Summary Calendar UNITED STATES OF AMERICA v. Monica Faviola Ortiz-Montemayor

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-50361
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MONICA FAVIOLA ORTIZ-MONTEMAYOR
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:06-CR-667-ALL
Before KING, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Monica Faviola Ortiz-Montemayor (Ortiz) was found guilty by a jury of one
count of possession of marijuana with intent to distribute and one count of
importation of marijuana, in violation of 21 U.S.C. §§ 841, 952(a), 960. She
appeals her conviction only, arguing that the district court abused its discretion
in allowing certain expert testimony, and relatedly, erred in denying her motion
for acquittal in light of the erroneously admitted expert testimony.
United States Court of Appeals
Fifth Circuit
F I L E D
April 23, 2008
Charles R. Fulbruge III
Clerk

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No. 07-50361
1 Ortiz asserts that she must show that the testimony “seriously affected
the fairness, integrity, or public reputation of the judicial proceeding.” That
standard applies in the context of plain error, not where error was preserved, as
in this case. See United States v. Longoria, 298 F.3d 367, 371-72 (5th Cir. 2002).
2
Ortiz contends that the expert testimony of Mario Ramirez, a Special
Agent with Immigration and Customs Enforcement, was improper because it
attempted to link her to specific characteristics of drug couriers as well as to
drug trafficking methods. We review a decision to admit evidence, including
expert testimony, for an abuse of discretion. United States v. Gutierrez-Farias,
294 F.3d 657, 662 (5th Cir. 2002).1 Ortiz is correct that evidence of drug courier
profiles is inherently prejudicial and inadmissible to prove guilt based on
similarities between a defendant and a profile. Id.; see also United States v.
Williams, 957 F.2d 1238, 1242 (5th Cir. 1992). As for evidence of the methods
used by drug trafficking organizations, such evidence may similarly cross the
line between mere testimony regarding facts and an inference that a particular
defendant knew he was involved in such an organization. See Gutierrez-Farias,
294 F.3d at 663.
Ortiz complains of several points in Ramirez’s testimony. Several of these
complaints have no merit, specifically the following: Ramirez’s testimony that
Ortiz stated that she owned the truck for three months when she told other
agents that she only owned it for one month; Ramirez’s testimony regarding the
license plate check as misleading because the check did not identify drivers or
passengers; Ramirez’s testimony that Ortiz showed no surprise as an improper
comment on her state of mind. This testimony was not improper expert
testimony but was based on Agent Ramirez’s personal observations, nor did any
of this testimony implicate drug courier profiles or drug trafficking methods.
Any inconsistencies were subject to clarification via objection or on cross-
examination. We also find no error in the testimony regarding Ortiz’s

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No. 07-50361
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explanation for the cash in her purse and the evidence of typical monthly
salaries for teachers.
As for the testimony that drug dealers typically pay $500 to $1,000 in
advance to couriers as well as the testimony regarding drug trafficking methods,
these may present a closer question. See Gutierrez-Farias, 294 F.3d at 663.
However, we need not decide if such testimony should have been excluded
because it was harmless. See id. at 663-64.
Ortiz’s sons testified that she drove her truck to a convenience store, left
the store in another truck with an unidentified man and went to a McDonald’s
restaurant, and waited there until another man brought a truck owned by Ortiz
to the restaurant, after which Ortiz drove across the border. Then, Ortiz falsely
told agents that nobody else had used the truck since she had purchased it one
month earlier. These suspicious circumstances and her false statement support
an inference that Ortiz knew of the drugs and sought to cover up her activities
of that morning. Ortiz’s lack of surprise at being told there was marijuana in the
vehicle and the quantity and value of the marijuana also support an inference
of knowledge. See United States v. Ortega Reyna, 148 F.3d 540, 544 (5th Cir.
1998); see also United States v. Villareal, 324 F.3d 319, 324 (5th Cir. 2003). The
jury similarly could have inferred that drug distributors would not have sent an
unknowing courier on a lengthy trip with such limited gasoline capacity. All of
this circumstantial evidence strongly points to Ortiz’s knowledge, rendering any
evidentiary error harmless. See Williams, 957 F.2d at 1242.
Given the foregoing analysis, we likewise reject Ortiz’s challenge to the
district court’s denial of her motion for acquittal. The evidence set forth above
amply supported the jury’s verdict. See Ortega Reyna, 148 F.3d at 544. The
judgment of the district court is, therefore, AFFIRMED.

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