                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        July 26, 2007
                    UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                TENTH CIRCUIT                           Clerk of Court



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

              Plaintiff - Appellee,
                                                        No. 06-6353
 v.                                              (D.C. No. CR-06-118-01-M )
                                                        (W .D. Okla.)
 JOSE ANG EL LOPEZ,

              Defendant - Appellant.



                           OR DER AND JUDGM ENT *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Jose Lopez appeals his convictions, following a jury trial, on eight counts

of transporting an illegal alien in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and

(B )(ii). Lopez argues that the district court erred in admitting evidence that he

was paid for the trip and that Immigrations and Customs Enforcement (“ICE”)

had previously allowed him a voluntary departure to M exico. He also claims that




      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
he was prejudiced by the presence of a box under the prosecutor’s table that read

“OK Bomb VZB.” For the reasons set forth below, we AFFIRM .

      On April 26, 2006, Chief M artin Schubert stopped a loaded passenger van

for speeding in North Enid, Oklahoma. Brandy Beverly, Lopez’s girlfriend, was

driving but did not have a driver’s license, leading Schubert to ask if anyone else

in the van had one. Lopez responded that he had a driver’s license, but did not

have it with him. Instead, he gave Schubert a photocopy of a California birth

certificate. Both Beverly and Lopez stated that they were traveling from

Colorado to Oklahoma City, and that the other passengers in the van were not in

the country legally. Schubert made contact with ICE, which took Lopez, Beverly,

and the passengers into custody.

       Lopez was initially indicted on eight counts of transporting an illegal alien

for private financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (B)(i) –

a charge that carries a maximum sentence of 10 years’ imprisonment. However,

on June 20, 2006, a superceding indictment was filed that modified the charges to

drop the financial gain element. Under 8 U.S.C. § 1324(a)(1)(B)(ii), the

maximum penalty Lopez faced under these latter charges was five years’

imprisonment.

      Lopez filed a motion in limine seeking to exclude any evidence that he was

paid by the passengers, but it was denied. Evidence was introduced at trial

indicating that some of the passengers had learned of Lopez’s van service from

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business cards, and that they intended to pay Lopez upon reaching their

destinations. U.S. Border Patrol agent M anuel Zuniga testified that he had

interview ed Lopez in 2005 and that Lopez was allowed a voluntary departure to

M exico after he admitted to being in the United States illegally. Towards the end

of the trial, Lopez’s counsel noticed a box under the prosecutor’s table labeled

“OK Bomb VZB,” and immediately moved for a mistrial. The court denied that

motion, but offered to poll the jury or provide a limiting instruction, an offer that

Lopez declined. Lopez was convicted on all counts and sentenced to 30 months’

imprisonment.

      Lopez advances a twofold argument with respect to the evidence of

payment. First, he contends that such evidence created a variance. “The ultimate

questions of whether a variance existed, and whether it was fatal such that relief

is required, are questions of law that we review de novo.” United States v.

W illiamson, 53 F.3d 1500, 1512 (10th Cir. 1995). A variance occurs “when the

evidence adduced at trial establishes facts different from those alleged in an

indictment.” United States v. W indrix, 405 F.3d 1146, 1153 (10th Cir. 2005)

(quotation and citation omitted). “[A] variance, without more, will not warrant

relief as long as the proof corresponds to an offense clearly charged in the

indictment because the defendant will have had notice of that charge and cannot

claim prejudice.” W illiamson, 53 F.3d at 1513.




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      Because Lopez unambiguously had notice of the charges for which he was

convicted, he is not entitled to relief. The superceding indictment included the

time and place of the offense, as well as the names of the aliens and the type of

vehicle in which they were traveling. As discussed below, the prosecution

introduced testimony showing that Lopez was to be paid for transporting the

aliens to show motive or as res gestae. W hether the evidence adduced at trial also

could have supported a conviction for a crime carrying a stiffer penalty is

irrelevant.

      Lopez further contends that evidence of payment was inadmissible even if

it did not create a variance. W e review the trial court’s evidentiary rulings for

abuse of discretion. United States v. Gorman, 312 F.3d 1159, 1162 (10th Cir.

2002). Fed. R. Evid. 404(b) precludes evidence of “other crimes, wrongs, or acts

. . . to prove the character of a person in order to show action in conformity

therewith.” However, it allows such evidence to prove motive, knowledge, or

lack of mistake. Id. Here, evidence that the illegal aliens planned to pay Lopez

substantially inflated transportation fees w as properly admitted to show Lopez’s

motive and his knowledge that the individuals were in the country illegally.

Testimony that passengers came into contact with Lopez through business cards

was properly admitted as res gestae. M oreover, because its probative value was

not substantially outweighed by its prejudicial effect, admission of this evidence

did not violate Fed. R. Evid. 403.

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      Lopez also argues that the admission of Agent Zuniga’s testimony was

improper under Fed R. Crim. P. 403 and 404(b). Again, this evidence was

properly admitted to show Lopez’s knowledge that the individuals in the van were

illegal aliens – the central issue at trial. The fact that Lopez had admitted to

being an illegal alien showed that the California birth certificate he presented

during the traffic stop was false, which in turn, indicates that Lopez knew he was

comm itting a crime and was attempting to conceal his identity. M oreover, the

court provided a limiting instruction directing the jury to consider evidence of

Lopez’s prior bad acts only for certain enumerated, permissible purposes.

      Finally, Lopez claims the presence of a box labeled “OK Bomb VZB”

unfairly prejudiced his defense. W hen a defendant objects to the presence of a

courtroom item, we must first determine whether its presence was “inherently

prejudicial.” Holbrook v. Flynn, 475 U .S. 560, 570 (1986). The record before us,

however, is insufficient to make this determination because we do not know

whether the jurors actually saw the box. Nothing in the record indicates the size

of the lettering or the orientation of the box, and Lopez declined the court’s offer

to poll the jurors. W e will not presume facts in favor of an appellant, especially

when that appellant rejected the court’s invitation to establish a sufficient record.

Accordingly, we must affirm the district court on this point. Scott v. Hern, 216

F.3d 897, 912 (10th Cir. 2000) (“W here the record is insufficient to permit review

we must affirm.”).

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AFFIRM ED.


             ENTERED FOR THE COURT



             Carlos F. Lucero
             Circuit Judge




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