                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES COURT OF APPEALSFebruary 7, 2014
                                                                Elisabeth A. Shumaker
                                    TENTH CIRCUIT                   Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                      No. 13-2011
 LUIS ALBERTO UGALDE-                         (D.C. No. 2:11-CR-01007-MV-1)
 AGUILERA,                                               (D. N.M.)

           Defendant - Appellant.



                              ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, EBEL and KELLY, Circuit Judges.



      Luis Alberto Ugalde-Aguilera (Ugalde) appeals his conviction for

conspiracy to possess with intent to distribute 50 kilograms or more of marijuana,

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846; and possession with

intent to distribute 50 kilograms or more of marijuana, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2. On appeal, Ugalde argues that the

district court abused its discretion by admitting evidence of several similar drug-



      *
        This order and judgment is not binding precedent, except under the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.
transporting trips under Rule 404(b). We affirm.

                                        I
                               Factual Background

      Ugalde and Pablo Chavez-Posada (Chavez) drove semi-trucks for a trucking

company in El Paso, Texas. On January 26, 2011, Ugalde and Chavez began a

trip on which they were to transport automobile parts from El Paso to Toledo,

Ohio. In addition to their legitimate cargo, however, they also carried over 150

pounds of marijuana. Their plan was to deliver the marijuana to Chicago, Illinois,

before continuing on to Toledo.

      They did not make it far. In New Mexico, they were stopped at a border

patrol checkpoint, where border patrol agents x-rayed their truck. The scan

revealed what looked like bricks of narcotics behind the passenger seat. Due to a

miscommunication among the border patrol agents, however, when Agent Cesar

Hernandez physically entered the truck to verify the scan, he looked in the wrong

place and found nothing suspicious. Ugalde and Chavez were then released and

they drove away from the checkpoint. Minutes later, Agent Hernandez saw the

scan, realized his mistake, and the agents drove after the truck. After stopping

the truck a second time, the agents obtained consent to search the cabin again, and

Agent Hernandez found large trash bags containing bricks of marijuana. As a

result, Ugalde and Chavez were arrested.

      After being Mirandized, Ugalde confessed not only to transporting the


                                         2
drugs for which he was arrested, but also to making several similar drug-

transporting trips with Chavez during the preceding year. Likewise, Chavez told

the agents that he and Ugalde had transported marijuana to Chicago on three

occasions in the preceding year. On those prior occasions, according to Chavez,

they delivered the marijuana to a Wrangler warehouse parking lot in the outskirts

of Chicago. At the Wrangler warehouse, the same black Cherokee arrived to

receive the drugs on all three occasions, although different men were driving it

each time.

                                 Procedural History

      A grand jury returned a two-count indictment charging Ugalde with

conspiring to possess with intent to distribute 50 kilograms or more of marijuana,

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846 (Count 1); and with

possessing with intent to distribute 50 kilograms or more of marijuana, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2 (Count 2).

      Prior to trial, the government noticed its intent to offer evidence of the

prior deliveries under Federal Rule of Evidence 404(b). Ugalde moved in limine

to exclude the 404(b) evidence. The district court subsequently heard arguments

regarding the 404(b) evidence, but decided to “see how the trial unfolds” before

ruling on the issue. R. Vol. III at 6.

      As trial proceeded, however, a series of statements by defense counsel led

the court to conclude that the door had been opened to permit the introduction of

                                         3
404(b) evidence. First, during his opening statement, defense counsel stated that

“Mr. Chavez might testify to additional incidents where he committed acts.” Id.

at 36. Defense counsel also referred to Chavez’s knowledge of the men “who

drive a black SUV in the Chicago area” who would receive the marijuana. Id. at

37.

      Second, during defense counsel’s cross-examination of Chavez, he asked

Chavez whether Chavez had told the agents that he and Ugalde were carrying

only 50 pounds of marijuana. The government objected, because it was on the

previous trips, not the January trip, when Ugalde and Chavez transported

approximately 50 pounds of marijuana.

