In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-3815

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BENJAMIN OCHOA-ZARATE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 04 CR 40093—Joe Billy McDade, Judge.

____________

ARGUED OCTOBER 31, 2007—DECIDED SEPTEMBER 2, 2008

____________

Before EASTERBROOK, Chief Judge, and BAUER and

WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. In the fall of 2004, Benjamin

Ochoa-Zarate left California on an ill-fated cross-country

drive with $1 million worth of methamphetamine concealed in a spare tire. A jury believed he knew the drugs

were there and convicted him of conspiring to distribute

the drugs. Ochoa-Zarate maintains that two events

during his trial warrant a new trial. First, during his
2 No. 06-3815

rebuttal closing argument, the prosecutor argued that as

of the last day of trial, unlike his co-defendant who had

pled guilty, Ochoa-Zarate had failed to take responsibility

for his actions. We agree that a jury may have taken this

comparison as a comment on Ochoa-Zarate’s decision to

exercise his right to go to trial. Next, Ochoa-Zarate takes

issue with the prosecutor’s question to the trooper who

arrested Ochoa-Zarate that asked whether, based on his

training and experience, it was uncommon to find drugs

after persons had consented to search. This testimony is

of questionable relevance and probably not the subject

of lay testimony. Nonetheless, in light of the weight of the

evidence of Ochoa-Zarate’s guilt, we affirm his convictions.

I. BACKGROUND

Benjamin Ochoa-Zarate worked for a small bakery in

Stockton, California. His cousin, Bryan Castaneda, owned

the bakery with Roger Bailey. With the bakery not returning the profits he had hoped, Bailey decided to supplement his income by entering the illegal drug business. He

contacted Jose Castaneda, his partner’s brother, as Jose

had served time in prison on drug charges. Sometime in

the fall of 2004, Jose told Bailey he had a deal in the works

and asked Bailey if he was interested in driving to New

York. Bailey told him that he was.

Around that same time, Ochoa-Zarate drove to Mexico

in a car he borrowed from Bryan Castaneda. Ochoa-Zarate

returned on October 4, 2004. The next day, he, Jose, and

Bailey left the bakery together and made several stops.

First, Jose and Ochoa-Zarate deposited $600 into Ochoa-
No. 06-3815 3

Zarate’s bank account to pay for a rental vehicle. Next,

Bailey drove the men to Hertz, and Ochoa-Zarate rented

a minivan, listing himself and Bailey as drivers. Bailey

had second thoughts later in the day, though, and told

Jose he could not go through with the plan.

After obtaining a new cell phone and stopping by the

bakery to tell Bryan Castaneda he was going on vacation,

Ochoa-Zarate proceeded to drive east alone. By October 7,

Ochoa-Zarate had made it to western Illinois, and it

was there that Illinois State Trooper Clint Thulen pulled

Ochoa-Zarate over for a traffic infraction. Ochoa-Zarate

gave the trooper his California driver’s license, an I-94

form indicating he had entered the United States from

Mexico on October 4, and the rental agreement. The

agreement stated that the minivan had been rented on

October 5 and was due back in Stockton, California on

October 12, 2004.

Ochoa-Zarate’s conduct after the stop made Trooper

Thulen suspicious. When asked where he was going,

Ochoa-Zarate said he was heading to visit his sister in

Chicago for about ten days. He was unable, however, to

answer where in Chicago she lived. He also did not

know his sister’s telephone number and claimed that

when he arrived in Chicago, he would call his brother in

California to get the information. The trooper noticed that

a ten-day stay in Chicago would make the rental overdue

and that the small duffel bag of clothing in the minivan

did not seem adequate for a ten-day stay. He also

observed Ochoa-Zarate’s hands and body shaking, even

though he smiled broadly and acted jovial. Trooper Thulen
4 No. 06-3815

returned Ochoa-Zarate’s documents and said he was free

to leave, and he then asked Ochoa-Zarate whether he was

willing to answer more questions. Ochoa-Zarate agreed

and signed a written consent authorizing search of the

minivan.

With the help of a canine and a density meter, Trooper

Thulen found six bags of methamphetamine and coffee

grounds hidden inside the minivan’s spare tire. The drugs

had a street value of about $1 million. After being placed

under arrest, Ochoa-Zarate complained of chest pains, and

an ambulance took him to the hospital. Doctors determined he was not having a heart attack and discharged

him to law enforcement agents. He then waived his

Miranda rights.

