### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-50169

UNITED STATES OF AMERICA, Plaintiff–Appellee
v. MICHAEL HERBST, Defendant–Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:10-CR-2106-1

Before REAVLEY, DAVIS, and PRADO, Circuit Judges. EDWARD C. PRADO, Circuit Judge: * This case involves the admissibility of psychological or psychiatric expert testimony to negate the specif i c i ntent element of a charged crime. Defendant–Appellant Michael Herbst sought to introduce testimony of his low bo r d e rline intelligence through the expert testimony of a clinical psychologist. Because we find that the district court did not, however, abuse its discretion in excluding such testimony, we AFFIRM. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Februa ry 13 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-50169 Document: 00511755899 Page: 1 Date Filed: 02/13/2012No. 11-50169 I. BACKGROUND A. Factual Background Michael Herbst made a living in Philadelphia, Pennsylvania selling event ticket s . National ticket brokers would give him tickets on consignment when th ey could not sell them themselves. In order to conduct his business, H e rb s t used computers in hotel lobbies or libraries to access the internet. While using

one s u c h c o m puter, he met a woman in a chatroom who identified herself as Maria Santiago f

ro m M e xico. Santiago called Herbst a couple of times, and during those conversations, Santiago was flirtatious with him. In January 2010, H e rbst decided to fly from Philadelphia to El Paso, Texas to meet S a nti a go . After arriving in El Paso, he took a taxi to Juarez, Mexico where Herbst met and stayed with Santiago at her house for about a week. They were sexually intimate. Following that week, Herbst left Mexico. Near the end of February, Santiago contacted Herbst again and, following their conversation, he hitchhiked to El Paso from Florida, where he was working at the time selling tickets, walked across the Bridge of the Americas into Mexico,

a n d met Santiago in Juarez. They went to Santiago’s house where, as Herb s t described it, Santiago was “real f riendly with me, I was friendly with her. We

w e re intimate.” Herbst stayed for a couple of days and then left to go t o California. He walked back across the bridge and hitchhiked west, hoping to be a contestant on The Price is Right

. In March, Herbst was in Colorado. He stayed there until June, when, in
response to a request by Santiago, h e r eturned to Juarez. During the visit, Herbst got a Texas driver’s license, which he claims was Santiago’s idea. When he applied for the license, he used a Liberty Street address in El Paso because he believed Santiago had a friend who lived there. Then, on June 20, Santiago gave He rb s t a 1 9 9 3 Vandura van. Along with the van itself, Santiago gave Herbst an insurance policy on and a title to the van—both in his name. Herbst

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says he had nothing to do with regi s t e ri n g the van, getting it inspected, or obtaining insurance for it. On occasion, after the van w a s p urchased, Herbst drove it into the United States to do the grocery shopping for himself and Santia go at a Wal-Mart. Each time he crossed the bridge, he was referred to secondary inspection by border patrol. On about July 13, Santiago took the van to a mechanic’s shop to have the timing belt replaced. Santiago picked the van up from the shop on July 16 and brought it to Herbst. Later that day, Herbst decided to go to El Paso to drink for the night. He did so because it appear e d to Herbst that Santiago did not like it when men drank around her. He planned to go to a motel and to pay for a room with cash he received from Santi ago. The idea to go to a specific motel came from Santiago. That night, July 16, 2010, Herbst drove the van alone towards El Paso. When crossing the bridge, Herbst stopped a n d presented his United States passport card to a border p atr o l officer. Herbst advised the officer that he was coming from his girlfriend’s house and that he was a ticket agent. The border patrol officer observed that Herbst appeared pale and that his lips were white. As the border patrol officer inspected the van, she observed that there was nothing in the rear of the vehicle and that it was very clean. Th e border patrol officer also observed th at Herbst’s physical appearance did not appear to “f

it” that of the van because while the van was clean, Herbst looked like he was homeless. Herbst never made eye contact with the officer but instead just looked straight ahead. The officer testified that the computer screen in her booth reflected a computer

- ge n e rated alert that required a secondary inspection of the van based upon its license plate number. At secondary inspection, Herbst advised an officer that he had owned the

van for approximately one month. During a canine inspection of the vehicle, the border patrol officer observed that Herbst was fi d ge ting. In response to an officer’s question about how long he had been at his girlfriend’s house, H e rb st

