardle]: He confirmed that he was not a U.S. citizen. 

 . . . . 

 [Prosecutor]: Did he mention that he had . . . previously lived in the United States? 
- 12 - 

 [Agent Wardle]: He did. 

 [Prosecutor]: And what did he say? 

[Agent Wardle]: He said that in 2009 he was living in Oklahoma and had been 

granted voluntary return to Mexico. 

(Appellant’s App’x at 124.) 

 Gonzalez-Perez did not object to the questioning. However, both parties suggest 

that his pretrial motion in limine adequately preserved this argument for appeal. But that 

is a legal issue for a court to decide. See United States v. Fonseca, 744 F.3d 674, 682 

(10th Cir. 2014) (“[T]he court, not the parties, must determine the standard of review.”) 

(citation and quotation marks omitted). And the parties’ urging improperly states the 

law.

 In United States v. Mejia-Alarcon, we held a pretrial motion in limine may 

preserve an objection for appeal when (1) the matter was adequately presented to the 

district court, (2) the issue is of the type that can be finally decided in a pretrial hearing, 

i.e., the issue is a matter of law and not a fact-bound determination dependent upon the 

character of evidence introduced at trial, and (3) the district court’s ruling was definitive. 

995 F.2d 982, 986-87 (10th Cir. 1993). More recently, however, we said the granting of 

a party’s pretrial motion in limine to exclude evidence does not relieve that party from 

contemporaneously objecting when the excluded evidence is admitted. Fonseca, 744 

F.3d at 683. In these circumstances, requiring a contemporaneous objection would not be 

futile but would instead alert the court to new error—violation of the court’s earlier 

ruling. Id. When the government introduced Perez-Soto’s post-arrest statements in 
- 13 - 

violation of the liminal order excluding them, Gonzalez-Perez was required to object in 

order to preserve the argument for appeal. Since he did not, our review is for plain error. 

United States v. Pablo, 696 F.3d 1280, 1287 (10th Cir. 2012). Plain error review requires 

Gonzalez-Perez to show “(1) there was error, (2) that is plain, (3) that affects substantial 

rights, and (4) that seriously affects the fairness, integrity or public reputation of judicial 

proceedings.” United States v. Williamson, 746 F.3d 987, 992 (10th Cir. 2014) (citation 

omitted). “We apply these requirements less rigidly when reviewing a potential 

constitutional error.” Pablo, 696 F.3d at 1287 (quotations omitted). 

 Since, in this appeal, the government has admitted error, we will assume, without 

deciding, that Agent Wardle’s testimony relating Perez-Soto’s post-arrest statements 

concerning his immigration status was inadmissible under the Sixth Amendment’s 

Confrontation Clause. See United States v. Chavez, 481 F.3d 1274, 1277 n.2 (10th Cir. 

2007). We also assume the error was plain. Nevertheless, Gonzalez-Perez has not shown 

it to have been sufficiently momentous to require reversal. 

“Satisfying th[e] third prong of plain-error review usually means that the error 

must have affected the outcome of the district court’s proceedings.” Pablo, 696 F.3d at 

1293 (quotations omitted). The defendant “must show a reasonable probability that, but 

for the error claimed, the result of the proceeding would have been different.” Id.

(quotations omitted). “A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” United States v. Hasan, 526 F.3d 653, 665 (10th Cir. 2008) 

(quotations omitted). 
- 14 - 

 There was abundant other evidence of Perez-Soto’s unlawful status. The border 

patrol agent who arrested Gonzalez-Perez and Perez-Soto testified that when he inquired 

of their citizenship, Gonzalez-Perez said he was a lawful permanent resident; Perez-Soto, 

on the other hand, made no claim of citizenship and had no papers showing he was 

lawfully in the United States. Another border patrol agent told the jury that when he ran 

Perez-Soto’s biological information and fingerprints into the border patrol’s computer 

systems, the results showed he had been voluntarily returned to Mexico in 2009 and was, 

at the time of the inquiry, unlawfully in the United States. The jury also heard that PerezSoto agreed to voluntarily return to Mexico, an unlikely choice if he were lawfully in the 

United States. Gonzalez-Perez has not carried his burden of showing a reasonable 

probability of acquittal had the offending testimony not been introduced. 

