                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               No. 16-50033
           Plaintiff-Appellee,
                                          D.C. No.
              v.                    3:15-cr-01330-LAB-1

ANGELICA URIAS ESPINOZA,
        Defendant-Appellant.                OPINION


      Appeal from the United States District Court
        for the Southern District of California
       Larry A. Burns, District Judge, Presiding

        Argued and Submitted March 10, 2017
                Pasadena, California

                   Filed January 22, 2018

      Before: Richard A. Paez, Marsha S. Berzon,
         and Morgan Christen, Circuit Judges.

                   Opinion by Judge Paez
2             UNITED STATES V. URIAS ESPINOZA

                            SUMMARY*


                           Criminal Law

    The panel reversed a conviction for importation of
methamphetamine and remanded for a new trial in a case in
which the district court excluded evidence of third-party
culpability.

     The panel held that the district court necessarily abused
its discretion by applying an incorrect legal standard when it
excluded evidence of third-party culpability for failing to
meet the “substantial evidence” threshold discussed in Perry
v. Rushen, 713 F.2d 1447 (9th Cir. 1983), and Territory of
Guam v. Ignacio, 10 F.3d 608 (1983). The panel explained
that nothing in either Perry or Ignacio purports to modify this
court’s standard for the admissibility of third-party culpability
evidence under the Federal Rules of Evidence—“fundamental
standards of relevancy.”

    Applying that standard, the panel held that the excluded
evidence is undoubtedly relevant, and that a neighbor’s
conviction documents were improperly excluded under Fed.
R. Evid. 404(b). The panel concluded that the erroneous
exclusion of evidence was not harmless.




    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                UNITED STATES V. URIAS ESPINOZA                           3

                              COUNSEL

Michael Marks (argued), Federal Public Defenders of San
Diego Inc., San Diego, California, for Defendant-Appellant.

Colin M. McDonald (argued), Assistant United States
Attorney; Helen H. Hong, Chief, Appellate Section; Laura E.
Duffy, United States Attorney; United States Attorney’s
Office, San Diego, California; for Plaintiff-Appellee.


                               OPINION

PAEZ, Circuit Judge:

     Angelica Urias Espinoza appeals her conviction for
importation of methamphetamine in violation of 21 U.S.C.
§§ 952 and 960. We consider whether the district court
abused its discretion in excluding evidence of third-party
culpability.1 As the district court applied the wrong legal
standard in excluding the evidence of third-party culpability,
it necessarily abused its discretion. Because the error was not
harmless, we reverse Urias Espinoza’s conviction and remand
for a new trial.2



    1
      Urias Espinoza also argues (1) that the exclusion of the evidence
violated her constitutional right to present a defense, and (2) that in the
alternative, she was improperly denied a minor-role adjustment at
sentencing under United States Sentencing Guidelines § 3B1.2. As we
reverse and remand for a new trial based on the district court’s error under
the Federal Rules of Evidence, we do not address her constitutional or
sentencing arguments.
    2
        We have jurisdiction under 28 U.S.C. § 1291.
4           UNITED STATES V. URIAS ESPINOZA

                              I.

    On April 22, 2015, a Customs and Border Protection
(CBP) agent stopped Urias Espinoza at the United States-
Mexico border as she attempted to legally enter the United
States through the Otay Mesa Port of Entry in California. As
a Mexican national, Urias Espinoza had acquired a border
crossing card that permitted her to legally enter the United
States. In 2014, Urias Espinoza opened a business importing
clothing from the United States to sell in Mexico; as a result,
she crossed the border often to purchase clothes.

    At the border entry point, the CBP agent asked Urias
Espinoza for identification and whether she had anything to
declare. She provided her border crossing card and stated
that she was not bringing anything into the United States.
The border agent suspected otherwise, and after some initial
questioning, decided to conduct a search of her vehicle with
assistance from several other agents. The search revealed that
the car’s rear seats had been hollowed out and stuffed with
approximately twelve kilograms of methamphetamine.

    The government charged Urias Espinoza with importing
methamphetamine in violation of 21 U.S.C. §§ 952 and 960.
At trial, the government called two CBP agents to testify
about the discovery of methamphetamine in Urias Espinoza’s
car. Agent Tan testified that he noticed a bulge in the back
seat of the car, poked around, and used a density reading
machine, which recorded a high reading. Agent Tan further
testified that he subsequently discovered cellophane packages
underneath the upholstery of the back seats, and that Urias
Espinoza did not react when he examined the seat and
discovered the drugs. Agent Tan then handcuffed Urias
Espinoza and called for backup. Agent Wallis testified next,
            UNITED STATES V. URIAS ESPINOZA               5

detailing how he retrieved both the drugs and a cell phone
from Urias Espinoza’s car.

