UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JAVIER AMADOR-FLORES, 

 Defendant - Appellant. 

No. 17-2056 

(D.C. No. 5:15-CR-02622-KG-5) 

(D. New Mexico) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before TYMKOVICH, Chief Judge, MURPHY, and McHUGH, Circuit Judges. 

_________________________________ 

After a jury trial, Javier Amador-Flores was convicted of conspiring to distribute 

methamphetamine and sentenced to 120 months’ imprisonment. He now appeals, arguing 

for the first time that the district court should not have allowed one of the government’s 

witnesses to offer expert opinion testimony about the drug-trafficking industry. Because 

Mr. Amador-Flores never made this argument to the trial judge, we review only for plain 

error. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

 *

 This order and judgment is not binding precedent, except under the doctrines of 

law of the case, res judicata, and collateral estoppel. It may be cited, however, for its 

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 2, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

I. BACKGROUND 

A. Factual History 

On May 6, 2015, after a day’s work in the oil fields, Mr. Amador-Flores returned 

home to find federal law enforcement agents scouring his property for evidence of drug 

trafficking. This perhaps was not totally unexpected, for two of Mr. Amador-Flores’s 

close friends, with whom he communicated regularly, were drug traffickers. One of them 

was Jose Manuel Trujillo, a.k.a. “Paisa,” whom Mr. Amador-Flores knew as “the main 

boss” of a drug-trafficking organization spanning from California to Texas, if not farther. 

R. Vol. III at 205. Two days prior, Paisa had offered Mr. Amador-Flores $2000 to deliver 

eight pounds of methamphetamine to a buyer in New Mexico. Mr. Amador-Flores says 

he declined Paisa’s offer, as he always did when his friends tried to enlist him in their 

drug-trafficking schemes. 

The deal went forward, but on this occasion Paisa’s buyer turned out to be an 

undercover federal agent. And on May 6, while Mr. Amador-Flores was at work, federal 

agents executed a buy-bust sting at an abandoned bar outside Hobbs, New Mexico. They 

seized Paisa’s methamphetamine and arrested three people in connection with the 

attempted sale.1

 One of the arrestees was Myrna Orozco, Mr. Amador-Flores’s girlfriend. 

Ms. Orozco confessed that additional drugs might be found at the home she shared with 

Mr. Amador-Flores in Denver City, Texas, about thirty-five miles northeast of Hobbs. 

After she consented to a search, officers found methamphetamine and drug paraphernalia 

 1

 Paisa was not present and, so far as we know, he remains a fugitive. 
3 

stored in vehicles and sheds on their shared property. When Mr. Amador-Flores came 

home, agents told him they were conducting a narcotics investigation and asked whether 

he was involved. Mr. Amador-Flores denied any involvement. 

After reviewing the evidence, the government concluded that Mr. Amador-Flores 

was in fact a willing participant in the drug-trafficking conspiracy. 

B. Procedural History 

On July 23, 2015, a grand jury returned a one-count indictment charging Paisa, 

Ms. Orozco, Mr. Amador-Flores, and two others with a single violation of conspiring to 

distribute 500 grams and more of a mixture and substance containing a detectable amount 

of methamphetamine, contrary to 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and in violation 

of § 846. 

Mr. Amador-Flores was tried alone. The government’s first witness was Special 

Agent Rene Robles, the lead case agent for the investigation into Paisa’s drug-trafficking 

organization. In relevant part, Agent Robles testified as follows: 

Q. Did you find it consistent—His statement about the May 4th call from 

Paisa, offering him, you know, $2,000 to, you know, do this deal in place of 

Joel Dominguez-Morales, did you find that to be consistent with what you 

typically see in these type of investigations for someone who never is 

involved in drug trafficking? 

A. No. 

Q. And could you explain why? 

A. Yes. You know, typically when a drug coordinator or a drug trafficker, 

when he’s looking for, whether it be drivers or couriers, if he goes to them 

for that, it’s more than likely because he’s used them before, especially if 

dealt with on a regular basis. 
4 

R. Vol. III at 234. Mr. Amador-Flores did not object to the admission of this testimony. 

Agent Robles also testified that Mr. Amador-Flores told him he had once wired 

money to Mexico on Paisa’s behalf. That led to the following trial exchange: 

Q. Okay. Why was it significant to you that Mr. Amador-Flores admitted to 

wiring money for Paisa? 

