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Mr. William G. Johnson for appellants in No. 16. [204 U.S. 43, 44] Messrs. R. Ross Perry, R. Ross Perry, Jr., and E. S. Theall for appellants in No. 17.
[204 U.S. 43, 46] Messrs. J. J. Darlington and Leon Tobriner for appellee.
These appeals are from a decree of the court of appeals of the District of Columbia, which adjudged that a tax sale of certain real estate in the District was void, and which relieved the lessee of the premises from a threatened forfeiture of the lease, asserted to have resulted from the failure of the tenant to pay the taxes to enforce which the tax sale was made. The complainant in the original bill was Caroline King, the lessee [204 U.S. 43, 48] of the premises, and the defendants were Marianne A. B. Kennedy (the lessor) and Louis Kann, Sigmund Kann, and Myer Cohen, whom it was alleged claimed to be either the equitable or legal owners of the tax title in question. The defendant Kennedy died the day the bill was filed, and Henry Randall Webb, as her executor, and Maria G. Dewey, as her heir at law, were substituted as defendants.
The lessor prosecuted an appeal from an order granting an injunction pendente lite, restraining him, among other things, from prosecuting landlord and tenant proceedings, based upon a right of re-entry arising from the alleged forfeiture caused by the nonpayment of taxes and tax sale referred to in the bill. The court of appeals, on the face of the bill, sustained the order of injunction. 21 D. C. App. 141. The cause, having been put at issue by separate answers asserting the right of the lessor to forfeit and the right of the holders of the tax title, was tried on the merits and was decided in favor of the complainant. It was taken to the court of appeals on behalf of all the defendants except Mrs. Dewey, and the decree of the lower court, adjudging the tax sale to be void and relieving from the alleged forfeiture, was affirmed. 25 D. C. App. 182.
On July 24, 1900, the two instalments of the tax for 1900, due in November, 1899, and May, 1900, with accrued penalties, were paid by the tenant under the following circumstances: As testified by Harry King, he being concerned over past-due taxes owing on a large number of tracts of real estate owned by the estate of his father, it 'occurred' to him to have the 'bookkeeper go down to the tax office and inquire for the tax bills of 715 Market space.' The bookkeeper went and subsequently reported that the two instalments for 1900 were due, and Harry King paid them. The nature of the inquiry made by the bookkeeper at the tax office, and what occurred, is the subject of controversy, and we pretermit its consideration. Nearly a year after, in May, 1901, the two instalments of taxes for 1899, due in November, 1898, and May, 1899, with interest and penalties, along with the taxes for 1901, were paid by the tenant. The payment of the 1899 taxes was by way of redemption of a sale of the property for such taxes made on April 12, [204 U.S. 43, 51] 1900. There is no doubt that the payment of the arrears for 1899 was a result of the visit by the bookkeeper to the tax office. It will be observed that the payments which were made in 1900 and 1901, of taxes which were in arrears, did not embrace the second instalment of the tax of 1898, due in May, 1898. To enforce that instalment a sale had been made in April, 1899, and a certificate was issued to the purchaser a few days thereafter, which was subject to a right of redemption during a period of two years. In other words, when the instalments of taxes which were in arrears were paid on July 24, 1900, the property had been sold for the last half of the tax of 1898, and when the payment was made in 1901 of the arrears for 1899 the period for redemption had elapsed.
It was replied on September 24, 1901, that if the matter was attended to promptly $75 would be accepted for the release certificate, and that the papers had been sent to the Central National Bank of Washington, where, on payment of $279.90, they would be delivered up.
Both the Kann defendants carried on business on Market space, having stores on each side of the property leased to King, and the situation was therefore such that the possession of that property was particularly advantageous to the Kanns. Indeed, they had at some previous time stated to Webb, the attorney of the lessor, that if they could obtain a long lease of the premises they would be willing to pay a rent much in advance of that paid by Mrs. King. Some time in September, 1901, one Knight called upon the Kanns and informed them that the property at 715 Market space had been sold for taxes. They referred him to Webb, the attorney of the lessor. Knight called upon Webb, said to him that Wiltsie had bought the property at the tax sale, and solicited employment to set aside the sale. Webb on the next day made inquiry, and discovered the fact of the sale and the outstanding certificate and the lapse of the period of redemption. He informed the lessor of the fact and of her right to forfeit the lease. Mrs. Kennedy, who was advanced in age, being nearly eighty years old, was perturbed, and, in a letter to Webb, expressed solicitude as to obtaining a new tenant in case the lease of Mrs. King was forfeited. As a result of the conferences and the correspondence between Mrs. Kennedy and her counsel, the latter called on Cohen, [204 U.S. 43, 53] another defendant, who was the attorney of the Kanns, and desired to know whether the Kanns were yet willing to lease at an increased rent, and was informed they were. Shortly after Cohen advised the Kanns to purchase the Wiltsie tax certificate, and upon their giving him authority to use his discretion in the matter he determined to go at once to Rochester to accomplish that purpose. He communicated his intentions to Webb, who endeavored to dissuade him. Cohen went to Rochester. The papers which had been sent to Washington in consequence of the correspondence between Wiltsie and King were returned to Rochester. Cohen bought the certificate, took an assignment of the same in October, 1901, and, returning to Washington, procured a tax deed for the property from the commissioners of the District, which was duly recorded. Thereafter Mrs. Kennedy notified Mrs. King of her intention to re-enter because of the forfeiture of the lease resulting from the sale of the property for the nonpayment of taxes. Harry King then called at the bank to take up the certificate, and found that it had been returned to Wiltsie. Negotiations ensued between Mrs. King and Mrs. Kennedy, looking to a compromise of the matter, and a letter was written by the counsel of Mrs. King to Mrs. Kennedy, asking to be permitted to use her name in rpoceedings to be brought to cancel the tax sale. This was declined. At all times Mrs. King insisted upon her right to continue in possession under the lease despite the default. The Kanns notified Mrs. Kennedy that they were the real holders of the tax title, and would attempt to enforce their rights under it unless a lease of the property was made to them at the previously suggested increased rental. The counsel of Mrs. Kennedy, Webb, advised making such a lease. Placed between the threatened assertion by