    Finally, Agent Perea from the Department of Homeland
Security testified. He explained that Urias Espinoza had
crossed the border fourteen times between February 27, 2015
and April 22, 2015. He also relayed a string of WhatsApp
messages found on Urias Espinoza’s cell phone that were
date-stamped from the week before her arrest. The messages
revealed a conversation that discussed delivery of a
“product,” as well as Urias Espinoza’s plan to apply for a
CBP pass that would have allowed her to gain expedited
clearance when she entered the United States. Agent Perea
confirmed that Urias Espinoza operated a clothing store in
Mexico and that several receipts from Los Angeles found in
her car matched the dates that Urias Espinoza previously had
crossed the border.

    After the prosecution’s case in chief, Urias Espinoza
presented her defense: that she did not know the drugs were
in the vehicle she drove across the border because her next-
door neighbor in Mexico had packed her car with
methamphetamine without her knowledge and used her as a
“blind mule” to smuggle the drugs into the United States. As
part of her presentation, Urias Espinoza sought to present
evidence from which the jury could conclude that her next-
door neighbor knew she frequently traveled to the United
States; knew that her car was parked on the street; knew how
to obtain methamphetamine; was unable to drive across the
border himself because of a prior deportation; set up Urias
Espinoza as a “blind mule” to transport the methamphetamine
into the United States; and then fled his home after he
discovered that Urias Espinoza had been arrested.
6            UNITED STATES V. URIAS ESPINOZA

     The evidence Urias Espinoza sought to introduce in
support of her defense was: (1) a screen shot of a Facebook
page with her neighbor’s photo and a statement that “he’s
been a drug dealer on the streets of L.A.,” (2) the neighbor’s
prior conviction for possession with intent to distribute
marijuana in Los Angeles, (3) the neighbor’s prior conviction
for importation of methamphetamine, (4) the neighbor’s prior
deportation, and (5) photographs of the neighbor. The district
court excluded the evidence on the ground that the defense’s
theory of what happened was too speculative.

    Although the district court excluded the bulk of Urias
Espinoza’s evidence, she was able to introduce some
information through the testimony of four witnesses. The
witnesses’ testimony revealed that: (1) it was well known that
Urias Espinoza traveled to the United States to buy clothes,
(2) Urias Espinoza’s house and her neighbor’s house were in
close proximity to each other, (3) Urias Espinoza parked her
car on the street, and (4) shortly after Urias Espinoza’s arrest,
the neighbor’s house was found vacant and in disarray. Urias
Espinoza argued, however, that without the excluded
evidence, the limited evidence that the district court did admit
was insufficient to persuade the jury that her neighbor—who
had the motive, knowledge, and opportunity to do so—set her
up as a “blind mule” to transport methamphetamine into the
United States on his behalf.

    After a three-day trial, a jury found Urias Espinoza guilty
of importing methamphetamine and the district court
sentenced her to a term of imprisonment of ninety months
followed by five years of supervised release. This timely
appeal followed.
             UNITED STATES V. URIAS ESPINOZA                   7

                               II.

     We review the district court’s exclusion of evidence for
abuse of discretion. United States v. Evans, 728 F.3d 953,
959 (9th Cir. 2013). First, we “determine de novo whether
the trial court identified the correct legal rule to apply to the
relief requested.” United States v. Hinkson, 585 F.3d 1247,
1262 (9th Cir. 2009) (en banc). If the trial court identified an
incorrect legal rule, “we must conclude it abused its
discretion.” Id. If the trial court identified the correct legal
rule, then we must “determine whether the trial court’s
application of the correct legal standard was (1) illogical,
(2) implausible, or (3) without support in inferences that may
be drawn from the facts in the record.” Id. (internal quotation
marks and citation omitted).

    We conclude that the district court necessarily abused its
discretion by applying an incorrect legal standard to
determine whether third-party culpability evidence should be
admitted.

                              III.

