     Case: 16-40518      Document: 00513950332         Page: 1    Date Filed: 04/12/2017




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

                                      No. 16-40518                              FILED
                                                                            April 12, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

              Plaintiff - Appellee

v.

CRYSTAL YVETTE MARTINEZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:14-CR-443-2


Before STEWART, Chief Judge, and JONES and OWEN, Circuit Judges.
PER CURIAM:*
       Defendant-appellant appeals her convictions for possession and
conspiracy to possess with intent to distribute more than fifty grams of
methamphetamine and importation and conspiracy to import more than fifty
grams of methamphetamine on two grounds.                   First, defendant-appellant
claims that the district court erred when it admitted extrinsic evidence of her
alleged involvement in bulk cash smuggling between the United States and


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 16-40518
Mexico. Second, she argues that the court erred by not declaring a mistrial
when a witness testified about her prior criminal record. Because the district
court did not abuse its discretion, we AFFIRM.
           I. FACTUAL AND PROCEDURAL BACKGROUND
       Defendant-appellant, Crystal Yvette Martinez, was a passenger in a car
attempting to cross into the United States from Mexico. The car contained a
large amount of soap and fabric softener. When the United States Customs
and Border Protection (“CBP”) agent asked why they had so many cleaning
supplies, the car’s driver, Tina Marie Trevino, replied that she was opening a
dry-cleaning business.         The CBP agents’ search ultimately revealed
approximately 116 kilograms (over 255 pounds) of methamphetamine hidden
in the soap and fabric softener.
       The day before, Trevino and Martinez had performed a similar crossing
with cleaning supplies but no drugs. Trevino later explained that this was a
dry run to test their smuggling plan. Earlier that day, Martinez had sent
Trevino a text message asking “when are we going to work, I need cash, cash,
cash?” Trevino responded, texting that they would work tomorrow and for
Martinez to call her about work.
       After being detained, two special agents from Homeland Security
Investigations (“HSI”) arrived and questioned Trevino. When asked about the
texts between herself and Martinez, Trevino initially said that the “work” was
unrelated to the smuggling and that Martinez did not know narcotics were in
the car. Eventually, Trevino told the HSI agents that she and Martinez were
aware that there were drugs in the car. According to Trevino, on the day they
were    arrested,   she    and   Martinez    went    together   to   pick   up   the
methamphetamine from a home in Matamoros, Mexico. Trevino stated that
Martinez was present when discussions about the drugs took place. Trevino


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                                       No. 16-40518
also said that she opened a bottle of fabric softener and broke a bar of soap in
half, showing Martinez the drugs.
      A grand jury indicted Martinez and Trevino on four counts:
(1) conspiracy to possess a controlled substance with intent to distribute; 1
(2) possession    of   a    controlled   substance    with      intent   to   distribute; 2
(3) conspiracy to import a controlled substance; 3 and (4) importation of a
controlled substance. 4 Martinez pleaded not guilty. Trevino entered into a
plea agreement in which she agreed to testify against Martinez in exchange
for a sentencing recommendation at the low end of her Guidelines range and a
recommended downward departure.
      Before Martinez’s trial, the Government provided notice that it intended
to offer extrinsic evidence of Martinez’s involvement in a prior money
smuggling offense pursuant to Federal Rule of Evidence 404(b). Specifically,
it wanted to show that Martinez had directed her sister, Diana Martinez, to
transport money from Texas to Matamoros—the same city in which Martinez
and Trevino had obtained the methamphetamine—on four occasions, one of
which resulted in Diana’s arrest for smuggling $100,000. The district court
initially stated that it was inclined to exclude the evidence because it did not
“tend to corroborate the allegations made in this indictment” and because no
one had “testif[ied] regarding this being like the second half of the equation,
drugs going north and money coming south.”
      The Government called an HSI special agent, who at the time was
assigned to a high intensity drug trafficking area, to testify. He asserted that
for a narcotics organization to remain operational, the proceeds from the



      1 21 U.S.C. §§ 841(a)(1), 846.
      2 Id. § 841(a)(1).
      3 Id. §§ 952(a), 963.
      4 Id. § 952(a).