the Kanns of the tax title, unless they obtained a lease, and the insistance of Mrs. King that she was entitled to retain the property under her lease, Mrs. Kennedy wavered. The result was a letter addressed by Webb, the counsel for Mrs. Kennedy, to the counsel for Mrs. King, submitting a proposition of compromise, which was in substance [204 U.S. 43, 54] that Mrs. Kennedy would waive the forfeiture upon condition that Mrs. King promptly commenced and prosecuted proceedings to have the tax deed to Cohen declared a nullity or defend against any claim under the tax title, and upon the further condition that Mrs. King furnish a bond with sufficient surety to pay the sum of $70,000 in the event that the tax title was held to be valid. Counsel for Mrs. King in writing declined this offer. The letter doing this made no counter proposition, but referred to and did not expressly withdraw the previous offer of Mrs. King, if she were allowed the use of Mrs. Kennedy's name, to conduct proceedings to vacate the tax title. In addition the letter, which was quite lengthy, expressly stated the opinion of the counsel of Mrs. King to be that the tax title was void and could be set aside. It insisted that Mrs. King would be relieved by a court of equity from the forfeiture alleged to have resulted from her inadvertent omission to pay the tax, and besides stated various grounds which, it was deemed, placed Mrs. Kennedy in a position where she could not, as against Mrs. King, ask to be protected against the risk, if any, of the outstanding tax title held by the Kanns. These grounds were, in substance, that the tax certificate had been bought by the Kanns at the instance of the counsel of Mrs. Kennedy, for the purpose of making sure of a forfeiture of Mrs. King's rights, and with the knowledge that negotiations were pending between Mrs. King and Wiltsie, and for the purpose of forestalling the acquisition by Mrs. King of the tax certificate.
The negotiations having failed, Mrs. Kennedy commenced landlord and tenant proceedings to recover possession. Before the time set for the trial of the proceedings Mrs. King commenced this suit, which, as we at the outset stated, sought to have the tax title declared void, to have complainant relieved from the forfeiture, and for an injunction restraining the prosecution of a landlord and tenant proceeding.
That a court of equity, even in the absence of special circumstances of fraud, accident, or mistake, may relieve against a [204 U.S. 43, 55] forfeiture incurred by the breach of a covenant to pay rent, on the payment or tender of all arrears of rent and interest by a defaulting lessee, is elementary. Sheets v. Selden, 7 Wall. 416, 19 L. ed. 166. But that principle cannot control this case, even if it be conceded, for the sake of argument, that it applies to collateral covenants in leases, such as the obligation to repair, to insure, and even to pay taxes, said in the Sheets case to be settled in England adversely to such right, but to be an open question in this country, and as to which there may be differences of opinion in state courts of last resort. Noyes v. Anderson, 124 N. Y. 175, 21 Am. St. Rep. 657, 26 N. E. 316; Giles v. Austin, 62 N. Y. 491; Gordon v. Richardson, 185 Mass. 492, 69 L. R. A. 867, 70 N. E. 1027; Lundin v. Schoeffel, 167 Mass. 465, 45 N. E. 933; Mactier v. Osborn, 146 Mass. 399, 4 Am. St. Rep. 323, 15 N. E. 641; Tibbetts v. Cate, 66 N. H. 550, 22 Atl. 559; Bacon v. Park, 19 Utah, 246, 57 Pac. 28. We say this, because the general principle, as declared in the Sheets Case, rests upon the ground that 'the rent is the object of the parties and the forfeiture only an incident intended to secure its payment; that the measure of damages is fixed and certain, and that when the principal and interest are paid the compensation is complete.' When the foundation upon which the doctrine is based is borne in mind it becomes apparent that it affords no ground for the contention that it is applicable to a case where the failure to perform a covenant to pay taxes has led to a tax sale, ripening into a prima facie irredeemable title held adversely to the lessor. In other words, the doctrine lends no support to the proposition that a court of equity can require an owner to risk the loss of his property by compelling him to engage in a contest involving the validity of an irredeemable tax sale, for the purpose of endowing the tenant with the right, if the tax title be held invalid, to pay the taxes and thus be relieved of a forfeiture. To extend the principle to such a degree would be destructive of rights of property, since it would subject everyone who made a lease of his property, containing a covenant by the lessee to pay taxes, to the hazard of the loss of his title, if only the tenant chose to violate the covenant, and thus give rise to the coming into existence of a tax title prima [204 U.S. 43, 56] facie valid and irredeemable in character. And the force of these considerations is not avoided by the reasoning which led the court below to its conclusion, or by the arguments at bar advanced to support that conclusion.
Thus, the court, in its opinion, considering the paramount issue to be the validity of the tax sale, first disposed of that question, and, concluding that the sale was void, proceeded to determine its power to grant relief from the forfeiture, upon the hypothesis that there never had been a tax sale, that the taxes were still due, and could be paid, and that the tenant was willing to pay them. But thus to contemplate the controversy was to assume the very question for decision; that is, the power of a court of equity, in order to relieve from a forfeiture, to endow a tenant with the right to create, at the risk of the owner, a primary controversy, viz., to compel the owner against his will to jeopardize his title by testing the validity of the irredeemable tax sale,- a hazard which the owner was desirous of avoiding. The paramount issue was not, as assumed, the invalidity of the tax sale as a mere abstract question, but, we repeat, was the right of the tenant to invoke at the hands of the court a determination of that question at the risk of the owner. And this view is not changed by saying that the decision at the instance of the tenant as to the validity of an irredeemable tax title, held by a third person, was an incident to the right of the tenant to be relieved from the forfeiture, for to so say is but to destroy the foundation upon which the right to relief from the forfeiture rested; that is, the ability of the tenant, when applying for relief, to make complete compensation. And the misconception of the general doctrine just pointed out pervades the argument at bar of the appellee. Thus, while no authority is referred to sustaining the right of a tenant to test the validity of an outstanding prima facie irredeemable tax deed, caused to exist by the default of the tenant, the ultimate result of the contentions is to assume that principle as established and to predicate rights upon that hypothesis. In other words, in substance, by a petitio principii, the propositions [204 U.S. 43, 57] urged treat the outstanding tax title as void and proceeded to demonstrate the right to relief under that assumption.