B. Expert Testimony—Rule 704(b) 

 8 U.S.C. § 1324(a)(1)(A)(ii) “makes it illegal for a person who, knowing or in 

reckless disregard of the fact that an individual is an illegal alien, transports or moves, or 

attempts to transport or move, the alien in furtherance of the alien’s illegal entry or 

continued illegal presence in the United States.” United States v. Barajas-Chavez, 162 

F.3d 1285, 1287-88 (10th Cir. 1999) (en banc) (quotations omitted). The “in furtherance 

of” element “requires that a defendant know or act in reckless disregard of the fact that an 

individual is an illegal alien, and that defendant’s transportation or movement of the alien 

will help, advance, or promote the alien’s illegal entry or continued illegal presence in the 

United States.” Id. at 1288. The jury was so instructed, but the issue here is the 

admission of evidence. 
- 15 - 

 Prior to trial, the government noticed its intent to offer Border Patrol Agent Brian 

Knoll as an expert on alien smuggling organizations. It anticipated Knoll would testify 

that when an alien smuggling organization moves an alien from the border to the interior 

of the United States, the odds of the alien being detected by law enforcement decrease 

while his opportunities for employment increase. Relying on Rule 704(b), GonzalezPerez filed a motion in limine objecting to any attempt by Knoll to offer an opinion on 

his mental state at the time of the alleged crime. The government amended its notice; it 

predicted Knoll would testify that when an alien smuggling organization moves an alien 

from one point to another, especially to a point where he is less likely to be detected, it 

typically does so to further the alien’s illegal presence in the United States because the 

alien, as inventory, has value to the organization. The judge deferred ruling on the issue 

until trial. 

 At trial, Agent Knoll testified in pertinent part: 

[Prosecutor]: And so let me ask you, if you’re moving an alien from a place, such 

as, in this case, a truck stop, into a more private place, which would include a 

privately owned vehicle, does that potentially further the illegal alien’s presence in 

the United States? 

 [Agent Knoll]: It absolutely furthers that person’s entry into the United States. 

 [Prosecutor]: Why is that? 

[Agent Knoll]: The . . . principal reason is to avoid detection by law enforcement 

and to get that person from their home country to their final destination in the 

United States. 

[Prosecutor]: And the fact that the automobile moves from one place to another 

would facilitate that? 

 [Agent Knoll]: Right, because it blends in with the rest of society. 
- 16 - 

[Prosecutor]: In a privately owned automobile, unless there is a traffic stop or 

something like that, is it unlikely that the alien will come into contact with the 

public at large? 

 [Agent Knoll]: That . . . illegal alien would go undetected. 

[Prosecutor]: Now, if an alien smuggling organization is moving an alien from 

point A to point B . . . can you tell me what the primary incentive is? 

 [Agent Knoll]: Profit. 

[Prosecutor]: And so, if an alien smuggling organization is moving an alien from 

point A to point B, and the motive is profit, is there any incentive to move that 

alien where that person would be more likely to get detected? 

[Agent Knoll]: No, because . . . the person is a commodity. If he loses that -- he or 

she loses that commodity, the smuggler does not make a profit. 

 . . . . 

[Prosecutor]: Now, so are you aware of there being evidence in this case that the 

defendant, Efrain Gonzalez-Perez, paid a confidential informant, known as James 

Jones, $1,200 to deliver an alien to Albuquerque, that there is evidence of that? 

 [Agent Knoll]: There is evidence. 

[Prosecutor]: Does that have any significance to you in terms of the motivation of 

the alien smuggler? 

(Appellant’s App’x at 190-91.) 

