United States v. Condrin

F IL E D
United States Court of Appeals
Tenth Circuit
PUBLISH
January 23, 2007
U N IT E D ST A T E S C O U R T O F A PP E A L S
Elisabeth A. Shumaker
Clerk of Court
T E N T H C IR C U IT

U N ITED STA TES O F A M ER ICA ,

Plaintiff-Appellee ,

v. No. 06-2025

ER IC CO N D RIN ,

Defendant-Appellant .

A PPE A L FR O M T H E U N IT ED ST A T ES D IST R IC T C O U R T
FO R T H E D IST R IC T O F N EW M E XIC O
(D .C . N O . C R -05-1560-R B )

Submitted on the briefs: *

James N. Langell, Assistant Federal Public Defender, Las Cruces, New M exico,
for Defendant-Appellant .

Terri J. Abernathy, Assistant United States Attorney, Las Cruces, New M exico,
for Plaintiff-Appellee.

Before O ’B R IE N , SE Y M O U R , and T Y M K O V IC H , Circuit Judges.

T Y M K O V IC H , Circuit Judge.

*
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 case is therefore ordered submitted without oral argument.
 A jury convicted Eric Condrin of conspiracy to transport illegal aliens and

two counts of transporting illegal aliens in violation of 8 U.S.C.

§§ 1324(a)(1)(A)(ii) and (v)(I). Condrin contends on appeal that (1) the district

court abused its discretion at trial by admitting a border patrol photograph taken

at his arrest, and (2) insufficient evidence existed to support his convictions.

W e disagree and AFFIRM .

I. Background

Early in the morning on April 18, 2005, the United States Border Patrol

pulled over a minivan on New M exico Highway 11. Eric Condrin sat in the

vehicle with six undocumented M exican citizens and the van’s driver, Elias

Campos. Condrin was charged with one count of conspiracy to transport illegal

aliens and two counts of transporting illegal aliens. Condrin was first tried to a

jury in September, 2005. The jury could not reach a verdict and the district court

declared a mistrial. Condrin was retried in November, 2005.

At the second trial, the government introduced testimony from two of the

minivan’s occupants. They testified to Condrin’s involvement in the illegal

transport operation. One witness repeatedly referred to Condrin as the “bald

man” during testimony. Trial Tr. at 125-26, 128, 140-41, 143, 148. This witness

testified that the bald man and a woman visited him and the other undocumented

aliens at their temporary El Paso, Texas apartments. The bald man instructed the

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aliens to “get ready” to leave as transportation north was finally available. The

witness also testified that the bald man gave him instructions on how to answer

Border Patrol agents if the van was pulled over during transit.

Condrin’s head was shaved at the time of arrest. But by trial Condrin had

grown a full head of hair. In response, the government proffered a photograph

taken of Condrin at the Border Patrol processing facility the night of the arrest to

explain the witness’s references to Condrin as bald. The defense objected,

characterizing the photograph as a “mug shot” and claiming it would inflame the

jury. To keep the photograph out of evidence, the defense offered to stipulate

that Condrin was in the minivan, arguing identification was not an issue. The

district court admitted the photograph over the defense’s objection, concluding it

(1) was not identifiable as a “mug shot” and, (2) assisted the jury by illustrating

the difference in Condrin’s appearance between the time of the crime and trial.

The defense argued that Condrin was in the van merely for a ride to

Albuquerque. Condrin presented testimony that the minivan driver was doing him

a favor by allowing him a ride to Albuquerque to take care of errands that

C ondrin could not otherw ise complete because his wife’s car was broken down

and the Condrins could not afford a bus ticket. Condrin told a Department of

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Homeland Security officer that he had been asleep most of the trip and did not

awake until the minivan stopped along the highw ay to pick up the aliens. 1

The second jury convicted Condrin on all counts and he was sentenced to

concurrent sentences of thirty months in prison, followed by three years of

supervised release.

II. D iscussion

Condrin argues two issues on appeal: (1) the admission of the Border Patrol

processing photograph taken the night of his arrest, and (2) the sufficiency of the

evidence underlying his convictions.

A. The Border Patrol Arrest Photograph

Condrin argues the district court abused its discretion by allowing the

Border Patrol photograph taken the night of his arrest into evidence. He argues

the admission violated Federal Rules of Evidence 401, 403, and 404(b) because

the photograph was irrelevant, prejudicial, and indicative of a prior criminal

record. In addition, he contends the photograph was unnecessary for

identification purposes since he was willing to stipulate to his presence in the

minivan on the night of his arrest.

1
Testimony at trial contradicted Condrin’s statement that the aliens were
picked up along the highway. Both testifying aliens said they were picked up at
an apartment complex, with one alien identifying Condrin as the man sent to
retrieve him from the apartment.

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 1. Federal Rules of Evidence 401 and 403

At trial, Condrin’s counsel objected to the photograph’s admission into

evidence, calling it both prejudicial and irrelevant. The district court found the

photograph neither and allowed it in for identification purposes. W e review the

district court’s evidentiary ruling for an abuse of discretion. See United States v.