In the later interview, Ochoa-Zarate asked the agents

how much prison time he would receive, and he also said

he did not know the drugs were in the minivan. He told

the agents that when Bailey heard Ochoa-Zarate planned

to visit friends in New York, Bailey suggested he save

money by renting a vehicle for Bailey, dropping it off in

Chicago, and then flying to New York from there. OchoaZarate said he was to call Bailey when he arrived in

Chicago and that Bailey or one of Bailey’s friends would

pick him up and take him to the airport before driving

the vehicle back to California.

The agents asked Ochoa-Zarate whom he planned to

visit in New York, and Ochoa-Zarate responded that it

was someone with the last name of “Barragan” but that he

could not recall the person’s first name. Later, toward the

end of the interview, Ochoa-Zarate told the agents that
No. 06-3815 5

he would be meeting “Javier Barragan,” describing him

as a pastor in New York whom he had met during a retreat in California. When asked for his address, OchoaZarate said he did not know the address but that he had

the telephone number somewhere. He further explained

that his plan was to fly to New York to surprise Barragan

and then to stay there for two weeks to look for a job. He

also said that his fingerprints might be on the minivan’s

spare tire because he had asked Bailey how to change

the spare before leaving.

Ochoa-Zarate then told the agents that he wanted to

cooperate. He gave them a telephone number that he

said belonged to Bailey. When Ochoa-Zarate called the

number, however, Jose Castenada—not Bailey—answered.

Agents believed that Ochoa-Zarate was alerting Jose

Castenada that he had been arrested, as he said that he

had been stopped, he asked about Jose’s mother’s health

out of context, and he responded to a question about

his well-being by saying “until I can walk tall.”

At trial, Bryan Castaneda testified that Ochoa-Zarate did

not have a sister that lived in Chicago. Bailey testified

that he had never discussed the spare tire with OchoaZarate and that he did not even know where it was located

in the minivan. He also said that the two had never

discussed the possibility that Ochoa-Zarate would drop

off the vehicle in Chicago before flying to New York.

A jury found Ochoa-Zarate guilty of conspiring to

distribute methamphetamine in violation of 21 U.S.C. § 846

and possessing methamphetamine with the intent to

distribute it in violation of 18 U.S.C. § 841(a)(1). The dis-
6 No. 06-3815

trict court sentenced him to 144 months’ imprisonment

on each count, to run concurrently, and five years of

supervised release. He now appeals.

II. ANALYSIS

A. Prosecution Closing Argument

Ochoa-Zarate maintains that the district court should

have granted a mistrial in light of statements the prosecutor made during his rebuttal closing argument, a decision

we review for an abuse of discretion. See United States v.

Aldaco, 201 F.3d 979, 987 (7th Cir. 2000). A superseding

indictment charged Bailey and Ochoa-Zarate with conspiring to distribute methamphetamine and possessing

methamphetamine with the intent to distribute it. Bailey

subsequently pled guilty and testified at Ochoa-Zarate’s

trial, acknowledging during his testimony that he had

pled guilty and had not yet been sentenced. Ochoa-Zarate,

however, exercised his right not to take the stand.

The comments that Ochoa-Zarate challenges came

during the government’s rebuttal closing argument. In his

own closing, Ochoa-Zarate’s counsel argued that Bailey’s

testimony about Ochoa-Zarate’s involvement should not

be believed, emphasizing that Bailey received a plea offer

from the government but had not yet been sentenced. The

prosecutor began his rebuttal by responding to the defense’s argument that Jose Castaneda had engineered

the drug deal by arguing that Ochoa-Zarate had tipped

him off several times after Ochoa-Zarate said he would

call Bailey. The prosecutor then said:
No. 06-3815 7

Let’s talk about Roger Bailey for a minute. Roger

Bailey got a sweetheart deal, that’s what they want

you to believe, he got a sweetheart deal. You saw

the penalties we had up on the screen. Roger Bailey

is looking at five to 40 years in prison. Does that

sound like a sweetheart deal to you?

Would he come in here and lie when he is looking

at five to 40 anyway? And what happens if he lies?

He loses that sweetheart deal of five to 40 years

and gets ten to life plus the potential for perjury

charge.

You want to judge the credibility of Roger Bailey?

