United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-3457
___________
United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Heather Maria Ceballos, *
*
Defendant-Appellant. *
*
___________
Submitted: April 15, 2010
Filed: May 13, 2010
___________
Before WOLLMAN, MURPHY, and SHEPHERD, Circuit Judges.
___________
MURPHY, Circuit Judge.
Heather Maria Ceballos was charged with two counts of aiding and abetting the
distribution of methamphetamine. She was convicted on both counts and sentenced
to five years on one count and one year to run concurrently on the other. Ceballos
appeals, arguing that the district court1 abused its discretion in admitting evidence of
her prior uncharged drug transactions and erred in denying her motion for judgment
1
The Honorable Robert W. Pratt, Chief Judge, United States District Court for
the Southern District of Iowa.
of acquittal and her requests for safety valve credit, acceptance of responsibility, and
a mitigating role. We affirm.
Ceballos had a long, abusive relationship with Jesus Gomez San Juan, a
methamphetamine user and dealer. On two occasions in October 2007, law
enforcement officers used a confidential informant to purchase methamphetamine
from Gomez San Juan at the apartment he shared with Ceballos and their children.
Ceballos acted as a translator during these transactions. She was initially charged,
along with Gomez San Juan and other codefendants, with conspiracy to distribute
methamphetamine. A superseding indictment subsequently charged Ceballos with
aiding and abetting the distribution of methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C), and aiding and abetting the distribution of 50 grams or
more of a substance containing methamphetamine, in violation of id. § 841(a)(1) and
(b)(1)(B).
At trial Ceballos admitted having committed the offenses but set up a coercion
defense. She claimed that the two charged transactions were her only entanglement
in Gomez San Juan's drug dealing and that she had only participated out of fear that
he would harm her or their children. The jury rejected the defense and Ceballos was
convicted of both counts.
Ceballos's presentence investigation report recommended a guideline sentence
range of 63 to 78 months, based on a criminal history category I and offense level of
26. At sentencing Ceballos sought safety valve relief under 18 U.S.C. § 3553(f), as
well as guideline adjustments for a mitigating role and acceptance of responsibility.
The district court concluded that Ceballos was not entitled to the safety valve because
she had not provided the government with complete information about the underlying
conspiracy and her involvement in it. Since Ceballos did not qualify for the safety
valve, the district court was compelled to impose the mandatory minimum sentence
-2-
of five years under 21 U.S.C. § 841(b)(1)(B). It imposed a concurrent one year
sentence under § 841(b)(1)(C). Ceballos timely appealed.
Ceballos first argues that the district court abused its discretion by admitting
testimony concerning prior drug sales in which she had allegedly translated for Gomez
San Juan and others. This testimony was offered under Fed. R. Evid. 404(b) for the
purpose of rebutting Ceballos's coercion defense. The district court is afforded "broad
discretion" to admit such evidence, and we review its decision for abuse of discretion.
United States v. Anthony, 537 F.3d 863, 865 (8th Cir. 2008).
In order for evidence of prior acts to be admissible under Rule 404(b), it must
be "(1) relevant to a material issue; (2) proved by a preponderance of the evidence; (3)
higher in probative value than in prejudicial effect; and (4) similar in kind and close
in time to the crime charged." Id. The prior sales in this case were similar in kind and
close in time to the charged transactions, and they were supported by sufficient proof.
Cf. Llach v. United States, 739 F.2d 1322, 1327 (8th Cir. 1984) ("Direct testimony .
. . is sufficient to meet the clear and convincing standard.").
The 404(b) evidence was also relevant to Ceballos's defense. Numerous courts
have found that "404(b) evidence may be admitted to refute a duress defense." United
States v. Verduzco, 373 F.3d 1022, 1029 (9th Cir. 2004) (citing decisions of 5th, 10th,
and 11th Circuits); see also United States v. Dunkin, 438 F.3d 778, 780 (7th Cir.
2006). Ceballos nevertheless argues that the 404(b) evidence was irrelevant. She
maintains that the only issue for the jury was whether Gomez San Juan had, as
Ceballos claimed, subjected her to systematic abuse and control, and that the only
appropriate evidence to rebut her defense would therefore be evidence showing she
was not in fact abused. This argument misconstrues the nature of the defense.
In order to make out her duress defense, Ceballos had to prove that she had a
"a well-grounded fear of immediate death or serious bodily harm if the criminal act[s
-3-
were] not done and no reasonable opportunity to avoid performing the act[s] without
facing that danger." United States v. Swanson, 9 F.3d 1354, 1359 (8th Cir. 1993)
(internal quotation marks omitted). The 404(b) evidence in this case bears on both
elements. Ceballos is correct that her involvement in prior drug sales is not
necessarily inconsistent with her claim of coercion but that does not mean it is
irrelevant, for the evidence is susceptible to more than one interpretation. A
reasonable juror could find that Ceballos's participation in multiple sales over time
rendered less credible her claim to have acted only because of threats of force.
Moreover, even if Ceballos's participation in earlier transactions had been coerced, a
juror could infer that she had had reasonable opportunity in the intervening period to
extricate herself from the control of Gomez San Juan before participating in the
charged offenses. Such opportunity would defeat her coercion defense. See, e.g.,
United States v. Harper, 466 F.3d 634, 648 (8th Cir. 2006) ("A defendant cannot
invoke the defense of coercion if there existed an opportunity to avoid the act without
threat of harm or a reasonable and legal alternative to the commission of the crime.").
