[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10140 ELEVENTH CIRCUIT
Non-Argument Calendar NOVEMBER 22, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:08-cr-00446-TCB-LTW-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff - Appellee,
versus
RICARDO LARIOS-TRUJILLO,
a.k.a. Rico,
lllllllllllllllllllll Defendant - Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(November 22, 2010)
Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Ricardo Larios-Trujillo appeals his convictions for conspiracy to possess,
with intent to distribute, at least five kilograms of cocaine and attempted
possession with intent to distribute at least five kilograms of cocaine. 21 U.S.C. §
841 (a)(1), (b)(1)(A)(ii); 21 U.S.C. § 846. On appeal, Larios-Trujillo argues that
the district court abused its discretion by allowing testimony from cooperating
witnesses Alexander Archer and Rigoberto Delgado-Orozco regarding prior
uncharged crimes. He argues that the testimony tainted the jury’s verdict by
discussing crimes that occurred years prior to the beginning of the charged drug
conspiracy.
We review a trial court’s evidentiary rulings for abuse of discretion. United
States v. Fortenberry, 971 F.2d 717, 721 (11th Cir. 1992) (citation omitted).
Evidence of prior “crimes, wrongs, or acts,” cannot be admitted for the purpose of
proving action in conformity therewith, see Fed. R. Evid. 404(b), though such
evidence can be admitted for other purposes. Id.
In certain situations, however, evidence of prior bad acts is considered
intrinsic to the charged crime and not governed by Rule 404(b). Evidence of acts
other than the offense charged is considered intrinsic if it is “(1) an uncharged
offense which arose out of the same transaction or series of transactions as the
charged offense, (2) necessary to complete the story of the crime, or (3)
inextricably intertwined with the evidence regarding the charged offense.” United
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States v. Veltmann, 6 F.3d 1483, 1498 (11th Cir. 1993) (citation omitted).
Evidence will fall under one of those three categories if it tends to explain the
context, motive, and set-up of the crime. See United States v. Williford, 764 F.2d
1493, 1499 (11th Cir. 1985) (citation omitted). Generally, the evidence must be
“linked in time and circumstances with the charged crime, or form[] an integral and
natural part of an account of the crime, or [be] necessary to complete the story of
the crime for the jury.” Id.
Even if evidence is determined to be intrinsic, it is still subject to the
balancing test established by Rule 403 and “may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury . . . .” Fed. R. Evid. 403. In reviewing a district
court’s Rule 403 ruling, we assume the maximum probative value and the
minimum prejudicial impact that could be attributed to the evidence. See United
States v. Bradberry, 466 F.3d 1249, 1253 (11th Cir. 2006) (per curiam) (citation
omitted).
If evidence of prior bad acts is not intrinsic and thus is subject to Rule
404(b), it cannot be used to prove the character of the defendant, but may be
submitted to aid the jury for a litany of reasons, including to prove “motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
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accident . . . .” See Fed. R. Evid. 404(b). This Courts Rule 404(b) jurisprudence
dictates that evidence of prior acts may be admitted so long as (1) it is submitted as
something other than propensity evidence (such as proving one of the 404(b)
exceptions just mentioned), (2) there is sufficient proof for the jury to determine
that the defendant committed the prior act, and (3) the evidence does not fail the
Rule 403 balancing test. See United States v. Matthews, 431 F.3d 1296, 1310–11
(11th Cir. 2005) (per curiam).
We must keep in mind, however, that an erroneous evidentiary ruling will be
reversed only if “there is a reasonable likelihood that [it] affected the defendant’s
substantial rights.” See United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir.
1990) (citation omitted). “We find an error harmless where the purported error had
no substantial influence on the outcome and sufficient evidence uninfected by error
supports the verdict.” United States v. Dickerson, 248 F.3d 1036, 1048 (11th Cir.
2001) (citation omitted) (internal quotation omitted).
After reviewing the record, we conclude that the district court abused its
discretion by admitting the testimony of cooperating witness Acher on the
beginnings of his relationship with Larios-Trujillo. That error, however, was
harmless.
Acher and Larios-Trujillo began their initial illicit relationship in
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Massachusetts more than five years before the charged crimes of conspiracy and
attempted cocaine possession. The relationship was not continuous from that point
forward, as the two broke off all communications for more than one year. After the
hiatus, Acher and Larios-Trujillo created a new arrangement and engaged in
activities leading up to the charged crimes.
The government’s contention that Acher’s pre-2006 testimony is intrinsic to
the crime charged and thus not subject to Rule 404(b) is unpersuasive. That
testimony does not meet any of the three exceptions that would allow it to be
classified as such. First, there is no argument that the marijuana transactions from
the fall of 2002 were part of the same series of transactions. Second, those initial
dealings were not necessary to give the jury an adequate narrative regarding the
crimes charged in this indictment. Finally, that testimony is not “inextricably
intertwined” with other evidence regarding the charged offenses. While it may
have explained the origins of the association, the previous drug transactions were
in no way necessary to provide the jury an accurate picture regarding the actions
leading to this indictment. We believe Acher’s testimony regarding his initial
relations with Larios-Trujillo is not close to being “linked in time and
circumstances with the charged crime, or . . . an integral and natural part of an
account of the crime, or . . . necessary to complete the story of the crime for the
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jury.” Williford, 764 F.2d at 1499.1
The government’s argument that Acher’s testimony could have been
admitted under Rule 404(b) is also unpersuasive. The government asserts that his
testimony proves intent and motive. But in its brief, it cites to no pre-February
2006 testimony from Acher that shows intent or motive relating to the charged
offenses. The value of Acher’s testimony regarding activities prior to the renewed
association is particularly unnecessary to prove intent or motive for the charged
crimes, especially in light of the extensive testimony regarding more current
activities. The abundance of temporally-closer evidence further detracts from any
value that Acher’s early testimony might contain.
Our conclusion that the district court abused its discretion in admitting
some of Acher’s testimony, however, does not dictate that Larios-Trujilo is entitled
to the relief requested. Ultimately, the error in admitting the testimony did not
prejudice Larios-Trujillo in light of the substantial evidence presented against him.
1
The trial transcript provides clear evidence for this proposition. The government elicits
detailed testimony regarding Acher’s teenage years. That extended discussion flows into his
testimony about the relationship that he formed with Larios-Trujillo in 2002 and continued until
early 2005. (Doc. 280 462–76). The testimony then moves on to the re-establishment of the
relationship that occurred in February 2006. It is unclear why the government could not have
simply skipped those 15 pages of testimony and elicited that a relationship revolving around
illegal drugs formed in 2006, which was substantially closer to the occurrence of the charged
offenses and eventually resulted in the charged offenses. Such action would not have created any
meaningful gap in the narrative of the case.
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The government’s case included evidence showing: (1) Larios-Trujillo facilitated
the installation of hidden compartments in a vehicle for the purpose of transporting
drugs; (2) Larios-Trujillo engaged in numerous recorded conversations, with
cooperating witnesses and law enforcement officials, to further the charged
conspiracy; (3) Larios-Trujillo discussed traveling to Miami, Florida to meet a
ficticous drug supplier; and (4) Larios-Trujillo confessed to participating in the
drug transaction that led to his arrest. Based on this evidence, we conclude any
error did not infringe on Larios-Trujillo’s substantial rights. Accordingly, we
affirm.
AFFIRMED.
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PRYOR, Circuit Judge, concurring specially:
I concur in the result only.
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