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Great write-up as usual.
I've thought a bit about Diaz, and one issue that doesn't seem to have been addressed by anyone (probably because it wasn't raised by the parties, if I had to guess) is why the government even needed expert testimony on this point in the first place. It sounds like the expert's opinion was "Drug cartels typically don't hide half a million dollars worth of drugs in the car of some unwitting rando and then just hope that it makes it across the border and that they can find a way to retrieve it." This seems like ordinary, common-sense reasoning, moreso than specialized technical knowledge that the jury needed an expert to weigh in on. I get suspicious when the government brings in an "expert" to testify about something that should be obvious to everyone; it feels like they're trying to take advantage of the "expert witness" designation to put extra weight behind the government's theory of the case, rather than to explain some complicated topic or express some scientific opinion that jurors ordinarily wouldn't understand.
By the same token, however, the prejudice from eliciting such everyday-common-sense views from an expert witness is fairly small; they're just expressing an argument that the prosecutor would have made anyway and that the jury likely would have accepted. So while it may be overreaching by the prosecutor, it's probably harmless in most cases.
Diaz's claim during trial was that she'd gone south of the border to meet a new boyfriend, and he'd let her borrow his car. If you believed this defense, the theory is less 'just hope' and more 'meet at predesignated point'. These sort of scams do exist, sometimes even at higher values, and indeed it's actually a bit of a struggle for courts to handle the border cases where the mule may have been willfully blind or where the arguments are more borderline.
((That said, for this specific case, Diaz seemed to have made up almost all of this, most of it not terribly credibly, including the boyfriend that supposedly loaded the car up to start with.))
So the need for an expert witness makes more sense than at first glance -- there's a lot about general drug trafficking approaches that aren't common knowledge or would be counterintuitive to common knowledge. And the question of what tactics drug traffickers use is the sort of thing that would be better considered under expert witness testimony, and could have been more appropriately discussed without a lot of nudge-and-winking about the defendant.
I'm still not a huge fan, but that's more because the scope of domain expertise is ugly. The fed here was testifying as an expert on gang trafficking of drugs, and reading through a search affidavit from an unrelated case gives a pretty lengthy and impressive personal record as part of investigatory task forces. It's... less compelling as a matter of his expertise on the full breadth of drug trafficking tactics, especially for the sort of broad statistical analysis he's giving here.
((Though the rule applies both ways, at least in this specific case, as Jackson points out; Diaz's defense brought in a car mechanic who was allow to testify about how most people wouldn't notice the modifications to the car here. But I'm skeptical that the average decision is fully evenhanded, and Jackson's asides about other defenses leave me a little unsated given how weak the protections against dueling experts are.))
((But in turn, that wasn't the question raised before the court, here.))
I remember hearing about this case (this was like 20 years ago; I may be wrong on a couple of details) where an Australian couple "won" a "free getaway" to Indonesia with suitcases provided. They noticed that the suitcases were significantly heavier when provided for the return trip than they'd been on the outgoing trip, and alerted the local police who pulled them apart and indeed found they were full of drugs. Thankfully, the couple didn't end up getting shot anyway, though IIRC the police thought about it.
Yeah, it's been a long-standing issue, sometimes resulting in serious convictions where courts believed that the 'mule' should have been more suspicious.
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I'm not a criminal lawyer, but I suspect they had to put on the expert because they bore the burden of proof on intent. If they didn't present any evidence of intent, they would presumably lose the criminal equivalent of a post-trial JMOL motion based on lack of evidence.
They may have been worried about that, but if so I don't think their fears were realistic. Unless there is a confession, prosecutors almost never have direct evidence of intent. So they typically rely on circumstantial evidence. In this case, Diaz had actual possession of the car; she told an implausible story about the car belonging to her boyfriend, but she claimed not to know his address or phone number; and she refused to answer questions about the multiple phones found in her car. I think those circumstances would have been sufficient to prove intent, without needing a mind-reading expert. But the government may well have chosen to err on the side of caution--although, in so doing, they created an appellate issue they easily could have lost.
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