Unreported / Non-Citable
Background
Jose Balmore Romero was convicted by a jury in the Central District of California of conspiracy to participate in a racketeering enterprise in violation of 18 U.S.C. § 1962(d) and conspiracy to distribute or to possess with intent to distribute controlled substances in violation of 21 U.S.C. § 846. At trial the government presented Agent Call as an expert on gang structure and activities. The district court adopted the government's proposed order on Agent Call's qualifications and reliability, and Romero says the court then read it to the jury.
At sentencing, the district court calculated the amount of methamphetamine distributed by Romero's co-conspirator, Melgar, and attributed it to Romero in computing his Guidelines offense level. Romero did not object to the attributed amount. On appeal he argued that the court abdicated its gatekeeping role over expert testimony and improperly vouched for the expert, and that it plainly erred in calculating and attributing the drug quantity. The Ninth Circuit heard argument on September 16, 2026, and resolved the appeal in an unpublished memorandum.
The Court’s Holding
The court held that the district court did not abuse its discretion in admitting Agent Call's testimony. A district court must make an explicit reliability finding on the record, but no Daubert hearing is required; gatekeeping can occur through motion in limine briefing and argument, voir dire, and cross-examination at trial. Agent Call's extensive law enforcement experience and MS-13 casework gave a reliable basis for his opinions. The issues were disclosed, briefed, and argued at a pre-trial conference, the court made an explicit finding when it adopted the proposed order, the testimony was not inherently unreliable, and Romero could rebut and cross-examine.
On vouching, the panel said the reliability finding should have been made outside the jury's presence but found any potential error harmless. The record supported the testimony's reliability, and the court twice instructed jurors that they could accept or reject the witness's testimony, before direct and before cross-examination. Jurors are presumed to follow instructions.
Reviewing for plain error because Romero did not object, the court held that Melgar's drug trafficking was reasonably foreseeable to Romero and within their jointly undertaken criminal activity under U.S.S.G. § 1B1.3(a)(1)(B)(i). Trial testimony showed that money was a primary goal of MS-13, that its revenue came predominately from narcotics trafficking, that Romero held a leadership role, and that cliques coordinated through meetings of clique leaders and pooled narcotics profits. A witness said he collected rent from Melgar and delivered it to Romero, and the jury found Romero knew the racketeering conspiracy would involve drug trafficking and that methamphetamine was reasonably foreseeable. The estimate itself was supported by a preponderance of the evidence, bore sufficient indicia of reliability, and was conservative: the court used the multiplier method and a credible witness's testimony about Melgar's weekly supply over an estimated sixteen weeks, within the range of time the witness supplied. The judgment was affirmed.
Key Takeaways
- A district court must make an explicit reliability finding on the record before admitting expert testimony, but a formal Daubert hearing is not required when briefing, argument, voir dire, or cross-examination lets the court assess reliability.
- The panel said the reliability finding should have been made outside the jury's presence, yet treated any potential error as harmless given the supporting record and two instructions on weighing the witness's testimony.
- Law enforcement experience and prior casework on a particular gang can supply a reliable basis for expert testimony about that gang's structure and activities.
- An unobjected-to drug quantity attribution is reviewed only for plain error, and a co-conspirator's trafficking may be foreseeable to a leader where the enterprise coordinates and pools narcotics profits.
- A conservative multiplier-method estimate resting on a credible witness's testimony, and within the time range the witness supplied, can satisfy the preponderance standard.
Why It Matters
This memorandum is designated not for publication and is not precedent except as allowed by Ninth Circuit Rule 36-3. It applies existing circuit authority, including Holguin on gatekeeping, rather than announcing new law. Its main value is as an illustration of how the court treats an adopted proposed reliability order and relevant-conduct attribution in a gang-based racketeering and drug conspiracy case.
The panel resolved the jury-presence issue on harmlessness, so it leaves open whether the same practice could require reversal on a thinner record or without curative instructions. Romero's convictions and sentence are affirmed, and the memorandum identifies no further proceedings.