A. Well, again, you know, in my experience in drug-trafficking 

organizations or criminal enterprises, it’s not rare to see co-conspirators or 

suspects transfer money or deposit money, number one, to avoid immediate 

possession of the money on themselves if encountered by law enforcement; 

and, number two, to make it easier or faster to get money from one location 

to another. 

Id. at 215. Mr. Amador-Flores did not object to the admission of this testimony either. 

The jury returned a guilty verdict, and the district court sentenced Mr. AmadorFlores to 120 months’ imprisonment. This direct appeal timely followed. 

II. DISCUSSION 

Mr. Amador-Flores argues that Agent Robles advanced opinion testimony 

admissible only if given by an expert witness. Agent Robles was not offered as an expert 

witness. Pointing to that disconnect, Mr. Amador-Flores asks us to remand so that he may 

have a new trial. 

A district court’s decision to admit expert or lay testimony is ordinarily reviewed 

for abuse of discretion. United States v. Brooks, 736 F.3d 921, 929 (10th Cir. 2013). That 

is only so, however, when the district court admitted testimony over a party’s timely 

objection. Because Mr. Amador-Flores did not object at trial, the district court did not 

have an opportunity to consider the merits of his argument in the first instance. In other 

words, his argument was forfeited. Fortunately for Mr. Amador-Flores, the Federal Rules 
5 

of Criminal Procedure vest us with some discretion to consider forfeited arguments for 

the first time on appeal. See Fed. R. Crim. P. 52(b) (“A plain error that affects substantial 

rights may be considered even though it was not brought to the court’s attention.”). But 

our discretion in these circumstances is “limited.” United States v. Olano, 507 U.S. 725, 

731 (1993). When a criminal defendant “did not make a contemporaneous objection to 

the admission of testimony, as was . . . the case here,” we review a district court’s 

decision to admit that testimony only for plain error. Brooks, 736 F.3d at 929–30. Mr. 

Amador-Flores asks us to implement plain error review here. 

“To satisfy the plain error standard, a defendant must show that (1) the district 

court erred; (2) the error was plain; (3) the error affects the defendant’s substantial rights; 

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

proceedings.” United States v. Sabillon-Umana, 772 F.3d 1328, 1333 (10th Cir. 2014). 

The parties dispute all four prongs. But we need not resolve all of their disagreements. 

That is because the criminal defendant “has the burden to prove that each of the four 

requirements is satisfied; failure on any one requires affirmance.” United States v. 

Beierle, 810 F.3d 1193, 1200 (10th Cir. 2016). In this case, our analysis begins with the 

first prong and ends with the second. Because Mr. Amador-Flores has failed to 

demonstrate that any error was plain, we need go no further. 

A. First Prong—Error 

“The first limitation on appellate authority under Rule 52(b) is that there indeed be 

an ‘error.’” Olano, 507 U.S. at 732. “Deviation from a legal rule is ‘error’ unless the rule 

has been waived.” Id. at 732–33. “Waiver is different from forfeiture. Whereas forfeiture 
6 

is the failure to make the timely assertion of a right, waiver is the ‘intentional 

relinquishment or abandonment of a known right.’” Id. at 733 (quoting Johnson v. Zerbst, 

304 U.S. 458, 464 (1938)). Mr. Amador-Flores’s failure to object was forfeiture, not 

waiver; he did not intentionally relinquish or abandon his rights under the Federal Rules 

of Evidence. To whatever extent the district court deviated from those rules, it erred in 

doing so. 

Mr. Amador-Flores claims that the district court erred in admitting certain 

testimony from Agent Robles in violation of Federal Rule of Evidence 701. In particular, 

he argues that Agent Robles’s testimony “about what was typical in drug cases was 

expert testimony, as it relied on the agent’s specialized knowledge. It could not come in 

through a witness, like Agent Robles, who was neither offered nor qualified as an 

expert.” Appellant’s Br. 24. 