There being, then, no foundation for the contention that it was within the ordinary power of a court of equity to relieve from the forfeiture, we come to consider whether the case as made by the record is brought within the general authority of a court of equity to relieve in cases of fraud, accident, or mistake. We put out of view, for ulterior consideration, the question of fraud, and therefore presently examine only the contentions as to the existence of the elements of accident or mistake. In considering this subject two propositions are obvious: First, where the forfeiture from which relief is sought has been occasioned by the gross negligence of the person claiming to be relieved the default so occasioned is not one brought about by accident or mistake; and, second, that even where accident or mistake has been shown, especially in the absence of culpability or fraud on the part of the other party, a court of equity will not grant relief from the forfeiture, unless it can be done with justice to that party.
By this reasoning it was assumed the case was brought within the grounds of relief for accident or mistake upon two inferences, both treated as alleged in the bill and established by the testimony; first, the prior practice of the lessor in calling upon the tenant to hand her the money to pay the taxes and then herself paying them; and second, the failure of the lessee, after this practice was discontinued, to call to mind that the tax was due and payable, owing to her disturbed state of mind at that particular time. In the argument at bar reliance is principally rested upon the first of these grounds, and indeed it is insisted that the testimony goes much further than implied by the court below, and demonstrates that the conduct of the lessor was such as to mislead the lessee, and thereby estop the former from asserting the forfeiture.
'We assume that you are aware that your tenant has always paid the taxes upon the demised premises, and the failure to pay the one made the basis of the notice was an oversight, caused by the death of Mr. Henry King, Jr., which was being remedied at the time your notice was received.' [204 U.S. 43, 59] And although it would seem that the court below assumed to the contrary, the fact is the bill contained no averment justifying the default in paying, upon the theory that it had been induced by the conduct of the lessor. To the reverse it was specifically stated in the fifth paragraph of the bill that the alleged single default in the payment of taxes arose 'wholly through oversight and inadvertence,' without in anywise charging that the conduct of Mrs. Kennedy was in whole or in part the cause of the oversight or inadvertence. Besides, in the eleventh paragraph of the bill, explicit reference was made to the letter to which we have just above referred, and it was alleged that by its terms Mrs. Kennedy was notified 'that the failure to pay the taxes was simply an oversight, which was being remedied at the time the notice of refusal to accept the rent was received.' True it is that the testimony shows that prior to the death of Henry King, Jr., in August, 1897, the lessor was in the habit of calling upon the tenant for the amount required to pay the tax then due or about to become due, in order that she might herself pay them. True also is it that Harry King, in testifying, made statements from which the inference can be deduced that in conducting the business for his mother, after the assignment of the lease subsequent to the death of his father, he relied upon a continuance of this practice. But it must be borne in mind these statements were made after the death of Mrs. Kennedy, who died on the day the bill was filed, and their inaccuracy is, we think, conclusively shown by the mode of dealing following the assignment of the lease and the conduct of the tenant in respect to the matter of taxes. The very first payment of taxes made after the death of Henry King was made by the tenant herself, paying the taxes at the request of Mrs. Kennedy, and retaining the receipt. Nearly three years of default followed, without any payment of taxes by the tenant whatever and without any inquiry being made by the tenant on the subject. When in July, 1900, the two defaulting instalments of the tax for 1900 were paid by the tenant they were not paid at the instance of Mrs. Kennedy, or because [204 U.S. 43, 60] of any request upon her part, but because it 'occurred' to the tenant to do so. When they were paid the payment embraced interest and penalties, for which the tenant could not have deemed herself responsible if the course of dealing asserted had been relied upon. Despite this fact, no proof whatever was made of any notice to Mrs. Kennedy of the fact or of any claim being made against her in the premises. And the same thing is true as to the payments made in May, 1901, of the current taxes and some of the overdue instalments. Besides, when these payments were made the property had been sold for the overdue instalments, but was yet subject to redemption, and the statutory interest of 15 per cent was paid by the tenant without any intimation of a claim of any character against the lessor. Indeed, the conduct of the tenant in respect to the very tax for which a forfeiture was asserted is absolutely inconsistent with the theory that she deemed that her landlord was the cause of the default, for, when notice was received by the tenant from the purchaser at the tax sale of the outstanding irredeemable tax certificate, more than two months and a half elapsed before the purchase of the certificate by Cohen, and no complaint was made to the landlord that she had neglected to demand payment of the tax, and that in consequence the default and loss was occasioned, but a negotiation was opened to purchase the outstanding title for the account of the tenant alone. When this line of conduct is considered in connection with the fact, already stated, the conclusion is inevitable that the suggestion that the conduct of the landlord had induced the failure to pay, first made after the death of Mrs. Kennedy, is without foundation.
And the facts which we have just stated also render it impossible to conclude that the nonpayment of the tax was due to a mere temporary oversight, and not to gross negligence. How can an inference of temporary oversight be possible when the long period of the failure by the tenant to pay any tax whatever is borne in mind, and when we also consider the delay of more than two months and a half which took place after [204 U.S. 43, 61] knowledge was conveyed, by the letter of Wiltsie, of the outstanding irredeemable tax certificate?
The fact that the tenant was a merchant, and of necessity kept mercantile books, is significant. The mind cannot conceive of adequate entries being made of the taxes which were belatedly paid, which would not have at once suggested those which were unpaid. The inference fairly deducible from the letter to Wiltsie-'Unfortunately we have paid you quite a considerable amount of money in the past for tax sales'-adds cogency to the irresistible inferences as to negligence.
