United States v. Montelongo

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 24, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. Nos. 04-2215, 04-2241

VICTOR MONTELONGO, JR.; and
RONALD EDWARD McCALVIN,

Defendants - Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D. Ct. No. CR-03-1471 RB)

Mario A. Esparaza, Las Cruces, New Mexico, for Appellant Montelongo.

Thomas L. Wright, El Paso, Texas, for Appellant McCalvin.

Kyle T. Nayback, Assistant United States Attorney (David C. Iglesias, United
States Attorney, and Laura Fashing, Assistant United States Attorney, on the
briefs), for Appellee.

Before TACHA , Chief Circuit Judge, EBEL , and McCONNELL , Circuit Judges.

TACHA, Chief Circuit Judge.

Defendants-Appellants Victor Montelongo, Jr. and Ronald Edward
McCalvin were charged with possession with intent to distribute more than fifty

kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1), and conspiracy to

possess with intent to distribute more than fifty kilograms of marijuana, in

violation of 21 U.S.C. § 846, after ninety-three kilograms of marijuana were

found in the sleeping compartment of the semi-truck they were co-driving.

Following a jury trial, Mr. McCalvin was convicted on both counts and Mr.

Montelongo was convicted only on the possession count. During trial, the owner

of the semi-truck, Gilbert Gomez, Jr., testified for the Government. The

Defendants sought to cross-examine Mr. Gomez about an incident a few months

before their arrest during which marijuana was found in the sleeping compartment

of a second semi-truck owned by Mr. Gomez that was being driven by two other

men. The District Court held that Fed. R. Evid. 404(b) and 608(b) precluded the

Defendants from eliciting such testimony. On appeal, the Defendants contend

that the District Court’s ruling violated the Confrontation Clause of the Sixth

Amendment. We take jurisdiction under 28 U.S.C. § 1291, conclude that the

District Court committed error that is not harmless beyond a reasonable doubt,

and therefore REVERSE and REMAND. 1

1
Mr. Montelongo raises two other issues on appeal: the sufficiency of the
evidence regarding possession and a challenge to his sentence under United States
v. Booker , 543 U.S. —, 125 S. Ct. 738 (2005). Because we reverse on the
evidentiary issue, we need not address these other issues.

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 I. BACKGROUND

Although the facts leading up to the Defendants’ arrests are disputed to

some degree, the undisputed facts reveal the following: On April 29, 2003, Mr.

Montelongo picked up the tractor portion of the semi-truck from Mr. Gomez’s

home. Mr. Gomez testified that at that time, no marijuana was in the truck. Mr.

Montelongo was scheduled to drive a load from New Mexico to Michigan with a

co-driver, Carmen McCalvin. But that day, Ms. McCalvin’s husband, Defendant

Ronald McCalvin, substituted himself for his wife because he did not want his

wife to co-drive with a man. At approximately 12:45 A . M . on April 30, the

Defendants picked up the trailer portion of the semi-truck.

With Mr. Montelongo driving, the Defendants then headed off for Michigan

on Highway 54, a little-used route. After about half an hour, Mr. Montelongo

claimed he was tired and pulled over. Mr. McCalvin then drove while Mr.

Montelongo slept in the sleeping compartment. Some seventeen miles after this

switch in drivers, the truck approached a border patrol checkpoint.

At the checkpoint, Officer Yvette Haran approached the driver’s side of the

truck and spoke with Mr. McCalvin. Mr. McCalvin continuously blew cigarette

smoke into Officer Haran’s face. Officer Haran noted an overwhelming scent of

orange air freshener. Based on her training, the Officer determined that the

orange scent and smoke likely were attempts to mask the smell of narcotics.

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Officer Haran then asked Mr. McCalvin if he had a co-driver. He said he did and

nervously hit the curtain behind which Mr. Montelongo was sleeping. Mr.

Montelongo only stuck his head out—hiding the remaining portion of the sleeping

compartment from view. Officer Haran found this action unusual. Mr.

Montelongo contends that he hid the sleeping portion of the cabin from Officer

Haran because he was not clothed.

Officer Haran then asked for permission to conduct a canine search, to

which Mr. McCalvin consented. The search was somewhat delayed, however, as

it took Mr. Montelongo approximately five minutes to get out of the sleeping

compartment. Mr. Montelongo contends this delay was caused by his need to get

dressed.