      Third, defense counsel asked Chavez about apparently conflicting

statements concerning whether Ugalde had loaded the marijuana himself, or

whether Chavez and Ugalde had loaded the marijuana together. This question

was problematic as well, because the two loaded the marijuana together before the

previous trips.

      Fourth, defense counsel had the following exchange with Chavez:

             Q.    Mr. Chavez, you also explained when you met with [an agent]
                   that – you gave a description as to where you were going to
                   drop the marijuana off in Chicago, isn’t that right?

             A.    Yes, sir.

             Q.    You knew that it was near a Wrangler Jean manufacturing
                   plant?


                                         4
                A.    I knew that it was a place nearby that had a company name
                      similar to Wrangler; at least it seemed similar by the letters to
                      the word Wrangler.

                Q.    And you also knew, Mr. Chavez, based on that report which is
                      in front of you, that the men who picked up the marijuana were
                      driving a black Cherokee, isn’t that right?

                A.    Yes, sir. I saw them in the mirror.

Id. at 91-92.

      Fifth, and finally, defense counsel attempted to impeach Chavez by asking

him about his statement to the border patrol agents that he would receive $1,500

for the January trip. According to the government, however, Chavez’s statement

concerning the $1,500 payment concerned one of the previous trips.

      At this point, the district court called a recess and heard argument from

both counsel on the issue of whether defense counsel had opened the door to the

404(b) evidence. The government pointed out that it made no sense for Chavez to

know details about the Wrangler warehouse or the black Cherokee if his

testimony pertained only to the January 2011 trip, because Ugalde had given

agents the push-to-talk number that he was supposed to dial in order to receive

directions on where to deliver the marijuana. Finally persuaded, the district court

addressed defense counsel as follows:

                [Y]ou attempted, it appears, to try to make this witness look like he
                was lying, or at least very confused about this incident by mixing up
                the prior instances of alleged transporting, knowing that I had not
                allowed the government to introduce thus far those prior instances
                because of 403 concerns.

                                             5
             I mean, a perfect example is the men in black stuff. The drugs never
             made it to the men in black who picked up the marijuana. So it was
             clear that the men in black reference was to other instances, the prior
             instances, which the Court had clearly not allowed the government to
             get into out of concerns of Rule 403 matters. By you raising it twice
             already today, jurors are probably wondering, What men in black?

Id. at 111. The court then ruled that the 404(b) evidence could come in, and

Chavez went on to testify as to those prior drug-transporting trips.

      As regards the 404(b) evidence, the district gave the jury a limiting

instruction prior to its commencing deliberations. Ugalde was convicted on both

counts.

                                          II

      The issue presented is straightforward: Did the district court abuse its

discretion in admitting evidence that Ugalde had been involved in similar drug

transactions on prior occasions? See United States v. Irving, 665 F.3d 1184, 1211

(10th Cir. 2011) (“[O]ur review of a district court’s decision to admit evidence

under [Rule 404(b)] is . . . subject to an abuse-of-discretion standard.”).

      Federal Rule of Evidence 404(b) provides:

             (b) Crimes, Wrongs, or Other Acts.

                   (1) Prohibited Uses. 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.

                   (2) Permitted Uses; Notice in a Criminal Case. This
                   evidence may be admissible for another purpose, such as

                                          6
                   proving motive, opportunity, intent, preparation, plan,
                   knowledge, identity, absence of mistake, or lack of accident.
                   On request by a defendant in a criminal case, the prosecutor
                   must:

                          (A) provide reasonable notice of the general nature of
                          any such evidence that the prosecutor intends to offer at
                          trial; and

                          (B) do so before trial--or during trial if the court, for
                          good cause, excuses lack of pretrial notice.

Fed. R. Evid. 404(b).