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                                 No. 16-40518
narcotics smuggled into and sold in the United States must be smuggled back
into Mexico. He also noted that it is common for a person who smuggles
narcotics into the United States to be involved in smuggling the proceeds back
into Mexico. Concluding that this testimony provided a sufficient basis upon
which to admit the extrinsic evidence, the court allowed Diana to testify over
Martinez’s objection. The district court provided a limiting instruction before
Diana testified and another before closing arguments.
      Later in the trial, during Trevino’s direct examination, the Government
asked her why she originally told HSI agents that Martinez had no knowledge
of the narcotics.    Trevino replied that she did so “[b]ecause [she] knew
[Martinez] has a lot of record, and [she] didn’t want [Martinez] to do a lot of
time.” Martinez’s counsel objected, stating that Martinez’s criminal history
was not relevant. The district court sustained the objection and instructed the
jury that “any evidence that you may have heard in response to a question is—
should not be considered by you as evidence that the defendant committed the
acts alleged in this indictment.” Martinez’s counsel moved for a “discussion,”
which Martinez asserts was a motion for a mistrial. The district court denied
the motion.
      The jury found Martinez guilty on all counts, and the district court
denied Martinez’s request for a directed verdict. Martinez timely appealed her
conviction.
                              II. DISCUSSION
      A. Extrinsic Acts
      Martinez claims that the district court erred when it allowed testimony
that she paid her sister, Diana, to smuggle cash into Mexico. First, she asserts
that the introduction of Diana’s testimony unconstitutionally shifted the
burden to Martinez “to prove that her prior knowledge of [Diana’s smuggling]


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                                      No. 16-40518
should not be imputed to the crimes for which [Martinez] was charged.” 5 Next,
she contends that Diana’s testimony was improperly admitted under Rule
404(b) because it was both “irrelevant to the drug trafficking offense” and
“unduly prejudicial.”
       We evaluate a district court’s evidentiary rulings for abuse of discretion.
United States v. Sumlin, 489 F.3d 683, 688 (5th Cir. 2007). However, we
subject evidence admitted under Rule 404(b) in a criminal case to a heightened
review to ensure “that the evidence [is] strictly relevant to the particular
offense charged.” United States v. Olguin, 643 F.3d 384, 389 (5th Cir. 2011).
“A trial court abuses its discretion when its ruling is based on an erroneous
view of the law or a clearly erroneous assessment of the evidence.” United
States v. Kinchen, 729 F.3d 466, 470–71 (5th Cir. 2013) (quoting United States
v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008)). Even so, we will not reverse
where the error was harmless. United States v. McCall, 553 F.3d 821, 827 (5th
Cir. 2008).
       Rule 404(b) precludes “[e]vidence of a crime, wrong, or other act” when
used “solely for the purpose of showing that the defendant had a bad character
and that [s]he acted in conformity with it.” United States v. Gonzales-Lira, 936
F.2d 184, 189 (5th Cir. 1991) (emphasis added). Extrinsic evidence may be
introduced, however, if offered to prove “motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
Fed. R. Evid. 404(b)(2). Our court applies “a two-part test for determining
whether extrinsic evidence is admissible under Rule 404(b).” Kinchen, 729



       5 Martinez has not provided any authority to support the proposition that the
introduction of Diana’s testimony unconstitutionally shifted the burden of proof. Regardless,
her claim is meritless. The Government was required to prove beyond a reasonable doubt
that Martinez had knowledge of the narcotics, and the district court correctly instructed the
jury on the burden of proof. See In re Winship, 397 U.S. 358, 364 (1970).