Judge the credibility of Roger Bailey. You saw him

sitting on the stand. He told you the truth. He told

you what he remembers and he told you the truth.

And here was the question that was posed to him.

“Mr. Bailey, are you a felon?” Answer: “Yes, I am.”

And that’s the difference between Roger Bailey and

this defendant, and I mentioned it in opening

statement that this case was about this defendant

failing to take responsibility for his own actions.

Roger Bailey’s at least taken responsibility for his

own actions. As of today, this defendant still has

not.

(Emphasis added.) At that point, Ochoa-Zarate’s counsel

objected and said he would like to be heard at sidebar at

a later time. The district court overruled the objection, and

the prosecutor continued with his rebuttal argument.

After its completion, Ochoa-Zarate’s counsel asked the

district court to declare a mistrial, arguing that the words

underlined above invited the jury to draw an adverse
8 No. 06-3815

inference from Ochoa-Zarate’s decision to exercise his

constitutional right to a jury trial. The district court

denied the motion, ruling that the argument was not

improper because Ochoa-Zarate arguably lied to law

enforcement officials after he was stopped. The district

court also concluded that even if the argument was improper, it was harmless. 

On appeal, Ochoa-Zarate maintains that the prosecutor’s

comments violated his Fifth Amendment right to refrain

from testifying at trial and his Sixth Amendment right

to take his case to trial. The Fifth Amendment prohibits

the government from “treat[ing] a defendant’s exercise

of his right to remain silent at trial as substantive evidence of guilt.” United States v. Robinson, 485 U.S. 25, 34

(1988); see also Portuondo v. Agard, 529 U.S. 61, 69 (2000);

United States v. Willis, 523 F.3d 762, 773 (7th Cir. 2008). The

government does not dispute that it also could not use

Ochoa-Zarate’s exercise of his right to take his case to

trial as evidence that he was guilty. Cf. United States v.

Smith, 934 F.2d 270, 275 (11th Cir. 1991) (finding improper

a prosecutor’s statement in closing argument that defendant “has not taken responsibility for his actions” because

he declined to plead guilty while his co-defendants had

done so). 

That is not to say that the law prohibits all prosecutorial

comments that make reference to a defendant’s constitutional rights. When, for example, “the prosecutor’s reference to the defendant’s opportunity to testify is a fair

response to a claim made by defendant or his counsel, . . .

there is no violation of the privilege.” Robinson, 485 U.S.
No. 06-3815 9

at 32. To determine whether a prosecutor’s remarks are

improper, we look to whether, when viewing the remarks

in context: (1) it was the prosecutor’s “manifest intention”

to use the defendant’s exercise of his right as evidence

of guilt; or (2) “the remark was of such a character that

the jury would ‘naturally and necessarily’ treat it as

such.” Willis, 523 F.3d at 773 (citations omitted). 

We agree with the government that there is no evidence here that the prosecutor manifestly intended to use

Ochoa-Zarate’s decisions to plead not guilty and remain

silent during trial as substantive evidence of his guilt.

Whether the jury would “naturally and necessarily” treat

the prosecutor’s remarks this way is a closer call.

Had the prosecutor responded to the attack on Bailey’s

credibility with only the first three paragraphs of the

rebuttal argument that we quoted, the resolution of this

issue would be easier. A prosecutor can certainly respond

to an attack on a witness’s credibility by arguing that the

jury should decide whether to believe the witness based

on what it observed at trial. See United States v. Johnson,

437 F.3d 665, 673-74 (7th Cir. 2006). 

Here, however, the argument continued in a manner

which suggested that Ochoa-Zarate’s exercise of his right

to take his case to trial evidenced his guilt. Immediately

after pointing out that Bailey had taken the stand and

acknowledged he was a felon, the prosecutor compared

Bailey to Ochoa-Zarate, saying, “And that’s the difference

between Roger Bailey and this defendant . . . Roger Bailey’s

at least taken responsibility for his own actions. As of

today this defendant still has not.” The government
10 No. 06-3815

maintains on appeal that its failure-to-take-responsibility

comments referred to Ochoa-Zarate’s lies to law enforcement officials the day he was stopped, and perhaps that

was the prosecutor’s intention. But the statement that

Ochoa-Zarate had not taken responsibility “as of today”—the last day of trial—does not sound like it was

directed at what Ochoa-Zarate said the day of his arrest;

indeed, the prosecutor had not been discussing those

statements when he made the challenged remarks.