 At this point, defense counsel objected, arguing the question “invades the province 

of the jury as an expert.” (Appellant’s App’x at 192.) The judge overruled the objection. 

Nevertheless, the prosecutor abandoned that question in favor of a more general 

approach. The colloquy continued: 

[Prosecutor]: There is that $1200 payment. Does that represent an investment on 

the part of the smuggler in the alien? 
- 17 - 

[Agent Knoll]: Again, alien smuggling is very personal. You’re dealing with 

people. If . . . one person pays another $1200 and gets somebody else in return, 

yes, there is an investment in that. 

[Prosecutor]: Based on that investment, would there be an incentive on the part of 

the investor to further that alien’s illegal presence in the United States? 

 [Agent Knoll]: Yes. 

(Appellant’s App’x at 192.) Defense counsel did not object to this latter questioning. 

 Gonzalez-Perez challenges two aspects of Knoll’s testimony—his statement that 

moving an illegal alien from a place like a truck stop to a private space like a personal 

vehicle “absolutely furthers” the alien’s presence in the United States and his statement 

that a payment of $1,200 would provide an incentive to further the alien’s presence in the 

United States. According to Gonzalez-Perez, this testimony violates Rule 704(b) because 

it goes beyond merely providing expert testimony regarding the general practices of alien 

smuggling organizations and instead specifically and definitively implies that GonzalezPerez acted with the requisite intent, i.e., his actions were undertaken “in furtherance of” 

or with the intent to assist Perez-Soto’s illegal entry or presence in the United States. 

 As with Perez-Soto’s statements, Gonzalez-Perez is only entitled to plain error 

review of this issue. He did not object when the prosecutor asked Knoll whether moving 

an alien from a truck stop to a private vehicle furthers that alien’s illegal presence in the 

United States. See United States v. Anaya, 727 F.3d 1043, 1053 (10th Cir. 2013) 

(reviewing for plain error where defendant did not object). And, while he did object to 

the question about how the $1,200 payment to Jones might provide insight into Gonzalez-
- 18 - 

Perez’s motivation, that question was abandoned and he did not object to the re-phrased, 

more general, question.9

 Id. at 1058 nn.9 & 10. 

 Rule 704(b) provides: “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 scope of the rule is limited—expert testimony “expressly stating 

the final conclusion or inference as to a defendant’s mental state” is off limits, but 

testimony of “facts or opinions from which the jury could conclude or infer the defendant 

had the requisite mental state” is fair game. United States v. Goodman, 633 F.3d 963, 

970 (10th Cir. 2011); see also United States v. Archuleta, 737 F.3d 1287, 1298 (10th Cir. 

2013) (experts may “properly testify to facts or opinions from which the jury could 

conclude or infer that” a defendant had a required mental state but the “final inference is 

for the trier of fact alone.”) (quotations omitted), cert. denied, 134 S. Ct. 2859 (2014). 

 Knoll’s testimony did not violate Rule 704(b). He simply testified to facts and 

offered permissible opinions. Accentuating a fairly obvious fact, Knoll said moving an 

alien from a public place to a private place furthers the alien’s presence in the United 

States (because it lessens the chances of being noticed). Notably, he offered no opinion 

about whether Gonzalez-Perez, in particular, intended to further the alien’s presence. 

That was left to the jury, which could reasonably expect—based on all of the facts and 

 

9

 Gonzalez-Perez’s pretrial motion in limine did not preserve the issue because the 

judge did not announce a definitive ruling on the motion, deciding instead to rule on the 

issue at trial. See Mejia-Alarcon, 995 F.2d at 987. 
- 19 - 

circumstances of this case—that Gonzales-Perez intended the probable consequences of 

his voluntary acts. Knoll also emphasized the business aspect of alien smuggling, 

pointing out that smugglers treat aliens as a commodity. In doing so he underscored what 

seems to be an unremarkable proposition: money paid by a smuggler to move an alien is 

a cost of doing business, in other words an investment in the commodity being moved. 