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stated that he had been there for approximately two hours. When ask e d h ow long he had been in line, Herbst responded that it had been approximately one

a n d a h alf hours. In response to questions relating to the van, Herbst stat e d that he had bought it in Colorado and that he had registered the van in Texas. The dog then alerted o n the van. A search of the van revealed 163 bundles of marijuana, weighing approximately 175.38 kilograms, concealed in the ceiling of the vehicle. The marijuana had a street value of between $35,000 and $43,000. From there, Special Agent Isidro Nunez took o v e r th e investigation of Herbst. Upon inspection of the vehicle, Nunez observed no cloth i n g , p ersonal effects, or toiletries, and there were no signs to indicate that someone was living in the vehicle. Inside the vehicle, Nunez located a Texa s r e gistration for the vehicle, an insurance ID card, and a piece of paper. The re gi s tration receipt reflected the date of June 23, 2010, and the information on the receipt reflected the name and address as “Michael Herbst, 262 Liberty Street, El Paso, Texas.” The insurance policy was also in Herbst’s name with an effective date of June 2 3 th r o u gh July 24, 2010. A Texas vehicle inspection report for a 1993 GM C Vandura was also found in the vehicle with the other documents. Nunez found

a piece of cardboard on which was written a telephone number, a name, and what appeared to be a city in Colorado. Inside Herbst’s wallet, Nunez found a Texas Department of Public S afety temporary driver’s permit, listing the 262 Liberty Street address as Herbst’s. Next, Nunez interviewed Herbst. Herbst stated that he owned th e v a n , that he had purchased the vehicle off of Craigslist, that he had paid $1,700 for the vehicle, that it had approximately 90,000 mile s o n it , and that he had purchased it on June 20, 2010, in Lakewood, C o l orado, from an individual named “Fred.” He said he had met Fred at a McDonald’s or a Burger King. He

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said that, after he had bought the van, he drove it back to El Paso, had the vehicle inspected, purchased insurance for the vehicle, and registered the van. When Nunez asked Herbst during the interview if he knew why he w as being de t ai n e d , Herbst responded that it was because of contraband. When asked to explain his response, Herbst said that h e smelled marijuana. Nunez asked Herbst if he knew the weight of the contraband found in the vehicle, and Herbst replied that he did not. At that point , H e rb s t claimed that he was “framed.” When Herbst was asked for details on Santiago or Fred, he would not respond to questions and put his head down. He said he did not know how to reach Fred and h e did not have a phone number, address, or location for Santiago. When Agent Nunez advised Herbst that h e w as going to interview
persons at the 262 Liberty address, Herbst then stated that he did not live there and that he found the address on the internet by searching Google. At that point, Herbst told the officer that he lived in the van in various parts of El Paso. Herbst told the officer that he kept personal items with his girlfriend, Santiago, and that the night before, he had stayed in the van in a Wal-Mart parking lot. Nunez continued his investigation by visiting the 262 Liberty address. Nunez found no evidence that Herbst had ever lived there. Nunez also obtained records relating to Herbst’s passport, and the records reflected that the application was made by Michael H e rb s t , w ith an address of 1500 Rowena, Thornton, Colorado. Nunez subpoenaed Craigslist records. The records indicated that an ad for the sale of a 1993 GMC Vandura in the Denver area was posted on March 8, 2010, and any questions were directed to “Fred” at a Denver phone number. The cell phone records for Herbst’s cell phone showed no record of any call from his phone number to the phon e nu mb e r o n the Craigslist ad. The records did show numerous calls in June and July of 2010 involving a phone number with a prefix from Juarez, Mexico.

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From the Craigslist information, Nunez tracked down Freddy Boston, of Denver, Colorado, who said that he previously owned a 1993 GMC Vandura van which he s o l d i n M ar ch of 2010. In response to his ad, Boston received

numerous p h o n e c alls from a man who spoke very little English and who was interested in purchasing the van. Two different men met with Boston and agreed on a price of $3,900.00. They also agreed that another person would travel by bus to meet Boston to pick up the vehicle and consummate the sale. On March 28, 2010, Boston met with two Hispanic men, who were different from the two men he had met with previously, and sold them the van. Nunez tracked the registration on the van to Alma Romero, who owned a vehicle-titling business in El Paso. According to Romero, two Hispanic men