To be sure, the prosecutor’s comments did not go as

far as some others in cases where courts have found that

a prosecutor’s comments impermissibly suggested that a

defendant’s exercise of his right to trial demonstrated

his guilt. See People v. Rodgers, 756 P.2d 980, 982 (Colo.

1988) (“Juries are very controversial entities. As far as

attorneys, some attorneys at least, there is a feeling which

I will share with you that if you are innocent—rather, if

you are guilty, you would want to request a jury because

they just may not convict you and if you are innocent you

never want to request a jury because they just might

convict you.”); People v. Herrero, 756 N.E.2d 234, 245 (Ill.

App. Ct. 2001) (“[N]ow they wanted a jury trial and you

have to ask yourselves why do they want a jury trial . . . .

These individuals are gamblers, they live on the edge, they

hope that they can get one of you to be suckered in, one

of you to believe that they are not guilty . . . .”); Villarreal

v. State, 860 S.W.2d 647, 649 (Tex. App. 1993) (“This man

[ ] made a conscious decision to rape a ten-year-old child.

But he didn’t do it just once. He forced her to have to

come into this courtroom in front of a bunch of strang-
No. 06-3815 11

We also note that although the prosecutor said in the rebuttal, 1

“and I mentioned it in opening argument to you that this case

was about this defendant failing to take responsibility for his

own actions,” the prosecutor hadn’t made a similar statement

in his opening. 

ers.”). But the prosecutor’s remarks here nonetheless

focused on Ochoa-Zarate’s “failure to take responsibility”

as of the last day of trial, and the prosecutor did not

attempt to clear things up after the defense objection.

Instead, after the objection, the prosecutor’s next statements addressed a different topic—why Ochoa-Zarate

would consent to the search of his minivan.1

The next question is whether Ochoa-Zarate’s conviction

can stand in light of the improper comments during

rebuttal. Even if a prosecutor’s comments implicate a

specific trial right, we will uphold the conviction if the

government proves beyond a reasonable doubt that the

defendant would have been convicted absent the comments. United States v. Wesley, 422 F.3d 509, 515 (7th Cir.

2005). Although we apply a different standard to prosecutorial comments that are merely improper but do not

violate a specific trial right, United States v. Cotnam, 88

F.3d 497-98 (7th Cir. 1996), the government does not dispute that if the comments were improper, the harmlessbeyond-a-reasonable-doubt standard applies. 

We find that the government has met this burden. The

government presented uncontested evidence of numerous

lies and inconsistencies that Ochoa-Zarate told to the

trooper who stopped his minivan and later to the investi-
12 No. 06-3815

gating agents. Ochoa-Zarate told the trooper he was

headed to visit his sister in Chicago for ten days, but he

did not have a sister in Chicago. His only sister lived in

Sacramento at the time. He also said he did not have

his sister’s address or telephone number, even though

he had at least thirty-seven other telephone numbers

with him in the minivan and claimed that he planned to

stay with her for ten days. 

Perhaps realizing that his story of visiting a sister

in Chicago for ten days did not add up, Ochoa-Zarate told

a completely different story later in the day when questioned by different agents. During the subsequent interview, Ochoa-Zarate said that he planned to drive the

rental vehicle to Chicago, drop it off with Bailey’s people

there, and then fly to New York. Bailey, however, testified

that they had never had any discussions along those lines.

In addition, when Ochoa-Zarate offered to cooperate and

told agents he would give them Bailey’s number, the

number Ochoa-Zarate supplied was actually for Jose

Castenada, the person who had set up the whole plan.

There was also the physical evidence: Ochoa-Zarate’s

fingerprints were found on the spare tire. Unprompted,

he told an agent that his fingerprints might be on the

spare tire because Bailey had demonstrated how to

change the tire before he left California. But Bailey said

that never happened, and that he had no idea where

the spare was in the minivan.

There were other things as well. After the trooper found

drugs hidden in the minivan’s spare tire, Ochoa-Zarate

asked how much time he would receive. He also could
No. 06-3815 13

not supply the address, and at first, even the first name,

of the friend he said he was visiting in New York. This

claim of a plan to travel all the way across the country to

surprise a friend whose contact information he did not

have with an unannounced two-week stay is certainly

questionable.

