                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 28 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                     No. 99-4161
                                                    (D.C. No. 97-CR-67-B-01)
    LUIS ARREOLA,                                           (D. Utah)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , PORFILIO , and EBEL , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Defendant Luis Arreola appeals from the district court’s judgment entered

following his conviction by a jury on a charge of   possession with intent to



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
distribute cocaine . Defendant asserts that the district court erred in     allowing the

government to introduce testimony regarding secret compartments in a car he did

not own and in which no drugs were found           in violation of Fed. R. Evid. 404(b) .

“We review the district court’s admission of evidence under [Rule] 404(b) for an

abuse of discretion.” United States v. Wilson , 107 F.3d 774, 782 (10th Cir. 1997).

Finding no such abuse, we affirm.

       Testimony at trial established that   defendant was under surveillance by

Federal Bureau of Investigation (FBI) agents on the violent crimes task force.

The agents followed him, his common-law wife, and her two children as they

drove from Salt Lake City, Utah to Los Angeles, California, in a Dodge Caravan.

The agents lost track of the van in Los Angeles, but California agents located it

later at a motel. Agents followed defendant in the van the following morning,

but lost it again due to defendant’s evasive driving tactics. They followed it

again after defendant returned to the motel where he picked up his wife and her

children. They returned to Salt Lake City after stops at a church and at

defendant’s mother’s home. While stopped at his mother’s home, agents

observed another car arrive. The occupants were greeted by defendant, they went

into the house and left shortly thereafter carrying a shopping bag. The agents

detained the car and discovered a hidden compartment where the shopping bag

had been placed. The bag contained $58,001.


                                             -2-
      After he returned to Salt Lake City, FBI agents stopped defendant as he

was driving the van. The rear seats had been removed from the van and were

later located at defendant’s house. A search of the van pursuant to a search

warrant, revealed a secret compartment underneath the area where the rear seats

would have been. Nine square packages wrapped in duct tape were found. Each

package was determined to contain one kilogram of cocaine. A fingerprint

specialist testified that he found five latent prints on the packages, three of which

were identified as defendant’s.

      Defendant testified that he worked for a Mr. Medina taking cars to

Los Angeles. He took the van to Los Angeles at Mr. Medina’s orders. He

was supposed to drive a Suburban back to Salt Lake City, but because it had

transmission problems, he ended up driving the van back. He was driving the

van to Mr. Medina’s house when he was arrested.    1
                                                       Defendant testified that he

did not know there were drugs in the van. He was not sure how his fingerprints

got on the cocaine bricks, but thought he may have moved them when he was

looking for some tools in Mr. Medina’s shop in Los Angeles. He testified that he

did not know about secret compartment in the van. He admitted driving a black

Lincoln Mark VII in Salt Lake City.


1
      The testimony indicated that Mr. Medina had businesses in both Salt Lake
City and Los Angeles, had a shop in Los Angeles, and was physically present in
both cities at the same time defendant was in each city.

                                         -3-
       On rebuttal, an FBI agent testified that he had searched the Lincoln

defendant had been seen driving. He found two secret compartments in that car.

       Defendant argues that the evidence of secret compartments in the Lincoln

was not properly admitted to rebut his contention that he did not know cocaine

was hidden in a secret compartment in the van he drove to and from California.

The court admitted the evidence to show identity, absence of mistake, and

knowledge. See R. Vol. V at 219. The court noted that counsel had opened the

door to that admission by positing in his opening statement that defendant was

“an innocent dupe” and concluded that the jury must be permitted to understand

the whole picture in order to reach a properly reasoned decision.    Id. at 220-21.

       To determine whether Rule 404(b) evidence was properly admitted, we

examine whether the district court properly weighed four factors: (1) whether the

evidence was offered for proper Rule 404(b) purposes; (2) the relevance of the

evidence under Fed. R. Evid. 401; (3) whether the probative value of the evidence

was not substantially outweighed by its potential for unfair prejudice under

Fed. R. Evid. 403; and (4) whether, if requested, the district court instructed the

jury to consider the evidence only for the purpose for which it was admitted.

See Wilson , 107 F.3d at 782. Our review of the record shows that the district

court properly weighed these factors.




                                            -4-
     The judgment of the United States District Court for the District of Utah

is AFFIRMED.



                                                  Entered for the Court



                                                  David M. Ebel
                                                  Circuit Judge




                                       -5-
