FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 10, 2011
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 10-3119
v. (D.C. No. 2:09-CR-20034-KHV)
(D. of Kan.)
JESUS ROBLES,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **
Jesus Robles was convicted of conspiracy to possess, and possession of,
marijuana with the intent to distribute. He challenges his conviction, arguing the
district court erred by admitting testimony of prior, uncharged misconduct. Under
Federal Rule of Evidence 404(b) such evidence is admissible if it is inextricably
intertwined or intrinsic to the charged crime. Because we find the evidence was
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
intrinsic to the charged conspiracy and probative of Robles’s involvement, we
conclude the district court did not err.
Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.
I. BACKGROUND
A. DEA Investigation and Arrest
In February 2009, a DEA agent performing hotel interdiction duties in
Kansas City, Kansas, noticed a Mexican national, Taurino Cereceres-Morales, had
checked into a Best Western motel. Cereceres-Morales had presented a Mexican
electoral card for identification, paid with cash, and did not have a car.
Suspicious of these circumstances, the agent searched law enforcement databases
for his name and returned no matches. But a 2003 DEA investigation had come
across a marijuana shipment addressed to “Taurino Cereceres,” and, with this
information, the agent began surveillance of Cereceres-Morales. Over the next
several days, Robles and Juan Morales both joined Cereceres-Morales at the
motel.
On February 17, 2009, the three men rented a U-Haul, drove to a Yellow
Freight facility, and obtained a shipment of 40 boxes, which were labeled as
containing cookies. The three drove to the home of Joel Areguin and unloaded
the boxes into his garage. At this point, DEA agents approached the garage and
identified themselves. After speaking with the men, the agents received written
consent to search the premises from Areguin as well as Morales, who was renting
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a room in Areguin’s home. All four men denied ownership of the 40 boxes in the
garage. The agents searched the boxes and discovered 7 boxes contained
marijuana and cookies, and the remaining 33 boxes held only cookies. In total,
the 7 boxes contained 221 bundles of marijuana. The four men were arrested.
The DEA agents seized documents and cell phones from the men.
Cereceres-Morales had a phone number and address for Morales and a phone
number for Robles. When interviewed by a DEA agent, Robles had no form of
identification, and said he was staying at a residence in Kansas City but could not
produce an address. He claimed he was at the residence all day the previous day.
Robles, when told he had been seen at a restaurant with the other men as well as
driving the U-Haul truck, stated Morales had rented the U-Haul and denied any
knowledge of the marijuana. During the interview, Robles’s phone received a
push-to-talk call from someone identified as “Moo Moo” in the phone’s contact
list, which was later identified as being Jorge Cabada.
B. Post-Arrest Investigation
In the ensuing investigation, the DEA learned Robles’s flight to Kansas
City was paid for by Jorge Cabada and the email associated with the flight
belonged to “George Cabada,” believed to be the same person. Robles had flown
to Kansas City under the alias “Isaac Botello” and entered the same name in the
Yellow Freight visitor’s log when picking up the marijuana. Isaac Botello was a
real person who lived in California and had a California driver’s license. DEA
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agents discovered a Missouri state identity card with the name Isaac Anthony
Botello, and the same date of birth as the Isaac Botello in California, but with a
picture looking like Robles. Cereceres-Morales also listed Cabada’s cell phone as
a local contact number when checking into the Best Western motel.
The DEA subpoenaed and analyzed the phone records for the cell phones
from Robles, Cereceres-Morales, Morales, and two from Cabada, as well as
phones from the Best Western motel and other phone numbers discovered in the
investigation. The government analyzed phone records over the period from
February 1–23, 2009 and discovered numerous contacts between the phones.
Robles’s phone connected twice with a Best Western phone, 35 times with
Morales’s phone, and 29 times with the second Cabada phone. Morales’s phone
connected with the first Cabada phone 25 times, a Best Western phone 44 times,
and the second Cabada phone 4 times. Because Cereceres-Morales’s cell phone
used an international number originating in Mexico, the DEA could not obtain
records for it.
Robles, along with Cereceres-Morales and Morales, was indicted and
charged with conspiracy to possess with intent to distribute 100 kilograms or
more of marijuana, and possession with intent to distribute the same. The
conspiracy was alleged to have occurred on or about February 17, 2009.
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C. Trial
Before trial, Robles filed a motion in limine to exclude under Federal Rule
of Evidence 404(b) any evidence of any prior, uncharged marijuana distribution
by him. At a pre-trial hearing, the government argued it would offer evidence
that was “part and parcel” of the charged conspiracy, and therefore Rule 404(b)
would not apply because the evidence did not pertain to a separate, prior act. R.,
Vol. 2 at 394. Robles argued the information concerned events several years
prior to the charged conspiracy, had no bearing on an alleged conspiracy in
February 2009, and should be excluded under Rule 404(b). The district court
concluded preliminarily that the evidence should not be excluded under Rule
404(b), under the assumption “the government’s evidence is going to tie this all
into the same conspiracy,” but nevertheless kept the motion under advisement
subject to trial. Id.
