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Click here for the full text of this decision FACTS:Authorities charged Juan Sanchez-Hernandez with one count of knowingly and intentionally possessing with intent to distribute marijuana, and one count of knowingly and intentionally importing marijuana into the United States from Mexico. The government’s case at trial was presented by four witnesses: the three Border Patrol agents who arrested Sanchez-Hernandez at the border (Haas, Bowen and Mata) and Special Agent Edemeier of the Drug Enforcement Administration. Sanchez-Hernandez testified for the defense. On the night of Sanchez-Hernandez’s arrest, agents Haas, Bowen and Mata were “laying-in” at a landing on the Rio Grande River commonly used by drug traffickers near El Cenizo, Texas. They were equipped with night vision goggles with magnification and could see toward the landing but not the landing itself. Around midnight, Haas heard noise on the Mexico side and saw three men enter the river in a line and paddle with their hands in three inner tubes across the river. The first man had a small tote bag and was halfway across the river before the next two men entered the water. The next two men had larger bags that were square shaped and appeared to be heavy, because their tubes sat much lower in the water than the first person’s tube. Haas radioed Bowen and Mata to be on the lookout for them as they were headed in their direction. Haas then moved toward the expected landing site. Bowen and Mata saw a man, not Sanchez-Hernandez, wearing a camouflage jacket walk quickly by Bowen’s position. They lost sight of him briefly and then saw him heading back to the landing. About five to 10 minutes later, two men came around the same landing carrying a large, green, square, military-style duffle bag. Each man was holding one handle of the bag with the bag between them. Sanchez-Hernandez was leading and the man who had been in the camouflage jacket was in the rear. As they passed Bowen and Mata, Bowen stepped out of hiding and threw a “flash-bang” device, which lights up the area and creates a loud noise. The two men dropped the bundle and ran. Bowen chased the man who had been in camouflage toward the landing but did not catch him. Mata chased Sanchez-Hernandez, yelling “police,” “immigration” and “stop” in Spanish, and eventually arrested him. The other men were not found. Haas ran to the green duffle bag. The soft bag was stretched in a square shape conforming to the shape of the bundles in the bag. The bag contained 75.8 pounds of cellophane-wrapped bundles of marijuana. Mata testified that he could smell the drugs a little bit. Near the duffle bag, the agents found a small bag that contained a camouflage jacket like the one the lead man had been wearing. Over defense objections, agents submitted the following testimony relevant to Sanchez-Hernandez’s second issue. Haas testified that a lead person who enters the water before the others in the group is ordinarily the scout who makes sure the coast is clear. This supported his conclusion that the crossing he witnessed in this case was a drug crossing, rather than an alien crossing. Bowen testified, over defense objections, that the lead man was scouting for a narcotics load. In his experience, alien smugglers do not wear camouflage; they just come up and look and go back for the load. Because drugs are more valuable than aliens and penalties for drug smuggling are more severe, drug scouts have more to lose. They wear camouflage so they can hide. Bowen also testified that the river landing they were watching was not used much for alien smuggling. Mata testified that the way Sanchez-Hernandez and the other man were carrying the duffel bag with one holding each handle is a way that he had seen drugs carried before. The advantage is that it allows the smugglers to drop the bag quickly and run if necessary. Sanchez-Hernandez testified that the night of his arrest he was attempting to cross illegally into the United States. He identified the lead person in the group as Luis whom he met through a friend. His friend asked Luis if he would take Sanchez-Hernandez into Laredo. Luis said he was going that night and it would cost $100. Sanchez-Hernandez said he only had $50, which Luis allegedly accepted. The district court convicted Sanchez-Hernandez of conviction of possession with intent to distribute marijuana, but acquitted him of knowingly and intentionally importing marijuana into the United States from Mexico. Sanchez-Hernandez appealed. HOLDING:Affirmed. Sanchez-Hernandez argued first that the district court abused its discretion by denying his challenge for cause of a prospective juror who indicated her belief that a person who had been arrested and indicted must be guilty. The court stated that it did not need to consider whether the district court adequately rehabilitated this juror on further questioning. Sanchez-Hernandez elected to use one of his peremptory challenges to remove this juror from the panel. The court found that if the defendant elects to cure such an erroneous denial of a challenge for cause by exercising a peremptory challenge, “and is subsequently convicted by a jury on which no biased juror sat, he has not been deprived of any rule-based or constitutional right.” Moreover, the court rejected Sanchez-Hernandez’s argument that it is reversible error to refuse to afford a defendant an extra peremptory challenge when he has used a peremptory challenge to cure an erroneous denial of a challenge for cause, and when he shows that he would otherwise have used all his peremptory challenges for noncurative purposes. The court also found that the trial court did not deliberately misapply the law in order to force the defendant to use peremptory challenges to correct the court’s error; and that the district court’s ruling did not result in the seating of any juror who should have been dismissed for cause. Accordingly, the court held that the trial court did not deprive Sanchez-Hernandez of any rule-based or constitutional right by the district court’s denial of his challenge for cause of a prospective juror. Next, Sanchez-Hernandez argued that the district court abused its discretion by admitting as substantive evidence of guilt the opinion testimony of Border Patrol agents that the conduct of the participants indicated drug smuggling based on comparisons to a drug smuggling profile, as well as impermissible expert testimony regarding defendant’s knowledge of the marijuana in the duffle bag. The court found that although the agents’ testimony came close to crossing the line into drug profiling evidence because of its tendency to imply Sanchez-Hernandez’s level of knowledge relating to the drug activity, under the circumstances of this case the district court did not abuse its discretion by admitting the agents’ testimony. The testimony was admissible, the court stated, because the officers were explaining to the jury based on their experience in patrolling the U.S.-Mexico border in that area how drug smuggling operations were conducted. In addition, the court found that the testimony was not pure profile evidence offered for the purpose of proving the defendant’s guilt based on his comparison to a profile. Rather this evidence served to rebut Sanchez-Hernandez’s innocent explanation that he was attempting to enter the country to work and was not involved in smuggling drugs on the river that night. Thus, the court held that the district court did not abuse its discretion in admitting the challenged testimony. OPINION:Davis, J.; Davis, Wiener and Prado, JJ.

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