And even if the foregoing considerations which establish the absence of accident or mistake and demonstrate the presence of gross negligence are put out of mind, and accident or mistake be assumed, for the sake of the argument, nevertheless, under the circumstances of the case, a court of equity could not give relief. This follows since the relief sought could not be afforded without subjecting the lessor to the peril of contesting the validity of the outstanding prima facie irredeemable tax title.
For the reason that we agree with the finding that there is no evidence whatever of any fraud or wrongdoing by anyone concerned, we are constrained to disagree with the conclusion that the complainant was entitled to relief. We say this, because we are of opinion that the relief awarded could only have been justified upon the finding that there was fraud and wrongdoing. We so conclude, because if it be accepted that there was an agreement and combination as to the certificate, entirely free from every element of fraud or wrongdoing, we fail to perceive how an agreement of that character afforded ground for granting the relief which was given. But, disregarding mere forms of expression, and assuming that the general finding that there was no fraud or wrongdoing was intended to be limited to intentional as distinguished from constructive fraud or wrongdoing, let us briefly review the facts concerning the acquisition and use made of the certificate, in order to fix whether such a finding is at all sustained by the record. Although we think it immaterial, as there was no evidence whatever tending to show that the lessor or her attorney procured the purchase of the certificate by Cohen, that subject may be put out of view. The irredeemable tax certificate was in the hands of and belonged to Wiltsie. He notified the tenant that he held it more than two months and a half before the purchase by Cohen, and proffered his willingness to assign it to the tenant. As shown by the undisputed facts which we have stated, with indifference both to her own interest and the interest of the landlord, the tenant neither acted for herself by accepting the offer, nor gave any notification whatever to the landlord on the subject. Cohen, as the agent of the Kanns, learned of the existence of the [204 U.S. 43, 63] irredeemable tax sale and of the person who held the certifice. He purchased it by the authority of and for the benefit of his principals, the Kanns. By the express terms of the statute under which the certificate was issued it was assignable. Granting that the purchase was made in order to aid the Kanns in obtaining a lease of the property, in the absence of any legal duty owing by them to the tenant, we fail to perceive how the motive of Cohen or his principals could operate to make the otherwise lawful action constructively wrongful. The tenant, by whose negligent default the sale of the property had been occasioned, certainly had no exclusive pre-emptive right to the purchase of the certificate, which would operate to render its purchase by anyone else in his own interest void. After the purchase of the certificate byCohen, what was the position of the landlord? On the one hand confronted by the assertion of the tenant that the outstanding tax title was void, that she had a right to be relieved from the forfeiture caused by the nonpayment of the tax, and was entitled to continue in possession under the lease, and, on the other, with an offer on the part of the holder of the tax title to quitclaim the same, and thus avoid testing its validity, if only a lease was made which would be advantageous. When it is again borne in mind that this situation was brought about by the neglect of the tenant to perform his covenant to pay the taxes, and by his procrastination in respect to acquiring the tax certificate which had been previously offered to him, we can conceive of no principle of equity preventing the landlord from taking a course not forbidden by law, which was not only most conducive to her own interest, but which besides obviated the danger of submitting her title to a contest concerning the validity of a tax sale. But, if an equitable principle could be conceived of which prevented the landlord from so acting under the circumstances stated, that principle would be inapplicable to the case before us, when one of the undisputed facts to which we have already called attention is considered. That fact is this: Before the landlord irrevocably determined to avail of the forfeiture and thus avoid [204 U.S. 43, 64] the risk to herself concerning the outstanding tax title, she offered to condone the forfeiture, provided the tenant commenced proceedings to have the outstanding tax title declared invalid, and also secured the landlord from loss in the event that such tax title should be sustained, which offer was declined, on grounds substantially asserting that the risk resulting from the default of the tenant should be borne by the owner, and not by the tenant.
The decree of the court below is reversed and the cause remanded with instructions to dismiss the bill for want of equity.

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Leonard J. Levenson, New York City, for defendant-appellant.
Mark O. Wasserman, Asst. U.S. Atty., E.D.N.Y., New York City (Andrew J. Maloney, U.S. Atty., Susan Corkery, and Peter A. Norling, Asst. U.S. Attys., of counsel), for appellee.
Before: KAUFMAN PRATT, and MINER, Circuit Judges.
This appeal is being determined by Judges Pratt and Miner. Judge Kaufman, who was a member of this panel and who had prepared to decide the case, unfortunately died on February 1, 1992, before he had an opportunity to vote on this disposition. Because both of the remaining panel members agree and neither has requested the designation of a third panel member, they have determined this appeal pursuant to local rule § 0.14(b).
We have recently seen a significant increase in alimentary-canal drug smugglers who, by swallowing drug-filled condoms, use their bodies to shield illegal drugs from the eyes of customs inspectors. Because of this unusual practice, our courts have been faced with novel legal issues in guiding law enforcement officials who seeks to discover and apprehend the smugglers. See United States v. Montoya de Hernandez, 473 U.S. 531, 538-39, 105 S.Ct. 3304, 3308-09, 87 L.Ed.2d 381 (1985) (discussing legislative attempts to address "desperate practice [that] appears to be a relatively recent addition to the smugglers' repertoire of deceptive practices"); United States v. Esieke, 940 F.2d 29, 33 (2d Cir.) (referring to "the unique problems presented by the advent of alimentary canal smuggling"), cert. denied, ___ U.S. ___, 112 S.Ct. 610, 116 L.Ed.2d 632 (1991).
Ojiabo Onumonu, another accused "balloon swallower", was convicted by a jury in the United States District Court for the Eastern District of New York, Raymond J. Dearie, Judge, of knowingly importing heroin into the United States in violation of 21 U.S.C. § 952(a), and of knowingly possessing heroin with an intent to distribute in violation of 21 U.S.C. § 841(a). Judge Dearie sentenced him to concurrent terms of 66 months' imprisonment, plus the mandatory special assessment.
