                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 7 2001
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                     No. 00-2390
 RAFAEL FLORES-GONZALES,                         (D.C. No. CR-99-1407-JP)
                                                         (D.N.M.)
          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before HENRY, BALDOCK, and BRISCOE, Circuit Judges.


      The issue in this direct criminal appeal is whether the district court abused

its discretion by refusing to grant Defendant’s motion for a mistrial based on an

allegedly improper statement a government witness made in front of the jury.

Our jurisdiction arises under 28 U.S.C. § 1291. Because we conclude the alleged

improper statement was harmless, the district court did not abuse its discretion in

denying Defendant’s motion for a mistrial.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
                                          I.

      This case arises out of a trip into the desert of southern New Mexico, a

few miles north of the United States-Mexico border, shortly after midnight on

September 2, 1999. While patrolling that area, Border Patrol Agents Richard

Martinez and Jose Gonzalez parked their patrol vehicle off State Highway 146.

The agents observed the headlights of two cars traveling north, approximately

two miles apart. Traffic in the area at that time of night usually consists solely

of trucks from a nearby smelter. Their suspicions aroused, the agents first pulled

over the lead vehicle, a red Ford LTD, bearing Mexico license plates. The agents

located a cell phone in the LTD, leading them to believe that its occupants may

have been in contact with the occupants of the second car, to act as a “scout” for

the transportation of illegal drugs or aliens.

      Based on their suspicions, the agents stopped the second car, a Mercury

Cougar. Elena Simental drove the vehicle, accompanied by Defendant Rafael

Flores-Gonzales in the front passenger seat. During the stop, the agents

discovered 358 pounds of marijuana, much of it in plain view, located in

the backseat and trunk compartment of the Cougar. Simental and Defendant

admitted they were traveling with the LTD, and agreed to take the agents to

the border site where “backpackers” had loaded the marijuana into the Cougar.




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      Defendant subsequently pled not guilty to a two-count indictment. Count

I of the indictment charged Defendant with conspiracy to possess with intent to

distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. § 846.

Count II of the indictment charged Defendant with possession with intent to

distribute 100 kilograms or more of marijuana in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(B).

      Prior to trial, Defendant filed a motion in limine requesting that the

Government not introduce certain topics, including “any criminal convictions,

pending charges, or bad acts allegedly committed by the Defendant’s common

law partner, Rosalina Enriquez,” or “any criminal conviction or bad acts

attributed to the Defendant.” Rec. Vol. III, at 5-6. The Government also agreed

not to introduce evidence regarding “any criminal convictions, pending charges,

or bad acts allegedly committed by the Defendant’s common-law wife, Rosalina

Enriquez.” Rec. Vol. III, at 5.

      At the time of their arrest, both Simental and Defendant stated they

believed they were going to pick up an illegal alien, not drugs. In a written

statement, Simental again stated that she believed she was to pick up an illegal

alien and his luggage. Both Simental and Defendant, however, testified otherwise

at trial. Defendant testified that he agreed to pick up a “fellow” and his suitcase

and did not know anything illegal was happening until the marijuana was loaded


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into the Cougar. Simental, after pleading guilty and signing a plea agreement,

testified that she agreed only to transport approximately 20-25 pounds of

marijuana. Simental claimed not to have known Defendant before the evening

of September 2, 1999. She further claimed that Defendant knew the purpose of

the trip was to transport marijuana. Simental claimed her previous statements

were false, made-up at Defendant’s request because he feared losing his resident

alien status and being deported.

      While testifying at Defendant’s trial, Simental “blurted out” in front of the

jury that Defendants’ common-law wife had “been deported before because . . . .”

Defense counsel interrupted Simental before she could finish her statement and

requested a bench conference. Outside the presence of the jury, defense counsel

requested a mistrial, objecting to the testimony on the premise that Simental’s

reference to Enriquez’s deportation was highly prejudicial. Defense counsel

argued that the jury would infer Enriquez’s deportation was the result of a

criminal conviction. Defense counsel further claimed that Enriquez’s criminal

character would prejudice the jury by allowing them to believe Defendant was

part of a “criminal family” due to his close relationship with Enriquez.

      The court denied defense counsel’s motion for a mistrial, explaining that

Defendant had not established sufficient prejudice. In response to a request from

defense counsel, the district court instructed the Government to warn its witness


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not to “blurt out anything else” contrary to the parties’ pretrial agreement. Rec.

Vol. V, at 186. Notably, defense counsel did not move to strike the testimony

or request that the jury be given a limiting instruction. At trial, no further

reference was made to Enriquez’s deportation.