came to Romero’s office on June 22 i n qu iri n g about an estimate to register a 1993 GMC van. At that time, she advised them that they could not register the vehicle b e c a u s e the person in whose name the title was being placed was required to be present and that person needed to provide his signature and valid identification. The next day, both men returned to Romero’s office with a man who looked like Herbst. Romero testified that she made a copy of the Colorado title for the 1 9 9 3 GMC van. That Colorado title listed the previous owners as Fred and Sabrina Boston, and the ba c k o f th e title reflected the signature of Michael He rbst. The application for registration of the vehicle was signed in Romero’s presence by “Michael Herbst.” Romero told Nunez that the man who signed the application presented her with a temporary driver’ s li c ense for “Michael Herbst,” a copy of which she placed in her file. The titl e ap p li cation reflected the address for Michael Herbst as 262 Liberty Street, El Paso. Romero stated that she went with the two other men to have the vehicle inspected and assisted in obtaining insurance for the vehicle. Herbst did not go with them to have the vehicle inspected. The two Hispanic men l ater returned to Romero’s office to get the license plates for the vehicle.

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Lastly, Nunez obtained the crossing history of the van, which showed that Herbst had crossed th e b o r d er in that vehicle several times. Prior to July 16, 2010, the vehicle was referred for secondary inspection on June 27, June 30, July 4, July 8, and July 12. Nunez thought that this was an example of “burning plates,” a tactic used by drug trafficking org a ni z ati ons to run a license plate

across the bo r d e r several times so that it was not new in the system for the purpose of decreasing the likelihood of a detailed inspection. Herbst was charged in a two count indict m e nt w ith importation of a controlled substance in violation of 21 U.S.C. §§ 952 and 960 and possession of

a controlled substance with intent to distribute in violation of 21 U.S.C. § 841. B. Procedural Background Herbst sought to offer the testimony o f clinical psychologist James Schutte, Ph.D., as an expert to establish that Herbst had borderline intelligence and was th e r e f

ore more prone to manipulation by others than the average individual. Herbst advised the district court that Schu tt e ’ s testimony would assist the trier of fact because his testimony was relevant to the issue of whether

or not Herbst h ad knowledge that drugs were secreted in the van. Herbst did not purport to raise an insanity defense. The district court held a pretrial hearing to consid e r th e Government’s motion to exclude Schutte’s testimony. During the hearing Schutte testified that, pursuant to his administration of commonly used psychological tests, he

was of the opinion that Herbst had “borderline intelligence” a n d w as “more
prone to manipulation than the av e r a g e i ndividual.” According to Schutte, “borderline intelligence” meant “on the border between mental retardation and normal function.” Schutte stated that the key indication of Herbst’s borderline intelligence was the determination that Herbst has an intelligence quotient (IQ) of 72, two points above the cutoff for mental retardation. When asked if Herbst’s low IQ would be apparent to a layperson, Schutte stated that it was his opinion

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that it would not be. Regarding his opinion that Herbst was more pr o ne to manipulation, Schutt e t e s tified that Herbst “ha[d] more difficulty than the average person [did] in reasoning; long-term planning; ap preciation of a situation and all of [its] nuances; [and] the ability to detect when he [was] being manipulated or coerce d

. ” H e further testified that, “because of that limited reasoning capacity, [Herbst] ha[d] more difficulty in judging a situation than the average person [did]” and that it was easier to take advantage of a person with Herbst’s low IQ. The district court asked Schutte if “one [could] be manipulated because one is more gullible and still form whatever mental impression is necessary to accomplish a task.” Schutte answere d , “Ye s . A person can accomplish a task without being aware of the reason for performing it.” W h e n a s k e d w h e t h e r Herbst could appreciate right from wrong, Schutt e s t ated, “I think [Herbst] understands right from wrong.” With regard to whether Herbst was able to take direction, Schutte responded, “I think he can take very s i mple direction. But

. . . , since he’s so easily distracted, he requires a great deal of supervisi o n in order to carry out a task without getting o f f o n a tangent.” Schutte was specifically asked whether he was able to formulate an opinion as to whether or not Herbst knew there were narcotics in the van. Schutte respon d e d that, beyond Herbst’s statement that he had no kno w ledge, he could not render an opinion on that. Likewise, when asked if he could state an opinion on whether or not Herbst was manipulated, Schutte stated that he could not. The Government c ross-examined Schutte regarding his conclusions. Schutte acknowledged that Herbst’s statements to h i m about how he had obtained the van were different from the statements he ha d m ade to border patrol office r s af

t e r his arrest. Specifically, Schutte testified that Herbst had told him the vehicle was given to him by a woman in Mexico, whereas the report of investigation indicated that Herbst said he had owned the vehicle since June

