                          In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-2026

U NITED S TATES OF A MERICA,
                                             Plaintiff-Appellee,
                               v.

JASPER V ARGAS,
                                         Defendant-Appellant.


           Appeal from the United States District Court
                for the Central District of Illinois.
       No. 05 CR 20007—Michael P. McCuskey, Chief Judge.



   A RGUED O CTOBER 29, 2008—D ECIDED D ECEMBER 31, 2008




 Before P OSNER, M ANION, and K ANNE, Circuit Judges.
  K ANNE, Circuit Judge. Defendant Jasper Vargas was
arrested on November 20, 2004, after police and federal
agents discovered 282 kilograms of cocaine concealed
within a hidden compartment in the refrigerated trailer
that Vargas was using to haul produce. The government
sought to introduce evidence at trial that Vargas had, on
prior occasions, transported drugs hidden under loads
2                                              No. 07-2026

of produce in refrigerated semi-trailers.1 The district
court admitted the evidence under Federal Rule of Evi-
dence 404(b) over Vargas’s objection, and on January 31,
2007, the jury convicted Vargas of knowingly possessing
more than five kilograms of cocaine with the intent to
distribute it in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(ii). The district court denied Vargas’s motions
for a judgment of acquittal and for a new trial, and sen-
tenced him to life in prison. Vargas appeals the district
court’s admission of his prior uncharged drug trafficking
activity. We affirm.


                    I. B ACKGROUND
  On November 17, 2004, agents from the Drug Enforce-
ment Administration in McCallen, Texas, began con-
ducting surveillance on a refrigerated trailer that they
believed would be used to transport drugs to Chicago. The
agents first spotted the trailer on a residential street in
Alton, Texas, a small town about ten miles north of the
Mexican-American border. That afternoon, DEA agents
observed Vargas and another individual, Juan Jose Garcia,
arrive at the location and connect the trailer to a new
tractor. Vargas then drove away with Garcia as a passen-
ger. The agents followed, but when Vargas made a
sudden U-turn they turned off the road to avoid being
seen.



1
  Loads of produce used to conceal contraband are termed
“cover loads” of produce.
No. 07-2026                                              3

  The agents resumed following Vargas approximately
forty-five minutes later. Vargas continued to make
several U-turns on small country roads, and the agents
suspected that he was conducting counter-surveillance
to determine whether he was being followed. Vargas
eventually parked at a small roadside restaurant where
another individual worked on the refrigeration unit of
the trailer. After the work was completed, Vargas drove
away.
  Later that day, Officer Hector Mendez, a local canine
officer, stopped Vargas and the tractor-trailer at the
request of DEA agents. Vargas told Mendez the trailer
was to be loaded with produce the next day for a
delivery to Georgia. After obtaining Vargas’s consent,
Mendez used his dog to search the interior of the empty
trailer. The dog did not react, and Mendez did not find
any drugs. Mendez gave Vargas a warning for speeding,
and the DEA agents ceased their surveillance.
  The next day, November 18, 2004, Vargas picked up a
load of produce in Mission, Texas, destined for Karisu
Produce in Chicago. Neither the DEA nor local law en-
forcement was conducting surveillance at the time the
trailer was loaded.
  On the morning of November 20, 2004, Illinois State
Trooper Robert Williams received an alert to “be on the
look out” for the tractor-trailer, which bore the name “G&R
Trucking.” The alert identified Vargas as the anticipated
driver. Officer Williams spotted the trailer and pulled
Vargas over for speeding. According to Officer Williams,
Vargas, who was accompanied by an unauthorized female
4                                               No. 07-2026

passenger, looked extremely nervous and was visibly
shaking. Vargas provided Williams with the bill of lading,
which showed that Vargas had picked up a load of pro-
duce in Mission, Texas, and was transporting it to Chicago.
  After Williams completed a safety inspection and
issued Vargas warnings for speeding and having an
unauthorized passenger, he asked Vargas if he could
search the trailer. Vargas consented to the search. Williams
noticed that some rivets had been replaced on the passen-
ger side of the front of the trailer under the refrigera-
tion unit. He also noticed some nonstandard white caulk
on the walls of the refrigeration unit, which indicated
to him that it had been altered or modified.
  With the assistance of other officers, Williams con-
tinued to search the trailer and noticed missing rivets
and fresh black caulk on the outside of the trailer. Because
of these observations, Williams requested that a drug
canine come to the scene. The canine officer walked
around the trailer, and the dog detected the presence of
drugs. Williams entered the trailer, but was unable to
examine the inside of the front of the trailer because of
the load of produce.
  Officers instructed Vargas to drive the tractor-trailer
to the Illinois Department of Transportation yard in
Ashkum, Illinois, where the police continued the search.
Trooper Michael Banach, who had taken over the investi-
gation, made his way through the load of produce
and removed the external cover to the refrigeration unit,
but he was unable to remove a second piece of sheet
metal. The officers determined that the contents of the
No. 07-2026                                              5