At trial, Onumonu did not deny bringing contraband into the United States. His only defense was that he believed that the condoms he had swallowed had contained packets of diamonds, not heroin. In short, he claimed he did not have the requisite intent to be convicted of the knowing importation and possession of heroin.
On appeal Onumonu argues that the district court erred when it excluded the testimony of his expert regarding the prevalence and feasibility of internally smuggling diamonds into this country. He also asserts that the 83 condoms containing heroin that he passed as a result of his bowel movements should have been suppressed, because the government agents had illegally seized and detained him. Finally, Onumonu challenges his guideline sentence.
While we hold that the district court correctly denied Onumonu's motion to suppress the contraband, we conclude that it erred in excluding the expert testimony proffered by Onumonu on the subject of diamond smuggling from Nigeria to this country. Because we are reversing Onumonu's conviction for this evidentiary ruling, which we conclude was an abuse of discretion, and because we are remanding for a new trial, we do not reach the sentencing issue.
A native of Nigeria, Onumonu is a permanent resident alien who, at the time of his arrest, had lived in the United States for sixteen years. After a trip to Nigeria, Onumonu returned on Nigeria Airway Flight 850 to John F. Kennedy International Airport in the early morning hours of August 8, 1990. As he walked through the airport's International Arrivals Building, Onumonu approached a plainclothes customs inspector, Glenn Washington, who is a member of the Customs Service's Contraband Enforcement Team which, as Washington testified at trial, "target[s] individuals who may be trying to smuggle narcotics into the United States." When Onumonu asked Washington for help in locating the areas where he could be cleared through customs, Washington identified himself as a customs official and told Onumonu that he would assist him.
As he observed Onumonu, however, Washington grew suspicious, Onumonu sweated profusely, even though "it wasn't particularly warm" in the air-conditioned International Arrivals Building, and his hands were shaking when he presented his passport and customs declaration. Washington noted that Onumonu had paid cash for his one-way ticket from Nigeria to New York. Asked about his travel plans, Onumonu said he had traveled to Nigeria for his stepfather's funeral and that he planned to return to Detroit after he cleared customs, yet he had no airplane ticket to Detroit, not hotel reservations in New York. Washington found Onumonu's answers to questions to be vague and evasive, and noted that during their conversation, Onumonu failed to make eye contact.
Washington escorted Onumonu into a search room and conducted a pat-down search. When this failed to reveal any contraband, Washington told Onumonu that he believed him to be an internal drug carrier who was bringing narcotics into the United States. Onumonu declined the opportunity to undergo and x-ray.
At this point Washington administered Miranda warnings to Onumonu and escorted him to a mobile medical van located at the airport so that customs agents could monitor Onumonu's bowel movements. In the medical van, the agents had Onumonu take off his clothing, put on a medical gown, and lie down on a bed, to which they shackled him by one hand and one leg.
After four days in the medical van, Onumonu had a bowel movement and passed a few condoms that, according to inspector Melvin Pincus contained hard, opaque, hollow containers which held a substance that field-tested as heroin. Pincus then administered Miranda warnings and placed Onumonu under arrest. After two more days, Onumonu had passed a total of 83 condoms containing similarly-packaged heroin. The total amount of heroin was 576 grams, which had a wholesale value of $100,000.
After Onumonu had purged all the contraband from his system, special customs agent Robert F. Geier questioned him. Onumonu told the agent that, while he was in Nigeria, he had met an acquaintance who offered him $5,000 to swallow the condoms which, the acquaintance told him, were filled with diamonds.
At one point during this interrogation, agent Geier weighed the heroin and called out a gross weight of 787.4 grams to another agent who was filling out a report. Upon hearing this, Onumonu said, "They told me it was 500 grams." In summation, the government argued, based on the expert testimony of special agent Geier, that this statement demonstrated that Onumonu knew the contraband was heroin, because "grams" is a term used in conjunction with the measurement of illegal narcotics.
Before trial, Judge Dearie authorized Onumonu to retain, at government expense, an expert witness, a gemologist by the name of Samuel Beizer, who was chairman of the Jewelry Design Institute at New York City's Fashion Institute of Technology. Onumonu's attorney informed the court that Beizer would testify about: 1) the feasibility of smuggling diamonds by ingesting them in the same manner that drug smugglers swallow their contraband; 2) the value of the amount of diamonds that could have been concealed in the 83 condoms Onumonu had swallowed; 3) the amount of duty that someone would have to pay to legally import those diamonds from Nigeria; and 4) the substantial profit to be derived from smuggling diamonds from Nigeria.
In a letter attached to a pretrial memorandum in support of this proposed expert testimony, Beizer elaborated upon this information. He noted that "[i]t has been established that 90% of * * * all diamonds shipped out to West Africa to Europe and the United States are smuggled"; that diamonds from West African diamond mines that would be worth $1.2 to $2.4 million, if of average quality, and up to ten times that amount, if of high quality, could have been secreted in the 83 "packets" that Onumonu had smuggled into the United States.
Shortly, before trial, the government moved to exclude the expert's testimony, claiming that it was irrelevant. The government argued, in classic question begging form, that the testimony was irrelevant to Onumonu's knowledge of the actual contents of the condoms, because "the defendant whether or not he was aware of it, was dealing with narcotics smugglers rather than diamond smugglers."
Despite this failure in logic, Judge Dearie reserved decision on the government's motion to exclude the testimony, and the trial began. In his opening statement, Onumonu's counsel conceded the bulk of the government's case and promised the jury that Onumonu would testify and explain why he thought he was smuggling diamonds. Counsel further promised to present evidence as to the prevalence of, and reasons, for diamonds smuggling out of Nigeria and as to the feasibility of smuggling diamonds in condoms. With these promises, counsel sought to establish in the jury's eyes the reasonableness of Onumonu's belief that he had swallowed diamonds, not heroin.