Recouping costs and making a profit is an incentive for any smuggler to further an alien’s 

presence in the United States (the ultimate objective of a smuggling enterprise). The 

analogy provided an understandable way for the jury to connect the dots. Knoll’s 

answers spoke to alien smuggling in general, not Gonzalez-Perez specifically. Critically, 

the jury was left to decide whether Gonzalez-Perez had the requisite mental state and 

there were more than sufficient facts for it to conclude that he was a smuggler, motivated 

by profit to assist an alien in illegally remaining in this country. 

 Admittedly, the prosecutor interjected some case facts into his questions. By 

doing so, he brought Knoll dangerously (and needlessly) close to crossing the line from 

permissible expert testimony to invading the province of the jury. But the use of 

hypotheticals mirroring the facts of the case only violates Rule 704(b) when it “attempt[s] 

to bring forth expert opinion as to the very mental state at issue in the case—the 

defendant’s mens rea when he committed the crime.” Goodman, 633 F.3d at 970. No 

violation occurs when their use “still allows the fact finder to make an additional 

inference as to whether the defendant had the mental state or condition constituting an 

element of the crime charged.” Id. In this case, although the prosecutor introduced some 

of the facts of this case into his questions, Knoll was more circumspect, answering in 
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terms of alien smugglers in general, thereby leaving the jury to make the additional and 

necessary inference about Gonzalez-Perez’s mental state. 

 Two of the cases relied on by Gonzalez-Perez are inapposite. In Shaffer and

Warshak, the experts opined or sought to opine that the defendant had or did not have the 

requisite mental state to commit the crime. See United States v. Shaffer, 472 F.3d 1219, 

1225 (10th Cir. 2007) (concluding the district court did not err in refusing to permit a 

computer expert from offering his opinion that based upon the file structure of 

defendant’s computer hard drive, the defendant was on a “porn fishing expedition with no 

particular calculation toward any particular type of material, other than generally sexually 

explicit material”; such opinion would improperly suggest to the jury, in violation of Rule 

704(b), that the defendant “did not knowingly possess or distribute unlawful child 

pornography as opposed to simple adult pornography”) (quotations omitted); United 

States v. Warshak, 631 F.3d 266, 324 (6th Cir. 2010) (holding Rule 704(b) was violated 

by expert testimony that the business dealings of defendant’s company were commingled 

with his personal dealings with the “intent to conceal” and that certain cash transactions 

were “designed to conceal”; the former spoke directly to the defendant’s mens rea to 

commit money laundering and the latter was tantamount to declaring that the individual 

who conducted the transactions intended to achieve the outcome). 

United States v. Dennison is a closer call, but cannot carry the day. In Dennison, 

the defense expert sought to offer his opinion that alcohol and drug consumption by a 

hypothetical person with the same mental disorder suffered by the defendant would 

render the person incapable of forming the specific intent necessary to commit assault. 
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937 F.2d 559, 564-65 (10th Cir. 1991). We concluded the opinion was properly excluded 

under Rule 704(b) because, although couched in terms of a hypothetical person, “the 

necessary inference was that the instant defendant did not have the capacity to form 

specific intent at the time of his crimes because of the combined effects of his 

intoxication and mental illness.” Id. Unlike in this case, the expert’s opinion in 

Dennison left no room for the jury to infer, on its own, the defendant’s requisite mental 

intent. 

Even assuming error, however, Gonzalez-Perez has not satisfied the third prong of 

plain error review, i.e., “that [any] error affected the outcome of the district court’s 

proceedings.” Pablo, 696 F.3d at 1293 (quotations omitted). There was copious other 

evidence (the surveillance, recorded telephone calls, the $1,200 payment) demonstrating 

he transported Perez-Soto from El Paso to Albuquerque with the intent to help him 

remain in this country illegally. 

