                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-10140                ELEVENTH CIRCUIT
                                   Non-Argument Calendar           NOVEMBER 22, 2010
                                 ________________________               JOHN LEY
                                                                         CLERK
                          D.C. Docket No. 1:08-cr-00446-TCB-LTW-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                               Plaintiff - Appellee,

                                           versus

RICARDO LARIOS-TRUJILLO,
a.k.a. Rico,

lllllllllllllllllllll                                            Defendant - Appellant.

                                ________________________

                         Appeals from the United States District Court
                             for the Northern District of Georgia
                                ________________________

                                    (November 22, 2010)

Before BLACK, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

         Ricardo Larios-Trujillo appeals his convictions for conspiracy to possess,
with intent to distribute, at least five kilograms of cocaine and attempted

possession with intent to distribute at least five kilograms of cocaine. 21 U.S.C. §

841 (a)(1), (b)(1)(A)(ii); 21 U.S.C. § 846. On appeal, Larios-Trujillo argues that

the district court abused its discretion by allowing testimony from cooperating

witnesses Alexander Archer and Rigoberto Delgado-Orozco regarding prior

uncharged crimes. He argues that the testimony tainted the jury’s verdict by

discussing crimes that occurred years prior to the beginning of the charged drug

conspiracy.

       We review a trial court’s evidentiary rulings for abuse of discretion. United

States v. Fortenberry, 971 F.2d 717, 721 (11th Cir. 1992) (citation omitted).

Evidence of prior “crimes, wrongs, or acts,” cannot be admitted for the purpose of

proving action in conformity therewith, see Fed. R. Evid. 404(b), though such

evidence can be admitted for other purposes. Id.

      In certain situations, however, evidence of prior bad acts is considered

intrinsic to the charged crime and not governed by Rule 404(b). Evidence of acts

other than the offense charged is considered intrinsic if it is “(1) an uncharged

offense which arose out of the same transaction or series of transactions as the

charged offense, (2) necessary to complete the story of the crime, or (3)

inextricably intertwined with the evidence regarding the charged offense.” United

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States v. Veltmann, 6 F.3d 1483, 1498 (11th Cir. 1993) (citation omitted).

Evidence will fall under one of those three categories if it tends to explain the

context, motive, and set-up of the crime. See United States v. Williford, 764 F.2d

1493, 1499 (11th Cir. 1985) (citation omitted). Generally, the evidence must be

“linked in time and circumstances with the charged crime, or form[] an integral and

natural part of an account of the crime, or [be] necessary to complete the story of

the crime for the jury.” Id.

      Even if evidence is determined to be intrinsic, it is still subject to the

balancing test established by Rule 403 and “may be excluded if its probative value

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

issues, or misleading the jury . . . .” Fed. R. Evid. 403. In reviewing a district

court’s Rule 403 ruling, we assume the maximum probative value and the

minimum prejudicial impact that could be attributed to the evidence. See United

States v. Bradberry, 466 F.3d 1249, 1253 (11th Cir. 2006) (per curiam) (citation

omitted).

      If evidence of prior bad acts is not intrinsic and thus is subject to Rule

404(b), it cannot be used to prove the character of the defendant, but may be

submitted to aid the jury for a litany of reasons, including to prove “motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

                                           3
accident . . . .” See Fed. R. Evid. 404(b). This Courts Rule 404(b) jurisprudence

dictates that evidence of prior acts may be admitted so long as (1) it is submitted as

something other than propensity evidence (such as proving one of the 404(b)

exceptions just mentioned), (2) there is sufficient proof for the jury to determine

that the defendant committed the prior act, and (3) the evidence does not fail the

Rule 403 balancing test. See United States v. Matthews, 431 F.3d 1296, 1310–11

(11th Cir. 2005) (per curiam).

      We must keep in mind, however, that an erroneous evidentiary ruling will be

reversed only if “there is a reasonable likelihood that [it] affected the defendant’s

substantial rights.” See United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir.

