## Facts

- Jaime Leon Gomez-Norena arrived at Los Angeles International Airport from Bogotá, Colombia, on January 22, 1988, connecting onward to Sydney, Australia.
- A U.S. Customs inspector acting as a “rover screener” evaluated passengers using an official drug courier profile and focused on Gomez based on his behavior and travel circumstances.
- The inspector reviewed Gomez’s documents and noted factors associated with the profile, including a cash-purchased ticket, brief U.S. transit time, limited travel experience, and checked baggage.
- The inspector made a coded notation on Gomez’s customs declaration and informed other inspectors to “watch out” for Gomez because he fit the profile and matched a previously encountered modus operandi.
- Another inspector later searched Gomez’s luggage at a secondary inspection station and found approximately two kilograms of cocaine concealed among his belongings.
- Gomez was charged and convicted by a jury in the Central District of California of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).
- At trial, the court admitted testimony describing the drug courier profile and the inspector’s communications to other agents, with a limiting instruction that the profile evidence was only background explaining events, not proof of guilt.

## Issues

1. Whether the inspector’s statements about Gomez fitting a drug courier profile and directives to other agents were inadmissible hearsay or admissible to show their effect on listeners and explain subsequent investigative actions.
2. Whether drug-courier-profile testimony was improperly admitted as character or propensity evidence rather than limited background context.
3. Whether the testimony should have been excluded as unfairly prejudicial under Federal Rule of Evidence 403, and what standard of review applied given the objections made at trial.

## Decision

- The Ninth Circuit affirmed the conviction.
- The court held the inspector’s statements to other agents were not hearsay when offered to show their effect on the listeners and to explain why officers acted as they did, not to prove the truth of the assertions.
- The court concluded the profile testimony was admitted for background context to explain the sequence of events and was accompanied by a limiting instruction restricting the jury’s use of the evidence.
- To the extent a Rule 403 unfair-prejudice objection was not distinctly raised in the district court, the court reviewed for at most plain error and found none.
- The court determined any arguable error did not affect substantial rights in light of the physical evidence of cocaine discovered in Gomez’s luggage.

## Legal Principles

- Out-of-court statements are not hearsay if admitted to show their effect on the listener or to explain subsequent conduct, rather than for the truth of the matters asserted.
- Drug-courier-profile testimony is improper when used as substantive proof of guilt but may be admitted for limited contextual purposes to explain investigative steps.
- A limiting instruction can confine a jury’s consideration of profile evidence to background and reduce the risk of unfair prejudice.
- Rule 403 claims not clearly preserved at trial may be reviewed only for plain error, and evidentiary rulings receive deference absent an abuse of discretion.

## Conclusion

The court upheld Gomez-Norena’s conviction, ruling that testimony referencing a drug courier profile and related officer communications was admissible as nonhearsay background explaining law enforcement actions, especially where the jury was instructed not to treat the profile as evidence of guilt and no reversible prejudice was shown.


United States v. Gomez-Norena, 908 F.2d 497 (9th Cir. 1990)