C. Translation Errors 

 The jury heard the March 9 and March 14, 2012 telephone conversations between 

Gonzalez-Perez and Smith. The conversations were in Spanish, which Agent Wardle 

interpreted for the jury. The government did not offer Wardle as an expert in the Spanish 

language but he testified to being fluent in Spanish, having studied Spanish in high 

school and college, and having lived in Guatemala for two years. He also said he took a 

test prior to enrolling in college to gauge his fluency in Spanish; the results of the test 

placed him in advanced level Spanish courses. 
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 In this appeal and for the first time, Gonzalez-Perez claims Wardle made two 

translation errors: (1) saying “cabrόn” means “fucker” and (2) testifying “tocayo” is used 

to refer to someone who shares the same last name as the speaker. Because he did not 

object in the district court, we once again review for plain error. 

 In an attempt to show error, Gonzalez-Perez has submitted an affidavit from Jose 

Raul Natividad, a police officer in Belen, New Mexico, who claims to be “an expert by 

experience and knowledge in Mexican-Spanish.” (Appellant’s App’x at 220.) According 

to Natividad, the word “cabrόn” as used in Mexican-Spanish is not derogatory but instead 

is “used neutrally and sometimes even affectionately. It is most accurately translated as 

dude, buddy, or brother, but most certainly, standing alone, does not mean ‘fucker’ as 

translated by . . . Wardle.” (Id.) Natividad also takes issue with Wardle’s translation of 

“tocayo.” He contends the word is not used in the context of someone who shares the 

same surname but “is universally understood by Spanish speakers to mean a person who 

shares the same first or middle name.”10 (Appellant’s App’x at 221.) 

But Gonzalez-Perez did not file Natividad’s affidavit with the district court. Nor 

has he sought leave to supplement the appeal record with the affidavit. Normally, we 

will not consider material outside the record before the district court. See United States v. 

Kennedy, 225 F.3d 1187, 1191 (10th Cir. 2000); see also United States v. Farnsworth, 92 

F.3d 1001, 1009 n.5 (10th Cir. 1996) (striking document attached to government’s brief 

 

10 While cross-examining Agent Wardle at trial, defense counsel suggested 

“tocayo” referred to persons who share the same first name but he did not offer 

independent evidence to this effect. 
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which was not before the district court). We see no reason to deviate from that practice 

here. Although the affidavit does suggest translation errors occurred at trial, we have no 

way of authenticating the affidavit, in particular, Natividad’s claim to be an expert in the 

Mexican-Spanish language or his translations. Moreover, we fail to see why this 

affidavit could not have been presented to the district court, either in the midst of trial or 

in a post-trial motion. Consequently, “we conclude the circumstances in the present case 

do not lead us to believe the interests of justice would best be served by exercising our 

inherent equitable power to allow [Gonzalez-Perez] to supplement the record on appeal 

or remanding the issue to the district court.” Kennedy, 225 F.3d at 1192 (agreeing with 

the Eleventh Circuit “that, under some circumstances, we have an inherent equitable 

power to supplement the record on appeal”). Without the affidavit, Gonzalez-Perez has 

utterly failed to show an error occurred. We note in passing that the translation errors, if 

that they be, were not the object of a contemporaneous objection and, in any event, are 

insignificant when considered against the backdrop of all of the other evidence. 

D. Cumulative Error 

 Gonzalez-Perez argues cumulative error deprived him of a fair trial. “To analyze 

cumulative error, we aggregate all the errors that we have found to be harmless and 

determine whether their cumulative effect on the outcome of the trial mandates reversal.” 

Anaya, 727 F.3d at 1060-61. “Cumulative error analysis applies only if true errors 

occurred.” Id. at 1061. We have not identified error; we have only assumed error. The 

assumed errors did not, even considered in the aggregate, affect Gonzalez-Perez’s 

substantial rights. His guilt is patently obvious. 
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AFFIRMED.

Entered by the Court: 

Terrence L. O’Brien 

United States Circuit Judge