Rule 701 governs opinion testimony by lay witnesses. It provides that if a witness 

is not testifying as an expert—and Agent Robles was not—then “testimony in the form of 

an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b) 

helpful to clearly understanding the witness’s testimony or to determining a fact in issue; 

and (c) not based on . . . specialized knowledge within the scope of Rule 702.” Fed. R. 

Evid. 701. That means that if Agent Robles’s testimony was within the scope of Rule 

702, which governs expert testimony, it was necessarily inadmissible under Rule 701. See 

Fed. R. Evid. 701(c); United States v. Yeley-Davis, 632 F.3d 673, 684 (10th Cir. 2011) 

(“[A] person may testify as a lay witness only if his opinions or inferences do not require 

any specialized knowledge and could be reached by any ordinary person.” (emphasis 
7 

added)); see also James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1216 (10th 

Cir. 2011) (“[A] party simply may not use Rule 701 as an end-run around the reliability 

requirements of Rule 702. . . . Preventing such attempts is the very purpose of subsection 

(c).” (alterations in original) (quoting Hirst v. Inverness Hotel Corp., 544 F.3d 221, 227–

28 (3d Cir. 2008))). To testify from “specialized knowledge,” a witness first “must be 

qualified as an expert under Rule 702,” which in turn requires a trial court to “make 

certain findings to fulfill its gatekeeper role.” Yeley-Davis, 632 F.3d at 684 (emphasis 

added). The introduction of expert testimony generally also requires certain pretrial 

disclosures, see Fed. R. Crim. P. 16(a)(1)(G), which the government did not provide as to 

Agent Robles. 

Our threshold question, then, is whether the testimony Mr. Amador-Flores 

challenges on appeal was based on specialized knowledge. To Mr. Amador-Flores, that’s 

an easy yes, because Agent Robles compared what happened in this case to “what [i]s 

typical in drug investigations generally,” Appellant’s Brief 25, a comparison that could 

only be made by someone with specialized knowledge of drug investigations. See YeleyDavis, 632 F.3d at 684 (explaining that the district court abused its discretion when it 

allowed a lay witness to testify about how cell phone towers operate). 

The government concedes, as it must, that Agent Robles’s testimony was 

“couched in terms of his experience,” but it nevertheless characterizes his testimony as “a 

lay observation” that required “limited specialized knowledge, if any.” Appellee’s Br. 25. 

The government argues essentially that Agent Robles’s testimony was so obvious that it 

was not a product of specialized knowledge and was thus admissible under Rule 701. See 
8 

James River, 658 F.3d at 1214 (“Rule 701 allows lay witnesses to offer observations that 

are common enough and require a limited amount of expertise, if any.” (internal 

quotation marks and alterations omitted)). Mr. Amador-Flores principally focuses on the 

following exchange: 

Q. Did you find it consistent—His statement about the May 4th call from 

Paisa, offering him, you know, $2,000 to, you know, do this deal in place of 

Joel Dominguez-Morales, did you find that to be consistent with what you 

typically see in these type of investigations for someone who never is 

involved in drug trafficking? 

A. No. 

Q. And could you explain why? 

A. Yes. You know, typically when a drug coordinator or a drug trafficker, 

when he’s looking for, whether it be drivers or couriers, if he goes to them 

for that, it’s more than likely because he’s used them before, especially if 

dealt with on a regular basis. 

R. Vol. III at 234. 

The government emphasizes the monetary value of the transaction, which was 

more than $100,000. In light of that fact, the government contends one need not be cop or 

criminal to understand that when the stakes are high, you trust the task to the veteran, not 

the novice. Mr. Amador-Flores in turn stresses that Agent Robles “expressly compared 

this case to other drug cases,” something he could only do with specialized experience. 

Appellant’s Reply Br. 5. From that assessment, Mr. Amador-Flores concludes the 

“comparisons were necessarily expert opinions.” Id. That conclusion does not follow, 

however, unless Agent Robles was actually applying his specialized knowledge or 

experience in order to arrive at his given opinion. If he was not, then his comparison to 
9 

other cases is nothing more than an attempt to give gravitas to his unremarkable, nonexpert observations. 