    This case centers on the threshold requirement for the
admissibility of third-party culpability evidence under the
Federal Rules of Evidence. In United States v. Armstrong,
621 F.2d 951 (9th Cir. 1980), we set forth the standard for the
admissibility of such evidence, holding that under the Federal
Rules of Evidence, “[f]undamental standards of relevancy,
subject to the discretion of the court to exclude cumulative
evidence and to insure orderly presentation of a case, require
the admission of testimony which tends to prove that a person
other than the defendant committed the crime that is
charged.” Id. at 953. In other words, Armstrong dictates that
8              UNITED STATES V. URIAS ESPINOZA

all evidence of third-party culpability that is relevant is
admissible, unless barred by another evidentiary rule.3 We
consistently applied this standard in a string of cases
following Armstrong. See, e.g., United States v. Wells, No.
14-30146, 2018 WL 377837, at *28 (9th Cir. Jan 11, 2018),
amending 877 F.3d 1099, 1136 (9th Cir. 2017); United States
v. Stever, 603 F.3d 747, 756 (9th Cir. 2010); United States v.
Vallejo, 237 F.3d 1008, 1023 (9th Cir. 2001); United States
v. Crosby, 75 F.3d 1343, 1347 (9th Cir. 1996).

    Despite this clear line of authority stemming from
Armstrong, the district court excluded Urias Espinoza’s
evidence of third-party culpability by relying on two cases it
believed enunciated a different rule for the admissibility of
third-party culpability evidence: Perry v. Rushen, 713 F.2d
1447, 1449 (9th Cir. 1983), and Territory of Guam v. Ignacio,
10 F.3d 608, 615 (9th Cir. 1993). According to the district
court, these cases stand for the proposition that “[e]vidence of
third-party culpability is not admissible ‘if it simply affords
a possible ground of suspicion against such person; rather, it
must be coupled with substantial evidence tending to directly
connect that person with the actual commission of the
offense.’” Ignacio, 10 F.3d at 615 (citing Perry, 713 F.2d at
1449). The district court was mistaken. These cases do not
enunciate our rule for the admission of third-party culpability



    3
       Federal Rule of Evidence 401 provides that “[e]vidence is relevant
if: (a) it has any tendency to make a fact more or less probable than it
would be without further evidence; and (b) the fact is of consequence in
determining the action.” Federal Rule of Evidence 402 provides that
“[r]elevant evidence is admissible unless any of the following provides
otherwise: [] the United States Constitution; [] a federal statute; [] these
rules; or [] other rules prescribed by the Supreme Court. Irrelevant
evidence is not admissible.”
               UNITED STATES V. URIAS ESPINOZA                           9

evidence, or establish a higher standard than that set forth in
Armstrong.

    We begin with a brief discussion of Perry and Ignacio to
explain why the district court erred in relying on those cases.
We then turn to whether the excluded evidence satisfies
Armstrong’s standard of relevance, and conclude that it does.
Finally, we hold that the erroneous exclusion of evidence was
not harmless and therefore reverse the conviction and remand
for a new trial.

                                    A.

    In Perry, we reviewed the denial of Cornelius Perry’s
petition for a writ of habeas corpus seeking relief from his
state conviction for aggravated assault. 713 F.2d at 1448. At
his state court trial, Perry sought to present the testimony of
a witness who was prepared to testify that another man may
have committed the assault and that Perry had been
misidentified as the assailant. Id. at 1449. The trial court
excluded the evidence under California Evidence Code
section 352 (“Section 352”), which permits a court, in its
discretion, to exclude relevant evidence, provided the court
makes certain findings.4 Id. “[W]hen evidence is advanced
that a third party may have committed the crime,” California
courts have interpreted Section 352 to prohibit the admission
of such evidence “if it simply affords a possible ground of
suspicion against [another] person; rather it must be coupled


    4
      California Evidence Code section 352 states: “The court in its
discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice,
of confusing the issues, or of misleading the jury.”
10          UNITED STATES V. URIAS ESPINOZA

with substantial evidence tending to directly connect that
person with the actual commission of the offense.” Id.
(quoting People v. Green, 609 P.2d 468, 480 (Cal. 1980)).

    Perry argued “that the application of California evidence
law violated his [S]ixth and [F]ourteenth [A]mendment
rights.” Id. at 1449–50. As a result, our task in Perry was to
determine whether the trial court’s exclusion of Perry’s
proffered third-party culpability evidence, under California’s
Section 352, violated his constitutional rights. In doing so,
we adopted a balancing test that weighed Perry’s right to
present evidence against the State’s interest in “reliable and
efficient trials.” Id. at 1451. Ultimately, we concluded that
Perry’s constitutional rights were not violated by the
exclusion of the third-party culpability evidence under
California’s evidence code, and we affirmed the district
court’s denial of habeas relief. Id. at 1455.

