                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 27, 2008
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 07-2152
          v.                                           (D. New Mexico)
 LUIS ZARATE-NAJERA,                            (D.C. No. CR-02-1865-MCA)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel 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). In its prior

Order dated February 28, 2008, this case was therefore ordered submitted without

oral argument.

      Defendant and appellant, Luis Zarate-Najera, was charged with one count

of possession with intent to distribute more than fifty kilos of marijuana, in


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2. Following a

jury trial, Zarate-Najera was found guilty and sentenced to fifty-one months’

imprisonment. He appeals the district court’s denial of his motion for a mistrial,

made during the course of his trial in response to an allegedly prejudicial remark

by a government witness. We affirm.



                                 BACKGROUND

      In the evening of July 23, 2002, Zarate-Najera drove a Chevrolet pickup

truck with Texas dealer plates into the United States Border Patrol checkpoint on

New Mexico Highway 54, south of Alamogordo, New Mexico. A Border Patrol

agent noticed that the truck’s gas tank had tool marks on it and was covered in

sand. The agent became suspicious because the tool marks suggested that

someone had tampered with the gas tank. When asked where he was going,

Zarate-Najera responded that he was going to a pizza restaurant in Alamogordo to

pick up a car. The agent then inquired as to who owned the truck, and Zarate-

Najera told him that the truck belonged to Zarate-Najera’s father. When asked for

the truck’s registration, Zarate-Najera said he did not have the registration.

      The agent then sought and received consent from Zarate-Najera to search

the truck. Zarate-Najera and his truck were referred to the secondary inspection

point, where another agent inserted a fiberoptic scope into the gas tank and

observed a metal box inside the tank. After dismantling the gas tank, the agents

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found three metal containers containing 150 pounds of marijuana, with a street

value of approximately $73,000. When the Border Patrol agents searched the

interior of the truck, they found a sales contract indicating that “Saul and Blanca

Sanchez” owned the vehicle.

      After his arrest, Zarate-Najera told agents that Saul Sanchez owned the

truck and described the vehicle Sanchez was driving. Zarate-Najera also admitted

that he knew that the marijuana was in the truck he was driving, but claimed that

Sanchez had forced him to drive the load. Shortly thereafter, Sanchez drove

through the Border Patrol checkpoint where Zarate-Najera was detained. Agents

followed him and stopped him several miles north of the checkpoint. Sanchez

agreed to return to the checkpoint with the agents for questioning.

      At Zarate-Najera’s trial, the government called Sanchez as a witness. 1

Sanchez testified that he had known Zarate-Najera for ten years and that he had

asked Zarate-Najera to help him smuggle marijuana through the United States

Border checkpoint. Of particular relevance to this appeal is the following

exchange between the prosecutor and Sanchez: when the prosecutor asked

Sanchez to explain “what arrangements [he] made with Mr. Zarate,” Sanchez

responded, “I knew Zarate prior to this. We – he showed me to a gentleman that

he was dealing with on meth, and he went and introduced me to that man.” Tr. of

Jury Trial at 75, Appellee’s Supp. App. at 35.

      1
          Sanchez pled guilty and agreed to cooperate with the government.

                                         -3-
      Defense counsel objected to the testimony, and the court ordered both

counsel to approach the bench, where defense counsel moved for a mistrial. The

court responded that the statement “came in by mistake, obviously,” id., and then

stated that the testimony would be stricken from the record. Defense counsel

asked the court to instruct the jury to disregard Sanchez’s statement. At the

conclusion of the bench conference, and without objection, the court instructed

the jury as follows: “I’m going to strike this witness’ testimony in regard to his

most recent response, and I’d ask that you not consider anything he may have said

at this point.” Id. at 113.

      Sanchez went on to testify that the plan called for Zarate-Najera to drive

the truck with the marijuana to the pizza restaurant in Alamogordo, from where

Sanchez would drive the truck to Memphis, Tennessee, and deliver the marijuana

to the buyer. Sanchez said he agreed to pay Zarate-Najera $2000 for his

assistance, and that Zarate-Najera, whose family owns a car dealership, would

supply the dealer license plates for the truck. Sanchez further testified that, in the

early evening of July 23, 2002, Sanchez, driving his own car, and Zarate-Najera,

driving the pickup truck containing the marijuana, left El Paso, Texas, and headed

north on Highway 54. During the trip, Sanchez’ car overheated and he was forced

to stop at a gas station to cool down the car for ten minutes. Sanchez then

proceeded to the border checkpoint, where he saw that Zarate-Najera’s truck had




                                          -4-
been stopped. As indicated above, Sanchez was ultimately stopped a few miles

north of the check point.

       Zarate-Najera testified that he agreed to help Sanchez transport the drugs

because Sanchez threatened him. Zarate-Najera further stated that he had

borrowed $10,000 from Sanchez, which he was unable to repay, and that, because

of this debt, Sanchez beat him and threatened to harm Zarate-Najera and his

family if he did not drive the drug load through the checkpoint.

       The jury returned a guilty verdict, and Zarate-Najera was sentenced to

fifty-one months’ imprisonment. He timely appealed. Zarate-Najera’s sole

argument on appeal is that “for a government witness to allege prior dealings with

the Defendant in regard to a much stronger controlled substance than the one

alleged in the indictment is such an egregious error and so prejudicial that it is

error for the district court not to have declared a mistrial.” Appellant’s Op. Br. at

6-7.



                                   DISCUSSION

       “A trial court may appropriately grant a mistrial only when a defendant’s

right to a fair and impartial trial has been impaired; a decision we review for an

abuse of discretion.” United States v. Caballero, 277 F.3d 1235, 1242 (10th Cir.

2002). “‘Whether a motion for mistrial should be granted is within the discretion

of the trial judge because he is in the best position to evaluate the effect of the

                                          -5-
offending evidence on the jury.’” United States v. Meridyth, 364 F.3d 1181, 1183

(10th Cir. 2004) (quoting United States v. Laymon, 621 F.2d 1051, 1053 (10th

Cir. 1980)). We have further noted that motions for a mistrial “call for an

examination of the prejudicial impact of an error or errors when viewed in the

context of an entire case.” Id. (further citation omitted). To that end, “where the

prosecutor ask[s] a question [a] witness answer[s] in a potentially improper way,

. . . [t]he relevant factors . . . include (1) whether the prosecutor acted in bad

faith, (2) whether the district court limited the effect of the improper statement

through its instructions to the jury, and (3) whether the improper remark was

inconsequential in light of the other evidence of the defendant’s guilt.” Id.

        Applying those factors to this case, we easily conclude that the district

court did not abuse its discretion in declining to declare a mistrial. First, there is

no evidence that the government acted in bad faith in questioning Sanchez. As

the district court observed, Sanchez’s remark “came in by mistake.” Second, the

district court gave a curative instruction, specifically telling the jury to disregard

Sanchez’s remark. “Jurors are presumed to follow their instructions.” Id. at 1184

(citing Weeks v. Angelone, 528 U.S. 225, 234 (2000)). Finally, there was ample

evidence of Zarate-Najera’s guilt. Zarate-Najera admitted he knew he was

transporting marijuana; his only defense was that Sanchez coerced him into doing

it. Thus, it is highly unlikely that Sanchez’s statement had any affect upon the

jury.

                                           -6-
                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s denial of Zarate-

Najera’s motion for a mistrial.

                                             ENTERED FOR THE COURT


                                             Stephen H. Anderson
                                             Circuit Judge




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