      “We consider a four factor test when determining the admissibility of

evidence under Rule 404(b).” United States. v. Davis, 636 F.3d 1281, 1297 (10th

Cir. 2011). The test requires that:

             (1) the evidence must be offered for a proper purpose; (2) the
             evidence must be relevant; (3) the trial court must make a Rule 403
             determination of whether the probative value of the similar acts is
             substantially outweighed by its potential for unfair prejudice; and (4)
             pursuant to Fed.R.Evid. 105, the trial court shall, upon request,
             instruct the jury that evidence of similar acts is to be considered only
             for the proper purpose for which it was admitted.

Id. (quoting United States v. Zamora, 222 F.3d 756, 762 (10th Cir. 2000)) (citing

Huddleston v. United States, 485 U.S. 681, 691-92 (1988)).

      “Rule 404(b) admissibility is a permissive standard and if the other act

evidence is relevant and tends to prove a material fact other than the defendant’s

criminal disposition, it is offered for a proper purpose under Rule 404(b) and may

be excluded only under Rule 403.” Id. at 1298 (internal quotation marks

omitted). “We have consistently recognized the probative value of uncharged acts

                                          7
to show motive, intent, and knowledge, . . . as long as the uncharged acts are

similar to the charged crime and sufficiently close in time.” Id. (internal

quotation marks omitted). “The threshold inquiry a court must make before

admitting similar acts evidence under Rule 404(b) is whether that evidence is

probative of a material issue other than character.” Huddleston, 485 U.S. at 686.

      Taking the factors one at a time, the first factor is whether the evidence is

offered for a proper purpose. The purpose was proper here because the evidence

was offered to demonstrate, among other things, that Ugalde had knowledge of

the marijuana he was transporting in his truck.

      The second factor is whether the evidence is relevant. “To determine the

relevance of a prior bad act, we look to the similarity of the prior act with the

charged offense.” United States v. Brooks, 736 F.3d 921, 940 (10th Cir. 2013).

We have identified “several non-exclusive factors” to consider: “(1) whether the

acts occurred closely in time; (2) geographical proximity; (3) whether the charged

offense and the other acts share similar physical elements; and (4) whether the

charged offense and the other acts are part of a common scheme.” Davis, 636

F.3d at 1298. Those factors are met here. Both Ugalde and Chavez stated that

the three prior deliveries took place within the preceding year. The three

deliveries went to Chicago from El Paso, just as this one was supposed to. Each

delivery relied on the same deception: transporting a legitimate cargo to hide their

illegal purpose. They used the same truck for each delivery. The loads were

                                           8
packaged in the same way, placed in the same location, and pursuant to the same

financial arrangements. And the deliveries were coordinated using the same

method: a push-to-talk phone. The prior deliveries were eminently similar to the

charged incident.

      On top of all that, defense counsel opened the door. “[Ugalde] cannot seek

to exclude as irrelevant . . . testimony regarding [the prior deliveries] after

opening the door for the government.” United States v. Magallanez, 408 F.3d

672, 678 (10th Cir. 2005). Indeed, “[r]ebuttal evidence serves a legitimate

purpose consistent with the exceptions listed in Rule 404. It allows a party to

explain, repel, contradict or disprove an adversary’s proof.” Id. at 681 (internal

quotation marks omitted). “Admission of rebuttal evidence, particularly when the

defendant ‘opens the door’ to the subject matter, is within the sound discretion of

the district court.” United States v. Burch, 153 F.3d 1140, 1144 (10th Cir. 1998).

By opening the door, Ugalde amplified the probative value of the evidence.

      The third factor is whether the probative value of evidence of the prior

deliveries is substantially outweighed by its potential for unfair prejudice. We

discern no problem here either. The probative value of the evidence was high,

because the acts were strikingly similar and defense counsel opened the door. We

conclude, therefore, that the probative value of the evidence was not substantially

outweighed by its potential for unfair prejudice to the defendant.