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and that he had learned of the vehicle through Craigslist. When asked if coming
up with a new alibi for a criminal charge was demonstrative of Herbst’s ability to plan and reason, Schutte stated that, since even children were able to lie, it did not require a high degree of intellect to say something that was not true. Th e prosecution also cross-examined Schutte regarding the relationship between Herbs t ’ s alleged level of intellectual functioning and the knowledge element of the charged offense. In response to the question as to whether Herbst

was capable of knowing whether or not he had something in the vehicle that he

was driving from point A to point B, Schutte stated, “Again, all I can testify to is that he told me he was not aware that there was marijuana in th e v e h i c le.” When asked whether being more prone to manipulation prevented Herbst from forming the knowledge a nd the intent necessary to commit a crime, Schutte stated “ I th i nk that would depend on the crime

. . . depending on what knowledge is necessary to execute that crime.” In response to follow-up questi o n s from the district court, Schutte clarified that Herbst was capable of driving a vehicle, that Herbst was capable of lying, and that he could not tell the jury whether or not Herbst was capable of having had the kn o w l e d g e on this occasion or not. The district court granted the Government’s motion to exclude Schutte’s testimony. In doing so, the district court stated that it failed “to understand how the testimony with respect to the Defendant’s mental state ha[d] a bearing upon whether or not the Defendant formed the opinion to knowingly or intentionally participate.” The court further stated that, if Herbst were to testify at trial, the jury had the ability to listen to and appreciate “the quality of the testimony and the demeanor,” and could “form the impression s about whether or not [Herbst wa]s re sponding directly to questions, whether one [wa]s distracted, whether [Herbst wa]s capable of telling the truth or telling a lie.” It also concluded that Schutte’s proposed tes ti m ony “does not assist the jury in making the

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determinations it’s called to make,” and that “it confuses the jury and distracts the jury, to provi d e information that is not relevant to the elements that have to be weighed and considered by the jury.” In its written order, the district court stated that Herbst had “failed to provide any connection between Schutte’s opinion regarding manipulation and how it would affect the determination of whether” it affected his “knowledge.” Herbst filed a motion for reconsideration, which the district court denied for the same reasons it had originally granted the Government’s motion to exclude. At trial, the district court sustained the Government’s hearsay objections each time Herbst attempted to tell the jury what Santiago had said to him in the months leading up to his arrest, such as direct quotes related to: 1) th at , wh en they first met in the internet chatroom, Santiago had told Herbst that she was seeking an Anglo man and wanted to meet him; 2) that Santiago had asked Herbst to travel to Juarez to meet her; 3) that Santiago had told Herbst she wanted him to return to Juarez; 4) that Santiago had said she loved Herbst; 5) that Santiago had asked Herbst to return to Juarez in June 2010, because she missed him; 6) that Santiago had suggested that Herbst get a Texas driv er’s license; 7) that Santiago had suggested th at Herbst use the 262 Liberty address; 8) that Santia go h a d told Herbst that all the paperwork for the van had been taken care of for him; 9) that Santiago had asked Herbst to go into El Paso to do the grocery shopping in the United States; 10) that Santiago had offered to send a mechanic into El Paso when the van broke down; 11) that Santiago offered to take the van in to have its timing belt replaced 12) that the idea that Herbst should go to El Paso to drink and spend the night on July 16 was Santiago’s and that she had suggested the motel he should stay at; and

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13) that Santiago had told Herbst that she did not lik e m en to drink around her.
Herbst claimed that the statements were offered not for their truth, but to show why he would have placed extraordinary trust in Santiago and t o e xp lain conduct that the Government alleged was suspicious. During closing argument, defense counsel stated that Herbst’s defense was the followin g : “ I had a girlfriend. I trusted her. She used me, and I didn’t know.” Herbst’s counsel also argued that Santiago “lur[ed] unknowing, poor-hearted, lonely, slow men to be used.”Herbst was convicted on both counts and was sentence d t o concurrent terms of five years in pris o n a n d to concurrent four-year terms of supervised release. Herbst timely appealed, challenging both the exclusion o f Schutte’s testimony and of the statements Santiago made to Herbst. II. STANDARD OF REVIEW We review evidentiary rulings for abuse of discretion, subject to harmless

error review. United States v. Jackson , 636 F.3d 687, 692 (5th Cir. 2 0 1 1 ) ; s ee

