F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 3 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-2162
ENRIQUE LAZCANO-VILLALOBOS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CR-97-98-HB)
Fred J. Federici (John J. Kelly, United States Attorney, with him on the brief),
Assistant United States Attorney, Las Cruces, New Mexico, for Plaintiff-
Appellee.
Robert Ramos (Robert J. Perez with him on the brief), El Paso, Texas, for
Defendant-Appellant.
Before BRORBY, EBEL and HENRY, Circuit Judges.
BRORBY, Circuit Judge.
Defendant-Appellant Enrique Lazcano-Villalobos 1 appeals his jury
conviction on one count of violating 21 U.S.C. § 841(a)(1) for “Possession With
Intent to Distribute More Than 5 Kilograms and More of Cocaine. Mr. Lazcano-
Villalobos argues the district court erred in (1) denying his motion for acquittal
even though the evidence did not show he knew about the cocaine, and (2)
allowing the jury to consider prejudicial evidence of his prior narcotics case in
violation of Federal Rule of Evidence 404(b). We exercise jurisdiction under 28
U.S.C. § 1291 and affirm Mr. Lazcano-Villalobos’ conviction.
FACTUAL BACKGROUND
On February 1, 1997, Mr. Lazcano-Villalobos and his wife entered the
United States Border Patrol checkpoint on Highway 70 near Alamogordo, New
Mexico, driving a late-model Ford with Colorado plates. Border Patrol Agent
Bradley Williams approached their vehicle and began questioning them about
their citizenship. In response, Mr. Lazcano-Villalobos handed over his
immigration card. As he held the card, Agent Williams noticed Mr. Lazcano-
Villalobos’ hand shaking. When questioned about their destination, Mr. Lazcano
1
This appeal was docketed in the district court and in this court with the
defendant’s name as “Lazcano Enriquez-Villalobos.” We note the district court
judge corrected defendant’s name on the instructions and the Judgment to read
“Enrique Lazcano-Villalobos.
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stated they were returning home to Colorado after spending a week visiting his
wife’s brother in El Paso, Texas. As Agent Williams visually examined the
vehicle driven by Mr. Lazcano-Villalobos, he noticed the car was very clean on
the exterior and interior. Mr. Lazcano-Villalobos consented to Agent Williams’
request to examine the trunk, but the search revealed no luggage or toiletries to
support Mr. Lazcano-Villalobos’ claim of vacationing for a week.
Returning to the driver’s side of the vehicle, Agent Williams detected a
“strong odor of air freshener or something” coming from inside the car. He knew
the odor could signify a covering scent for narcotics. Agent Williams then
received Mr. Lazcano-Villalobos’ permission to walk a narcotics-detecting dog
around the car. The dog alerted to the car’s dash or windshield and the rear of the
front fender. On examination of the car’s interior, border patrol agents
discovered a hidden compartment which could not be seen without taking the dash
apart. During disassembly, Agent Williams noticed the top and undersides of the
glove compartment and dash contained no dust and looked immaculate. A search
of the hidden compartment produced ten bundles of ninety-two percent pure
cocaine, weighing 4,467 grams and ranging in value between $80,000 (wholesale)
and $450,000 (street value). After discovering the drugs, border patrol agents
arrested Mr. Lazcano-Villalobos and his wife, who carried approximately $2,300
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in cash comprised of $20 bills and smaller denominations. An experienced Drug
Enforcement Administration agent later testified $2,500 is a reasonable courier’s
fee for transporting cocaine from New Mexico to Denver, Colorado, and that
couriers are usually paid in cash denominations of $20 or less.
Further inspection of the car’s interior following the arrest revealed a
number of receipts showing cash purchases made the day of the arrest. One
receipt showed a cash purchase at the Good Time Store at 9:33 a.m. Another
receipt matched cash purchases made later that day at Starr Western Wear in El
Paso, Texas. A cash receipt from the Flying J Travel Plaza at Anthony, New
Mexico corresponded to the prices on two “tree” air fresheners and a bottle of
spray deodorant found in the car. Finally, a Super 8 Motel receipt with Mr.