trailer needed to be removed to allow for a thorough
inspection, but they were unable to do so in Ashkum.
At the officers’ direction, Vargas drove to Kochel’s Towing
in Monee, Illinois, where the produce could be unloaded
and the trailer fully inspected.
  After the officers were finally able to remove the
produce and several layers of sheet metal from the re-
frigeration unit, they discovered a hidden compartment
containing 157 numbered bundles wrapped in green
cellophane. Later investigation revealed that the bundles
contained 282 kilograms of “very high purity” cocaine
with a wholesale value of over $5 million. Vargas was
placed under arrest.
  Before trial, the government filed a “Second Notice of
Introduction of Evidence Under Federal Rule 404(b),”
indicating that it planned to present evidence of other
instances in which Vargas was involved in transporting
drugs concealed under cover loads of produce in refriger-
ated semi-trailers. The government summarized the
evidence and explained that it was offered to show
“whether the defendant possessed the cocaine ‘know-
ingly.’ ” Vargas opposed the evidence. Although he
conceded that it was relevant to knowledge and that it
was similar enough to be relevant, he argued that the
probative value of the evidence was outweighed by its
danger of unfair prejudice.
  The district court allowed the admission of the evi-
dence. In a written opinion, the court found that the
evidence was relevant to the issue of knowledge, that it
was similar and close enough in time to be relevant, and
6                                                   No. 07-2026

that it was sufficient to support a jury finding that Vargas
committed the acts. The district court further found that
the probative value of the evidence was not outweighed
by the danger of unfair prejudice, because the evidence
was “very relevant to the issue of [Vargas’s] knowledge.”
The court noted that the risk of unfair prejudice could
be mitigated by a limiting instruction to the jury that it
could consider the “other acts” evidence only on the
question of Vargas’s knowledge.
  During Vargas’s trial,2 the government called various
law enforcement officers to testify to the events set forth
above. The government also presented the testimony of
Natris Morris, who had shared a jail unit with Vargas
while they were awaiting trial. Morris testified that
Vargas had admitted that he was transporting cocaine in
a hidden compartment of a trailer when he was caught.
Morris stated that Vargas had expected to be paid be-
tween $500 and $1,000 per kilo for transporting the drugs.
  Pursuant to the district court’s ruling, the government
called three witnesses—Mario Martinez, Juan Mendoza,
and Officer Alfredo Barrera—to testify to Vargas’s other
acts. Martinez, a long-time friend of Vargas, testified that
in November 2002, Martinez brokered a marijuana



2
  Vargas’s first trial, which began on January 16, 2007, ended in
a mistrial when the jury hopelessly deadlocked at eleven to
one for conviction. A second trial began on January 29, 2007.
Because the second trial resulted in Vargas’s conviction and is
at issue on appeal, we will discuss only the evidence presented
at this trial.
No. 07-2026                                             7

delivery for Francisco Arizmendi-Lugo (nicknamed
“Pancho”), whom Vargas had introduced to Martinez.
Martinez testified that he, Pancho, and Vargas had met at
Martinez’s ranch in Alton, Texas, to arrange the sale and
transportation of fifty-five pounds of marijuana to
Cutberto Sandoval in Corpus Christi, Texas. On the day
of the sale, Vargas transported the marijuana to Corpus
Christi in a refrigerated trailer under a cover load of
produce. Martinez and Pancho traveled separately to
Corpus Christi, where they met Vargas and Sandoval at
an interstate truck stop. Vargas then drove the truck to
a different location, where Sandoval took possession of
the marijuana. Sandoval purchased the marijuana for
$400 per pound, and Pancho paid Martinez $25 for each
pound transported.
  Juan Mendoza and Officer Barrera testified regarding
the transport of a large amount of marijuana in 2003. On
January 11, 2003, police officers in southern Texas
stopped a tractor-trailer driven by Elio Longoria and
carrying Juan Mendoza as a passenger. Barrera, an
officer with the Texas Department of Safety, testified
that he conducted a search of the refrigerated trailer and
found 1,300 pounds of marijuana in bundles hidden in
boxes of cabbage. Mendoza and Longoria were arrested.
  Mendoza testified that the marijuana seized on Janu-
ary 11, 2003, was destined for Fort Wayne, Indiana.
Mendoza explained that Vargas had obtained the tractor-
trailer and the two of them had loaded the marijuana
and cabbage into the tractor the day before the seizure.
Mendoza estimated that he and Vargas would have been
8                                                No. 07-2026

