                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         OCT 18 2000
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                     No. 99-2264
                                                  (D.C. No. 99-CR-7-LH)
 PASQUAL CERPA,                                  (District of New Mexico)

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before EBEL, PORFILIO, and LUCERO, Circuit Judges.




      Pasqual Cerpa appeals his conviction for distribution of crack cocaine in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2. Mr. Cerpa

challenges: 1) the admission of testimony concerning previous drug sales he

made to the government’s chief witness, Thomas Chavez, as intrinsic to the crime

charged; 2) the admission of testimony of undercover Officer Matthew Lujan


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
about a previous purchase of crack cocaine from Mr. Cerpa; 3) the sufficiency of

the evidence supporting his conviction; and 4) the calculation used to determine

the amount of cocaine for which he was sentenced. After a review of the record,

we conclude the district court’s mischaracterization of certain evidence as

intrinsic and the resulting lack of a limiting instruction did not prejudice Mr.

Cerpa. None of Mr. Cerpa’s other challenges have merit.

      On December 15, 1998, the Albuquerque, N.M., police conducted

undercover operations at the Bow and Arrow Motel, a location reputed for crack

cocaine distribution. Albuquerque Police Officers Matthew Lujan and Herman

Martinez contacted Thomas Chavez and asked if he could get them crack cocaine.

Mr. Chavez said he would. The officers gave Mr. Chavez a previously

photocopied twenty-dollar bill and watched him go to room 18, knock on the

door, and enter. Shortly after, Mr. Chavez rejoined the police officers in the

parking lot and delivered to them a rock of crack cocaine. Upon delivery of the

cocaine, Mr. Chavez was arrested, and officers entered room 18 and arrested

Leslie Mora and Pasqual Cerpa. Ms. Mora had in her pocket the pre-identified

twenty-dollar bill. Officers located additional cocaine on Ms. Mora and in a

small box belonging to her. A search of the room revealed male clothing and

some female clothing, but no other contraband.




                                         -2-
      At trial, Mr. Chavez testified when he approached room 18 of the Bow and

Arrow, Ms. Mora answered the door and allowed him to enter. Mr. Cerpa was

present. Mr. Chavez stated he purchased crack cocaine from Ms. Mora while Mr.

Cerpa watched. During the transaction, Ms. Mora addressed a question in

Spanish to Mr. Cerpa, to which he replied “okay.” Mr. Cerpa was convicted and

the district court imposed a sentence of seventy-eight months’ incarceration to be

followed by three years of supervised release. Mr. Cerpa then filed timely notice

of this appeal.

      Mr. Cerpa first contends the district court erred in characterizing as

intrinsic evidence Mr. Chavez’s testimony about previous drug transactions with

Mr. Cerpa at the Bow and Arrow. In addition to describing the sale of

December 15, Mr. Chavez also testified that he had purchased crack cocaine

directly from Mr. Cerpa on no less than fifty occasions at the Bow and Arrow

Motel. The district court admitted this evidence as intrinsic to the sale of

December 15. Mr. Cerpa argues that because any previous transactions were

separate and distinct, not part of the sale in question, the evidence was not

intrinsic and Mr. Chavez’s testimony constituted impermissible character

evidence inadmissible under Fed. R. Evid. 404(b).




                                         -3-
      Federal Rule of Evidence 404(b) provides, “[e]vidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in order to

show action in conformity therewith,” but may be admitted for a proper purpose if

reasonable notice is given. Rule 404(b) only applies to evidence of acts extrinsic

to the crime charged. United States v. Lambert, 995 F.2d 1006, 1007 (10th Cir.

1993) (emphasis added). Direct or intrinsic evidence of the crime charged does

not fall within the ambit of the rule. We have held that evidence of other acts is

intrinsic when evidence of the other acts and evidence of the charged crime “are

inextricably intertwined or both acts are part of a single criminal episode or the

other acts were necessary preliminaries to the crime charged.” Id. Also,

evidence is intrinsic “if the witness’ testimony would be incomplete or confusing

without it.” United States v. Record, 873 F.2d 1363, 1372 (10th Cir. 1989). We

review the characterization of Mr. Chavez’s testimony as intrinsic for an abuse of

discretion. United States v. Green, 175 F.3d 822, 831 (10th Cir. 1999).

      It is clear that the prior drug transactions between Mr. Chavez and Mr.

Cerpa, spread out over six months, did not combine with the sale of December 15

to form a “single criminal episode.” The sale of December 15 was a separate

incident prompted by Officer Lujan’s asking Mr. Chavez to obtain crack cocaine

for him. Nor are the prior sales somehow “inextricably intertwined” with the sale




                                        -4-
of December 15; they are logically separable from this sale. Indeed, the sale of

December 15 can be coherently discussed without any mention of the prior sales.