Lazcano-Villalobos’ name on it reflected a $120 cash payment two weeks earlier
on January 13, 1997. An experienced United States Border Patrol Agent testified
drug couriers commonly make cash purchases so their movements cannot be
traced.
On examining the car’s interior, agents also discovered a cellular telephone
under the front passenger seat. The telephone was registered to Omar Navarro,
but telephone records showed calls to Mr. Lazcano-Villalobos’ father-in-law and
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several telephone numbers matching numbers written in an address book and on
miscellaneous pieces of paper and business cards found in Mr. Lazcano-
Villalobos’ possession. In addition, Mr. Lazcano-Villalobos’ wallet contained a
cellular card with a “lock code” matching the cellular telephone.
Using the United States Customs Service’s data base, the cellular telephone
records, the dates and locations on the cash receipts, and other papers found in the
car and on Mr. Lazcano-Villalobos, agents tracked Mr. Lazcano-Villalobos’
movements in the weeks prior to his arrest. While purely circumstantial, this
evidence shows Mr. Lazcano-Villalobos repeatedly traveled in and out of Mexico,
using the same car and cellular phone, during the period from December 30, 1996
to the date of his arrest on February 1, 1997. As to the day of his arrest, the
receipts found in Mr. Lazcano-Villalobos’ possession show he traveled north from
the Mexican border through El Paso, Texas and Anthony, New Mexico until his
arrest at the check point on Highway 70. A United States Border Patrol Agent
testified Highway 70 is a less direct route from El Paso to Alamogordo than
Highway 54, but used frequently by drug couriers because its checkpoint is closed
more often.
Mr. Lazcano-Villalobos testified at trial, but his version of the facts
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differed substantially from his statements to the border patrol agent, the physical
evidence showing the dates of his repeated border crossings from Denver to
Chihuahua, Mexico, and even portions of his own testimony on cross-
examination. Specifically, Mr. Lazcano-Villalobos testified he lived in Modesto,
California, but told Agent Williams he and his wife were traveling home to
Colorado. He offered a complicated, if not convoluted, series of events to explain
his reasons for crossing back and forth into Mexico. He began by testifying that
shortly before Christmas 1996, he, his wife and his nephew, Omar Navarro, left
California in his truck and traveled to his father-in-law’s house in El Paso where
they dropped off gifts, and then traveled to visit his siblings in Parral, Mexico and
his mother on a ranch an hour away. Mr. Lazcano-Villalobos testified that on
learning of his mother-in-law’s ill-health on January 8 or 9, 1997, the three of
them immediately left Parral by bus for Denver, without going to the ranch to
pick up their clothes, luggage, or truck.
According to Mr. Lazcano-Villalobos, he and his wife left Denver January
13 or 14 to return to Mexico, leaving their nephew behind. On arriving at his
sister’s house in Parral, they learned of his mother-in-law’s imminent operation
and immediately returned to Denver, again leaving their clothes and luggage at
the ranch, but obtaining his truck from siblings in Parral. Mr. Lazcano-Villalobos
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testified that, en route to Denver, his truck broke down on the outskirts of Ciudad
Juarez, Mexico, where they stayed for a day or two waiting for the truck to be
repaired. Mr. Lazcano-Villalobos testified that on learning of a delay in repairs,
he and his wife finally took a taxi to El Paso, where they made the cash purchase
at the Starr Western Wear store.
After this purchase, they “were at the point of going to the airport” to catch
a flight to Denver, when they encountered an acquaintance, Cristino Gutierrez.
On learning of their “emergency trip” to see his mother-in-law, Mr. Gutierrez
offered them his car. Mr. Lazcano-Villalobos testified he and his wife spent that
night, January 31, 1997, at his father-in-law’s house in El Paso and left the
following day for Denver in Mr. Gutierrez’s Ford. As for the deodorant and air
fresheners found in the car and purchased the day of his arrest, he explained he
purchased them because his cigarette smoke bothered his wife.
During this account, Mr. Lazcano-Villalobos failed to explain his
whereabouts during the time he left Ciudad Juarez, Mexico, where his truck broke
down, until his cash purchase sixteen days later at the Starr Western Wear Store
on February 1, 1997. On cross-examination, he testified that after his truck broke
down, he and his wife returned to Parral and stayed there from January 16 to
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February 1, 1997. However, Mr. Lazcano-Villalobos offered no testimony
explaining how the cellular telephone he admitted using in Mexico on January 18
or 19, 1997, and later on January 31, 1997, was used in El Paso and Denver
during the time he was allegedly stranded in Parral, Mexico. Moreover, Mr.
Lazcano-Villalobos’ testimony claiming he spent the last week in Parral and the
night of January 31, 1997 at his father-in-law’s house in El Paso differed from his
statement to Agent Williams that he and his wife were in El Paso for
approximately a week visiting his wife’s brother.
Discrepancies as to Mr. Lazcano-Villalobos’ whereabouts continued when
he admitted he used the cellular telephone to make calls on the evening of January
31, 1997 from Chihuahua, Mexico, even though he testified earlier he spent that
night in El Paso, Texas at his father-in-law’s. In an apparent effort to show how
he came into possession of the cellular telephone and that someone else could
have made the calls, he recanted his earlier testimony that his nephew, who owned
the telephone, did not return to Mexico.
Other discrepancies existed in Mr. Lazcano-Villalobos’ testimony. While
Mr. Lazcano-Villalobos claimed he only received the car from Mr. Gutierrez on
January 31, 1997, the Super 8 Motel receipt found in the car dated January 13,
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1997 and bearing Mr. Lazcano-Villalobos’ name indicates he possessed the
vehicle two weeks earlier. With respect to the $2,300 in cash found in his wife’s
possession at their arrest, evidence presented at the trial showed Mr. Lazcano-
Villalobos’ and his wife’s net annual income totaled just over $10,000. This,
together with evidence of his comparatively extensive expenses and credit card
debt, suggests Mr. Lazcano-Villalobos was struggling financially.
Notwithstanding his financial status, Mr. Lazcano-Villalobos explained the
$2,300 in cash in his wife’s possession came from her savings and an income tax
refund.
At trial, both after the government presented its case-in-chief and at the
conclusion of the case, Mr. Lazcano-Villalobos moved for judgment of acquittal
under Fed. R. Crim. P. 29(a), arguing insufficient evidence existed to establish
the elements of the offense of possession with intent to distribute cocaine. (Id. at
204-05, 265.)
ANALYSIS
Sufficiency of the Evidence
Mr. Lazcano-Villalobos argues the evidence is insufficient to establish he
knowingly possessed the cocaine found in the hidden compartment of the car he
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drove. Specifically, he suggests the district court erred in denying his motion for
acquittal because the government relied on “inference built upon speculative
inference” to establish he knew of the hidden cocaine.
Our standard of review on a motion for acquittal is the same as the trial
court’s in ruling on the motion in the first instance, which is de novo. United
States v. Miles, 772 F.2d 613, 615 (10th Cir. 1985). We review the evidence in
the light most favorable to the government and “‘then determine whether there is
substantial evidence from which a jury might properly find the accused guilty
beyond a reasonable doubt.’” Id. (quoting United States v. White, 673 F.2d 299,
301 (10th Cir. 1982)). In evaluating the evidence under this standard, the court
will not question the jury’s credibility determinations or its conclusions about the
weight of the evidence. See United States v. Johnson, 57 F.3d 968, 971 (10th Cir.
1995).
Having established our standard of review, we must determine whether
sufficient evidence supports the district court’s denial of the motion for acquittal
and the jury’s verdict that Mr. Lazcano-Villalobos possessed the contraband at
issue. A person constructively possesses contraband when he or she knowingly
holds ownership, dominion or control over the object and premises where it is
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found. See United States v. Taylor, 113 F.3d 1136, 1144-45 (10th Cir. 1997);
United States v. Mills, 29 F.3d 545, 549 (10th Cir. 1994). An inference of
knowledge arises if the defendant had exclusive possession of the object or
premises. See Taylor, 113 F.3d at 1145; Mills, 29 F.3d at 549.
While exclusive possession may support an inference of constructive
possession, we have also held that joint occupancy of vehicle or premise cannot
sustain such an inference. See, e.g., Taylor, 113 F.3d at 1145. Thus, Mr.
Lazcano-Villalobos’ joint occupancy of the vehicle with his wife is not sufficient
in this case to establish an inference of constructive possession. To prove
constructive possession where there is joint occupancy, the government must
present direct or circumstantial evidence to show some connection or nexus
individually linking Mr. Lazcano-Villalobos to the contraband. Id. While
“‘caution must be taken that the conviction not be obtained by “piling inference
on inference,”’” an inference of constructive possession is reasonable if the
conclusion flows from logical and probabilistic reasoning. United States v. Jones,
44 F.3d 860, 865 (10th Cir. 1995) (quoting Direct Sales Co. v. United States, 319
U.S. 703, 711 (1943)). Thus, the government must present evidence supporting at
least a plausible inference Mr. Lazcano-Villalobos knew of the contraband. See
Taylor, 113 F.3d at 1145.
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In this case, we find ample evidence to support Mr. Lazcano-Villalobos’
knowing possession of cocaine. Direct and circumstantial evidence 2 shows Mr.
Lazcano-Villalobos used the late model Ford containing the drugs from December
30, 1996 until his arrest on February 1, 1997. Information from the United States
Customs Service’s data base, cellular telephone records, and the receipts, business
cards and other papers in Mr. Lazcano-Villalobos’ possession, shows he used the
vehicle and cellular telephone during repeated border crossings between Denver,
Colorado and Chihuahua, Mexico. These repeated crossings into Mexico raise an
inference of Mr. Lazcano-Villalobos’ drug courier activities and knowing
transportation of drugs.
In addition, numerous plausible inferences flow from the evidence
presented. For instance, Mr. Lazcano-Villalobos’ purchase of air fresheners the
same day border patrol agents discovered the cocaine allows a jury to reasonably
infer his knowledge of the cocaine and attempt to mask its odor. Mr. Lazcano-
Villalobos made all cash purchases during his trip, a common tactic used by drug
2
“[C]ircumstantial evidence, taken together with any reasonable inferences
which flow from such evidence, is sufficient to establish guilt beyond a
reasonable doubt.” United States v. Francisco-Lopez, 939 F.2d 1405, 1408 (10th
Cir. 1991). However, the evidence supporting the conviction must be substantial
and do more than raise a suspicion of guilt. See Taylor, 113 F.3d at 1144.
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couriers to avoid leaving a paper trail. In addition, the immaculate condition and
absence of dust in the interior and exterior portions of the dash and glove
compartment, could allow a jury to infer Mr. Lazcano-Villalobos recently hid the
cocaine. At the check point, Mr. Lazcano-Villalobos’ hand shook, evidencing his
nervousness and knowledge of the hidden cocaine. The lack of clothing and
luggage en route from an alleged vacation raises a suspicion of drug trafficking.
Similarly, large sums of cash, such as the $2,300 in his wife’s possession, and
cellular telephones are recognized tools of the drug-dealing trade. See United
States v. Slater, 971 F.2d 626, 637 (10th Cir. 1992). Finally, Mr. Lazcano-
Villalobos’ use of Highway 70 – a less direct route for his alleged “emergency”
travel and a route that avoids an open border patrol checkpoint – allows a jury to
infer drug trafficking activity and Mr. Lazcano-Villalobos’ knowing possession of
the cocaine.
Mr. Lazcano-Villalobos’ testimony, presented after the government’s case-
in-chief, did little to counter the government’s evidence. If anything, the
inconsistent and conflicting testimony added to the government’s case by
undermining Mr. Lazcano-Villalobos’ credibility. In convicting Mr. Lazcano-
Villalobos, the jury reasonably rejected as implausible his explanation for his
repeated border crossings, lack of clothing or luggage, purchase of the air
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fresheners, and the source of the $2,300 in cash. 3
The evidence, while mostly circumstantial and built in part on inferences,
logically links Mr. Lazcano-Villalobos with knowledge of the cocaine. 4 Thus, we
find the evidence was substantial and sufficient to support Mr. Lazcano-
Villalobos’ conviction for knowingly possessing the contraband. For that reason,
the district court did not err in denying Mr. Lazcano-Villalobos’ motion for
acquittal at the close of the government’s case-in-chief or at the close of all the
evidence.
Having found the district court properly denied Mr. Lazcano-Villalobos’
motions for acquittal on the standards applied to joint occupancy of a vehicle, we
find it unnecessary to address his request we abandon our holding in United States
v. Levario, 877 F.2d 1483, 1485-86 (10th Cir. 1989), that it is “permissible to
3
Because Mr. Lazcano-Villalobos testified on his own behalf, the district
court could examine all the evidence in ruling on his renewed motion for acquittal
at the close of the evidence, rather than limit its review to the evidence presented
in the government’s case-in-chief. See United States v. Alejandro, 118 F.3d 1518,
1521 (11th Cir. 1997); United States v. Roldan-Zapata, 916 F.2d 795, 803 (2d
Cir. 1990), cert. denied, 499 U.S. 940 (1991).
4
The government also presented evidence of Mr. Lazcano-Villalobos’
prior arrest in which he hid marijuana in a secret compartment in the rear bumper
of his own car, to show his knowledge of the hidden cocaine in the present case.
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infer that the driver of a vehicle has knowledge of the contraband within it” 5
(emphasis added) or adopt the Fifth Circuit’s standard that, in hidden
compartment cases, knowledgeable possession requires “circumstantial evidence
that is suspicious in nature or demonstrates guilty knowledge.” 6 Anchondo-
Sandoval, 910 F.2d at 1236. Instead, we believe our requirement that the
government present direct or circumstantial evidence to show some connection or
nexus individually linking a defendant to the contraband, is sufficient to protect
the interests of the defendant in a joint occupancy situation. For Mr. Lazcano-
Villalobos’ benefit, we note that even if we applied the Fifth Circuit’s standard,
we believe the circumstantial evidence is sufficiently “suspicious in nature” or
demonstrates sufficient “guilty knowledge” to support the district court’s denial
5
Levario involved an unusually large amount of cocaine – weighing
approximately 2,000 pounds – hidden in a U-Haul truck driven by the defendant.
See id., 877 F.2d at 1484-86. Thus, Levario is limited in its application to
situations where, for example, the driver’s knowledge is inferred from the
unusually large amount of contraband located in the vehicle. See id. at 1486
(relying on United States v. Laughman, 618 F.2d 1067, 1076 (4th Cir. 1980)
(holding inference of driver’s knowledge existed when truck-camper contained
over 1,100 pounds of marijuana), cert. denied, 447 U.S. 925 (1980)).
6
Mr. Lazcano-Villalobos relies on United States v. Resio-Trejo, 45 F.3d
907, 911 (5th Cir. 1995); United States v. Shabazz, 993 F.2d 431, 441-442 (5th
Cir. 1993); United States v. Diaz-Carreon, 915 F.2d 951, 954 (5th Cir. 1990);
United States v. Anchondo-Sandoval, 910 F.2d 1234, 1236 (5th Cir. 1990). Our
reading of these cases persuades us the standard applied by the Fifth Circuit is
more applicable to single occupancy or exclusive possession cases than to joint
occupancy situations.
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of Mr. Lazcano-Villalobos’ motion for acquittal and the jury’s verdict. Id.
Section 404(b) Evidence
Prior to the trial, the government filed a motion under Fed. R. Evid. 404(b) 7
seeking to use evidence of Mr. Lazcano-Villalobos’ prior arrest, nineteen months
earlier, for possession with intent to distribute marijuana. 8 The motion stated, in
relevant part:
Defendant Lazcano Enriquez-Villalobos [sic] was arrested in Liberal,
Kansas on May 21, 1996 for possession of marijuana.
...
The United States intends to present this evidence as proof of
Defendant Lazcano Enriquez Villalobos’[sic] ... knowledge, intent
and absence of mistake or accident, in the above-captioned and
-numbered cause.
(Emphasis added). The day before the trial, the district court held a hearing, at
which time Mr. Lazcano-Villalobos’ counsel moved to exclude the 404(b)
7
Fed. R. Evid. 404(b) states, in relevant part:
Evidence of other crimes, wrongs or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
8
Although the government charged Mr. Lazcano-Villalobos with felony
possession of marijuana, he pled guilty to misdemeanor possession.
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evidence. At the hearing, the government stated it intended to introduce evidence
of Mr. Lazcano-Villalobos’ arrest and guilty plea to show his “knowledge” of
“concealed compartments” for the purpose of transporting controlled substances.
Mr. Lazcano-Villalobos’ counsel argued “the probative value” of the prior arrest
“is far outweighed ... by the prejudicial harm” to Mr. Lazcano-Villalobos. The
district court reserved its ruling until the trial and ultimately granted the
government’s Rule 404(b) motion to admit the evidence. In granting the motion,
the district court did not specifically articulate its reasoning, but stated simply:
[M]y present feeling is that the motion to suppress is not good. I
think the 404(b) looks like ... it is appropriate. I reserve the right to
change my mind if evidence develops and it appears to me that it is
not appropriate. But right now, with what has been tendered to me in
writing, I think it is.
(Emphasis added). With respect to the purpose for which the evidence was
admitted, the district court concluded the purpose was to show “knowledge.” The
government then introduced the testimony of a Kansas Sheriff’s Deputy who
testified as to Mr. Lazcano-Villalobos’ arrest for possession of marijuana. On
that occasion, Mr. Lazcano-Villalobos drove a vehicle registered to him in
Colorado and altered with secret compartments in the rear bumper. The deputy
testified the hidden compartment “was one of the better constructed cutouts” he
had seen in eleven years in law enforcement.
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We apply a four-part test in determining whether the district court properly
admitted evidence under Rule 404(b). This test requires that:
(1) the evidence was offered for a proper purpose; (2) the evidence
was relevant; (3) the trial court determined under Fed. R. Evid. 403
that the probative value of the evidence was not substantially
outweighed by its potential for unfair prejudice; and (4) the trial
court gave the jury proper limiting instructions upon request.
United States v. Hill, 60 F.3d 672, 676 (10th Cir.), cert. denied, 516 U.S. 970
(1995).
Mr. Lazcano-Villalobos claims the district court erred in applying the first
three parts of this test. He claims the evidence was used for an improper purpose
because it “served to merely show [he] was a bad person.” He debates the
relevancy of the evidence claiming his “prior narcotics involvement was neither
close in time, nor highly probative, nor similar to the activity ... charged in this
case,” because the arrest occurred almost two years earlier and hundreds of miles
from the Mexican border, involved marijuana and not cocaine, and included
compartments located in the rear fender rather than the dash. Finally, he contends
the district court erred in failing to carry out the required balancing test between
prejudice and probative value, as required under Fed. R. Evid. 403. 9
9
Fed. R. Evid. 403 states:
Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues or misleading the jury, or by considerations
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We review the admission of evidence under Fed. R. Evid 404(b) for an
abuse of discretion. Hill, 60 F.3d at 676. First, we note the record shows the
government argued, and the district court expressly agreed, that the evidence of
Mr. Lazcano-Villalobos’ prior arrest was offered for the permissible purpose of
showing his knowledge of the hidden compartment containing the cocaine, and
not for the impermissible purpose of showing his bad character. Second, evidence
of Mr. Lazcano-Villalobos’ prior arrest meets the relevancy requirement because
it shows conduct “close in time, highly probative and similar to the activity with
which [he] is charged.” See United States v. McKinnell, 888 F.2d 669, 676 (10th
Cir. 1989). Specifically, evidence concerning his prior arrest implicates his
knowledge of the hidden compartment in the instant case because it shows he
previously owned a car in which he concealed contraband in a hidden
compartment. The facts the contraband changed from marijuana to cocaine and
the location of the hidden compartment changed from the rear bumper to under
the dash, do not make the evidence less probative. Because the government
offered the 404(b) evidence for the proper purpose of showing Mr. Lazcano-
Villalobos’ knowledge of the contraband, and the evidence is relevant to show
such knowledge, we find the district court did not abuse its discretion in allowing
of undue delay, waste of time, or needless presentation of cumulative
evidence.
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its admission under the first two parts of the Rule 404(b) test.
