FILED
NOT FOR PUBLICATION
MAR 13 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30021
Plaintiff-Appellee, D.C. No. 3:11-cr-00494-HZ-1
v.
MEMORANDUM*
FULGENCIO ARIAS, Jr., AKA Stomper,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Argued and Submitted March 6, 2018
Portland, Oregon
Before: FISHER, N.R. SMITH and HURWITZ, Circuit Judges.
Fulgencio Arias appeals his convictions for conspiracy to distribute
methamphetamine, distribution of methamphetamine, attempted distribution of
methamphetamine and conspiracy to commit money laundering. See 18 U.S.C.
§§ 2, 1956(a)(1)(A)(i); 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. He raises a single
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
issue on appeal, contending the district court abused its discretion by admitting
evidence regarding his association with two criminal organizations, including the
Mexican Mafia. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Under the Federal Rules of Evidence, “[t]he court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of . . . unfair
prejudice.” Fed. R. Evid. 403. The evidence challenged here was relevant. The
evidence of Arias’ gang associations was relevant to explain the development of
the relationship between Arias and his co-conspirator, Francisco Fregoso, and to
establish Arias’ motive or opportunity to engage in drug trafficking. See Fed. R.
Evid. 401, 404(b). The evidence of Arias’ nickname was relevant to establish the
close relationship between Arias and a second co-conspirator, Art Casas. The
expert testimony was relevant to explain the relationship between the Mexican
Mafia and the Sureño gangs and to explain the difference between a member and
affiliate of the Mexican Mafia.
Arias validly points out that the relevance of much of this evidence was
limited. The government, for example, could have explained the development of
Arias and Fregoso’s relationship without mentioning Arias’ gang affiliations.
Similarly, although the evidence showed Arias had a historical connection to the
Mexican Mafia, there was no evidence actually linking the Mexican Mafia to the
2
charged conspiracy. Arias’ ties to the Mexican Mafia therefore provided only a
tenuous theory of motive and opportunity. Evidence of Arias’ nickname was only
minimally probative, given Arias’ identity was not at issue.
On the other side of the equation, gang affiliation evidence carries a
significant risk of unfair prejudice. See Estate of Diaz v. City of Anaheim, 840
F.3d 592, 602 (9th Cir. 2016); Kennedy v. Lockyer, 379 F.3d 1041, 1055-56 (9th
Cir. 2004). Given the limited probative value of the evidence and the risk of unfair
prejudice, the district court might reasonably have excluded the challenged
evidence under Rule 403. The standard of review, however, is highly deferential.
“A district court’s Rule 403 determination is subject to great deference, because
‘the considerations arising under Rule 403 are susceptible only to case-by-case
determinations, requiring examination of the surrounding facts, circumstances, and
issues.’” United States v. Hinkson, 585 F.3d 1247, 1267 (9th Cir. 2009) (en banc)
(quoting R.B. Matthews, Inc. v. Transamerica Transp. Serv., Inc., 945 F.2d 269,
272 (9th Cir. 1991)). We cannot say the district court abused its broad discretion
here.
In any event, even if the evidence should have been excluded, we will not
reverse where, as here, “it is more probable than not that the error did not
materially affect the verdict.” United States v. Vera, 770 F.3d 1232, 1240 (9th Cir.
3
2014) (quoting United States v. Gonzalez-Flores, 418 F.3d 1093, 1099 (9th Cir.
2005)). The government’s case against Arias was built not only on the testimony
of Arias’ two principal co-conspirators, Fregoso and Casas, but also on recorded
phone conversations in which Arias described his methamphetamine and money
laundering crimes in his own words. The district court also took steps to limit the
possibility of prejudice. Any error, therefore, was harmless. Arias’ contention that
we should apply the harmless error standard applicable to constitutional error is not
supported by relevant authority and is therefore rejected.
2. We review Arias’ challenge to the gang task force evidence for plain
error. See United States v. Lloyd, 807 F.3d 1128, 1152 (9th Cir. 2015). Because
the error, if any, was not obvious, Arias’ argument fails.
AFFIRMED.
4