      The jury found Defendant guilty on both counts of the indictment. The

district court sentenced Defendant to sixty-three months imprisonment and

recommended deportation. On appeal, Defendant’s sole argument is that

Simental’s unsolicited testimony regarding Enriquez’s deportation unduly

prejudiced his defense and rendered his trial fundamentally unfair. The

Government claims Simental’s statement was an unexpected, inadvertent

violation of the parties’ pretrial agreement regarding Defendant’s motion

in limine, and did not substantially prejudice his defense.

                                          II.

      We review a district court’s denial of a motion for mistrial for an abuse

of discretion. United States v. Cerrato-Reyes, 176 F.3d 1253, 1258 (10th Cir.

1999). The decision to grant or deny a mistrial rests within the discretion of the

district court because that court is best situated to evaluate the effect of improper

testimony on the jury. United States v. Peveto, 881 F.2d 844, 859 (10th Cir.

1989). We will not reverse a decision to deny a motion for mistrial unless the

moving party shows that the district court abused its discretion. United States


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v. Wilson, 244 F.3d 1208, 1219 (10th Cir. 2001).

      Defendant argues that Fed. R. Evid. 404(b) bars the admission of

Simental’s testimony because of the close relationship between the Defendant

and his common law wife, Enriquez. Rule 404(b) prohibits the introduction

of character evidence to show that a person acted in conformity therewith.

Defendant cites, and we have found, no case law supporting the application

of Rule 404(b) in a situation such as this. The alleged character testimony

in dispute concerned the prior deportation of Defendant’s common law wife,

not Defendant himself.

      Defendant claims Simental’s statement allowed the jury to infer that

criminal behavior led to Enriquez’s deportation. Further, due to the close

relationship between Defendant and Enriquez, the jury could infer that Defendant

also had a criminal propensity. Because of the attenuated nature of the testimony

in question, however, we believe Defendant’s claim of prejudice is more properly

based upon Fed. R. Evid. 403. Rule 403 requires us to determine whether the

danger of unfair prejudice to Defendant “substantially outweighed” the probative

value of the evidence.

      For the sake of brevity, we assume Simental’s statement before the jury

regarding Enriquez’s deportation had little, if any, probative value on any

material issue in the case. Therefore, we focus on the prejudicial effect


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Defendant claims to have suffered to determine whether that effect substantially

outweighed the probative value of the statement. We will overturn a conviction

for improper testimony only if that testimony “‘was flagrant enough to influence

the jury to convict on grounds other than the evidence presented.’” Wilson, 244

F.3d at 1219 (quoting United States v. Lowder, 5 F.3d 467, 473 (10th Cir. 1993)).

      In other words, a mistrial would be warranted only if “the improper

testimony had an appreciable effect on the verdict.” United States v. Sands,

899 F.2d 912, 914 (10th Cir. 1990). To determine the prejudicial effect of the

testimony, we review the record de novo to evaluate whether the evidence of the

prior deportation of Defendant’s common law wife had a substantial influence on

“‘the jury’s verdict in the context of the entire case against him.’” United States

v. Wilson, 107 F.3d 774, 785-86 (10th Cir. 1997) (quoting United States v. Short,

947 F.2d 1445, 1455 (10th Cir. 1991)). We conclude it did not.

      The Government’s evidence at trial established that Defendant was a

passenger in a car border patrol agents stopped near the United States-Mexico

border in the middle of the night on a deserted highway. The car contained over

350 pounds of marijuana, much of it in plain view. The quantity of marijuana

was so large that it filled the trunk and backseat compartment, was visible to

passing traffic, and prevented Simental from properly sitting behind the wheel.

A search of the car yielded a cell-phone and a walkie-talkie, both of which the


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agents found under Defendant’s seat. Defendant, presumably to thwart his

identification, threw his wallet into the weeds at the time of the stop. Moreover,

Defendant admitted at trial that he was previously arrested due to his presence

in a car containing 150 pounds of marijuana.

      In response to the evidence presented against him, Defendant claimed he

had “been tricked” again, this time by Elena Simental, who deceived him into

accompanying her into the desert and then refused to allow him out of the car.

The jury, as trier of fact, simply chose not to believe Defendant, which was its

prerogative. In light of the overwhelming evidence against Defendant, Simental’s

testimony regarding Enriquez’s prior deportation did not substantially or

appreciably affect the outcome of the case. Therefore, the district court

properly denied Defendant’s motion for a mistrial based upon the testimony.

      AFFIRMED.


                                       Entered for the Court,



                                       Bobby R. Baldock
                                       Circuit Judge




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