[I]t seems to me one of the issues, one of the bases for my ruling is simply that, to the extent any of this is relevant, and there is a principal flaw in the argument, is the lack of relevancy.
To the extent that any of these may be relevant, you may be able to extract the information to lead to most of your client's testimony from a number of witnesses.
It doesn't require the calling of [Mr. Beizer] from the Fashion Institute of Technology.
I don't think he would offer the kind of testimony that I'm referring to.
This witness [customs inspector Washington] has already testified that he's looking for contraband, drugs, but not to the exclusion of other contraband.
There is some comfort you derive from the fact, as we all know, people smuggle all kinds of things.
Judge Dearie's explanation is not altogether clear, but he apparently grounded his exclusion of Beizer's expert testimony on four different considerations. First, "lack of relevancy". Second, to the extent that the expert testimony might be relevant, it could be extracted from other witnesses. Third, in addition to narcotics, customs inspectors look for other contraband as well. And finally, "as we all know, people smuggle all kinds of things."
We recognize at the outset that the district court has granted latitude in deciding whether to admit or exclude expert testimony, and that a district court's decision to exclude expert testimony is to be reviewed under the abuse-of-discretion standard. See United States v. Dwyer, 539 F.2d 924, 927 (2d Cir. 1976); see also United States v. McBride, 786 F.2d 45, 49 (2d Cir. 1986). Such broad discretion in making evidentiary rulings, however, "does not mean immunity from accountability". Dwyer, 539 F.2d at 928. Therefore we may reverse a conviction based on the trial court's exclusion of expert testimony it we conclude that the trial court's decision is "`manifestly erroneous'." United States v. Brown, 776 F.2d 397, 400 (2d Cir. 1985) (Friendly, J.) (quoting Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1129, 1122, 8 L.Ed.2d 313 (1962)), cert. denied, 475 U.S. 1141, 106 S.Ct. 1793, 90 L.Ed.2d 339 (1986).
Expert testimony must be relevant, see Fed.R.Evid. 401, 402, but even relevant expert testimony, like all relevant evidence, may be excluded under Fed.R.Evid. 403, if its probative value is outweighed by the danger that it would confuse the jury, be unfairly prejudicial, cause undue delay, waste judicial resources, or be cumulative. See Fed.R.Evid. 403. Thus, where relevant testimony from a qualified expert would help a jury determine a fact in issue, and where the testimony does not fall under one of the rule 403 exceptions, such testimony should normally be admitted where the district court fails to provide "a legitimate basis for excluding the proffered evidence." McBride, 786 F.2d at 51.
We first assess the relevance of the proffered testimony. All relevant evidence is admissible unless excluded because of the constitution, a statute, or a rule. See Fed.R.Evid. 402. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401, As the government accurately notes, Onumonu's subjective belief was the critical issue in this case where Onumonu had canceled the objective, physical facts, and the prosecution had the burden of proving only that Onumonu "knowingly or intentionally import[ed]" the heroin. See 21 U.S.C. §§ 952(a), 960(a)(1).
Onumonu testified that his friend and fellow tribesman, Michael Amparo, had asked him to swallow diamonds and carry them on his flight from Nigeria into the United States for $5,000. When Onumonu agreed, his friend presented him with a thick soup made of okra, which was slippery and resembled an native dish, "foo-foo". Lubricated by the "foo-foo", the small, hard, opaque packages inside the condoms were easily swallowed. Onumonu testified that he believed that the packets in the condoms contained diamonds. In order to corroborate this testimony and to relate it to both the physical and economic realities of doing what Onumonu testified he believed he was doing, Onumonu proffered the expert testimony of gemologist Beizer. In the context of this case, that testimony certainly met the relevancy standard of rule 401 because it made the existence of Onumonu's belief about diamonds more probable than it would have been without the evidence.
In short, the critical fact in issue here was whether Onumonu actually believed that diamonds, rather than narcotics, were inside the condoms. Relevant to that issue were two questions: whether diamonds could have physically been concealed in the packets, and whether it made any economic sense to smuggle diamonds in that fashion. On both points Onumonu's expert was prepared to testify, and the testimony, contrary to the district court's finding, was relevant to the central issues of the trial.
Even if he had found the evidence to be relevant, Judge Dearie could still have excluded the expert testimony if it fell under any of the rule 403 exceptions. The district judge has discretion to exclude relevant expert testimony if "its probative value is substantially outweighed by its prejudicial effect, or that its admission would confuse the issues, or create needless delay or waste of judicial resources." McBride, 786 F.2d at 50. Judge Dearie made no reference to rule 403, and our review of the record leads us to conclude that the evidence could not be excluded under that rule.
First, the proposed testimony of the expert Beizer could not be termed unfairly prejudicial, as Judge Dearie permitted Onumonu himself to testify as to diamond smuggling. Second, it is unlikely that Beizer's straightforward testimony regarding diamond smuggling would have confused or misled the jury, given the narrow question of Onumonu's intent that was before the jury. Third, there is no indication that Beizer's testimony would in any way have unnecessarily delayed the proceedings. Finally, as to the cumulative nature of the testimony, Beizer was the only defense witness — aside from the defendant — who could testify as to diamond smuggling. Given Beizer's expertise and impartiality when contrasted with Onumonu's own self-serving statements, his proposed testimony could hardly be characterized as cumulative.
Thus, the proposed expert testimony was relevant and did not fall under any of the rule 403 exceptions to admissibility.
Even though relevant and not subject to the rule 403 exceptions, the proffered expert testimony was not admissible unless it constituted "scientific, technical, or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue". Fed.R.Evid. 702. The government contended that Beizer's testimony would not have assisted the jury, because, it argued, diamond smuggling from Nigeria is well known to the average juror in New York. The government has provided no basis for this assertion.