At trial, the government called Iran Rodriguez to testify about Robles’s
involvement in marijuana distribution with Cabada. Robles objected on the
grounds the testimony was irrelevant, inadmissible, and highly prejudicial. He
argued there was no evidence directly connecting Cabada to the charged
conspiracy and the government was attempting to make Robles appear guilty
simply through association with Cabada. The government responded that Cabada
was an unindicted co-conspirator in the conspiracy at issue and that Rodriguez
would testify to substantive offenses in the ongoing marijuana distribution
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conspiracy. The district court overruled the objection and permitted Rodriguez to
testify.
Rodriguez identified Cabada from a photograph and testified he met
Cabada in 2002 and socialized with him at the time, but had no contact with him
for at least the past 18 months. Rodriguez also identified Robles from a
photograph. He had met Robles through Cabada, said Cabada and Robles were
cousins, and felt he had a good relationship with Robles.
Rodriguez then testified about Robles and Cabada’s involvement in the
distribution of marijuana. Robles objected to the line of questioning, arguing it
was improper Rule 404(b) evidence going to propensity. The government
responded that Rodriguez’s testimony related to actions that were “part and parcel
of the same conspiracy,” R., Vol. 2 at 1344, and stated it would connect Cabada’s
marijuana distribution to the time period of the charged conspiracy. The court
overruled the objection.
Rodriguez testified Cabada had told him about his marijuana distribution.
Rodriguez had also overheard Cabada’s discussions about matters regarding
marijuana, money, and deliveries. Further, Rodriguez testified that, at some point
between July 2008 and February 2009, Robles stated he was involved in
distributing marijuana with Cabada.
The jury convicted Robles on both counts. Morales was acquitted and
Cereceres-Morales eventually pleaded guilty. Robles moved for a new trial,
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arguing Rodriguez’s testimony should have been excluded under either Rule
404(b) or Rule 403. The district court denied the motion. It held Rodriguez’s
testimony was not Rule 404(b) evidence because the evidence of Robles and
Cabada’s marijuana distribution between July 2008 and February 2009 was
“inextricably intertwined with the conspiracy.” R., Vol. 1 at 251. The court also
concluded the probative value of the testimony was not substantially outweighed
by any danger of unfair prejudice or misleading the jury. The court sentenced
Robles to 64 months’ imprisonment.
II. DISCUSSION
On appeal, Robles challenges the district court’s admission of Rodriguez’s
testimony. He argues the testimony was impermissible under Rule 404(b), or
alternatively, should have been excluded under Rule 403. We disagree. The
testimony was properly admitted as intrinsic evidence of the charged marijuana
distribution conspiracy, and its probative value was not substantially outweighed
by the danger of unfair prejudice or misleading the jury.
A. Rule 404(b)
We review a district court’s admission of evidence for abuse of discretion.
United States v. Mares, 441 F.3d 1152, 1156 (10th Cir. 2006). We will not
reverse a court’s decision if it “falls within the bounds of permissible choice in
the circumstances and is not arbitrary, capricious or whimsical.” Id. (quotations
and bracket omitted).
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Rule 404(b) prohibits the admission of evidence of “other crimes, wrongs
or acts” to prove an individual’s character or propensity. F ED . R. E VID . 404(b)
(emphasis added). “Rule 404(b) only applies to evidence of acts extrinsic to the
crime charged.” United States v. Arney, 248 F.3d 984, 992 (10th Cir. 2001)
(quoting United States v. Green, 175 F.3d 822, 831 (10th Cir. 1999)). 1
“It is well settled that Rule 404(b) does not apply to other act evidence that
is intrinsic to the crime charged.” United States v. O’Brien, 131 F.3d 1428, 1432
(10th Cir. 1997). “Other act evidence is intrinsic when the evidence of the other
act and the evidence of the crime charged are inextricably intertwined or both acts
are part of a single criminal episode or the other acts were necessary preliminaries
to the crime charged.” United States v. Lambert, 995 F.2d 1006, 1007 (10th Cir.
1993) (quotation omitted).
We have previously found acts occurring before a charged conspiracy to be
intrinsic evidence because they were “inextricably intertwined” with that
conspiracy. See O’Brien, 131 F.3d at 1432 (admitting ledger from a gambling
operation that included entries outside the charged period of the conspiracy
because they were intertwined with the charged criminal acts).
