United States v. Evelio Cervantes-Conde

FILED
NOT FOR PUBLICATION OCT 22 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-10680

Plaintiff - Appellee, D.C. No. 4:09-cr-00829-RCC-
JJM-2
v.

EVELIO CERVANTES-CONDE, MEMORANDUM*

Defendant - Appellant.

Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief District Judge, Presiding

Argued and Submitted October 9, 2013
San Francisco, California

Before: HAWKINS, N.R. SMITH, and NGUYEN, Circuit Judges.

Appellant Evelio Cervantes-Conde (“Cervantes-Conde”) appeals his jury trial

conviction for cocaine offenses (21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A)(ii)

(II)), contesting the introduction of prior bad act evidence under Federal Rule of

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Evidence 404(b). Reviewing the district court’s evidentiary rulings for abuse of

discretion, United States v. Lozano, 623 F.3d 1055, 1059 (9th Cir. 2010), we affirm.

Prior bad act evidence “may be admitted if: (1) the evidence tends to prove a

material point; (2) the other act is not too remote in time; (3) the evidence is sufficient

to support a finding that defendant committed the other act; and (4) (in certain cases)

the act is similar to the offense charged.” United States v. Romero, 282 F.3d 683, 688

(9th Cir. 2002) (internal quotation marks omitted). Cervantes-Conde’s prior bad acts

were admissible to refute a material point, namely his defense that he was merely an

innocent bystander. See United States v. Howell, 231 F.3d 615, 628-29 (9th Cir.

2000) (admissible to counter claim of being “merely present” at scene with “innocent

motives”); see also United States v. Plancarte-Alvarez, 366 F.3d 1058, 1062 (9th Cir.

2004) (admissible to rebut defense that defendant was tricked into smuggling drugs);

United States v. Sager, 227 F.3d 1138, 1148 (9th Cir. 2000) (admissible to rebut

innocent motive for presence at scene).

The connecting links between Cervantes-Conde’s prior bad acts and the charged

offense, including involving the same people, methods, and vehicles, demonstrate that

the prior bad acts were not too remote in time. Further, the evidence was sufficient

to support a finding that the defendant in fact committed the other acts per the “low

threshold” showing for conditional facts in Huddleston v. United States, 485 U.S. 681,

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689 (1988). There was also sufficient evidence for a reasonable jury to conclude that

Cervantes-Conde’s prior acts involved narcotics trafficking and were thus similar and

relevant to the charged offense. See Romero, 282 F.3d at 688; United States v. Golb,

69 F.3d 1417, 1428 (9th Cir. 1995) (“[I]t was within the jury’s province to resolve

these competing opinions [regarding reliability of canine alerts] and determine what

weight to accord the government’s evidence.”); United States v. $42,500, 283 F.3d

977, 982 (9th Cir. 2002) (wrapping currency in plastic wrap consistent with attempt

to mask smell of narcotics); United States v. $129,727, 129 F.3d 486, 489-90 (9th Cir.

1997) (traveling with large amounts of currency on one-way ticket purchased with

cash consistent with drug/drug money couriers).

Finally, the district court properly instructed the jury regarding the permissible

uses of the prior bad acts evidence, and the danger of unfair prejudice did not

substantially outweigh the probative value of such evidence. Fed. R. Evid. 403;

United States v. Ramirez-Jiminez, 967 F.2d 1321, 1327 (9th Cir. 1992).

AFFIRMED.

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