     Case: 11-41382       Document: 00512213617         Page: 1     Date Filed: 04/18/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 18, 2013

                                       No. 11-41382                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

HUGO CRUZ,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:11-CR-494-1


Before REAVLEY, JOLLY, and SMITH, Circuit Judges.
PER CURIAM:*
       Hugo Cruz was indicted for conspiracy and possession with intent to
distribute in excess of 50 kilograms of marijuana in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(C), and 846. A jury convicted him on both counts. On
appeal, Cruz argues that the government violated Brady v. Maryland, 373 U.S.
83 (1963), by failing to disclose that one of its witness’s visa did not allow him to
be lawfully employed in the United States. Additionally, Cruz challenges the
admission of a Michigan state trooper’s testimony regarding Cruz’s prior drug-

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                      No. 11-41382

related arrest and conviction under Federal Rules of Evidence 403 and 404(b),
arguing that the evidence was irrelevant and its probative value was outweighed
by its tendency to prejudice the jury.1           Concluding that the district court
committed no error, we AFFIRM.
                                             I.
       The government alleged that in June 2010, Cruz offered to pay Marco
Toledo $10,000 to help him smuggle marijuana from Mexico into the United
States. The plan called for Cruz and Toledo to drive a van from Chicago, Illinois,
to Guadalajara, Mexico. Hidden compartments in the van would be loaded with
marijuana in Mexico, Toledo would drive the van back to the United States, and
Cruz would fly back to Chicago. The van was a 1997 Ford registered to Cruz’s
father, Andres Cruz.
       Evidence showed that Cruz transferred title to the van to Toledo and
procured insurance for the van before the pair left Chicago. Cruz and Toledo
drove the van to Mexico. The van was loaded with marijuana under the
supervision of both Cruz and Toledo. Toledo attempted to drive the van back to
the United States, but he was apprehended. Toledo confessed, pled guilty, and
testified against Cruz. Cruz’s counsel argued that Toledo’s testimony would not
be worthy of belief because he was a convicted drug smuggler who was trying
desperately to decrease his sentence by providing assistance to the prosecution.
       One of the government witnesses at Cruz’s trial was Guillermo Gonzalez
Perales (“Gonzalez”). Gonzalez, through an interpreter, testified that he was
currently employed by the Magnum Insurance Agency in North Aurora, Illinois,
and had been in June 2010, when Cruz came in to buy insurance for the van. He
testified that Cruz came in with one or two other men. Gonzalez stated that


       1
        Cruz also asserts cumulative error, but there clearly was no accumulation of errors
necessitating reversal in this case under our caselaw. See United States v. Delgado, 672 F.3d
320, 343-44 (5th Cir. 2012) (en banc), cert denied, 133 S. Ct. 525 (2012).

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                                  No. 11-41382

Cruz purchased policies for Illinois and for Mexico to cover the van, with the title
holder being Toledo. Gonzalez testified that he often sold insurance policies to
one person for the benefit of another without seeing identification from the
beneficiary.
      The other evidence relevant to this appeal was the testimony of Michigan
state trooper John Norvell. Norvell testified that when Cruz was 16 years old
he was found driving a vehicle with approximately three pounds of cocaine
concealed in a speaker box in the trunk.         The district court allowed the
government to introduce evidence of the prior incident to show Cruz’s knowledge
and intent. Cruz’s timely objection to the admission of this evidence under Rules
403 and 404(b) was overruled.
      Following the trial, the jury convicted Cruz on both counts of the
indictment. Cruz filed a motion for a new trial, alleging the existence of newly
discovered evidence that had been withheld in violation of Brady. Specifically,
Cruz asserted that the government withheld information that Gonzalez was an
alien in violation of the terms of his visa, was potentially using false documents
to secure employment, and had not been prosecuted criminally or had any
adverse immigration action taken against him. The district court denied Cruz’s
motion, and the case proceeded to sentencing. Cruz was sentenced to 51 months
of imprisonment on each count, to run concurrently. The district court also
imposed three- and two-year concurrent terms of supervised release. Cruz
timely appealed.
                                        II.
      We first address Cruz’s Brady claim. Cruz argues that the government
violated Brady by failing to disclose that Gonzalez’s immigration status under
a “B1-B2” visa would not have permitted him legally to work in the United
States—meaning that Gonzalez was illegally working at the insurance agency
when he sold Cruz insurance for the van in which the marijuana was discovered.