    Nothing in Perry purported to import California’s
evidentiary standard—which conditions admissibility on a
showing of “substantial evidence” connecting the third-party
to the crime—into the Federal Rules of Evidence. In fact, in
Perry we acknowledged that Armstrong laid out the proper
standard for the admissibility of third-party culpability
evidence under the Federal Rules of Evidence:
“[f]undamental standards of relevancy.” Id. at 1451 (internal
quotation marks omitted).        In asserting his federal
constitutional claim, Perry attempted to rely on our decision
in Armstrong, but as we explained in Perry, Armstrong
provided no support for Perry’s constitutional argument
because “[a]lthough [Armstrong] cit[ed] constitutional cases,
[in Armstrong we] reviewed an application of the Federal
Rules of Evidence by the federal district court . . . [and]
[n]othing in Armstrong supports a belief that the Federal
            UNITED STATES V. URIAS ESPINOZA                 11

Rules of Evidence are constitutionally required, or that the
Constitution requires admission of all relevant evidence.” Id.
In Perry, therefore, we made clear that Armstrong’s
“fundamental standards of relevancy” applies to the
admission of third-party culpability evidence under the
Federal Rules of Evidence; there is no requirement of
“substantial evidence” linking the third-party with the actual
commission of the offense. See id.

     A decade later, in Ignacio, we relied on Perry to uphold
the exclusion of third-party culpability evidence. 10 F.3d at
615. Ignacio involved a challenge by Anthony Camacho
Ignacio to his jury conviction in the Superior Court of Guam
for first degree sexual conduct. Id. at 611. Among other
claims, Ignacio challenged his conviction on the basis that the
trial court had abused its discretion in “excluding evidence
about a defense theory of third-party culpability.” Id. at 610.
We noted that Ignacio’s claim “involve[d] interpretation of
the Guam Code of Evidence, . . . [which] is identical to the
Federal Rules of Evidence.” Id. at 611. In affirming the
district court’s exclusion of the evidence, we held that the
trial court “did not abuse its discretion” in finding that
“Ignacio had not presented ‘substantial evidence’ connecting
the [third party] to the crime charged.” Id. at 615.

    The government argues that Ignacio applied Perry’s
discussion of “substantial evidence” to federal cases,
essentially adopting California’s threshold for the
admissibility of third-party culpability into the Federal Rules
of Evidence. We disagree. We acknowledge that Ignacio’s
analysis is less than clear. However, as the three judge panel
in Ignacio was not free to ignore Armstrong and change our
circuit’s law regarding the threshold admissibility
requirement for third-party culpability evidence, we decline
12          UNITED STATES V. URIAS ESPINOZA

to interpret the opinion as establishing a new rule regarding
the admissibility of such evidence.

    At first blush, it would appear that Ignacio’s challenge to
the trial court’s exclusion of third-party culpability evidence
was brought under the Guam Code of Evidence, which is
identical in its language to the Federal Rules of Evidence. Id.
at 611. In fact, as we noted earlier, at the outset of Ignacio,
we stated that we were reviewing Ignacio’s claims under an
abuse of discretion standard, the standard under which we
review evidentiary objections. Id. Subsequently, however,
our substantive discussion of Ignacio’s claim was grounded
in constitutional case law that balanced the “defendant’s right
to present evidence which may exonerate him” against “other
legitimate interests in the criminal trial process.” Id. at 615.
We cited to Chambers v. Mississippi, 410 U.S. 284 (1973) for
such a test.

     In Chambers, the Supreme Court held that, as a result of
several evidentiary rulings by the trial court, the defendant’s
trial “was [not] conducted in accord with principles of due
process under the Fourteenth Amendment.” Id. at 285. After
citing to Chambers, Ignacio observed that we previously
“articulated the standard for balancing the defendant’s
‘undeniably strong’ interest in introducing [evidence of third-
party culpability] with the state’s ‘compelling’ interest in
reliable and efficient trials.” Ignacio, 10 F.3d at 615 (citing
Perry, 713 F.2d at 1451–52). In other words, Ignacio’s
discussion is framed around a constitutional balancing
analysis, suggesting that we either construed Ignacio’s
argument as raising a constitutional claim under the Sixth
Amendment right to present a defense, or we held Ignacio to
a higher standard under the Guam Rules of Evidence by
applying a constitutional framework to his non-constitutional
            UNITED STATES V. URIAS ESPINOZA                  13

claim. Although we acknowledge that our analysis in Ignacio
is less than clear, what is clear is that nothing in Ignacio
purports to announce a new rule for the admissibility of third-
party culpability evidence under the Federal Rules of
Evidence.