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F.3d at 471 (citing United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978)
(en banc)). “First, it must be determined that the extrinsic offense evidence is
relevant to an issue other than the defendant’s character.” Beechum, 582 F.2d
at 911. Second, the evidence admitted under Rule 404(b) must satisfy Rule
403’s requirement that its danger of unfair prejudice not substantially
outweigh its probative value. Id.
            1. Relevancy
      The first prong applies a relevancy standard “identical to that found in
Rule 401,” namely, “whether the evidence ‘has any tendency to make a fact
more or less probable than it would be without the evidence’ and ‘the fact is of
consequence in determining the action.’” Kinchen, 729 F.3d at 472 (quoting
Fed. R. Evid. 401). Intent is always a material issue in a drug trafficking case.
United States v. Pompa, 434 F.3d 800, 805 (5th Cir. 2005). Martinez’s decision
to plead not guilty put her intent and knowledge at issue. See Olguin, 643 F.3d
at 390.
      The Government’s expert witness explained that drug traffickers often
smuggle cash from the United States to Mexico. Evidence that Martinez was
a knowing participant in bulk cash smuggling makes it more probable that she
was a knowing participant in drug possession and importation and that she
did not act by accident or mistake. Thus, this evidence was relevant for a
permissible purpose. See Fed. R. Evid. 401, 404(b)(2).
            2. Undue Prejudice
      The second prong of our Rule 404(b) analysis asks whether the extrinsic
evidence “possess[es] probative value that is not substantially outweighed by
its undue prejudice.” Beechum, 582 F.2d at 911. Factors the court considers
are “(1) the government’s need for the extrinsic evidence, (2) the similarity
between the extrinsic and charged offenses, (3) the amount of time separating
the two offenses, and (4) the court’s limiting instructions.” Kinchen, 729 F.3d
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at 473.    The second prong is a common-sense and circumstance-specific
assessment. See Id. (citing Beechum, 582 F.2d at 914). Because of this, we
“give[] great deference to the district court’s informed judgment in weighing
the factors.” Id.
      We cannot say that the district court abused its discretion in weighing
the probative value against the undue prejudice. First, the Government’s case
was neither exceptionally strong nor weak, but “the [G]overnment’s case need
not be ‘flimsy’ to justify admission of the extrinsic offense evidence.” United
States v. Emery, 682 F.2d 493, 499 (5th Cir. 1982). Second, the evidence was
somewhat probative of Martinez’s knowledge and intent because it tended to
show her familiarity with cross-border smuggling operations, even if her prior
smuggling was unrelated to the instant offense, Martinez played a different
role, and it involved different contraband. See Beechum, 582 F.2d at 911 n.15
(stating that “the meaning and nature of the ‘similarity’ requirement in
extrinsic offense doctrine are not fixed quantities” and that extrinsic acts
offered to prove knowledge or intent need not have similar physical elements).
Third, the extrinsic acts took place less than a year from the charged offense,
so they were “temporally significant.” See United States v. Adair, 436 F.3d 520,
527 (5th Cir. 2006). Fourth, the district court gave a model jury instruction
twice, explaining the purposes for which the jury could consider the evidence
and greatly reducing the risk of undue prejudice. See United States v. Crawley,
533 F.3d 349, 355 (5th Cir. 2008); United States v. Whitfield, 590 F.3d 325, 354
(5th Cir. 2009) (a jury instruction “that tracks this Circuit’s pattern jury
instruction . . . is a correct statement of the law”). Significantly, Martinez has
not alleged with specificity how any prejudice substantially outweighed the
probative value. See United States v. Cockrell, 587 F.3d 674, 679 (5th Cir.
2009) (“[A] bald assertion that the probative value of extrinsic offense evidence
was substantially outweighed by its prejudicial effect does not show an abuse
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                                  No. 16-40518
of discretion by the district court.” (quoting United States v. Bermea, 30 F.3d
1539, 1562 (5th Cir. 1994)).
      B. Martinez’s Prior Criminal History
      Finally, Martinez claims that the district court should have declared a
mistrial when Trevino testified that “[Martinez] has a lot of record.” Although
it is not entirely clear from the record that Martinez moved for a mistrial,
defense counsel avers that he made such a motion, and we will proceed under
the assumption that he did.
      This court reviews “the denial of a motion for mistrial founded on the
admission of prejudicial evidence for abuse of discretion.” United States v.
Richardson, 781 F.3d 237, 246 (5th Cir. 2015). Reversal is warranted only if
“after a review of the entire record, it appears that there is a significant
possibility that the prejudicial evidence had a substantial impact on the jury
verdict.” United States v. Valles, 484 F.3d 745, 756 (5th Cir. 2007). “This
[c]ourt has consistently held that an erroneous admission of evidence may be
cured by . . . a limiting instruction because jurors are presumed to follow the
court’s instructions.” United States v. Paul, 142 F.3d 836, 844 (5th Cir. 1998)
(per curiam). If a district “court directs the jury to disregard evidence
determined to be inadmissible, the evidence will not provide a basis for reversal
unless it is ‘so highly prejudicial as to be incurable by the trial court’s
admonition.’” United States v. Ramirez-Velasquez, 322 F.3d 868, 878 (5th Cir.
2003) (quoting United States v. Klein, 546 F.2d 1259, 1263 (5th Cir. 1977)).
      Martinez has failed to show that Trevino’s statement had a substantial
impact on the jury’s verdict. Moreover, she has not suggested that the jury
disregarded the district court’s instruction, nor has she provided any reason to
conclude that Trevino’s vague reference to Martinez’s criminal record was “so
highly prejudicial” that it could not be cured by the district court’s instruction.


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See id. Based on the facts before us, the district court’s refusal to declare a
mistrial was not an abuse of discretion. See Richardson, 781 F.3d at 246.
                            III. CONCLUSION
      The district court did not abuse its discretion when it admitted evidence
of Martinez’s alleged involvement in bulk cash smuggling. Neither did the
court abuse its discretion by refusing to declare a mistrial. We therefore
AFFIRM.




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