      The fourth and final factor is whether the trial court was asked to and did

                                           9
give a limiting instruction. Here, the court did give a limiting instruction.

      Therefore, the district court did not abuse its discretion in admitting

evidence that Ugalde had been involved in similar drug transactions on prior

occasions.

      Ugalde marshals four arguments against our conclusion; none are

persuasive. First, he argues that the government cannot prove that the prior

deliveries took place within the same year as the charged incident. Quite to the

contrary, the government had statements from both Ugalde and Chavez that the

previous deliveries took place within a year of their arrest. What is more, one

year is not a per se cutoff for 404(b) purposes. See, e.g., United States v. Record,

873 F.2d 1363, 1366, 1372 (10th Cir. 1989) (upholding the admission of evidence

of prior acts that occurred two years earlier).

      Second, Ugalde points us to our decision in United States v. Commanche,

577 F.3d 1261 (10th Cir. 2009), in which we held that a district court abused its

discretion when it admitted evidence that a man, who was charged with injuring

two others with a box cutter, had been convicted twice before for battering people

with a sharp object. Commanche, 577 F.3d at 1263. The sole disputed issue in

Commanche was self-defense. Id. at 1268. We held that the court should not

have admitted the 404(b) evidence, because those prior incidents were not

relevant to intent when the only issue was self-defense. Id. at 1268-69. Instead,

the prior incidents were relevant only to show a propensity to batter with a sharp

                                          10
object, which is not a permissible purpose. Id. Here, by contrast, we have a

proper purpose: knowledge. The issue was whether Ugalde knew the marijuana

was in the truck. Evidence that the January trip mirrored the previous drug

deliveries was probative of such knowledge. Therefore, Commanche is

inapposite.

      Third, Ugalde argues that “the Government did not state with particularity

its justification for seeking the admission of Rule 404(b) evidence.” Aplt. Br. at

20. Our review of the record indicates that the government correctly focused its

arguments on knowledge and on rebuttal of the defense’s door-opening. Even if

we accepted Ugalde’s argument that the government did not state its justification

with particularity, however, “the error is harmless as long as a proper purpose is

apparent from the record.” United States v. Joe, 8 F.3d 1488, 1496 (10th Cir.

1993). This record is replete with instances that make the basis for admission

apparent.

      Fourth, Ugalde argues that his counsel never opened the door. In short, we

disagree. As the government points out, it made no sense for Chavez to know

details about the Wrangler warehouse or the black Cherokee, because Ugalde was

supposed to call a push-to-talk phone in order to receive directions on where to

deliver the marijuana. Worse, however, were defense counsel’s attempts to

impeach Chavez. Chavez had been instructed by the court not to mention the

prior deliveries. Nevertheless, defense counsel juxtaposed Chavez’s statements

                                         11
concerning the prior deliveries with his statements concerning the January

delivery, all the while giving the jury the impression that his questioning

concerned only the January delivery. Chavez was left without a way to both

explain the manufactured inconsistencies and comply with the court’s

instructions. As the prosecutor put it at trial, “[w]e can drive an 18-wheel truck

through the door that he’s opened.” R. Vol. III at 96.

       Finally, even if the district court erred, the error was harmless. See

Commanche, 577 F.3d at 1269 (“A harmless error is one that does not have a

substantial influence on the outcome of the trial; nor does it leave one in grave

doubt as to whether it had such effect.” (internal quotation marks omitted)). The

evidence of Ugalde’s guilt was overwhelming. Not only was Ugalde caught

transporting 150 pounds of marijuana, and his partner implicated him in the

conspiracy, but also Ugalde confessed to the crime, and this confession came into

evidence through Agent Jesus Morales, Jr.’s testimony. Even if there was an

error to be found here, it did not have a substantial influence on the outcome of

the trial.

       AFFIRMED.


                                        Entered for the Court


                                        Mary Beck Briscoe
                                        Chief Judge


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