The line between Rule 701 and Rule 702 is hazy, and Agent Robles’s testimony is 

somewhere near it.2

 We need not and do not decide on which side of that blurred line his 

testimony belongs. 

Mr. Amador-Flores also objects, again for the first time on appeal, to one other 

portion of Agent Robles’s testimony: 

Q. Okay. Why was it significant to you that Mr. Amador-Flores admitted to 

wiring money for Paisa? 

A. Well, again, you know, in my experience in drug-trafficking 

organizations or criminal enterprises, it’s not rare to see co-conspirators or 

suspects transfer money or deposit money, number one, to avoid immediate 

possession of the money on themselves if encountered by law enforcement; 

and, number two, to make it easier or faster to get money from one location 

to another. 

R. Vol. III at 215. 

Mr. Amador-Flores again argues that by invoking his “experience in drugtrafficking organizations or criminal enterprises,” Agent Robles made “another 

comparison to other cases, which those who did not have experience with other drug 

cases could not make.” Appellant’s Br. 28–29. The government concedes that 

“observations about wiring money may be less common to the ordinary person than are 

observations about the level of familiarity a person would likely have with someone to 

 2

 For instance, had the district court admitted Agent Robles’s testimony under 

Rule 701 over Mr. Amador-Flores’s objection, it might have clarified for the jury that 

Agent Robles’s opinion was not borne out of his expertise and should not be given undue 

weight. 
10 

whom they would entrust a $104,000 cash transaction.” Appellee’s Br. 35. But it would 

still have us hold that Agent Robles’s observations are “common enough” to come within 

Rule 701. 

Again, we need not and do not decide whether this testimony was erroneously 

admitted. Instead, we assume without deciding that the district court erred in admitting 

both excerpts of testimony. We consider next whether those errors were plain. 

B. Second Prong—Plain Error 

“The second limitation on appellate authority under Rule 52(b) is that the error be 

‘plain.’” Olano, 507 U.S. at 734. “Error is ‘plain’ if it is obvious or clear, i.e., if it is 

contrary to well-settled law.” United States v. Hill, 749 F.3d 1250, 1258 (10th Cir. 2014) 

(quotation omitted). “In general, for an error to be contrary to well-settled law, either the 

Supreme Court or this court must have addressed the issue.” Id. (quotation omitted). 

“However, in certain circumstances, the weight of authority from other circuits may make 

an error plain even absent a holding from this court or the Supreme Court.” Id. (internal 

quotation marks omitted). 

Where, as here, a defendant challenges a non-constitutional evidentiary ruling 

normally reviewed only for abuse of discretion, the “plainness” prong is especially 

daunting. “For the admission of evidence to constitute plain error, the evidence must have 

been so obviously inadmissible and prejudicial that, despite defense counsel’s failure to 

object, the district court, sua sponte, should have excluded the evidence.” Brooks, 736 

F.3d at 934 (quoting United States v. Williams, 527 F.3d 1235, 1247 (11th Cir. 2008)). In 

our view, Agent Robles’s testimony was not “so obviously inadmissible and prejudicial 
11 

that” the trial judge must have intervened on his own initiative to put a stop to it. The 

testimony was not obviously inadmissible under Rule 701, see supra, Section II(A), and 

Mr. Amador-Flores concedes that it would have been admissible under Rule 702 had it 

been elicited from a designated expert. See Oral Arg. 12:24–12:28 (“If the government 

had wanted to introduce this as expert testimony, they easily could have.”). Nor was the 

testimony obviously prejudicial. We have no cause to believe these excerpts of Agent 

Robles’s lengthy testimony were particularly persuasive to the jury or even that the 

challenged testimony contributed to the jury’s verdict at all. That neither Mr. AmadorFlores’s counsel nor the trial judge commented on Agent Robles’s testimony at any time 

in the district court proceedings is itself some indication that his testimony was not 

obviously prejudicial. We hold therefore that any presumed error was not plain. 

III. CONCLUSION 

Because we have concluded the district court did not plainly err, we decline to 

reach the third or fourth prong of the plain-error test. 

The district court’s judgment is AFFIRMED. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge