F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 7 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-2390
RAFAEL FLORES-GONZALES, (D.C. No. CR-99-1407-JP)
(D.N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY, BALDOCK, and BRISCOE, Circuit Judges.
The issue in this direct criminal appeal is whether the district court abused
its discretion by refusing to grant Defendant’s motion for a mistrial based on an
allegedly improper statement a government witness made in front of the jury.
Our jurisdiction arises under 28 U.S.C. § 1291. Because we conclude the alleged
improper statement was harmless, the district court did not abuse its discretion in
denying Defendant’s motion for a mistrial.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
I.
This case arises out of a trip into the desert of southern New Mexico, a
few miles north of the United States-Mexico border, shortly after midnight on
September 2, 1999. While patrolling that area, Border Patrol Agents Richard
Martinez and Jose Gonzalez parked their patrol vehicle off State Highway 146.
The agents observed the headlights of two cars traveling north, approximately
two miles apart. Traffic in the area at that time of night usually consists solely
of trucks from a nearby smelter. Their suspicions aroused, the agents first pulled
over the lead vehicle, a red Ford LTD, bearing Mexico license plates. The agents
located a cell phone in the LTD, leading them to believe that its occupants may
have been in contact with the occupants of the second car, to act as a “scout” for
the transportation of illegal drugs or aliens.
Based on their suspicions, the agents stopped the second car, a Mercury
Cougar. Elena Simental drove the vehicle, accompanied by Defendant Rafael
Flores-Gonzales in the front passenger seat. During the stop, the agents
discovered 358 pounds of marijuana, much of it in plain view, located in
the backseat and trunk compartment of the Cougar. Simental and Defendant
admitted they were traveling with the LTD, and agreed to take the agents to
the border site where “backpackers” had loaded the marijuana into the Cougar.
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Defendant subsequently pled not guilty to a two-count indictment. Count
I of the indictment charged Defendant with conspiracy to possess with intent to
distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. § 846.
Count II of the indictment charged Defendant with possession with intent to
distribute 100 kilograms or more of marijuana in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(B).
Prior to trial, Defendant filed a motion in limine requesting that the
Government not introduce certain topics, including “any criminal convictions,
pending charges, or bad acts allegedly committed by the Defendant’s common
law partner, Rosalina Enriquez,” or “any criminal conviction or bad acts
attributed to the Defendant.” Rec. Vol. III, at 5-6. The Government also agreed
not to introduce evidence regarding “any criminal convictions, pending charges,
or bad acts allegedly committed by the Defendant’s common-law wife, Rosalina
Enriquez.” Rec. Vol. III, at 5.
At the time of their arrest, both Simental and Defendant stated they
believed they were going to pick up an illegal alien, not drugs. In a written
statement, Simental again stated that she believed she was to pick up an illegal
alien and his luggage. Both Simental and Defendant, however, testified otherwise
at trial. Defendant testified that he agreed to pick up a “fellow” and his suitcase
and did not know anything illegal was happening until the marijuana was loaded
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into the Cougar. Simental, after pleading guilty and signing a plea agreement,
testified that she agreed only to transport approximately 20-25 pounds of
marijuana. Simental claimed not to have known Defendant before the evening
of September 2, 1999. She further claimed that Defendant knew the purpose of
the trip was to transport marijuana. Simental claimed her previous statements
were false, made-up at Defendant’s request because he feared losing his resident
alien status and being deported.
While testifying at Defendant’s trial, Simental “blurted out” in front of the
jury that Defendants’ common-law wife had “been deported before because . . . .”
Defense counsel interrupted Simental before she could finish her statement and
requested a bench conference. Outside the presence of the jury, defense counsel
requested a mistrial, objecting to the testimony on the premise that Simental’s
reference to Enriquez’s deportation was highly prejudicial. Defense counsel
argued that the jury would infer Enriquez’s deportation was the result of a
criminal conviction. Defense counsel further claimed that Enriquez’s criminal
character would prejudice the jury by allowing them to believe Defendant was
part of a “criminal family” due to his close relationship with Enriquez.
The court denied defense counsel’s motion for a mistrial, explaining that
Defendant had not established sufficient prejudice. In response to a request from
defense counsel, the district court instructed the Government to warn its witness
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not to “blurt out anything else” contrary to the parties’ pretrial agreement. Rec.
Vol. V, at 186. Notably, defense counsel did not move to strike the testimony
or request that the jury be given a limiting instruction. At trial, no further
reference was made to Enriquez’s deportation.