1 also United States v. Seale , 600 F.3d 473, 490 (5th Cir. 2010) (exclusion of expert testimony reviewed for abuse of discretion); United States v. Valencia , 600 F.3d 389, 417–18 (5th Cir. 2010) (exclusion of evidence as hearsay reviewed for abuse of discretion). “A trial court abuses its discretion when its ruling is based on an

erroneous view of the law or a clearly err o n e o u s assessment of the evidence.” Jackson , 636 F.3d at 692 (internal quotation marks omitted).

He rbs t argues that the exclus ion of Schutte ’s te stimony violate d his Sixth Ame ndm ent 1 rightto a fair tri al and theref ore sho uld be revie we d de novo by this court. This is inc orr ect

. See Uni ted States v. Schef fe r , 523 U. S. 303, 308 (199 8) (“ [R] ules excludi n g evide nce fr om cri mi nal tri als

. . . do not abrid ge anac cus ed’ s rightt o p res ent a d efe nses o long as they are not arbit r a ry o r dis pr opo rti onat e to the pur pos es they are des igned to se rve. ” (int ernal quot atio n marks om itt ed) ); Uni ted States v. Na jera- Jim enez , 593 F.3d 391, 402 (5th Cir. 2010) (“The acc use d doe s not have an unfe tte red ri ght t o off er tes tim ony that is inco mp ete nt, privileged , or othe rw ise inad mi ss ible unde r st andar d rule s of evide nce. ” (int ernal quot atio n marks om itt ed) ). 11 Case: 11-50169 Document: 00511755899 Page: 11 Date Filed: 02/13/2012No. 11-50169 III. DISCUSSION A. Schutte’s Testimony In 1984, Congress enact e d th e Insanity Defense Reform Act (IDRA), redefining insanity and making it an affirmative defense to be proved by clear

a n d c o nvi ncing evidence. See 18 U.S.C. § 17. The IDRA also provided that: “Mental disease or defect does not otherwise constitute a defe n s e .” The IDRA does not, however, address, whether it precludes the admission of psychological

or psychiatric expert testimony to negate the specific intent element of a charged crime. We have previously recognized that “numerous other circ u its” have 2 found that so-called “dimini s h e d c apacity evidence is admissible to defeat the mental state requirement of a specific intent crime.” United S t a t e s v . Eff , 524 F.3d 712, 720 n.11 (5th Cir. 2008) (internal quotation marks omitted). This case does not, however, require us t o weigh in on that question because even assuming that diminished-capacity evidence is admissible, Herbst cannot show that the district court abused its discretion in excluding Schutte’s testimony. To be sure, Schutte’s testimony cannot be said to be irrelevant to Herbst’s claim that he lacked knowledge of th e drugs in the van. Certainly, Schutte’s testimony concerning Herbst’s low intelligence and ability t o b e manipulated lends credibility to his assertion that he was duped into driving drugs across the border. Yet, given the fact that Schutte testified that Herbst could nevertheless form the requisite intent to transport something from point A to point B and that he did not testify regarding the effect, if any, of the relationship between Herbst and Santiago on Herbst’s ability to evaluate the circumstances relevant to this

See, e.g. , Uni ted States v. Dup re , 462 F.3d131, 137 n.8 ( 2d Cir. 2006); Uni ted States 2
v. Brow n , 326 F.3d 1143, 1147 (10th Cir. 2003) ; Uni ted States v. Wor re ll , 313 F.3d 867, 874 (4th Cir. 2002) ; Uni ted States v. Schne ide r , 111 F.3d 197, 201 (1s t Cir. 1997) ; Uni ted States v. Childress , 58 F.3d693 , 728 (D .C. Cir