Ramirez, 63 F.3d 937, 942 (10th Cir. 1995).

Under Federal Rule of Evidence 401, evidence is relevant if it tends to

make a material fact “more probable or less probable than it would be without the

evidence.” Fed. R. Evid. 401. The defense claims the photograph was irrelevant,

because of its offer to stipulate to Condrin’s presence in the van. W e disagree.

Condrin was nearly bald at the time of his arrest. By trial, four months

later, he had grown a full head of hair. The photograph helped explain the

discrepancy between Condrin’s full head of hair and witness testimony identifying

him as the “bald man,” thereby bolstering the credibility of the witnesses who had

met Condrin at their apartment and in the minivan. The defense stipulation did

not solve the problem of clarifying that Condrin was the “bald man” in question.

For instance, one witness offered a critical piece of testimony when he explained

that the “bald man” came to the apartment to tell him that it was time to leave and

then gave him instructions on how to answ er the Border Patrol. The defense did

not offer to stipulate that Condrin w as the “bald man” for the purposes of these

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alleged acts. In fact, Condrin’s contentions to the Department of Homeland

Security that he was sleeping until the aliens entered the minivan is in direct

contention with the witness’s testimony. The photograph clarified that testimony

and explained the witness was referring to Condrin. 2

Given our finding the photograph was relevant under Rule 401, the next

question is w hether the probative value of the photograph was substantially

outweighed by its prejudicial value under Fed. R. Evid. 403. Condrin argues

prejudice outweighed probity here because the photograph suggested he had a

prior arrest.

Condrin points first to a case from the Eleventh Circuit. In United States v.

Hines, 955 F.2d 1449, 1456–57 (11th Cir. 1992), the court reversed a conviction

where the trial court admitted two photographic spreads from which the victim of

a sexual assault had identified her assailants. Specifically, the court concluded

the photographs implied prior criminal behavior by the defendants and were

especially prejudicial since they were mug shots taken after the commission of

other crimes. In the photographs, the m en— including the defendant— were

holding police identification boards and wearing prison garb. Testimony at trial

2
In any event, the proffered exhibit need not go to a fact in dispute to be
admissible. Background evidence “is universally offered and admitted as an aid
to understanding.” Fed. R. Evid. 401, advisory committee’s note.

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also suggested the photo spreads were of “known criminals and convicts.” Id. at

1456.

Condrin also points to an unpublished case from this circuit supporting his

argument. In United States v. Romero-Rojo, 67 F.App’x. 570 (10th Cir. 2003),

we reviewed a district court decision admitting a mug shot from the defendant’s

Alien Registration File. The photograph showed the defendant wearing a placard

that read “California State Prison.” Although we found any error in admitting the

photograph as harmless, we noted in dicta that the photograph “needed to be

particularly probative” for its admission to have been proper given the highly

prejudicial nature of the placard. Id. at 572.

In contrast to the photographs in those cases, the Border Patrol photograph

entered into evidence here carried none of the prejudicial markers so important to

those decisions. The photograph did not contain any incriminating information

suggesting it was a mug shot. Condrin was wearing street clothes. No testimony

was offered that the photograph arose from an arrest. M oreover, unlike those

cases, the district court concluded the photographs helped remedy a risk of

confusion.

Still, Condrin argues the photograph’s style provides the indicia of criminal

activity, because it looks like a mug shot. The district court did not agree with

Condrin’s assessment. It found no markers on the photograph identifying it as a

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mug shot, and the photograph was neither unflattering nor inflammatory.

Furthermore, the photograph was taken in conjunction with the arrest for the

charges brought in this case. Any testimony to that effect could easily have

remedied potential prejudice as a jury would hardly be surprised that the person

facing charges before them was first arrested and booked on those charges. It

would have taken no effort on the part of the defense to bring out such facts.

In conclusion, the district court did not abuse its discretion in determining

the photograph’s probative value outweighed any prejudice by clarifying the

witness references to the “bald man” identified as Condrin.

2. Federal Rule of Evidence 404(b)

The parties disagree whether our review of Condrin’s claim that the district

judge violated Federal Rule of Evidence 404(b) should be for abuse of discretion

or for plain error. The government argues Condrin made no Rule 404(b)

objection at trial and we should review for plain error. United States v. Herndon,

982 F.2d 1411, 1414–15 (10th Cir. 1992). Condrin contends, however, his

objection to the admission of the photograph at trial encompassed Rule 404(b)

because it disclosed a prior arrest, and we should judge its admissibility under an

abuse of discretion standard as we did in United States v. Roberts, 88 F.3d 872,

879 (10th Cir. 1996).

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 Under the Federal Rules of Evidence, an objection must state the specific

ground of the objection “if the specific ground was not apparent from the

context.” Fed. R. Evid. 103. Condrin suggests his counsel’s reference to the

photograph as a “mug shot” during his objections about the prejudicial and

irrelevant nature of the photograph made it clear that he was objecting to the

photograph under Rule 404(b)’s exclusion of evidence of “other crimes, wrongs,

or acts.” Fed. R. Evid. 404(b).

