                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       September 20, 2006
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                            __________________________                     Clerk of Court

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

          Plaintiff - Appellee,

 v.                                                       No. 05-4100
                                                            (D. Utah)
 SA NTOS SA LAZAR-GARCIA, aka                     (D.Ct. No. 2:04-CR-198-PGC)
 Rafael Lopez-Parra, aka Julian Torres,
 aka Jose Rafael Garcia-Perez, aka
 Daniel Casaress, aka Jose Lopez,

          Defendant - Appellant.
                         ____________________________

                              OR D ER AND JUDGM ENT *


Before KELLY, O’BRIEN, and TYM KOVICH, Circuit Judges.




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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      On April 7, 2004, Santos Salazar-G arcia and his common-law wife, Gloria



      *
          This order and judgment is not binding precedent except under the doctrines of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.
Barragan-Cerna, were indicted on two counts of possession of controlled

substances with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18

U.S.C. § 2. Barragan-Cerna pled guilty to one count of the indictment, leaving

Salazar-Garcia as the sole defendant at trial. The government then filed a

superseding indictment against Salazar-G arcia, adding charges for conspiracy to

distribute marijuana in violation of 21 U.S.C. § 846 and illegal reentry after

deportation in violation of 8 U.S.C. § 1326. After a two day trial, the jury

returned a guilty verdict on all four counts. Salazar-Garcia was sentenced to 240

months imprisonment. On appeal, he argues the trial court erred by admitting at

trial a comment Salazar-Garcia made to his wife while they were being detained.

W e AFFIRM .

I. Background

      Salazar-Garcia and Barragan-Cerna were stopped by a Utah Highway Patrol

trooper for speeding. After checking Salazar-G arcia’s license (subsequently

determined to contain a fictitious name) and vehicle registration, the officer

realized the vehicle was not registered to either Salazar-Garcia or Barragan-

Cerna. During the course of the stop, both Salazar-Garcia and Barragan-Cerna

appeared nervous. The officer also observed the vehicle had been freshly painted

and had new carpeting. He also noticed loose screws sitting in the vehicle and a

strong odor of car fresheners and coffee grounds. The officer asked Salazar-

Garcia if there were drugs in the car, which he denied. The officer then obtained

                                         -2-
Salazar-Garcia’s consent to search the vehicle. W hile examining the rear of the

vehicle, the officer discovered a hidden compartment containing drugs, later

determined to be 51.81 kilograms of marijuana and eleven kilograms of cocaine.

      The officer arrested the pair and advised them of their rights. They were

transported to the Juab County Jail, where they were searched and detained in

separate holding cells. Two D rug Enforcement Administration (DEA) agents,

with the aid of a Spanish interpreter, were set to interview Salazar-Garcia and

Barragan-Cerna separately, starting with Barragan-Cerna. As Barragan-Cerna

was escorted from her holding cell, she passed Salazar-Garcia’s cell which was

across the hall. Salazar-Garcia shouted something to Barragan-Cerna in Spanish.

The interpreter informed the DEA agents that Salazar-Garcia had told Barragan-

Cerna “not to say anything.” (V ol. IV. at 79.) The DEA agents apparently did

not record the encounter in their notes and informed the government attorney of

this statement only a week before trial. Salazar-G arcia w as subsequently

interview ed by the DEA agents and provided some information about himself

before invoking his right to remain silent.

      Prior to trial, Salazar-Garcia objected to the government’s plan to introduce

his comm ent to Barragan-Cerna as evidence of a guilty mind. Relying on Doyle

v. Ohio, 426 U.S. 610 (1976), Salazar-G arcia argued the statement was inherently

ambiguous and should be excluded under Rule 403 of the Federal Rules of

Evidence as it was more prejudicial than probative. The district court rejected

                                         -3-
Salazar-Garcia’s argument and ruled the statement admissible, subject to a

limiting instruction. At trial, the government introduced the statement through

one of the DEA agents who was escorting Barragan-Cerna and to whom the

statement was translated. In its instructions to the jury, the district court stated

Salazar-Garcia “had a right to remain silent and was advised of that right. He

could also inform other people of that right. If you find that he made this

statement, and further that his intent was to inform M s. Barragan-Cerna of her

legal rights, you should completely disregard the statement.” (Vol. I, Doc. 97 at

19.)

II. Discussion

       On appeal, Salazar-Garcia repeats the arguments made to the district court.

He invokes the reasoning of Doyle in support of his argument that his comm ent

should have been excluded under Rule 403 because statements about a

defendant’s right to silence are inherently ambiguous and therefore not

sufficiently probative to outweigh their prejudicial effect.

       W e review decisions to admit evidence under Rule 403 for an abuse of

discretion. United States v. Rodriguez, 192 F.3d 946, 949 (10th Cir. 1999).

“U nder the abuse of discretion standard, we w ill not overturn the district court’s

decision unless we are firmly convinced that the district court made a clear error

of judgment or exceeded the bounds of permissible choice in the circumstances.”