    For the foregoing reasons, the district court erred in
excluding Urias Espinoza’s evidence of third party culpability
because it failed to meet the “substantial evidence” threshold
discussed in both Perry and Ignacio. Nothing in either Perry
or Ignacio purports to modify our standard for the
admissibility of third-party culpability evidence under the
Federal Rules of Evidence—“fundamental standards of
relevancy.” Armstrong, 621 F.2d at 953. We next apply that
standard to the facts of the appeal before us. See id.

    Taken together, the excluded evidence in this case is
undoubtedly relevant, as it makes it more likely that the
neighbor used Urias Espinoza as a “blind mule,” which would
negate the mens rea element of the charged offense—Urias
Espinoza’s knowledge. See Fed. R. Evid. 401. The district
court instructed the jury that “the government is required to
prove . . . beyond a reasonable doubt . . . . that the defendant
knowingly brought methamphetamine into the United States”
and that “[a]n act is done knowingly if the defendant is aware
of the act and doesn’t act through ignorance or mistake or
accident.” As a result, not only was the government required
to establish Urias Espinoza’s knowledge to obtain a
conviction, but such knowledge was a contested element, as
Urias Espinoza did not admit to hiding the drugs in her car.
Moreover, the government did not present any testimony
from a witness who had seen Urias Espinoza load the drugs
into her car. Given the circumstances, evidence tending to
14           UNITED STATES V. URIAS ESPINOZA

show that someone else may have packed Urias Espinoza’s
car without her knowledge is relevant.

                               B.

    We turn to an examination of the individually excluded
pieces of evidence, and conclude that each one is relevant.
We further conclude that the neighbor’s conviction
documents were improperly excluded under Federal Rule of
Evidence 404(b).

                               1.

                               a.

    First, we consider the relevance of the neighbor’s prior
convictions. Urias Espinoza sought to introduce documentary
evidence of the neighbor’s prior convictions for importing
methamphetamine and possession with intent to distribute
marijuana. The defense argued that these convictions
demonstrated Urias Espinoza’s neighbor had the “ability and
motive” to find and transport methamphetamine. We agree.
Specifically, the conviction for the importation of
methamphetamine helps establish the neighbor’s requisite
knowledge of how to obtain and transport methamphetamine
in distribution-level quantities, thus making it more likely that
he packed Urias Espinoza’s car with the drugs. Similarly, the
conviction for possession with intent to distribute marijuana
in Los Angeles demonstrates a possible connection to drug
dealers in the United States who could sell the imported
methamphetamine found in Urias Espinoza’s car. In
combination, these convictions make it more likely that the
neighbor had the knowledge and ability to set up Urias
Espinoza as a “blind mule.” Moreover, the introduction of
            UNITED STATES V. URIAS ESPINOZA                  15

these convictions would have been particularly salient when
contrasted with the evidence presented that Urias Espinoza
was a law-abiding citizen, thus lacking the requisite
knowledge and connections to import large quantities of
narcotics into the United States.

    The government argues that because the convictions are
more than a decade old, they are not probative. We disagree.
For the importation conviction, the conduct was exactly the
same as here—importation of methamphetamine through the
Mexican border—and is therefore probative. See, e.g.,
United States v. Johnson, 132 F.3d 1279, 1283 (9th Cir. 1997)
(permitting thirteen-year-old prior bad act evidence because
it was “sufficiently similar to the charged conduct to render
it probative despite the passage of time”); United States v.
Ross, 886 F.2d 264, 267 (9th Cir. 1989) (“Given the
similarity of the offenses [thirteen years apart], the prior act
was not so remote as to require exclusion.”). Although the
conviction for possession with intent to distribute marijuana
is not identical to the charged offense, it is nonetheless
relevant and minimally probative. The fact that this
conviction involved the neighbor’s handling of a distribution-
quantity of drugs, particularly in combination with the
conviction for importation of methamphetamine, makes it
more likely that the neighbor set up Urias Espinoza as a
“blind mule.” Moreover, the conviction’s marginal probative
value is not outweighed by any risk of prejudice to the
government. Cf. Duran v. City of Maywood, 221 F.3d 1127,
1133 (9th Cir. 2000) (affirming the district court’s exclusion
of evidence because its marginally probative value was
substantially outweighed by the danger of unfair prejudice).