During the search, the dog alerted to the area underneath the mattress in the

sleeping compartment. When the dog alerted, Mr. McCalvin purportedly blurted

out, “Oh, my God. This isn’t happening to me.” Officers looked through a hole

under the mattress and noticed cellophane-wrapped bundles. They removed the

mattress rack with a socket-wrench that was located inside the cab. They found

twenty-five bundles of marijuana contained in duffle bags, weighing ninety-three

kilograms, and having a street value of $200,000 to $250,000. The officers then

arrested Mr. Montelongo and Mr. McCalvin.

In a separate incident a few months before the Defendants’ arrest, Eric

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Brown and Moses Hernandez, both truck drivers, were similarly charged with

trafficking marijuana. That case had several facts in common with the facts of

this case: The truck Mr. Brown and Mr. Hernandez drove was owned by Mr.

Gomez; the marijuana was packed in duffle bags; and it was hidden in the

sleeping compartment of the cabin. Messrs. Brown and Hernandez, however,

never implicated Mr. Gomez in the crime. Rather, they claimed that they found

the thirty-four pounds of marijuana lying by the side of the road and put it into

the sleeping compartment themselves. Mr. Gomez was not charged or found

guilty of any wrongdoing in the previous case.

The case involving Mr. Montelongo and Mr. McCalvin eventually went to

trial. Prior to trial, however, attorneys for both Mr. Montelongo and Mr.

McCalvin moved in limine to exclude evidence of the case involving Mr. Brown

and Mr. Hernandez because they feared that their clients would be convicted of

participating in an extensive trafficking conspiracy. The District Court granted

the motion. At trial, the essence of Mr. Montelongo’s defense was that the

marijuana belonged to Mr. Gomez and that he alone, or in conspiracy with Mr.

McCalvin, had duped him into being an unknowing transporter of the marijuana.

Not surprisingly, the essence of Mr. McCalvin’s defense at trial was that he was

an unknowing transporter, duped by Mr. Gomez alone or in conspiracy with Mr.

Montelongo. In other words, each Defendant contended that Mr. Gomez was the

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mastermind behind a marijuana trafficking scheme, about which they had no

knowledge. The Government, on the other hand, elicited testimony from Mr.

Gomez on direct examination that Mr. Gomez had inspected the truck just before

Mr. Montelongo picked it up and had found no marijuana in it.

Although the Defendants had successfully moved in limine to exclude

evidence of the previous case, they sought to cross-examine Mr. Gomez about the

facts of that case in order to bolster their contention that Mr. Gomez was

operating a drug ring of which the Defendants were unaware. The Government

objected, arguing that Mr. Gomez was never charged or convicted in the previous

case and that the testimony was therefore inadmissible. After dismissing the jury

and ordering briefing on the issue, the District Court ruled that Fed. R. Evid.

404(b) and 608(b) precluded the Defendants from cross-examining Mr. Gomez

about the prior case. The jury ultimately found Mr. Montelongo not guilty on the

conspiracy charge and guilty on the trafficking charge and found Mr. McCalvin

guilty on both charges. The Defendants separately entered timely appeals, which

we consolidated for determination on appeal.

II. STANDARD OF REVIEW

“We review de novo whether a defendant’s Sixth Amendment confrontation

rights were violated by cross-examination restrictions.” United States v. Byrne,

171 F.3d 1231, 1234 (10th Cir. 1999). If we find such constitutional error, we

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will reverse unless we determine that the error is harmless beyond a reasonable

doubt. Fed. R. Crim. P. 52(a); Chapman v. California, 386 U.S. 18, 24 (1967).

Because this issue was preserved below, the Government bears the burden to

prove that any error was harmless. United States v. Riccardi, 405 F.3d 852, 875

(10th Cir. 2005).

III. DISCUSSION

A. Error

A defendant’s right to cross-examine witnesses against him is guaranteed

by the Sixth Amendment. See Rock v. Arkansas, 483 U.S. 44, 51 (1977). The

right to cross-examine witnesses, however, is not without limits. United States v.

Markey, 393 F.3d 1132, 1135 (10th Cir. 2004). “At a minimum, a defendant is

limited to presenting relevant evidence, which is evidence having ‘any tendency

to make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the evidence.’”

Id. (citations omitted); see also United States v. Solomon, 399 F.3d 1231, 1239

(10th Cir. 2005) (“Simply stated, a criminal defendant does not have a

constitutional right to present evidence that is not relevant and not material to his

defense.”).