W hatever the standard of review, the district court did not err. Federal

Rule of Evidence 404(b) excludes evidence of “other” crimes, wrongs, or acts, not

evidence from the crime in question. W e agree with the court in United States v.

M ohammed, 27 F.3d 815, 822 (2d Cir. 1994), which concluded that photographs

taken during defendant’s arrest for case in chief do not improperly expose the jury

to defendant’s criminal record under 404(b). In this case, the photograph was

taken by the Border Patrol on the night of Condrin’s arrest for this crime.

M oreover, no testimony links the photograph to Condrin’s arrest, nor is there any

indication the jury took it as evidence of a prior crime. Even if the photograph

did suggest an arrest, it arose from his arrest in this case, not from other crimes or

bad acts, and any prejudice could have been remedied by a jury instruction.

In short, the district court neither abused its discretion nor committed plain

error in admitting the photograph.

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B. Sufficiency of Evidence

W e review sufficiency of evidence de novo. United States v. Voss, 82 F.3d

1521, 1524–25 (10th Cir. 1996). In so doing, we “view[] the evidence in the light

most favorable to the government” asking whether “any rational trier of fact could

have found the defendant guilty of the crime beyond a reasonable doubt.” United

States v. Vallo, 238 F.3d 1242, 1247 (10th Cir. 2001). The discretion to resolve

conflicting testimony, weigh the evidence, and draw inferences from basic facts to

ultimate facts lies with the jury. United States v. Valadez-Gallegos, 162 F.3d

1256, 1262 (10th Cir. 1998).

1. Two Counts of Transporting Illegal Aliens

To support the two counts against Condrin regarding transportation of

illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), the government relied

upon an aiding and abetting theory, which required proof Condrin “willfully

associated with a criminal venture and sought through some affirmative action to

make that venture succeed.” United States v. Barajas-Diaz, 313 F.3d 1242, 1249

(10th Cir. 2002). The criminal venture of transporting illegal aliens rests upon

proof by the government of:

(1) the transporting or moving of an alien within the U nited States, (2)
that the alien was present in violation of law, (3) that the defendant was
aware of the alien’s status, and (4) that the defendant acted willfully in
furtherance of the alien’s violation of the law.

United States v. Barajas-Chavez, 162 F.3d 1285, 1287 (10th Cir. 1999).

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 Condrin argues the evidence shows neither (1) that he was aware of the

aliens’ status, nor (2) that he acted willfully in violation of the law to help make

the criminal venture succeed. He contends he was merely present during the

minivan driver’s commission of the crime and “mere presence” is insufficient to

prove aiding and abetting. United States v. Taylor, 612 F.2d 1272, 1275 (10th

Cir. 1980). W e disagree.

The facts presented at trial support the jury’s verdict. As an initial matter,

Condrin concedes he was present at the scene of the arrest. And he also concedes

the government presented testimony showing he entered the El Paso, Texas

apartment to notify the aliens of their imminent departure. The testimony

suggests Condrin instructed the aliens how to respond if they were stopped by the

Border Patrol, a fact consistent with his knowledge of the aliens’ status and the

illegal transportation scheme. Finally, his explanation to the Border Patrol

officers about the purpose of his trip was inconsistent with his wife’s testimony.

Condrin argues this accumulation of evidence is insufficient to infer

knowledge the aliens were illegally in the United States or that he took steps to

help transport them in violation of the law. The jury disagreed with this view,

and we defer to them. The evidence offered by the prosecution provided ample

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support for the jury’s conclusion that Condrin was aiding and abetting a criminal

venture to transport aliens within the U nited States. 3

2. Conspiracy to Transport Illegal Aliens

The conspiracy count against Condrin required proof of (1) an agreement

between two or more persons to break the law, (2) an overt act in furtherance of

the conspiracy, and (3) defendant’s wilful action to join the conspiracy. United

States v. Summers, 414 F.3d 1287, 1295 (10th Cir. 2005). “The defendant’s

participation in . . . the conspiracy need only be slight, so long as sufficient

evidence exists to establish the defendant’s participation beyond a reasonable

doubt.” United States v. Johnston, 146 F.3d 785, 789 (10th Cir. 1998). Based on

the facts discussed above, there was sufficient evidence for a rational trier of fact

to infer that Condrin was a knowing and active participant in a conspiracy with

Campos to transport illegal aliens within the United States.

III. C onclusion

For the foregoing reasons, we find the district court did not abuse its

discretion in admitting the photograph of Condrin taken by the Border Patrol and

sufficient evidence existed for the jury to convict Condrin on all counts. W e

AFFIR M .

3
In its reply brief, the defense highlights reasons to question the testimony
of one of the alien witnesses. But it is not our position to question the credibility
of the witness; that task lay with the jury.

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