                              b.
16          UNITED STATES V. URIAS ESPINOZA

    Having concluded that the conviction documents were
relevant, we further hold that the district court erred in
excluding them under Federal Rule of Evidence 404(b) as
improper propensity evidence. Rule 404(b) bars admission
of “[e]vidence of other crimes, wrongs, or acts where that
evidence prove[s] only criminal disposition.” United States
v. Cruz-Garcia, 344 F.3d 951, 954 (9th Cir. 2003) (internal
quotation marks and citation omitted). As we have explained,
however, Rule 404(b) is “one of inclusion, and if evidence of
prior crimes bears on other relevant issues, 404(b) will not
exclude it.” Id. (internal quotation marks omitted). Under
Rule 404(b), evidence of other crimes may be admissible to
prove, inter alia, knowledge, motive, and opportunity. Fed.
R. Evid. 404(b)(2); see also Cruz-Garcia, 344 F.3d at 955
(Rule 404(b)(2)’s list of permissible purposes “is illustrative,
not exhaustive”).

    In Cruz-Garcia, the prosecution’s case largely rested on
the theory that the defendant’s alleged co-conspirator was
insufficiently intelligent to have trafficked drugs on his own,
and thus must have received assistance from the defendant.
Id. at 953. To rebut this theory, the defendant sought to
introduce evidence of the circumstances underlying the
supposed co-conspirator’s prior conviction for drug
trafficking, which the district court excluded under Rule
404(b). Id. We reversed, holding that the evidence was
relevant to a matter other than the alleged co-conspirator’s
propensity to commit crime: it could establish that the co-
perpetrator had the sophistication and intelligence to traffic
drugs on his own without the help of the defendant, thus
casting doubt on the defendant’s knowledge that the alleged
co-perpetrator was hiding drugs and on his intent to conspire
with the alleged co-perpetrator to deal drugs. Id. at 954–55.
            UNITED STATES V. URIAS ESPINOZA                 17

    Here, the conviction documents Urias-Espinoza sought to
introduce were relevant to establishing the neighbor’s
knowledge and ability—not merely his propensity to commit
crime. As discussed, the conviction documents could
establish the neighbor’s knowledge of how to find and
transport large quantities of methamphetamine. Similarly, the
conviction for possession with intent to distribute marijuana
in Los Angeles demonstrates a possible connection to drug
dealers in the United States, and thus makes it more likely
that the neighbor had the ability to sell the imported
methamphetamine in Urias Espinoza’s car. As in Cruz-
Garcia, this evidence was relevant to matters other than
merely a third party’s propensity to commit crime, and so
should not have been excluded under Rule 404(b).

    We caution, however, that our ruling that the conviction
documents were admissible here is not transferable to a
situation in which the government seeks to introduce similar
evidence with respect to a defendant’s prior crimes under
Rule 404(b). See United States v. Rocha, 553 F.2d 615, 616
(9th Cir. 1977). This is because “the standard of admissibility
when a criminal defendant offers similar acts evidence as a
shield need not be as restrictive as when a prosecutor uses
such evidence as a sword.” United States v. Wright, 625 F.3d
583, 608 (9th Cir. 2010) (internal quotation and citation
omitted). Although Rule 404(b) does apply to witnesses and
third parties,

       courts should indulge the accused when the
       defendant seeks to offer prior crimes evidence
       of a third person for an issue pertinent to the
       defense other than propensity. This is because
       404(b) is often thought to protect a defendant
       from being tried for who he is, not for what he
18            UNITED STATES V. URIAS ESPINOZA

         did. The guilt or innocence of the accused
         must be established by evidence relevant to
         the particular offense being tried, not by
         showing that the defendant has engaged in
         other acts of wrongdoing.

Cruz-Garcia, 344 F.3d at 955–56 n.3 (internal quotations and
citations omitted). Where, as here, the evidence is not
introduced against a defendant, but rather is introduced by a
defendant, the same protective concerns are not implicated.

                                   2.