1990) (citation omitted). “We find an error harmless where the purported error had

no substantial influence on the outcome and sufficient evidence uninfected by error

supports the verdict.” United States v. Dickerson, 248 F.3d 1036, 1048 (11th Cir.

2001) (citation omitted) (internal quotation omitted).

      After reviewing the record, we conclude that the district court abused its

discretion by admitting the testimony of cooperating witness Acher on the

beginnings of his relationship with Larios-Trujillo. That error, however, was

harmless.

      Acher and Larios-Trujillo began their initial illicit relationship in

                                           4
Massachusetts more than five years before the charged crimes of conspiracy and

attempted cocaine possession. The relationship was not continuous from that point

forward, as the two broke off all communications for more than one year. After the

hiatus, Acher and Larios-Trujillo created a new arrangement and engaged in

activities leading up to the charged crimes.

      The government’s contention that Acher’s pre-2006 testimony is intrinsic to

the crime charged and thus not subject to Rule 404(b) is unpersuasive. That

testimony does not meet any of the three exceptions that would allow it to be

classified as such. First, there is no argument that the marijuana transactions from

the fall of 2002 were part of the same series of transactions. Second, those initial

dealings were not necessary to give the jury an adequate narrative regarding the

crimes charged in this indictment. Finally, that testimony is not “inextricably

intertwined” with other evidence regarding the charged offenses. While it may

have explained the origins of the association, the previous drug transactions were

in no way necessary to provide the jury an accurate picture regarding the actions

leading to this indictment. We believe Acher’s testimony regarding his initial

relations with Larios-Trujillo is not close to being “linked in time and

circumstances with the charged crime, or . . . an integral and natural part of an

account of the crime, or . . . necessary to complete the story of the crime for the

                                           5
jury.” Williford, 764 F.2d at 1499.1

      The government’s argument that Acher’s testimony could have been

admitted under Rule 404(b) is also unpersuasive. The government asserts that his

testimony proves intent and motive. But in its brief, it cites to no pre-February

2006 testimony from Acher that shows intent or motive relating to the charged

offenses. The value of Acher’s testimony regarding activities prior to the renewed

association is particularly unnecessary to prove intent or motive for the charged

crimes, especially in light of the extensive testimony regarding more current

activities. The abundance of temporally-closer evidence further detracts from any

value that Acher’s early testimony might contain.

           Our conclusion that the district court abused its discretion in admitting

some of Acher’s testimony, however, does not dictate that Larios-Trujilo is entitled

to the relief requested. Ultimately, the error in admitting the testimony did not

prejudice Larios-Trujillo in light of the substantial evidence presented against him.



       1
         The trial transcript provides clear evidence for this proposition. The government elicits
detailed testimony regarding Acher’s teenage years. That extended discussion flows into his
testimony about the relationship that he formed with Larios-Trujillo in 2002 and continued until
early 2005. (Doc. 280 462–76). The testimony then moves on to the re-establishment of the
relationship that occurred in February 2006. It is unclear why the government could not have
simply skipped those 15 pages of testimony and elicited that a relationship revolving around
illegal drugs formed in 2006, which was substantially closer to the occurrence of the charged
offenses and eventually resulted in the charged offenses. Such action would not have created any
meaningful gap in the narrative of the case.

                                               6
The government’s case included evidence showing: (1) Larios-Trujillo facilitated

the installation of hidden compartments in a vehicle for the purpose of transporting

drugs; (2) Larios-Trujillo engaged in numerous recorded conversations, with

cooperating witnesses and law enforcement officials, to further the charged

conspiracy; (3) Larios-Trujillo discussed traveling to Miami, Florida to meet a

ficticous drug supplier; and (4) Larios-Trujillo confessed to participating in the

drug transaction that led to his arrest. Based on this evidence, we conclude any

error did not infringe on Larios-Trujillo’s substantial rights. Accordingly, we

affirm.


AFFIRMED.




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PRYOR, Circuit Judge, concurring specially:

      I concur in the result only.




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