. 1995) ; Uni ted Sta tes v. Ca me ron , 907 F.2d105 1, 1060 (11th Cir. 1990) ; Uni ted States v. Tw ine , 853 F.2d 676, 678–79 (9th Cir. 1988) ; Uni ted States v. Poh lot , 827 F.2d889 , 897 (3dCir .198 7). 12 Case: 11-50169 Document: 00511755899 Page: 12 Date Filed: 02/13/2012No. 11-50169

case, Schutte’s testimony’s relevance to the knowledge element of the charged offenses is not strong. As our colleagues on the Eleventh Circuit have noted, [b]ecause psychiatric eviden c e (1) will only rarely negate specific intent, (2) presents an inherent danger that it will distract the jury’s [sic] from focusing on th e a ctual presence or absence of mens rea , and (3) “may easily slide into wider usage that opens up the jury to th e o ries of defense more akin to justification,” Pohlot , 827 F.2d at 904–5, district courts must examine such psychiatri c evidence carefully to ascertain whether it would , if believed, “support a legally acceptable theory of lack of mens rea .” Id. at 906.
Cameron , 907 F.2d at 1067; see also Schneider , 111 F.3d at 20 1 (“ [ S]pecific medical e vi d e n ce offered may still be irrelevant to the requisite intent or [the] probative value [of the evidence] may be substantially outweighed by confusion or delay.” (citation omitted)). In thi s case, the district court found that Schutte’s testimony did not connect “how manipulation affected [Herbst’s] ‘knowledge,’” as defined by this court and “would only serve to confuse the jury.” The concern s vo i c e d by the district court mirror the cautions of the Eleventh Circuit and other courts about the difficulty of admitting diminished-capacity evidence. Herbs t h a s made no showing that the district court’s view of the law or Schutte’s testimony was erroneous, see Jackson , 636 F.3d at 692; therefore, we find no abuse of discretion in the district court’s exclusion of Schutte’s testimony. B. Hearsay Herbst also argues that the district court ab u s e d its discretion in not allowing Herbst to te s tif y re gar din g S anti a go’ s out -of-court statements. Hearsay is defined as a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matt e r asserted, see Fed. R. Evid. 801(c), and is generally not admissible as evidence,

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see Fed. R. Evid. 802. Regardless of whether or not the statements constituted hearsay, their exclusion was harmless because their substance was largely introduced via the testimony of Herbst. Herbst testified that he met Santia go in a chatroo m o n the internet, that she flirted with him, that he stayed at her house in Juarez for a week and they were intimate, that he would go meet her in Juarez after she called him, that he cared for her a lot, that he believed she had the same feelings for him, that it was her idea that he use the Liberty Street address, that she purchased the van for him, that he was not involved with any of the paperwork for the van, that he shopped across the border for himself and Santiago, that Santiago gave him the address of the Wal-Mart to shop at, that Santiago did not like to be around men when they were drinking, and that, on the day of his arrest, Santiago gave him cash to use for the motel. Additionally, there is substantial other evidence of Herbst’s guilt. First, the 175 kilograms (or approximately 387 pounds) or marijuana secreted in the

van w a s w o rth between $35,000 and $43,000. See United States v. GarciaFlores , 246 F.3d 451, 455 (5th Cir. 2001) (fi n di n g that the defendant’s control

over a vehicle containing over 300 pounds of marijuana could be used by a jury to infer his guilty knowledge). Second, this court has held that “[p]erhaps the strongest evidence of a criminal defend a nt ’ s guilty knowledge is inconsistent statements to federal officials,” because “a factfinder could reasonably conclude that they mask an underlying consciousness of guilt.” United States v. DiazCarreon , 915 F.2d 951, 954–55 (5th Cir. 1990). When Herbst met the f ir s t border patrol officer, he was pale, his lips were white, and he did not make eye contact with the officer. During the canine inspection, he fidgeted with his hands and fingers. Most importantly, however, the jury could have inferred guilty knowledge from the multitude of inconsistencies between the statements Herbst made to the border patrol officers, H e rbst’s testimony at trial, and the written and testimonial evi d e nce introduced by the Government regarding

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where Herbst lived, when and how the van was acquired, and how the van was registered, titled, and insured. Given that th e s ub s t ance of Santiago’s statements was offered via Herbst’s testimony and the other evidence s u pporting the jury’s finding of guilty knowledge on the part of Herbst, any error in not allowing Santiago’s alleged statements into evidence was harmless. IV. CONCLUSION For the foregoing reasons, we find no error in the district court’s exclusion of Schutte’s testimony or of the statements Santiago made to Herbs t , and accordingly, we AFFIRM the judgment of the district court. AFFIRMED.

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