The jury found Defendant guilty on both counts of the indictment. The
district court sentenced Defendant to sixty-three months imprisonment and
recommended deportation. On appeal, Defendant’s sole argument is that
Simental’s unsolicited testimony regarding Enriquez’s deportation unduly
prejudiced his defense and rendered his trial fundamentally unfair. The
Government claims Simental’s statement was an unexpected, inadvertent
violation of the parties’ pretrial agreement regarding Defendant’s motion
in limine, and did not substantially prejudice his defense.
II.
We review a district court’s denial of a motion for mistrial for an abuse
of discretion. United States v. Cerrato-Reyes, 176 F.3d 1253, 1258 (10th Cir.
1999). The decision to grant or deny a mistrial rests within the discretion of the
district court because that court is best situated to evaluate the effect of improper
testimony on the jury. United States v. Peveto, 881 F.2d 844, 859 (10th Cir.
1989). We will not reverse a decision to deny a motion for mistrial unless the
moving party shows that the district court abused its discretion. United States
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v. Wilson, 244 F.3d 1208, 1219 (10th Cir. 2001).
Defendant argues that Fed. R. Evid. 404(b) bars the admission of
Simental’s testimony because of the close relationship between the Defendant
and his common law wife, Enriquez. Rule 404(b) prohibits the introduction
of character evidence to show that a person acted in conformity therewith.
Defendant cites, and we have found, no case law supporting the application
of Rule 404(b) in a situation such as this. The alleged character testimony
in dispute concerned the prior deportation of Defendant’s common law wife,
not Defendant himself.
Defendant claims Simental’s statement allowed the jury to infer that
criminal behavior led to Enriquez’s deportation. Further, due to the close
relationship between Defendant and Enriquez, the jury could infer that Defendant
also had a criminal propensity. Because of the attenuated nature of the testimony
in question, however, we believe Defendant’s claim of prejudice is more properly
based upon Fed. R. Evid. 403. Rule 403 requires us to determine whether the
danger of unfair prejudice to Defendant “substantially outweighed” the probative
value of the evidence.
For the sake of brevity, we assume Simental’s statement before the jury
regarding Enriquez’s deportation had little, if any, probative value on any
material issue in the case. Therefore, we focus on the prejudicial effect
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Defendant claims to have suffered to determine whether that effect substantially
outweighed the probative value of the statement. We will overturn a conviction
for improper testimony only if that testimony “‘was flagrant enough to influence
the jury to convict on grounds other than the evidence presented.’” Wilson, 244
F.3d at 1219 (quoting United States v. Lowder, 5 F.3d 467, 473 (10th Cir. 1993)).
In other words, a mistrial would be warranted only if “the improper
testimony had an appreciable effect on the verdict.” United States v. Sands,
899 F.2d 912, 914 (10th Cir. 1990). To determine the prejudicial effect of the
testimony, we review the record de novo to evaluate whether the evidence of the
prior deportation of Defendant’s common law wife had a substantial influence on
“‘the jury’s verdict in the context of the entire case against him.’” United States
v. Wilson, 107 F.3d 774, 785-86 (10th Cir. 1997) (quoting United States v. Short,
947 F.2d 1445, 1455 (10th Cir. 1991)). We conclude it did not.
The Government’s evidence at trial established that Defendant was a
passenger in a car border patrol agents stopped near the United States-Mexico
border in the middle of the night on a deserted highway. The car contained over
350 pounds of marijuana, much of it in plain view. The quantity of marijuana
was so large that it filled the trunk and backseat compartment, was visible to
passing traffic, and prevented Simental from properly sitting behind the wheel.
A search of the car yielded a cell-phone and a walkie-talkie, both of which the
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agents found under Defendant’s seat. Defendant, presumably to thwart his
identification, threw his wallet into the weeds at the time of the stop. Moreover,
Defendant admitted at trial that he was previously arrested due to his presence
in a car containing 150 pounds of marijuana.
In response to the evidence presented against him, Defendant claimed he
had “been tricked” again, this time by Elena Simental, who deceived him into
accompanying her into the desert and then refused to allow him out of the car.
The jury, as trier of fact, simply chose not to believe Defendant, which was its
prerogative. In light of the overwhelming evidence against Defendant, Simental’s
testimony regarding Enriquez’s prior deportation did not substantially or
appreciably affect the outcome of the case. Therefore, the district court
properly denied Defendant’s motion for a mistrial based upon the testimony.
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
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