As for the third part of the test, the district court did not expressly state
that, under Rule 403, the probative value of the evidence substantially outweighed
its potential for unfair prejudice. The government suggests the district court does
not need to expressly articulate the formal balancing test under Rule 403, because
an implicit balancing is sufficient. The government, however, admits this
position might be in “tension” with United States v. McVeigh, 153 F.3d 1166
(10th Cir. 1998), cert. denied, 119 S. Ct. 1148 (1999), which states that “[t]his
Circuit has required on-the-record findings for a trial court’s balancing under
Rule 403 when the disputed evidence is offered pursuant to one of the specialized
character evidence rules,” including Rule 404(b) evidence. Id. at 1189 n.10.
We have consistently upheld implicit Rule 403 determinations when the
determinations are supported by the record. See, e.g., United States v. Wilson,
107 F.3d 774, 783 (10th Cir. 1997) (concluding the district court implicitly made
a Rule 403 finding when it ruled at trial and at a motion in limine hearing to
admit 404(b) evidence); Mills, 29 F.3d at 549 (holding the district court implicitly
made a Rule 403 determination when the defendant argued prejudice would
outweigh the 404(b) evidence’s utility); accord United States v. Easter, 981 F.2d
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1549, 1553-54 (10th Cir. 1992), cert. denied, 508 U.S. 953 (1993); United States
v. Patterson, 20 F.3d 809, 814 (10th Cir.), cert. denied, 513 U.S. 841 (1994). Our
holding in McVeigh merely reaffirms our authority to conduct a de novo
balancing where the trial court failed to make explicit findings to support a Rule
403 ruling. 153 F.3d at 1189.
Nonetheless, we are compelled to clarify the McVeigh footnote to which
Mr. Lazcano-Villalobos refers, in which we state a requirement for on-the-record
findings of a trial court’s balancing test under Rule 403, when the disputed
evidence is 404(b) evidence. Id. at 1189 n.10. The footnote cited by Mr.
Lazcano-Villalobos relies on our holding in United States v. Kendall, 766 F.2d
1426 (10th Cir. 1985), cert. denied, 474 U.S. 1081 (1986). In Kendall, we stated
the government must articulate precisely the evidentiary hypothesis for the
admission of 404(b) evidence; the trial court must specifically identify the
“purpose” for such evidence. 10 Id. at 1436 (emphasis added). We noted that
specific articulation of the relevant “purpose ... will enable the trial court to more
10
This comports with our decisions that even if the district court fails to
identify the purpose for admission of 404(b) evidence, such error is harmless if its
purpose is apparent from the record and properly admitted. See, e.g., Easter, 981
F.2d at 1554 n. 2 (explaining that while Kendall requires the court’s articulation
of the purpose of admitting 404(b) evidence, an omission is harmless so long as
the purpose is apparent from the record); accord United States v. Sarracino, 131
F.3d 943, 948 (10th Cir. 1997); Wilson, 107 F.3d at 783.
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accurately make an informed decision and weigh the probative value of such
evidence against the risks of prejudice specified in Rule 403.” Id. at 1436-37.
Thus, in Kendall, we required express articulation of the “purpose” for the
evidence, but not express articulation of the district court’s Rule 403 analysis on
whether the probative value of the 404(b) evidence outweighed the prejudicial
effect.
In this case, the record sheds sufficient light on how the district court
viewed the evidence. The district court expressly stated the “purpose” of the
404(b) evidence was to show “knowledge.” Although the district court did not
make explicit findings under Rule 403's balancing test, we note counsel for Mr.
Lazcano-Villalobos argued during the motion hearing that “the probative value”
of the prior arrest “is far outweighed ... by the prejudicial harm” to him. The
district court subsequently took the matter under advisement until the trial.
Although explicit findings are clearly preferable, under the facts of this case we
conclude the district court must have implicitly made a Rule 403 finding when it
contemplated Mr. Lazcano-Villalobos’ unfair prejudice and probative value
argument. Accord Wilson, 107 F.3d at 783; Mills, 29 F.3d at 549. For these
reasons, we conclude the district court did not abuse its discretion in admitting
the 404(b) evidence concerning Mr. Lazcano-Villalobos’ prior arrest.
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For the foregoing reasons, we AFFIRM Mr. Lazcano-Villalobos’
conviction.
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