Ninth Circuit Finds Expert Testimony About the Retail Value of Fentanyl Was Admissible in Prosecution For Importing Drugs

Federal Rule of Evidence 401 provides that

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

So, is evidence by law enforcement experts about the retail value of narcotics relevant to charges of importing illicit drugs? That was the question addressed by the Ninth Circuit in its recent opinion in United States v. Velazquez, 2025 WL 251684 (9th Cir. 2025).

In Velazquez, Alfred Velazquez was charged with importing illicit drugs, with law enforcement experts testifying that the retail value of the fentanyl he imported ranged anywhere from $405,888 to $608,832. After he was convicted, Velazquez appealed, claiming that the retail value of the fentanyl was irrelevant to the charge against him, claiming that there was no Ninth Circuit precedent on point. In response, the Ninth Circuit ruled as follows:

[T]he Government points to a string of cases involving importation charges in which we held that the retail value of drugs is probative of a defendant’s knowledge of the presence of narcotics. The Government relies primarily on United States v. Ogbuehi, 18 F.3d 807 (9th Cir. 1994). In that case, we held that law enforcement agents “can testify as to the street value of narcotics.”…The Government acknowledges that Ogbuehi also involved drug-distribution charges but asserts that the case applies here for three reasons. First, we did not hold in Ogbuehi that the admission of the retail value of narcotics was restricted to distribution charges. Second, Agyen, the Eighth Circuit case cited in Ogbuehi, involved only an importation charge. And third, in an unpublished disposition, we have relied on Ogbuehi to conclude that expert testimony on the retail value of drugs is proper in importation-only cases.

In reply, Velazquez contends that, while it is true that we did not restrict the introduction of the retail value of narcotics to distribution cases, the inverse is also true. That is, we never explicitly permitted such evidence in importation-only cases.

Although Ogbuehi involved both importation and distribution charges,…we have previously employed a similar rationale for admitting the value of narcotics to prove knowledge, see United States v. Kearney, 560 F.2d 1358, 1369 (9th Cir. 1977)….

Our sister circuits follow the same rationale. For example, in Agyen, the persuasive authority that we cited in Ogbuehi, the Eighth Circuit held that a Drug Enforcement Administration Special Agent was qualified to testify about the “street” value of narcotics in a case in which the defendant was charged only with importation crimes….The Tenth Circuit reached a similar conclusion in United States v. Rodriguez, 192 F.3d 946 (10th Cir. 1999), in which the defendant was charged with illegal importation and possession of marijuana….That court recognized that, when knowledge of the existence of drugs is a critical issue at trial and there is only circumstantial evidence of knowledge, any conflicting inferences about “the value of the drugs is something left up to the parties to argue at trial, but it does not detract from the probative value of the evidence itself.”…The Tenth Circuit also concluded that, where “evidence of the value of the drugs directly addresses an element of the offense,” such as the defendant’s knowledge, it does not implicate the unfair prejudice aspect of Rule 403….Although the evidence was unfavorable to the defendant, it could not be considered “unfair” prejudice because it went to “the core of the criminal charges against him.”…

Considering our prior precedent and the persuasive decisions of other courts, we decline to adopt Velazquez’s position that Government witnesses should not be allowed to testify about the retail value of seized narcotics in cases limited to importation charges. Although Velazquez was not charged with distribution, we are persuaded by Kearney’s reasoning that “[e]vidence of the monetary value of illicit narcotics is relevant to show a defendant’s…knowledge of his possession of the [drugs].”…

Consequently, we conclude that district courts do not abuse their discretion when admitting evidence of the retail value of narcotics in cases confined to importation charges when that evidence is relevant, probative, and not unfairly prejudicial under the standards set forth in the Federal Rules of Evidence.

-CM