In addition, Ochoa-Zarate’s counsel reminded the jury

in his closing argument that the government bore the

burden of proving guilt beyond a reasonable doubt and

that Ochoa-Zarate was not required to provide any evidence at all. And during the rebuttal, the prosecutor said,

“Defense counsel’s correct, the government does have

the burden[; t]he defendant is presumed innocent.” The

court’s instructions reiterated these points and also told

the jury that its obligation was to decide the facts from

the evidence, and that the lawyers’ comments in opening

statements and closing arguments were not evidence. We

presume that the jury followed the court’s instructions,

“absent evidence of an ‘overwhelming probability’ that

it was unable to do so.” United States v. Serfling, 504 F.3d

672, 677 (7th Cir. 2007) (quoting United States v. James, 487

F.3d 518, 524 (7th Cir. 2007)). 

An immediate curative instruction from the court would

have given us further comfort, and it is true that none

was given here. Cf. id. (“Prompted by Serfling’s timely

objection, the district court immediately halted the prosecutor’s improper line of questioning and issued a

curative instruction to the jury, the substance of which

the court repeated during its final jury instructions.”); see

also United States v. Young, 470 U.S. 1, 13-14 (1985) (noting
14 No. 06-3815

benefit of immediate curative instructions). Perhaps that’s

because Ochoa-Zarate did not request one. Considering

the prosecutor’s brief comments in the context of the

record as a whole, we conclude that they do not require

a new trial.

B. Admission of Trooper’s Testimony

Ochoa-Zarate also argues that he should receive a new

trial because the district court allowed Trooper Thulen to

testify that based on his training and experience, it is not

uncommon for a driver of a vehicle to consent to a search

of a vehicle where drugs are ultimately found. We review

a district court’s decision to admit evidence for an abuse

of discretion. United States v. Conn, 297 F.3d 548, 553 (7th

Cir. 2002).

During its redirect examination of Trooper Thulen, the

prosecutor asked whether there had ever been a time

when a person consented to a search and later admitted

knowing drugs were in the vehicle. The defense objected

to the question as irrelevant, among other things, and the

district court held a lengthy sidebar. During the sidebar,

Ochoa-Zarate’s counsel further argued that the proposed

testimony constituted expert testimony for which he

had not received notice and that a question directed to

knowledge should not be allowed. The government offered

to rephrase the question in a manner that did not specifically ask about a person’s knowledge. Ultimately, the

court sustained the defense’s objection to any questions

as to why a defendant would consent in such a situation.

It ruled, however, that it would allow the prosecutor to
No. 06-3815 15

ask a question phrased as: “Based on your experience, is

it uncommon for a driver to consent to search of an automobile that ultimately resulted in the presence of drugs?”

Back again before the jury, the prosecutor’s examination

of Thulen concluded with the following exchange:

Q. Trooper Thulen, based on your training and

experience, is it uncommon for a driver of a

vehicle to give consent to search the vehicle

where drugs are ultimately found in that

vehicle?

A. No, sir, it is not uncommon.

This question was not exactly the question the district

court had said it would allow during the sidebar. Instead,

in front of the jury, the posed question asked the trooper

to testify in part based on his “training.” Seizing on this

discrepancy, Ochoa-Zarate maintains that the trooper’s

response to the question before the jury constituted expert

testimony for which he had not received proper notice. See

Fed. R. Crim. P. 16(a)(1)(G) (stating that at defendant’s

request, government must provide written summary of

expert testimony it intends to use, including bases and

reasons for those opinions). 

Although Ochoa-Zarate’s brief focuses principally on

whether the testimony was expert (rather than lay) testimony, a threshold question is whether the testimony was

relevant. Federal Rule of Evidence 401 defines “relevant

evidence” as “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable or less probable
16 No. 06-3815

than it would be without the evidence.” One fact of

consequence at trial was whether Ochoa-Zarate knew the

drugs were in the minivan. But the government agrees

that the testimony suggested nothing about OchoaZarate’s knowledge of the drugs, so we can eliminate

that possible basis. The district court also did not rest on

that rationale, instead ultimately allowing the testimony

because it wanted the jury to know that the trooper was

not doing anything unreasonable when he searched the

vehicle even though he had received consent. 