On appeal, the Defendants argue that the previous case involving Mr.

Brown and Mr. Hernandez was relevant to both the trafficking and conspiracy

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charges. “To determine what evidence is relevant, we first turn to the elements of

the offense.” Markey, 393 F.3d at 1135. “To prove a charge of possession with

intent to distribute, the government must show that [1] the defendant possessed

the controlled substance; [2] knew that he had it; and [3] possessed it with the

intent to distribute it.” United States v. Allen, 235 F.3d 482, 492 (10th Cir. 2000).

A conspiracy in violation of 21 U.S.C. § 846 consists of four elements. See

United States v. Bell, 154 F.3d 1205, 1208 (10th Cir. 1998). The government

must prove beyond a reasonable doubt “(1) an agreement with another person to

violate the law, (2) knowledge of the essential objectives of the conspiracy, (3)

knowing and voluntary involvement, and (4) interdependence among the alleged

conspirators.” Id.

We agree with the Defendants that the previous case is relevant to the

Defendants’ case. There are several similarities between the two crimes, and a

jury could disbelieve the somewhat incredible story told by Mr. Brown and Mr.

Hernandez—that they found thirty-four pounds of marijuana by the side of the

road—concluding instead that Mr. Gomez himself had packed it in the semi-truck.

In this way, the previous case is relevant as it tends to make it less probable that

the Defendants knowingly possessed the marijuana or that they knowingly and

voluntarily involved themselves in a drug conspiracy.

Relevancy alone, however, does not end our analysis of the propriety of

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cross-examining Mr. Gomez about the Brown case. “[I]n presenting evidence the

defendant must ‘comply with established rules of evidence and procedure . . . to

assure both fairness and reliability in the ascertainment of guilt and innocence.’”

Solomon, 399 F.3d at 1239 (quoting Richmond v. Embry, 122 F.3d 866, 871–72

(10th Cir. 1997)) (omission in original). “While a state may not apply a rule of

evidence mechanistically to defeat the ends of justice, in appropriate

circumstances, the defendant’s right to present relevant testimony may ‘bow to

accommodate other legitimate interests in the criminal trial process.’” Richmond,

122 F.3d at 872 (quoting Michigan v. Lucas, 500 U.S. 145, 149 (1991)).

The district court judge expressed doubt as to whether Fed. R. Evid. 404(b)

permitted cross-examination on this issue, but he recognized that “this is critical

stuff” and asked the parties to brief the issue overnight so that he could consider

it afresh the next morning. With the benefit of that briefing, the court ruled:

I am not going to allow any questioning of Mr. Gomez relating to the
prior incident. I think that this matter is covered by [Fed. R. Evid.]
404(b) and 608(b). And I don’t—each of which, relate to specific
instances of conduct on the part of the person being questioned. The
404(b) relates to other crimes, wrongs, or acts committed by the
person being questioned. 608 relates to the specific instances of the
conduct of a witness—specific instances of the conduct of the
witness, of Mr. Gomez, for the purpose of attacking or supporting his
credibility.

And what particular instances would we be asking Mr. Gomez about?
He wasn’t driving the truck. He wasn’t charged relating to
possession in that instance. And what I’d be allowing you to do is
put before the jury just enough to taint Mr. Gomez, when the law

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 enforcement authorities didn’t find any wrongdoing on his part.
Apparently, as I’ve reviewed the Discovery that was provided by the
Government to the Defense, the truck was returned to him and—
without any prosecution.

Because the District Court relied on specific rules of evidence, we turn to

their text. Federal Rule of Evidence 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 . . . .

Rule 404(b) is typically used by prosecutors seeking to rely on a criminal

defendant’s prior bad acts as proof of “motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident” in the crime

charged. The Rule is not so limited in its application, however, and evidence of a

witness’ other wrongs, acts, or crimes is admissible “for defensive purposes if it

tends, alone or with other evidence, to negate the defendant’s guilt of the crime

charged against him.” Agushi v. Duerr, 196 F.3d 754, 760 (7th Cir. 1999)

(alternations and quotations omitted). This type of evidence is often referred to

as “reverse 404(b)” evidence. See, e.g., id.; United States v. Lucas, 357 F.3d 599,

605 (6th Cir. 2004).