      In a minimal sense, the prior sales of cocaine from Mr. Cerpa to Mr.

Chavez were “necessary preliminaries” to the sale of December 15 because they

provided Mr. Chavez with the knowledge of where to get crack cocaine.

Nevertheless, this knowledge is not the sort of logical precursor indicated by

“necessary preliminaries.” The prior sales were not preparations, planning, or

initial steps in the events of December 15; they were instead merely similar

transactions and relationships among the actors who happened to be involved in

the sale of December 15. See United States v. Sullivan, 919 F.2d 1403, 1412-13

(10th Cir. 1990).

      While the testimony concerning prior sales does provide context for the

transaction of December 15 and Mr. Cerpa’s alleged role, Mr. Chavez’s testimony

would not be incomplete or confusing without it. The tale is coherent without

mention of prior sales. The sale by Ms. Mora to Mr. Chavez in room 18 and the

contemporaneous presence and conversation with Mr. Cerpa are clearly

established by Mr. Chavez’s testimony without reference to prior transactions

among the participants. Thus, the testimony offered by Mr. Chavez of prior drug

transactions with Mr. Cerpa fits none of the characteristics of intrinsic evidence

defined by our previous cases.


                                        -5-
      Moreover, the government itself provides reason to categorize Mr.

Chavez’s testimony as Rule 404(b) rather than intrinsic evidence. The

government proffers this portion of Mr. Chavez’s testimony, at least in part, “to

show Cerpa’s continuing plan (to sell crack cocaine from the Bow and Arrow to

previous customers) and mode of operation (use of the motel and refusing to sell

in presence of persons he did not know).” We note that these evidentiary

purposes, continuing plan and mode of operation, are classic examples of just the

sort of evidence that Rule 404(b) governs. 1 To achieve these evidentiary purposes

the government must subject its evidence to the inquiry mandated by Rule 404(b)

and to the limiting instruction that would accompany such a submission. The

district court erred in allowing this testimony as intrinsic to the charged crime.

      Nevertheless, for two reasons, the district court’s admission of this

evidence does not change our disposition. First, the remedy for the district

court’s error would have been a limiting instruction to the jury on the allowable

uses for Mr. Chavez’s testimony. As appellant’s counsel conceded in oral

argument, the jury could have reached the same verdict despite such an



      1
         Rule 404(b) provides that evidence of prior bad acts is admissible for
purposes other than to show action in conformity with character. Such purposes
include, but are not limited to: proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.

                                         -6-
instruction. Second, and more important, the evidence against Mr. Cerpa

supported a conviction even if Mr. Chavez’s testimony about the prior sales had

been excluded entirely. For these reasons then, we believe although the district

court abused its discretion in allowing Mr. Chavez’s testimony without a limiting

instruction, it did not prejudice Mr. Cerpa.

      Mr. Cerpa also raises a challenge to the district court’s admission of

Officer Lujan’s testimony about his previous crack cocaine purchase from Mr.

Cerpa. After Mr. Cerpa’s arrest, Officer Lujan realized that he had previously

purchased crack cocaine from him at the Bow and Arrow Motel on September 9,

1998. 2 The United States served notice of intent to introduce Officer Lujan’s

testimony about this incident against Mr. Cerpa pursuant to Rule 404(b). The

testimony was admitted at trial with a limiting instruction. Mr. Cerpa contends

the evidence was improper character evidence barred by Rule 404(b). The

district court rejected this argument and found the evidence properly admissible.




      2
         No arrest arose from this incident because the Albuquerque police were
unable to locate the suspect after the purchase. Officer Lujan purchased the
cocaine in the outside area of the motel, watched while Mr. Cerpa went into room
5 to retrieve it, and asked him for a pager number. Mr. Cerpa had no number, but
told the officer to return to the Bow and Arrow if he wanted to purchase more.
One hour later, officers were unable to locate Mr. Cerpa for arrest, nor did they
have his name.

                                         -7-
      In reviewing the district court’s admission of the controverted evidence,

we apply a four-part test examining whether: (1) the prosecution offered the

evidence for a proper purpose under Rule 404(b); (2) the evidence is relevant

under Fed. R. Evid. 401; (3) the evidence’s probative value is not substantially

outweighed by its potential for unfair prejudice under Fed. R. Evid. 403; and (4)

the district court, upon request, gave a proper instruction limiting the jury’s

consideration of the evidence to the purpose for which it was admitted. United

States v. Segien, 114 F.3d 1014, 1022-23 (10th Cir. 1997) (citing Huddleston v.