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                                       No. 11-41382

Assuming arguendo that Gonzalez’s immigration status—whether he was in
violation of the terms of his visa—constitutes permissible impeachment
evidence, Cruz nevertheless fails to show that the admission of such evidence
would have had a material effect on the outcome of his trial.
       We review alleged Brady violations de novo, but “we must proceed with
deference to the factual findings underlying the district court’s decision.” United
States v. Brown, 650 F.3d 581, 589 (5th Cir. 2011) (citation omitted), cert. denied,
132 S. Ct. 1969 (2012). “To establish a Brady violation, the defendant must
prove that (1) the prosecution suppressed evidence, (2) it was favorable to the
defendant, and (3) it was material.” Id. at 587-88. “There is no difference
between exculpatory and impeachment evidence for purposes of Brady . . . but
it must, somehow, create a reasonable probability that the result of the
proceeding would be different.” Id. at 588. “A ‘reasonable probability’ exists
when the government’s suppression of evidence ‘undermines confidence in the
outcome of the trial.’ To prove a reasonable probability of a different result, the
‘likelihood of a different result must be substantial, not just conceivable.’” Id.
(citations omitted).
       At the outset we note that we have serious doubts about whether the
prosecution suppressed evidence in the instant case.2 But, even if Gonzalez’s
immigration status was suppressed, there is no likelihood of a different result.
Gonzalez was called to testify for the limited purpose of corroborating Toledo’s
testimony that Cruz had purchased the insurance for the van in Toledo’s name.


       2
         The district court did not make a finding that no evidence had been suppressed, but
we note that the prosecutor informed defense counsel that, (1) the witness would be called, (2)
he was in the country pursuant to a B1-B2 visa, (3) the government had had issues with his
social security number, and (4) defense counsel could question him before he took the stand.
Defense counsel opted not to question Gonzalez beforehand and did not inquire about his
immigration status while he was on the stand. Indeed, counsel noted that she was unaware
about the relevance of a B1-B2 visa until after the trial. Whether the government suppressed
evidence under these facts certainly is questionable, but we need not resolve the issue here.

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                                  No. 11-41382

As such, his testimony was brief. Cruz’s argument in favor of materiality is that
because Gonzalez corroborated the testimony of Toledo—the key witness whose
credibility was central to the trial—whether Gonzalez was being given leniency
on his immigration violation in exchange for his testimony could have altered
the jury’s determination of Toledo’s credibility. But, as the district court noted,
Gonzalez was a neutral witness with no preexisting personal relationship with
either Cruz or Toledo.       Although arguably conceivable that Gonzalez’s
immigration status could have affected the jury’s credibility determination, Cruz
has failed to show that such limited impeachment evidence of a neutral,
tangential witness was substantially likely to produce a different result. No
Brady violation occurred in this case.
                                         III.
      Next, we turn to Cruz’s claim that the district court erred in admitting
evidence of his past drug arrest in violation of Federal Rules of Evidence 403 and
404(b).
      “Where the party challenging the trial court’s evidentiary ruling makes a
timely objection, we review the ruling under an abuse of discretion standard.”
United States v. Sumlin, 489 F.3d 683, 688 (5th Cir. 2007). “In a criminal case,
review of the lower court’s evidentiary rulings is necessarily heightened.” Id.
Rule 404(b) states:
      Other Crimes, Wrongs, or Acts. . . . Evidence of a crime, wrong, or
      other act is not admissible to prove a person’s character in order to
      show that on a particular occasion the person acted in accordance
      with the character. . . . This evidence may be admissible for another
      purpose, such as proving motive, opportunity, intent, preparation,
      plan, knowledge, identity, absence of mistake, or lack of accident.
“Rule 404(b) only applies to limit the admissibility of evidence of extrinsic acts.”
Sumlin, 489 F.3d at 689. “First, it must be determined that the extrinsic
evidence is relevant to an issue other than the defendant’s character. Second,