United States v. M agleby, 241 F.3d 1306, 1315 (10th Cir. 2001) (quotations

                                          -4-
omitted), cert. denied, 126 S.Ct. 1879 (2006). In doing so, “we defer to the trial

court’s judgment because of its first-hand ability to view the witness or evidence

and assess credibility and probative value.” M oothart v. Bell, 21 F.3d 1499, 1504

(10th Cir. 1994).

      Rule 403 allows a court to exclude relevant evidence “if its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of time,

or needless presentation of cumulative evidence.” F ED . R. E VID . 403. “The trial

court has broad discretion to determine w hether prejudice inherent in otherwise

relevant evidence outweighs its probative value.” United States v. Youts, 229

F.3d 1312, 1319 (10th Cir. 2000). “Evidence is not unfairly prejudicial simply

because it is detrimental to a party’s case.” M agleby, 241 F.3d at 1315; see also

United States v. M artinez, 938 F.2d 1078, 1082 (10th Cir. 1991) (same). Unfair

prejudice “refers to relevant evidence that has ‘an undue tendency to suggest

decision on an improper basis, commonly, though not necessarily an emotional

one.’” Stump v. Gates, 211 F.3d 527, 538 (10th Cir. 2000) (quoting 1972

Advisory Committee’s N otes to F ED . R. E VID . 403). “W e have stated on

numerous occasions that the exclusion of relevant evidence under Rule 403 is an

extraordinary remedy to be used sparingly.” Wheeler v. John Deere Co., 862 F.2d

1404, 1408 (10th Cir. 1988) (quotations omitted).

      In Doyle, the Supreme Court held that a defendant’s post-arrest post-

                                         -5-
M iranda warning silence could not be used against him at trial, even to impeach.

426 U.S. at 617-18 (discussing M iranda v. Arizona, 384 U.S. 436 (1966)). The

Supreme Court reasoned that a defendant’s post-M iranda warning silence was

“insolubly ambiguous” because “[s]ilence in the wake of these warnings may be

nothing more than the arrestee’s exercise of [his] M iranda rights.” Id. at 617.

       However, as Salazar-G arcia concedes, this is not an actual Doyle situation

because Salazar-Garcia’s words, not his silence, are being used against him. 1

Rather, Salazar-Garcia attempts to extend the reasoning of Doyle to cases where a

defendant comments on his, or another’s, right to silence. The First Circuit

confronted a similar argument in United States v. Lopez-Lopez and held that

“[w ]hen an accused is given his M iranda rights, and then waives those rights by

voluntarily making statements, he may not rely on Doyle to object to the

admission of those statements simply because the statements refer to the act of

keeping silent.” 282 F.3d 1, 12 (1st Cir. 2002) (upholding the admission of one

defendant’s terse “don’t answer” comment to another defendant). W e agree and

find Doyle inapposite to this case.

       This outcome is especially appropriate w here, as here, the defendant’s

comment was not about his or another party’s right to remain silent, but rather a




       1
         We highlight that we are not confronted in this case with the express invocation
of the right to silence by a defendant. At best, it is a comment about the existence of
another’s right to silence.

                                            -6-
comm and to a co-defendant “not to say anything.” (Vol. IV at 79.) W hile the

former might be insolubly ambiguous, the latter clearly allows for the possibility

that the defendant is urging a co-conspirator not to reveal incriminating

information. Thus, a jury is free to infer a guilty mind from a statement by one

defendant to another to not say anything to the police. See Lopez-Lopez, 282 F.3d

at 13 (comment by one defendant that the other should not answer questions

“tends to be incriminating” but is not “powerfully” so).

      Salazar-Garcia concedes his comment to Barragan-Cerna “may infer some

knowledge of guilt but certainly does not present conclusive evidence of his state

of mind.” (Appellant’s Br. at 10.) But providing “conclusive evidence” of a

defendant’s state of mind is not the standard for admissibility. Salazar-Garcia’s

comment to Barragan-Cerna is undoubtedly relevant. See F ED . R. E VID . 401

(“‘Relevant evidence’ means evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.”) (emphasis

added). And Salazar-G arcia provides no basis, other than his unsuccessful Doyle

challenge, to establish that the probative value of admitting his comment is

substantially outweighed by any unfair prejudice resulting from its admission.

See M agleby, 241 F.3d at 1315 (“Evidence is not unfairly prejudicial simply

because it is detrimental to a party's case.”).

      Finally, Salazar-Garcia attempts to attack the main trial evidence

                                          -7-
establishing his state of mind: Barragan-Cerna’s testimony. He invites us to

examine Barragan-Cerna’s credibility by alleging “she had significant motives to

lie.” (Appellant’s Br. at 13.) W e decline to inquire into Barragan-Cerna’s

credibility or to weigh the value of her testimony in the context of this trial. “It is

not the role of an appellate court to consider the credibility of the witnesses or

weigh the conflicting evidence, as these matters are within the exclusive province

of the jury.” United States v. M agallanez, 408 F.3d 672, 682 (10th Cir. 2005),

cert. denied, 126 S.Ct. 468 (2006).

      A FFIR ME D.

                                         Entered by the C ourt:

                                         Terrence L. O ’Brien
                                         United States Circuit Judge




                                           -8-