United States, 485 U.S. 681, 691 (1988)).

      Here, the district court found the testimony was offered for a proper

purpose: to show intent and knowledge. In evaluating the relevance of prior

narcotics involvement in a subsequent narcotics case, we have noted that prior

narcotics involvement is relevant when that conduct is “close in time, highly

probative, and similar to the activity with which the defendant is charged.”

United States v. Wilson, 107 F.3d 774, 785 (10th Cir. 1997). The sale testified to

by Officer Lujan took place just more than three months prior to the sale of

December 15, which is sufficiently close in time. The sale involved the same

drug, in similar quantities, at the same motel, using similar terminology, making

the evidence highly probative of Mr. Cerpa’s knowledge and intent, and similar

activity. Moreover, the evidence is highly probative, and its probative value is


                                         -8-
not substantially outweighed by danger of unfair prejudice. The district court

gave an appropriate limiting instruction after the evidence was admitted. The

district court’s decisions were in accord with the law and procedure of this Circuit

and certainly not an abuse of discretion.

         In assessing a claim of insufficient evidence to sustain a conviction, we

review the entire record de novo in the light most favorable to the government to

determine whether a reasonable jury could find guilt beyond a reasonable doubt,

based on the direct and circumstantial evidence, together with reasonable

inferences to be drawn therefrom. United States v. Jenkins, 175 F.3d 1208, 1215

(10th Cir. 1999). The evidence must be substantial, raising more than a mere

suspicion of guilt. United States v. Anderson, 189 F.3d 1201, 1205 (10th Cir.

1999).

         Mr. Cerpa was charged with knowingly and intentionally distributing

cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), as a principal,

and as an aider and abetter, 18 U.S.C. § 2. A conviction under either theory is of

equal consequence to Mr. Cerpa, so the government need only demonstrate

evidence that would allow a conviction as an aider and abetter. To ground

liability as an aider and abetter, the government must show the defendant

deliberately associated himself with the crime in some way and participate in it




                                           -9-
with the intent to bring about the crime. United States v. Green, 175 F.3d 822,

832 (10th Cir. 1999).

      Construing the evidence in favor of the government, even entirely

disregarding the testimony of Mr. Chavez about previous sales, leaves little room

to doubt that a rational jury could have convicted Mr. Cerpa of aiding and

abetting in the sale of December 15. Mr. Cerpa furnished the room that was the

scene of the transaction in a motel known as a locus of the drug trade. When Ms.

Mora sold the cocaine to Mr. Chavez, Mr. Cerpa was in a position to observe

what she was doing. The expert testimony of Officer Lujan at trial, unchallenged

by the appellant, established that some dealers habitually had others, particularly

women, handle their drugs for them. Moreover, Officer Lujan’s testimony about

the sale of September 9, 1998, demonstrates Mr. Cerpa’s knowledge and intent to

deal crack cocaine from the Bow and Arrow. The evidence, taken as a whole, is

enough to ground a reasonable jury’s decision that the government had carried its

burden on Mr. Cerpa’s association with the crime and desire for its success.

      The government has the burden of establishing by a preponderance of the

evidence the quantity of drugs for which Mr. Cerpa is responsible. We review the

district court’s calculation of that amount as a finding of fact which will be set

aside only if it is clearly erroneous. Id. at 835.




                                         - 10 -
      Here, the district court calculated the amount of cocaine attributable to Mr.

Cerpa as at least 8 grams. It did so by accepting the testimony of Mr. Chavez that

he had bought crack cocaine from Mr. Cerpa at least fifty times, and using the

December 15 purchase of .16 grams as the average weight of those purchases (50

x .16 = 8). Mr. Cerpa protests the only weight attributable to him is the .16 grams

of December 15 and the testimony of Mr. Chavez is “unreliable, unbelievable and

unverifiable.” The determination of credibility, however, is made in the district

court by the finder of fact. It has no place on appeal.

      As finder of fact in this instance, the district court was in a position to

evaluate Mr. Chavez’s testimony directly, and its determination of his credibility

is entitled to considerable deference. United States v. Cook, 949 F.2d 289, 297

(10th Cir. 1991). Mr. Chavez’s testimony was not contradicted by extrinsic

evidence nor was it internally inconsistent or implausible on its face. There is no

clear error here.

      AFFIRMED.

                                        ENTERED FOR THE COURT

                                        John C. Porfilio
                                        Senior Circuit Judge




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