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                                  No. 11-41382

the evidence must possess probative value that is not substantially outweighed
by its undue prejudice and must meet the other requirements of Rule 403.”
United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc); see also
United States v. Heard, 709 F.3d 413, 429-30 (5th Cir. 2013) (citing Beechum).
      Cruz timely objected to the district court’s admission of the evidence; we
thus review for an abuse of discretion. Officer Norvell testified about Cruz’s
1998 arrest, where he was charged with possession with intent to deliver “50 to
225 grams of cocaine.” Although Cruz pled to a lesser offense, the evidence was
undisputed that approximately three pounds of cocaine was found hidden in a
speaker box in the trunk of the car that Cruz was driving. The district court
found that evidence of the prior offense went to Cruz’s intent or knowledge.
      Cruz argued at trial, and again on appeal, that the evidence was highly
prejudicial, dissimilar from the events at issue in the instant case, and too
remote to be probative because it occurred 13 years earlier when Cruz was a
juvenile. Although the evidence arguably is prejudicial, the district court did not
abuse its discretion in admitting the officer’s testimony.
      First, the evidence is relevant despite the difference in the type of drug
discovered. See FED. R. EVID. 401 (“Evidence is relevant if . . . it has any
tendency to make a fact more or less probable than it would be without the
evidence; and . . . the fact is of consequence in determining the action.”). The act
of concealing more than 50 kilograms of marijuana in hidden compartments in
a passenger van certainly is similar to Cruz’s earlier arrest involving cocaine
surreptitiously hidden in a speaker box in the trunk of a car. As such, the
district court did not abuse its discretion in concluding that the prior act was
relevant to Cruz’s knowledge and intent in the instant case. See United States
v. Pompa, 434 F.3d 800, 805 (5th Cir. 2005) (“In a drug-trafficking case, the issue




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                                       No. 11-41382

of intent is always material.”).3 Second, the district court did not abuse its
discretion in finding that the probative value was “not substantially outweighed
by its undue prejudice.” Beechum, 582 F.2d at 911. In assessing probative value
and the risk of undue prejudice, courts “make a ‘commonsense assessment of all
the circumstances surrounding the extrinsic offense.’” United States v. Cockrell,
587 F.3d 674, 678 (5th Cir. 2009) (citation omitted). And, “Rule 403 ‘would seem
to require exclusion only in those instances where the trial judge believes that
there is genuine risk that the emotions of the jury will be excited to irrational
behavior, and that this risk is disproportionate to the probative value of the
offered evidence.’” Id. at 679 (quoting Beechum, 582 F.2d at 915 n.20). In this
case, the district court carefully weighed the evidence and gave the jury multiple
limiting instructions designed to reduce the potential for unfair prejudice. We
thus conclude that the district court committed no error in admitting Officer
Norvell’s testimony.
                                             IV.
       For the foregoing reasons, the judgment of the district court is
                                                                              AFFIRMED.




       3
        Additionally, and contrary to Cruz’s argument, the time gap between the earlier arrest
and the instant offense is not a per se bar to its relevance or probative value. United States
v. Cockrell, 587 F.3d 674, 680 (5th Cir. 2009) (“Although remoteness of the extrinsic acts
evidence may weaken its probative value, the age of the prior conviction does not bar its use
under Rule 404.” (quoting United States v. Broussard, 80 F.3d 1025, 1040 (5th Cir. 1996))
(internal quotation marks omitted)).

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