In assessing whether expert testimony will assist the trier of fact in determining a fact in issue, we have recognized the usefulness of many different types of expert testimony, and the district court's "broad discretion" in deciding whether to admit or exclude expert testimony. See United States v. Tutino, 883 F.2d 1125, 1134 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990). We have repeatedly held, for example, that "the operations of narcotics dealers are a proper subject for expert testimony under Fed.R.Evid. 702." Id. (citing cases upholding admissibility of expert testimony regarding drug-trade jargon). See also United States v. Khan, 787 F.2d 28, 34 (2d Cir. 1986) (expert testimony about price of heroin in Pakistan "falls within [the] broad category" of proper subjects for expert testimony about drug dealer operations).
The government took advantage of these precedents during Onumonu's trial when it introduced agent Geier's expert testimony to establish that drug dealers use "grams" as a unit of weight to measure heroin, and when it argued in summation that when Onumonu said, "They told me it was 500 grams", he must have known he had smuggled heroin, and not diamonds. Nevertheless, the government ironically seeks to prevent Onumonu from presenting his own expert testimony about the prevalence of diamond smuggling and the feasibility of smuggling diamonds in condoms.
[t]here is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.
While the average juror in the New York metropolitan area may be familiar with "the purported methods of Washington Heights drug dealers," United States v. Castillo, 924 F.2d 1227, 1231 (2d Cir. 1991), and the likelihood of a "commission" being paid to the broker in a kickback scheme, see United States v. Long, 917 F.2d 691, 702 (2d Cir. 1990), we think it likely that the average New York juror knows little about diamond smuggling out of Nigeria, and even less about the feasibility of internally smuggling diamonds by swallowing condoms.
We conclude, therefore, that the proffered expert testimony regarding diamond smuggling from Nigeria into the United States and the feasibility and profitability of smuggling diamonds in the alimentary canal was relevant and would have assisted the jury in resolving the only contested issue in the case, namely, whether Onumonu believed that the hard opaque packets in the condoms he swallowed contained diamonds rather than heroin. The district court's exclusion of this highly relevant expert testimony critical to Onumonu's defense. and its subsequent failure to provide any colorable reason to justify the bar of the testimony, constituted an abuse of discretion. Cf. Dwyer, 539 F.2d at 928 (trial court's decision to exclude psychiatric expert's testimony crucial to defense, coupled with failure to provide reasons for its discretionary ruling, was abuse of discretion); McBride, 786 F.2d at 51 (district court's failure to provide "legitimate basis" for excluding psychiatric expert's testimony crucial to the defense was abuse of discretion).
Our inquiry, however, cannot stop with our determination that the expert testimony was admissible and that its exclusion was error. We must also decide whether the evidentiary error affected "a substantial right of the party", Fed.R.Evid. 103(a), where the district court, as here, made a nonconstitutional error in the exclusion of testimony. As with cases where the district court erroneously admitted testimony, the district court's erroneous exclusion of testimony is subjected to harmless-error analysis. Cf. Delaware v. Van Arsdall, 475 U.S. 673, 683-84, 106 S.Ct. 1431, 1437-38, 89 L.Ed.2d 674 (1986) (holding that constitutionally improper denial of defendant's opportunity to impeach witness is subject to harmless-error analysis).
In McBride, 786 F.2d at 51, for example, we reversed the defendant's conviction where the district court had excluded the testimony of a psychiatrist, who was the only witness that the defendant sought to present and who planned to testify as to the defendant's mental capabilities at the time of the crime. Id. at 49. We noted that "the excluded evidence was critical to appellant's defense", id. at 50, and that the district court failed to provide a "legitimate basis for excluding the preffered evidence." Id. at 51.
Similarly, we reversed in Dwyer, 539 F.2d at 928, where the district court excluded the psychiatric expert but refused to provide reasons for this ruling. Again, we noted that the testimony was critical to the defense and, given the district court's failure to provide a basis for its discretionary ruling, its exclusion constituted an abuse of discretion. Id. In assessing the harm that arose from the exclusion of the expert testimony, we noted that it "may well be that [the] expert opinion, added to the lay testimony already before the jury, would have, produced a different verdict." Id.
In Onumonu's case, we conclude that it may well be that Beizer's testimony "would have produced a different verdict." The jury was promised in Onumonu's opening statement that they would hear evidence about diamond smuggling in Nigeria, its economic significance and how it could be done. But Judge Dearie's ruling, which did not come until after a witness had testified, precluded the promised testimony. At the end of the case, all Onumonu had been able to present was his own belief about diamonds, based solely on his own testimony as to what his friend, Michael Amparo, had told him. A major thrust of the prosecutor's summation was that Onumonu's story was "ludicrous", with the government arguing that no one would smuggle diamonds in this fashion.
While it is difficult to assess the degree of additional harm to the credibility of Onumonu's case caused by the timing of the ruling, we are satisfied, on the record as a whole, that excluding this relevant expert testimony that deprived Onumonu of a fair opportunity to present his case to the jury was not harmless error, and had a substantial effect on the jury's verdict. We therefore reverse the judgment of conviction and remanded for a new trial.
Since there will be a new trial, it is appropriate for us to pass on Onumonu's challenge to Judge Dearie's denial of his suppression motion. Onumonu sought to exclude from evidence all statements and physical evidence obtained from his seizure at the airport and his subsequent detention in the government's medical monitoring van. For the following reasons, we conclude that Judge Dearie did not err in allowing the admission of this evidence.
[T]he detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception, if customs agents, considering all the facts surroundings the traveler and [his] trip, reasonably suspect that the traveler is smuggling contraband in [his] alimentary canal.
Just as they did in Montoya, the facts here support inspector Washington's reasonable suspicion that Onumonu was smuggling drugs into the United States. See id. at 542, 105 S.Ct. at 3311. The issues here is not, as Onumonu frames it, whether there was less cause for reasonable suspicion than in some of our other internal smuggling cases, see, e.g., Odofin, 929 F.2d 56; Esieke, 940 F.2d 29; the issue is whether reasonable suspicion existed in this case, and we conclude that it did.
