                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAY 7 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    19-50175

                Plaintiff-Appellee,             D.C. No.
                                                3:17-cr-03066-BAS-1
 v.

MARIA FERNANDA PENA RIVERA,                     MEMORANDUM*

                Defendant-Appellant.

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

                             Submitted May 4, 2020**
                               Pasadena, California

Before: GOULD and CHRISTEN, Circuit Judges, and STEIN,*** District Judge.

      Defendant Maria Fernanda Pena Rivera challenges her conviction for two

counts of importation of a controlled substance, under 21 U.S.C. §§ 952 and 960,



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Sidney H. Stein, United States District Judge for the
Southern District of New York, sitting by designation.
claiming that the district court improperly admitted certain text messages into

evidence and that there was insufficient evidence to convict her. We affirm.1

      1.     Defendant contends that the district court improperly admitted text

messages from four months before her offense for the impermissible purpose of

using a prior bad act to show that she acted in conformity with her bad character.

We reject Defendant’s contention. As the district court concluded, the text

messages, which tend to show that Defendant had previously smuggled cash across

the United States-Mexico border, were relevant to establishing knowledge, intent,

plan, and opportunity to smuggle narcotics for illicit drug organizations. See Fed.

R. Evid. 404(b)(2). That evidence of a prior bad act was admissible because (1) it

“tends to prove a material point”; (2) “the other act is not too remote in time”; (3)

“the evidence is sufficient to support a finding that defendant committed the other

act”; and (4) “the act is similar to the offense charged.” United States v. Ramos-

Atondo, 732 F.3d 1113, 1123 (9th Cir. 2013) (quoting United States v. Bailey, 696

F.3d 794, 799 (9th Cir. 2012)). 2 Moreover, the district court was well within its



1
 Because the parties are familiar with the facts and procedural history of this case,
we do not recite them here.
2
 We note that the fourth consideration is not required when the evidence goes to a
defendant’s knowledge, United States v. Ramirez-Jiminez, 967 F.2d 1321, 1326
(9th Cir. 1992), but even if it were, smuggling cash is similar to smuggling drugs,
see Ramos-Atondo, 732 F.3d at 1123 (upholding admission of evidence of prior
alien smuggling as relevant in drug smuggling case).

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discretion to conclude that any possible prejudice from admitting the evidence did

not substantially outweigh its probative value, especially where “any such practical

prejudice was minimized by the district court’s careful limiting instruction to the

jury.” Id. at 1124.

      2.     Defendant also contends that the district court erred by denying her

motion for judgment of acquittal. The government presented evidence that

Defendant had exclusive dominion and control over the car in which nearly sixty

pounds of narcotics worth almost $300,000 were discovered, see United States v.

Castillo, 866 F.2d 1071, 1086–87 (9th Cir. 1988); United States v. Hursh, 217 F.3d

761, 767 (9th Cir. 2000); that Defendant recently deposited in her bank account

and possessed on her person quantities of money that dwarfed her monthly

earnings, see United States v. Murrieta-Bejarano, 552 F.2d 1323, 1325 (9th Cir.

1977), overruled on other grounds by United States v. Heredia, 483 F.3d 913 (9th

Cir. 2007) (en banc); and that Defendant sent suspicious text messages both the

day before and four months before her arrest. When “viewing the evidence in the

light most favorable to the prosecution, [a] rational trier of fact could have found

the essential elements of the crime [including knowledge and intent] beyond a

reasonable doubt.” United States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir.

2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The

district court appropriately concluded that there was sufficient evidence to support


                                          3
Defendant’s conviction.

      AFFIRMED.




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