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

                                                               FILED
                                                               May 14, 2008
                               No. 07-50769
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

UNITED STATES OF AMERICA

                                         Plaintiff-Appellee

v.

ANNA LILIA SANTACRUZ

                                         Defendant-Appellant


                Appeal from the United States District Court
                     for the Western District of Texas
                        USDC No. 7:06-CR-201-ALL


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
     Anna Lilia Santacruz was convicted by a jury of conspiracy to import,
distribute and possess with intent to distribute fifty grams or more of
methamphetamine.      The district court sentenced her to 262 months of
imprisonment and ten years of supervised release. We affirm.




     *
      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should not be published and is not precedent except under the limited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.
                                     No. 07-50769

      Santacruz first challenges the sufficiency of the evidence. We review de
novo the district court’s denial of a motion for judgment of acquittal. United
States v. Lopez-Urbina, 434 F.3d 750, 757 (5th Cir. 2005).
      We will affirm the jury’s verdict if a reasonable trier of fact could
      conclude from the evidence that the elements of the offense were
      established beyond a reasonable doubt, viewing the evidence in the
      light most favorable to the verdict and drawing all reasonable
      inferences from the evidence to support the verdict.

Id. (quoting United States v. Floyd, 343 F.3d 363, 370 (5th Cir. 2003)). In order
to prove the conspiracy, the Government had to prove beyond a reasonable doubt
“(1) the existence of an agreement between two or more persons; (2) the
defendant’s knowledge of the agreement; and (3) the defendant’s voluntary
participation in the conspiracy.” United States v. Tenorio, 360 F.3d 491, 495 (5th
Cir. 2004).
      At trial the Government offered the testimony of Santacruz’s co-
conspirator Rita Tarango, who testified that she transported the drugs for
Santacruz. The Government also introduced cell phone records that revealed
that Tarango and Santacruz were repeatedly in contact with each other,
including multiple calls during the time Tarango testified that she was
transporting the drugs for Santacruz.         The Government introduced other
evidence, in particular border crossing records and a receipt, that supported
aspects of Tarango’s testimony.
      Santacruz argues that Tarango’s testimony was inherently unreliable.
She notes that Tarango did not implicate her at first and had a motive to lie in
order to lower her sentence. She adds that Tarango had a prior felony conviction
for forgery and was a known drug user. She argues that the only real evidence
of any link between her and Tarango were the cell phone records. She contends
that there was no evidence, other than Tarango’s testimony, of the content of the
calls or the parties to the calls.



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      “As long as it is not factually insubstantial or incredible, the
uncorroborated testimony of a co-conspirator, even one who has chosen to
cooperate with the government in exchange for non-prosecution or leniency, may
be constitutionally sufficient evidence to convict.” United States v. Westbrook,
119 F.3d 1176, 1190 (5th Cir. 1997). Tarango’s testimony was not incredible or
insubstantial on its face. See United States v. Bermea, 30 F.3d 1539, 1552 (5th
Cir. 1994) (“Testimony is incredible as a matter of law only if it relates to facts
that the witness could not possibly have observed or to events which could not
have occurred under the laws of nature.”). The credibility of a witness is for the
jury to decide, see United States v. Garcia, 995 F.2d 556, 561 (5th Cir. 1993), and
Santacruz had ample opportunity to impeach her. A rational jury could have
found beyond a reasonable doubt that Tarango’s testimony about Santacruz’s
participation in the conspiracy established the necessary elements for a drug
conspiracy.
      Santacruz also argues that the admission of evidence of her prior
conviction for possession with intent to distribute marijuana violated Federal
Rule of Evidence 403 and 404(b).       The district court ruled that the prior
conviction was relevant to Santacruz’s “state of mind, her intent, her knowledge,
and whether or not she committed this current offense by mistake or accident.”
The court found that the probative value of the evidence outweighed any
prejudice to Santacruz. This court reviews a district court’s decision to admit
Rule 404(b) evidence for abuse of discretion, with heightened review in criminal
cases. United States v. Pompa, 434 F.3d 800, 805 (5th Cir. 2005). United States
v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc), creates a two-step process
for analyzing the admissibility of Rule 404(b) evidence. “‘First, it must be
determined that the extrinsic offense evidence is relevant to an issue other than
the defendant’s character. Second, the evidence must possess probative value
that is not substantially outweighed by its undue prejudice and must meet the
other requirements of [R]ule 403.’” United States v. Miller, __ F.3d __, 2008 WL

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                                  No. 07-50769

712047, at *4 (5th Cir. Mar. 18, 2008) (quoting United States v. Mitchell, 484
F.3d 762, 774 (5th Cir. 2007)).
      Santacruz’s plea of not guilty to the charge of conspiracy placed her intent
at issue for purposes of Rule 404(b). See Pompa, 434 F.3d at 805. The closing
arguments make clear that the principle question in the case was whether the
association between Tarango and Santacruz was innocent or if Santacruz was
involved in a drug conspiracy with Tarango. Nor was the prior conviction so
different from the instant offense that it should not have been admitted. See
United States v. Broussard, 80 F.3d 1025, 1039-40 (5th Cir. 1996) (evidence of
prior conviction for possession of marijuana admissible in trial for cocaine
conspiracy).
      The district court instructed the jury on the limited purpose for which it
could use the evidence of Santacruz’s prior conviction, which minimized the
potential prejudicial effect of the admission of the evidence. See United States
v. Thomas, 348 F.3d 78, 86 (5th Cir. 2003). The district court did not abuse its
discretion in admitting the evidence.
      AFFIRMED.




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