Finally, the prejudicial effect of the 404(b) evidence was relatively slight.
Prejudice in this context means a "tendency to suggest decision on an improper basis."
Fed. R. Evid. 403 advisory committee notes. The improper usage which Rule 404(b)
prohibits is introduction of evidence of a past offense "to prove the character of a
person in order to show action in conformity therewith," Fed. R. Evid. 404(b)—that
is, to persuade the fact finder that the defendant committed the charged offenses
because she "has a propensity to commit crimes," Dunkin, 438 F.3d at 780. Here,
Ceballos admitted having committed the charged offenses so there was no occasion
for the jury to infer that she must have done so because of her bad character or
criminal propensity. The only question for the jury was whether Ceballos acted under
duress. The probative value of the 404(b) evidence in respect to that question
outweighed the slight risk of unfair prejudice, and the district court therefore did not
abuse its discretion in admitting the evidence. See id. at 780–81; Verduzco, 373 F.3d
at 1030.
-4-
The district court also did not err in denying Ceballos's motion for judgment of
acquittal. Viewed in the light most favorable to the verdict, United States v. Birdine,
515 F.3d 842, 844 (8th Cir. 2008), the evidence was sufficient to support the
conclusion that Ceballos failed to prove her coercion defense. The jury was entitled
to find that Ceballos's claim of duress was not credible. Evidence was presented
which called into question the veracity of her story. The district court noted in its
sentencing memorandum, for example, her "effortless[]" description in a recorded
phone call with the police informant of "how a drug debt led to the seizure of her
vehicle and . . . a search for an individual who was 'fronted' drugs, but who
subsequently absconded." This evidence undermined Ceballos's assertion that her
involvement in Gomez's drug dealing was limited and involuntary, and in light of it
a reasonable juror could have chosen not to credit her claim of duress. Even if the
jury credited Ceballos's claim to have acted under threat of force, it could have
concluded that she had opportunities to cease her involvement in Gomez San Juan's
drug dealing and still escape the harm he threatened. Such a finding would be fatal
to the duress defense.
Ceballos also argues that the district court erred in denying her request for
safety valve relief under 18 U.S.C. § 3553(f). The district court denied safety valve
treatment after concluding that Ceballos had failed to carry her burden of proving that
she had "truthfully provided to the Government all information and evidence [she had]
concerning the offense or offenses that were part of the same course of conduct or of
a common scheme or plan." United States v. Soto, 448 F.3d 993, 995 (8th Cir. 2006)
(quoting § 3553(f)(5)). Ceballos maintained in a proffer interview and at trial that her
involvement in Gomez San Juan's drug dealing was limited to the two charged
transactions. The district court found, however, that Ceballos had participated in drug
sales prior to the charged transactions and that she knew more than she disclosed
about the underlying conspiracy to which Gomez San Jan and other codefendants pled
guilty. We review the district court's finding for clear error. Id.
-5-
Ceballos argues that the district court erred in concluding that she was obligated
to provide information about the underlying conspiracy as opposed to only the two
discrete acts with which she was charged. By its terms, however, § 3553(f) requires
disclosure of information about acts which formed "part of the same course of
conduct" as the offenses of conviction, § 3553(f)(5), and thus the court can require
information about "uncharged related conduct." United States v. Miller, 151 F.3d 957,
958 (9th Cir. 1998); see also United States v. Romo, 81 F.3d 84, 85–86 (8th Cir. 1996)
(safety valve relief denied where defendant did not disclose "the whole story about his
role in the distribution chain and his gang's involvement").
Next, Ceballos claims the district court erred in relying on 404(b) evidence in
determining whether she had been completely forthcoming with the government. This
argument is without merit. The Federal Rules of Evidence do not apply at sentencing.
Fed. R. Evid. 1101(d)(3); United States v. Fleck, 413 F.3d 883, 894 (8th Cir. 2005).
Evidence may be considered at sentencing so long as it has "sufficient indicia of
reliability." Id. To the extent Ceballos's argument attacks the reliability of what the
district court considered, it is unpersuasive. The district court examined the evidence
in detail, and its conclusion that Ceballos's involvement was more extensive than she
admitted was primarily based on her own testimony at trial and her comments in
recorded telephone conversations, as well as the "sheer implausibility of [her] claim
that the only two drug transactions she translated . . . were the two transactions that
the Government recorded." We will not second guess the district court's credibility
assessments. See United States v. West, 589 F.3d 936, 938 (8th Cir. 2009).
Ceballos concedes that absent safety valve relief, her guideline arguments are
moot. Regardless of her recommended guideline range, the five year sentence
Ceballos received is the shortest term allowed under 21 U.S.C. § 841(b)(1)(B). We
therefore need not consider her claims that she should have received credit for
acceptance of responsibility and a mitigating role.
-6-
In sum, the district court did not abuse its discretion in admitting 404(b)
evidence for the purpose of rebutting Ceballos's coercion defense, nor did it err in
denying her motion for judgment of acquittal. It also did not clearly err in finding that
Ceballos failed to carry her burden of proving entitlement to safety valve relief.
Accordingly, the judgment of the district court is affirmed.
______________________________
-7-