1
“Generally speaking, intrinsic evidence is directly connected to the
factual circumstances of the crime and provides contextual or background
information to the jury. Extrinsic evidence, on the other hand, is extraneous and
is not intimately connected or blended with the factual circumstances of the
charged offense.” United States v. Parker, 553 F.3d 1309, 1314 (10th Cir. 2009)
(quotation omitted).
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Here, we must determine whether Rodriguez’s testimony regarding Robles
and Cabada’s marijuana distribution pertained to actions intrinsic to the charged
marijuana conspiracy—making Rule 404(b) inapplicable—or concerned acts
extrinsic to it—bringing the testimony within the scope of Rule 404(b). Robles
argues the district court erroneously admitted Rodriguez’s testimony. He claims
his prior marijuana distribution with Cabada was extrinsic to the charged
conspiracy and was subject to Rule 404(b) prohibition on the use of prior bad acts
to show a defendant’s character or propensity. We disagree. After a careful
review of the record, we find Rodriguez’s testimony was evidence of Robles and
Cabada’s relationship as well as their ongoing marijuana distribution and was
intrinsic to the charged marijuana distribution conspiracy. Therefore, Rule 404(b)
does not apply and the district court did not abuse its discretion when it admitted
the testimony.
Nonetheless, Robles contends the government did not charge an ongoing
conspiracy and claims his distribution of marijuana with Cabada occurred at some
unspecified point prior to the charged date of the conspiracy—“on or about
February 17, 2009.” Rodriguez’s testimony, however, was that between July
2008 and February 2009 Robles stated he was distributing marijuana with Cabada.
That is, Robles was distributing marijuana in the time leading up to the charged
marijuana distribution conspiracy. Although the indictment alleges the
conspiracy occurred around February 17, 2009, that does not preclude the
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existence of an uncharged conspiracy beginning before the charged term.
Next, Robles claims there is no link between his marijuana distribution
with Cabada and the charged conspiracy. But the district court found Cabada was
connected to the charged conspiracy and cited various pieces of evidence
supporting this finding. See R., Vol. 1 at 250 & n.1. Robles does not show why
this finding is clearly erroneous. Nor do we see any reason to question it.
Finally, Robles argues the two conspiracies are not inextricably intertwined
because they are temporally removed, not part of a single criminal episode, and
not preliminary to each other. As discussed, the two conspiracies involved the
same people, same drugs, same offenses, and similar time periods. Thus,
Robles’s arguments are unpersuasive and fail to show the district court abused its
discretion.
In addition, the district court clearly focused on whether Rodriguez’s
testimony related to the charged conspiracy. In fact, during Rodriguez’s
testimony the court called the government to the bench and warned that it was
unclear whether his testimony related to the charged conspiracy. The court
directed the government to elicit testimony from Rodriguez demonstrating it
involved the same conspiracy. The government then specifically questioned
Rodriguez regarding Robles’s involvement with Cabada in the marijuana
distribution and its approximate time frame. After eliciting this testimony, the
government approached the bench to confirm with the court that it had
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sufficiently tied Robles and Cabada’s marijuana distribution together. The court
confirmed the substance of Rodriguez’s testimony with the government—that
Robles had told Rodriguez he was distributing marijuana with Cabada—and
overruled the objection to the testimony.
The district court admitted evidence of prior marijuana distribution by
Robles and Cabada, finding they were “inextricably intertwined with the
conspiracy charged in the indictment.” R., Vol. 1 at 251. Because Rodriguez’s
testimony was intrinsic evidence of the conspiracy, Rule 404(b) did not apply.
In short, the district court’s decision to admit Rodriguez’s testimony was
not an abuse of discretion.
B. Rule 403
Robles also argues the district court should have excluded Rodriguez’s
testimony under Rule 403. While not covered by Rule 404(b), intrinsic evidence
is still subject to the requirements of Rule 403, which provides that relevant
evidence “may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice . . . or misleading the jury . . . .” F ED . R. E VID .
403.
Rodriguez’s testimony was clearly probative of Robles’s relationship with
Cabada and his involvement in the marijuana distribution conspiracy. While a
connection to a drug distribution conspiracy is prejudicial in the wider sense, we
do not find the probative value of Rodriguez’s testimony was substantially
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outweighed by the danger of unfair prejudice or misleading the jury. Robles
argues the evidence was prejudicial, but fails to show how the evidence caused
unfair prejudice or misled the jury. The government’s case centered around the
allegation that Robles was involved in a marijuana distribution conspiracy that
included Cabada. Rodriguez’s testimony regarding Robles’s participation in
marijuana distribution with Cabada is not unfairly prejudicial because it relates to
the heart of the case.
The district court did not abuse its discretion when it admitted Rodriguez’s
testimony. 2
III. CONCLUSION
For the foregoing reasons, we AFFIRM Robles’s conviction.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Circuit Judge
2
Because we find no error, we do not consider Robles’s argument that the
error was not harmless.
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