Other circuit courts addressing the issue hold that admissibility of reverse

404(b) evidence depends on a “straightforward balancing of the evidence’s

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probative value against considerations such as undue waste of time and confusion

of the issues.” United States v. Stevens, 935 F.2d 1380, 1404–05 (3d. Cir. 1991);

see also United States v. Reed, 259 F.3d 631, 634 (7th Cir. 2004). As discussed

above, we conclude that the evidence the Defendants sought to elicit on cross-

examination was relevant to their defense that they had no knowledge of the

marijuana packed in the truck they were driving. We note that the similarities

between the two crimes and their temporal proximity that makes this evidence

probative. See Stevens, 935 F.2d at 1404 (stating that “a lower standard of

similarity [between the crime at issue and “other crimes” evidence] should govern

‘reverse 404(b)’ evidence because prejudice to the defendant is not a factor.”).

Although Messrs. Brown and Hernandez maintained that they simply found the

thirty-four pounds of marijuana by the side of the road, it would not be

unreasonable to conclude that such similarities are not coincidental, which belies

Mr. Gomez’s claim that he had no knowledge of the marijuana in this case.

We also find that the relevance of the proffered evidence is not

substantially outweighed by the risk of confusing the jury or the potential for

waste of time. The Defendants only sought to cross-examine one witness on this

one discrete issue. Nor was there any real danger that the similarities between the

two crimes would have “distracted the jurors’ attention from the real issues in the

case.” Id. at 1406. To the contrary, it would have highlighted the central issue at

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trial—namely, which man was responsible for the contraband. As such, we find

that District Court erred in preventing the Defendants from cross-examining Mr.

Gomez based on Rule 404(b).

The District Court also ruled that Fed. R. Evid. 608(b) barred the cross-

examination of Mr. Gomez about the previous case. That Rule states:

Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness’ character for truthfulness, other
than conviction of crime as provided in rule 609 . . . may, [] in the
discretion of the court, if probative of truthfulness or untruthfulness,
be inquired into on cross-examination of the witness (1) concerning
the witness’ character for truthfulness or untruthfulness . . . .

This Rule simply does not apply here. By its terms, the Rule only applies

to specific instances of conduct used to attack or support the witness’ character

for truthfulness. As discussed above, however, the Defendants did not seek to

cross-examine Mr. Gomez on the prior incident in order to “attack” his “character

for truthfulness,” but rather to negate the Defendants’ guilt of the crime charged

against them and to establish that Mr. Gomez had knowledge of the marijuana in

the truck driven by the Defendants. As such, Rule 608(b) does not bar the

Defendants’ cross-examination of Mr. Gomez, see Agushi, 196 F.3d at 761 (7th

Cir. 1999), and the District Court therefore erred in determining that either Fed.

R. Evid. 404(b) or 608(b) could be used to preclude such cross-examination.

This error, we conclude, undermined the protections afforded by the Sixth

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Amendment’s Confrontation Clause. Of course, we certainly recognize that “trial

judges retain wide latitude insofar as the Confrontation Clause is concerned to

impose reasonable limits on cross-examination based on concerns about, among

other things, harassment, prejudice, confusion of the issues, the witness’ safety,

or interrogation that is repetitive or only marginally relevant.” Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986). Nonetheless, we underscore that a

constitutional violation occurs when “the defendant is prohibited from engaging

in ‘otherwise appropriate cross-examination’” that, as a result, precludes him

from eliciting information from which jurors could draw vital inferences in his

favor. Cf. United States v. Ellzey, 936 F.2d 492, 496 (10th Cir. 1991). Put

another way, “a defendant’s right to confrontation may be violated if the trial

court precludes an entire relevant area of cross-examination.” Parker v. Scott,

394 F.3d 1302, 1316 (10th Cir. 2005) (quotations and alterations omitted).

We find this to be the case here. As discussed, evidence of the prior

incident tended to negate the Defendants’ guilt, and, as such, was directly—as

opposed to merely “marginally”—relevant. See Van Arsdall, 475 U.S. at 679. In

addition, we also find that the potential evidence’s relevancy was not substantially

outweighed by the risk of confusing the jury or the potential of an undue waste of

time. Moreover, it was neither cumulative nor repetitive, and the Defendants had

no improper motive in seeking it. Therefore, given the potential significance of

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the prior incident, precluding the Defendants from cross-examining Mr. Gomez

on the issue infringed on their Sixth Amendment right to confront witnesses

against them.