    Second, we consider the relevance of the neighbor’s prior
deportation from the United States. Urias Espinoza sought to
introduce evidence that her neighbor had been previously
deported from the United States. The defense argued that the
neighbor’s deportation demonstrated why the neighbor was
unable to drive the car himself, and needed to get someone
else to do it. As a result of his prior deportation, the neighbor
would be unable to legally cross the border on his own. As
with the neighbor’s convictions, the neighbor’s deportation
makes it more likely that he used Urias Espinoza as a “blind
mule” to smuggle methamphetamine into the United States.

                                   3.

   Finally, we consider the relevance of the Facebook page
and the photographs.5 Urias Espinoza sought to introduce
several photographs, as well as a screen shot of a Facebook


     5
      We leave it to the district court on remand to determine whether any
statements or other portions of the Facebook page are excludable on other
grounds.
            UNITED STATES V. URIAS ESPINOZA                 19

page containing an additional photograph of her neighbor.
These photographs were used to identify the neighbor and
link him to the conviction documents. At trial, the father of
Urias Espinoza’s boyfriend identified the man in at least one
of the photographs as Urias Espinoza’s next-door neighbor.
The government conceded that the man identified, through
witness testimony and photographs, as the next-door neighbor
was likely the same man with the criminal convictions. As a
result, these photographs make it more likely that Urias
Espinoza’s neighbor was responsible for the drugs found in
her car.

    In sum, the rejected evidence would have aided Urias
Espinoza in demonstrating that her neighbor had the
opportunity, motive, and knowledge to use her as a “blind
mule,” all of which makes it more likely that he did in fact do
so, which in turn would negate Urias Espinoza’s knowledge
of the drugs in her car. The excluded evidence is relevant and
should have been admitted, absent another basis for
exclusion.

    The district court, however, did not clearly rule on
whether the evidence was minimally relevant. Instead, the
district court excluded the evidence because it determined the
defense’s theory was “all speculation,” thereby failing to
satisfy the rule that “substantial evidence tending to directly
connect [the neighbor] with the actual commission of the
offense” must be offered to satisfy the threshold standard for
admissibility. Perry, 713 F.2d at 1449 (citation omitted). But
as we have explained, supra, “substantial evidence”
establishing a link between the third-party and the crime is
not a threshold requirement for the admissibility of third-
party culpability evidence.
20           UNITED STATES V. URIAS ESPINOZA

     That the defense’s theory may be speculative is not a
valid reason to exclude evidence of third-party culpability.
See Stever, 603 F.3d at 754 (“[T]he district court is not free
to dismiss logically relevant evidence as speculative.”);
Vallejo, 237 F.3d at 1023 (“Even if the defense theory is
purely speculative, as the district court characterized it, the
evidence would be relevant.”). If “the evidence [that
someone else committed the crime] is in truth calculated to
cause the jury to doubt, the court should not attempt to decide
for the jury that this doubt is purely speculative and fantastic
but should afford the accused every opportunity to create that
doubt.” Crosby, 75 F.3d at 1349 (alterations in original)
(citing 1A John Henry Wigmore, Evidence in Trials at
Common Law § 139 (Tillers rev. 1983)). “[I]t is the role of
the jury, [and not the district court] to consider the evidence
and determine whether it presents all kinds of fantasy
possibilities . . . or whether it presents legitimate alternative
theories for how the crime occurred.” Vallejo, 237 F.3d at
1023 (internal quotation marks omitted).

    We note that in its colloquy with counsel regarding the
disputed evidence, the district court raised other concerns
about the evidence’s admissibility. However, the court
ultimately relied on the wrong standard by excluding the
evidence for failing to meet the “substantial evidence” test.
Accordingly, the district court abused its discretion in
applying the wrong legal standard to exclude relevant
evidence of third-party culpability. Under the correct legal
standard of relevance, the excluded evidence was not
inadmissible for lack of relevance.
            UNITED STATES V. URIAS ESPINOZA                  21

                              C.

    The government argues that even if the district court erred
in excluding the evidence of third-party culpability, the error
was harmless.          We disagree.      “In the context of
nonconstitutional error in criminal cases we must reverse . . .
unless it is more probable than not that the error was
harmless.” United States v. Seschillie, 310 F.3d 1208, 1215
(9th Cir. 2002) (internal quotation marks and citation
omitted). “The government bears the burden of persuasion
and . . . [i]n cases of equipoise, we reverse.” United States v.
Liera, 585 F.3d 1237, 1244 (9th Cir. 2009) (internal quotation
marks and citations omitted).