On appeal, the government maintains that the testimony “enhanced the trooper’s credibility by helping to

explain why his actions were reasonable.” That argument

might hold water if the court was considering whether

to grant a motion by Ochoa-Zarate to suppress the evidence on the basis that his consent was involuntary. But

Ochoa-Zarate admits (and even emphasizes) that he

voluntarily consented to the search, so we do not see

how this testimony was relevant on the basis argued by

the government here. Cf. United States v. Gastiaburo, 16

F.3d 582, 588-89 (4th Cir. 1994) (affirming, without discussing relevancy, admission of officer’s testimony that

it is not uncommon for person transporting controlled

substances to grant consent to law enforcement officers

to search their possessions or their persons). 

In any event, the primary dispute on appeal is over

whether the evidence was expert or lay testimony. Trooper

Thulen responded to a question that asked him to testify

based on his “training and experience.” Federal Rule of

Evidence 702 provides:
No. 06-3815 17

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in

the form of an opinion or otherwise, if (1) the

testimony is based upon sufficient facts or data,

(2) the testimony is the product of reliable principles and methods, and (3) the witness has applied

the principles and methods reliably to the facts of

the case.

When the lay testimony rule (Rule 701) was amended in

2000, the Advisory Committee wrote that the amendment was made “to eliminate the risk that the reliability

requirements set forth in Rule 702 will be evaded through

the simple expedient of proferring an expert in lay witness clothing.” So we are careful to examine whether

“although ostensibly couched as a matter of [the agent’s]

direct observation,” testimony by a law enforcement agent

is in reality expert testimony. United States v. Oriedo, 498

F.3d 593, 603 (7th Cir. 2007). 

Here, the government maintains that Trooper Thulen

merely testified to what he saw with his own eyes during

his previous consent searches. Ochoa-Zarate, however,

emphasizes that the question posed to the trooper asked

him to answer based not just on his personal observation,

but also on the basis of his “training.” Adding the “training” qualification tended to make the question sound as

though it asked for a response based on information

broader than merely what the trooper had observed with
18 No. 06-3815

his own eyes. See United States v. Garcia, 413 F.3d 201, 216

(2d Cir. 2005); United States v. Lopez-Moreno, 420 F.3d 420,

439 (5th Cir. 2005) (King, J., concurring); Conn, 297 F.3d

at 553-55. Although the question the district court told

the government it would allow did not include the

word “training,” Ochoa-Zarate did not object when the

prosecutor asked the question before the jury, which

could have rectified the situation.

At any rate, we do not find an error requiring reversal

here in this case. See Oriedo, 498 F.3d at 604 (applying

harmless error test to claim that court erroneously admitted expert testimony that was not disclosed to the

defense). The testimony here was brief, the district court

did not allow the prosecutor to ask whether any searchconsenting drivers typically know that their vehicles

contain contraband, and, as we have already discussed, the

evidence against Ochoa-Zarate was overwhelming.

The challenged testimony, in contrast, was no more

significant than testimony to which we attributed no

reversible error in a factually similar case, United States v.

Navarro, 90 F.3d 1245 (7th Cir. 1996). There, the prosecutor

asked a DEA agent whether it was common, given the

number of cases he had handled, to find drugs after

someone had given consent to search. Id. at 1261. The

agent responded that it was common and had happened

in his experience many times. The prosecutor then asked

the agent to give his opinion as to why an individual would

consent knowing that drugs were present. The agent

answered that Hispanics from outside the United States

grant permission more readily than most people because

of “the way the police work in other countries.” On appeal,
No. 06-3815 19

the defendant did not challenge the agent’s testimony that

he commonly found drugs during consent searches and

instead challenged only the agent’s opinion, and we

characterized even the officer’s opinion testimony as “of

little significance” and found no reversible error. Id.

at 1263.

Ochoa-Zarate also had the opportunity to cross-examine

the trooper on the basis of his conclusion, even though

he chose not to do so. Cf. United States v. Pree, 408 F.3d

855, 870-71 (7th Cir. 2005). The government had represented to the court and defense counsel that Trooper

Thulen had stopped thousands of people on the highway, had made fifty major drug seizures, and had received consent to search in over half those cases, so OchoaZarate had information to cross-examine the trooper on

this point had he chosen to do so. Any error in admitting

Trooper Thulen’s testimony does not require a new trial.

Finally, we note that in light of the weight of the evidence

of Ochoa-Zarate’s guilt, the combination of the prosecutor’s comments in rebuttal and the admission of the

challenged testimony do not warrant a new trial.

III. CONCLUSION

The judgment of the district court is AFFIRMED.

9-2-08