Tenth Circuit interprets “Pray that your enemies are ridiculous”

The problem in U.S. v. Medina-Copete, was not only that was the government ridiculous, but the District Court in New Mexico bought into the ridiculousness. Thankfully, the Tenth Circuit reversed the convictions of two co-defendants because the New Mexico District Court failed to make an adequate finding under FRE 702. The District Court, despite allegedly applying the correct two-step test adopted using Daubert and Kumho Tire and adopted in United States v. Nacchio, 555 F.3d 1234 (10th Cir. 2009), allowed U.S. Marshal Robert Almonte to testify as a “cultural iconography hobbyist.”

In this capacity, Almonte testified about Santa Muerte, a saint to which one of the co-defendants was allegedly praying during a traffic stop. Almonte’s insights included, “well, I think it’s hard to say exactly what Santa Muerte is, but what I found is that she would be a spirit, or some people consider her the angel of death.” Despite not being able to say exactly what Santa Muerte is, Almonte went on to testify: “[H]e prayer found in Medina’s hands, even without other evidence of criminal activity, ‘would be a very good indicator of possible criminal activity based on that one statement there about making some—some money. Absolutely.’”

The Tenth Circuit pointed out “several” errors made by the district court in allowing Almonte to testify:

First, it applied our “tools of the trade” jurisprudence to Almonte’s purported area of expertise without considering whether a prayer could qualify as a “tool of the drug trade” as we have previously used that phrase. Second, it allowed Almonte to testify as an expert based on his experience without considering the relevance or breadth of that experience, thereby eliding the “facts or data” requirement found in Rule 702(b). Third, it engaged in circular reasoning in determining that Almonte’s opinion was not an “unfounded extrapolation,” relying on other courts’ treatment of facially similar testimony in very different contexts instead of the manner in which Almonte’s techniques and methodology led to his opinion.

The Court also found that Almonte’s ridiculousness was not harmless: “The highly prejudicial nature of Almonte’s testimony leaves us with grave doubt that the outcome of the trial would have been the same without it.” Pointing out that Almonte’s testimony suggested “the presence of prayer was indicative of criminal activity,” and that the First Amendment ramification of having a law enforcement officer commenting on religious matter in a criminal case should not be ignored: “A criminal trial is no place for a theological disputation on sainthood and the power of prayer.”

Author: COFPD

Federal Public Defender's Office for the Districts of Colorado and Wyoming