B. Harmless Error

We now turn to whether the District Court’s error in preventing such

testimony was harmless. As noted above, because the error in this case is

constitutional, the Government bears the burden to demonstrate that the error was

harmless beyond a reasonable doubt. See Chapman, 386 U.S. at 24; Riccardi, 405

F.3d at 875. This burden is substantial, United States v. Lott, 310 F.3d 1231,

1251 (10th Cir. 2002), and we hold that the Government does not meet it in this

case.

In support of its contention that the error was harmless, the Government

argues that even if the evidence of the previous incident was admitted, it does not

tend to prove the Defendants’ innocence when viewed in light of the rest of the

record—it only tends to prove that Mr. Gomez was involved in the conspiracy as

well. The Government points to the following: the presence of masking

agents—cigarette smoke and air freshener—used to hide the smell of the

marijuana; Mr. Montelongo telling detention officers that Mr. McCalvin did not

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know what was stored in the truck; 2 Mr. Montelongo’s control over the truck, and

his request that Mr. McCalvin drive as they approached the checkpoint; Mr.

Montelongo’s delay in exiting the cab of the truck; the presence of a socket-

wrench in the truck that perfectly fit the mattress rack bolts; Mr. McCalvin’s

nervous behavior; and Mr. McCalvin blurting out, “This isn’t happening to me,”

when the canine alerted to the presence of narcotics.

On the other hand, we cannot say for certain how much information the

Defendants might have elicited from Mr. Gomez on cross-examination, how the

jury might have viewed Mr. Gomez’s demeanor on cross-examination, or how

persuasive the evidence regarding the prior case would have been to the jury.

Indeed, based on our review of the record, a jury could reasonably

determine—even in light of the Government’s evidence outlined above, much of

which is subject to innocent explanation—that the fact that thirty-four pounds of

marijuana were found in duffle bags in the sleeping compartment of a truck

owned by Mr. Gomez just a few months prior to the Defendants’ arrests for nearly

identical conduct was not merely coincidental. Rather, the prior incident could be

2
Although Mr. Montelongo disputes the following, the Government
presented evidence that, while being held in a detention center in Dona Ana
County, Mr. Montelongo told an officer that “McCalvin had no knowledge of
what was in [the sleeping compartment],” which, the Government argues, is an
implicit admission that Mr. Montelongo himself had knowledge of the presence of
marijuana.

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viewed as compelling evidence that Mr. Gomez, and only Mr. Gomez, hid and

knew about the marijuana in the truck driven by Mr. Montelongo and Mr.

McCalvin. In other words, there is not such overwhelming evidence of guilt in

this case that compels us to uphold the jury’s verdict.

In addition, even if this evidence did not tend to show that Mr. Gomez

acted alone, i.e., that Mr. Montelongo and/or Mr. McCalvin did in fact know

about the hidden contraband, we underscore that this was not the Government’s

theory of the case. To the contrary, the Government proceeded on the premise

that Mr. Gomez had nothing whatsoever to do with the marijuana found in the

truck. Evidence that one of Mr. Gomez’s trucks in the past had also been found

to contain a significant amount of marijuana stored in duffle bags in the sleeping

compartment, therefore, might have been able to cast sufficient doubt on the

Government’s theory of the case such that the jury might have acquitted the

Defendants. 3

In sum, we simply are not persuaded by the Government’s assertion that

evidence of the previous marijuana incident only “tended to prove that Gomez did

not choose his drivers well.” The Government’s burden in this case is a

3
We also note that the while the jury exonerated Mr. Montelongo of
conspiracy, it found Mr. McCalvin guilty of the same charge. Although the jury,
in returning a guilty verdict, need not indicate who it found Mr. McCalvin to
conspire with, this unusual finding supports our conclusion that the exclusion of
evidence was not harmless beyond a reasonable doubt.

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substantial one, and our review of the record compels the conclusion that the

Government has not shown beyond a reasonable doubt that the jury would have

returned the same verdict had it known that another of Mr. Gomez’s trucks was

similarly found to have a cache of marijuana hidden in duffle bags in the sleeping

compartment just months before the incidents giving rise to this case. We

therefore must reverse and remand for a new trial.

IV. CONCLUSION

Because the District Court erred in excluding cross-examination of Mr.

Gomez in regard to the Brown case and because the Government has not

established that the error is harmless beyond a reasonable doubt, we REVERSE

and REMAND.

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