The factors justifying the decision to detain the defendant in Esieke are similar to those relied on by inspector Washington in deciding to detain Onumonu. Like Esieke, Onumonu displayed nervousness; Washington observed that Onumonu's hands were shaking and that he sweated profusely, despite his being in an air-conditioned building. Like Esieke, Onumonu was traveling from Nigeria "which, according to the government, is a source country for narcotics". Esieke, 940 F.2d at 34. And like Esieke, Onumonu declined to be x-rayed. Id.
It is true, as Onumonu points out, that the Esieke agents performed a computer search that revealed that "an individual with Esieke's name and date of birth was suspected of narcotics smuggling", id., white the agents here did not find such information about Onumonu. Nevertheless, the other factors are sufficient, in our view, to establish reasonable suspicion.
Second, Onumonu asserts that his four-day incommunicado stay in the medical van before passing the first two condoms containing heroin constituted an unreasonable detention. Onumonu is correct in observing that our decision in Esieke, issued after Onumonu's arrest and trial, imposed more stringent requirements on federal law enforcement officials who seek to detain alimentary-canal smugglers, for there we required that any governmental agency overseeing border detentions of suspected alimentary-canal smugglers.
shall inform the local U.S. Attorney within 24 hours of its decision to detain a suspected alimentary canal smuggler. In turn, the U.S. Attorney shall immediately notify a United States Magistrate Judge and detainee's legal counsel (or the Legal Aid Society) of the ongoing detention.
Id. at 36. While the Esieke court set down these guidelines for future seizures, it did not apply them to the defendant in that case.
Here, the customs authorities did not meet the Esieke standards; for example, they did no secure judicial authorization for the detention within 24 hours. Esieke, however, was decided after Onumonu's trial, and it is clear from the Esieke court's opinion that the announced rule was to be prospectively applied. Id. Thus, at the time of Onumonu's detention the authorities were not required to seek judicial approval at any particular time. Moreover, while Onumonu's conditions of confinement — including the shackling of one leg and one hand to a bed — seem harsh, they are strikingly similar to the detention conditions that we tolerated in Esieke. Id. at 35.
Onumonu also argues that his length of detention — four days until he passed the first condoms and was formally arrested — was unreasonable. Esieke ameliorates the problem of travelers being detained incommunicado for several days by requiring judicial authorization after the first twenty-four hours of detention. Nevertheless, a suspect may constitutionally be detained "until their bodily processes dispel the suspicion that they will introduce a harmful agent into this country." Montoya, 473 U.S. at 544, 105 S.Ct. at 3312. Once reasonable suspicion was established, the governmental authorities could detain Onumonu until he demonstrated, through his bowel movements, that the suspicion was either confirmed or unwarranted. We recognize Onumonu's discomfort, but it is undeniably true that the length of his detention and of his discomfort "resulted solely from the method by which [he] chose to smuggle illicit drugs into this country." Id. Given the facts of this case, and because it occurred before Esieke, we conclude that Onumonu's four-day detention was reasonable. Consequently, Judge Dearie was correct in denying the motion to suppress and in allowing the challenged evidence and statements to be admitted at trial.
Onumonu also challenges Judge Dearie's application of the sentencing guidelines in the imposition of sentence. Specifically, he asserts that Judge Dearie erred in adding to his base offense level two points for obstruction of justice, because of his testimony at trial, implicitly found by the jury to be false. See U.S.S.G. § 3C1.1. Because we are reversing Onumonu's conviction and remanding for a retrial, the sentence is automatically vacated and we need not address this difficult issue. We note that in United States v. Dunnigan, 60 U.S.L.W. 3798, ___ U.S. ___, 112 S.Ct. 2272, 119 L.Ed.2d 199 (U.S. 1992), the Supreme Court has granted certiorari to consider this very question.
While the evidence taken from Onumonu during his detention in the police van was properly admitted at trial, the district court abused its discretion when it excluded Onumonu's proffered expert testimony about the prevalence of diamond smuggling out of Nigeria, and about the physical and economic feasibility of smuggling diamonds in swallowed condoms.
We reverse the judgment of conviction and remand for a new trial.


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According to Article 22 GDPR, you have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effect against you or significantly affects you in a similar manner.
In accordance with Article 77 GDPR, you have the right to lodge a complaint with a supervisory authority, in particular in the Member State of your habitual residence, your workplace or the place of the alleged infringement, if you consider that the processing of personal data concerning you is unlawful.
Pursuant to Article 21 GDPR, you have the right to object to the processing of personal data concerning you on the ground of Article 6 sec. 1 letter f) for reasons arising from your particular situation at any time; this also applies to profiling based on these provisions. If the objection is directed against the processing for direct advertising, it will be realized by IPCOMM without stating a specific situation.
IPCOMM is committed to ensuring the security of your data within the framework of applicable data protection regulations and technical possibilities.
IPCOMM uses the SSL (Secure Socket Layer) encryption method for the transmission of your personal data on the websites. This applies in particular to the use of the contact form. You can recognize an encrypted Internet page by the closed lock symbol in the status bar of most browsers. At this time, we would like to point out that transmission on the Internet can have security vulnerabilities (e.g. when communicating by e-mail). Therefore, a complete protection of the data against access by third parties is impossible.
In addition, IPCOMM takes appropriate technical and organizational security measures to secure your data, which are kept up to date in line with technological developments.
IPCOMM's web pages contain links to other information providers. When you visit these sites, you leave IPCOMM's websites and thus the scope of our data protection declaration. IPCOMM has no influence on the content and structure of the linked pages, so that IPCOMM cannot be held responsible for them.
IPCOMM reserves the right to modify the privacy statement. This may be necessary due to the further development of the website offers, or due to changes to legal or regulatory requirements. Therefore, you are invited to check the privacy statement regularly.

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