     Here, Urias Espinoza was caught at the border with a car
full of drugs, but consistently denied any knowledge of them.
Accordingly, the sole issue at trial was whether Urias
Espinoza knew she was smuggling methamphetamine, and
the excluded evidence went to her knowledge. The
government’s evidence with respect to Urias Espinoza’s
knowledge was circumstantial and not overwhelming.

    For example, the government presented testimony from
CBP Agent Tan who explained that he immediately noticed
the back seat was bulging when the car approached the border
inspection point. The government argued that because the
bulge was so obvious, and because Urias Espinoza regularly
drove her car, she would have noticed the bulge. The actual
evidence was slightly more complicated than the government
represents. On cross-examination, the defense cast doubt on
Agent Tan’s assessment by eliciting more information than he
offered on direct examination, including that the windows to
the car were tinted, that he had used a density reading
machine and not just his eyes to conclude there was
22          UNITED STATES V. URIAS ESPINOZA

something hidden in the rear seat, and that he failed to make
any mention of the bulging seats in the report that he prepared
that day. Therefore, a jury could have reasonably concluded
that the bulge was not as obvious as Agent Tan represented
during his direct examination testimony. Nonetheless, the
jury was not presented with a viable theory of who else may
have placed the drugs in Urias Espinoza’s car, thus nullifying
the effect of any doubt the jury might have had as to the
veracity of Agent Tan’s testimony.

    The government also presented evidence that Urias
Espinoza texted someone about transporting a “product,” and
that Urias Espinoza was looking into getting a pass that
would allow her to more expeditiously travel across the
border. According to the government, this evidence
demonstrated that Urias Espinoza knew she was transporting
drugs and was attempting to ensure that she did not get
caught. The defense, however, in closing argument,
maintained that Urias Espinoza’s behavior was entirely
consistent with the fact that she frequently traveled to the
United States to buy clothes that she could resell in Mexico.
In other words, in light of Urias Espinoza’s background and
profession, there was nothing inherently illicit about her use
of the term “product” or her desire to expedite her passage
through a border inspection point. Again, a reasonable juror
could have concluded that the circumstantial evidence
presented by the government was not convincing, but the jury
was left without a plausible alternative theory that a person
other than Urias Espinoza placed the drugs in her car.

    Ultimately, then, although Urias Espinoza was able to
poke holes in the prosecution’s case and offer innocent
explanations for some of her behavior, the exclusion of third-
party culpability evidence precluded her from answering the
            UNITED STATES V. URIAS ESPINOZA                 23

only question that mattered: “If [Urias Espinoza] did not
know there were drugs in the car and did not place them there
[herself], who did?” Vallejo, 237 F.3d at 1023. As Urias
Espinoza’s counsel readily admitted to the jury,

       Unfortunately, this is a question I cannot
       answer for you. It’s a question that Ms. Urias
       [Espinoza] cannot answer for you. Could it
       have been someone she ordered a product
       from?       Someone who lived in the
       neighborhood who had access to her car?
       You heard that it wasn’t in a garage.
       Someone who wanted her to pick up a product
       in the U.S.? Someone who wanted her to
       return something for them? Could it have
       been . . . a combination of people? Sure. I
       don’t know. We can’t tell you that.

    The government argued to the jury that the defense’s
argument that “someone set [Urias Espinoza] up is
preposterous” and “ridiculous.” We agree that the third-party
culpability defense has little value when the defendant is
unable to point the finger at a particular third-party. Without
the ability to identify a particular individual who could have
plausibly committed the offense, Urias Espinoza’s other
efforts to cast doubt on the prosecution’s case, as detailed
above, rang hollow.

     While the claim that Urias Espinoza’s neighbor set her up
as a “blind mule” was “perhaps not particularly compelling,
[it was] certainly plausible.” Liera, 585 F.3d at 1244. “This
is sufficient to defeat the government’s harmless error
argument.” Id. The excluded evidence could have provided
the missing link to establish reasonable doubt for the jury: an
24          UNITED STATES V. URIAS ESPINOZA

actual individual who had knowledge, motive, and
opportunity to use Urias Espinoza as a blind mule to smuggle
drugs into the United States. We therefore conclude that the
government has failed to meet its burden of demonstrating
that “it is more probable than not that the error did not
materially affect the verdict.” Seschillie, 310 F.3d at 1214
(internal quotation marks omitted). Accordingly, the district
court’s error in excluding the evidence Urias Espinoza sought
to introduce in support of her defense, on the basis of an
incorrect legal standard, was not harmless. See id.

     REVERSED AND REMANDED FOR RETRIAL.