paid between $6,000 and $7,000 for their roles in the
delivery. Mendoza also testified that a few months before
his arrest, he and Vargas had used the same tractor-trailer
to transport 200 pounds of marijuana, concealed in pro-
duce, from Texas to an unspecified location “up north.”
  Vargas requested that the district court read a limiting
instruction to the jury concerning the Rule 404(b) evidence.
Pursuant to Vargas’s request, the district court told the
jury:
    You have heard evidence of acts of the defendant
    other than those charged in the indictment. You
    may consider this evidence only on the question of
    knowledge. You should consider the evidence only
    for this limited purpose.
The jury found Vargas guilty, and the district court sen-
tenced him to life imprisonment.


                       II. A NALYSIS
  Under Rule 404(b), “[e]vidence of other crimes, wrongs,
or acts is not admissible to prove the character of a
person in order to show action in conformity therewith.”
Fed. R. Evid. 404(b); United States v. Diekhoff, 535 F.3d 611,
617 (7th Cir. 2008). Such evidence is admissible, however,
where admitted for purposes other than showing propen-
sity, such as to establish intent, knowledge, lack of
mistake, motive, or opportunity. Fed. R. Evid. 404(b);
United States v. Chavis, 429 F.3d 662, 667 (7th Cir. 2005). In
determining whether to admit “other acts” evidence
under Rule 404(b), courts are to examine whether:
No. 07-2026                                                 9

    (1) the evidence is directed toward establishing a
    matter in issue other than the defendant’s propen-
    sity to commit the crime charged; (2) the evidence
    shows that the other act is similar enough and
    close enough in time to be relevant to the matter in
    issue; (3) the evidence is sufficient to support a
    jury finding that the defendant committed the
    similar act; and (4) the evidence has probative
    value that is not substantially outweighed by the
    danger of unfair prejudice.
Diekhoff, 535 F.3d at 617.
  We review a district court’s evidentiary rulings for an
abuse of discretion. United States v. Price, 516 F.3d 597, 603
(7th Cir. 2008). We give special deference to the trial
judge regarding these matters because of his first-hand
exposure to witnesses, familiarity with the case, and ability
to gauge the impact of the evidence in the context of the
entire proceeding. United States v. Hicks, 368 F.3d 801, 807
(7th Cir. 2004). Only where no reasonable person could
take the view adopted by the trial court will we reverse
an evidentiary ruling. Id.
   Vargas argues that the district court abused its discre-
tion in admitting evidence of his prior involvement in
drug transportation. Specifically, he argues that the
evidence is not probative of his knowledge, that it is not
similar enough to be relevant, and that the danger of
unfair prejudice from admitting the evidence outweighs
its probative value. We discuss each argument in turn.
   Vargas first argues that the government did not meet
its burden of demonstrating how the “other acts” evidence
10                                                No. 07-2026

established that Vargas had knowledge that the trailer
contained cocaine. He correctly notes that this circuit has
rejected a per se rule that all prior drug convictions are
admissible to show knowledge and intent. See United
States v. Beasley, 809 F.2d 1273, 1278 (7th Cir. 1987) (“A
rule that a judge may admit all evidence that the de-
fendant committed crimes of similar varieties produces
the gravest risk of offending the central prohibition of
Rule 404(b).”). We are not convinced, however, that the
government failed to show how the evidence in this case
was relevant to Vargas’s knowledge that the trailer con-
tained drugs.
   This court has repeatedly held that when a defendant
claims to be merely an “innocent bystander,” evidence of
prior drug convictions is relevant to show that the defen-
dant knew that he was distributing drugs. See, e.g., Chavis,
429 F.3d at 668; United States v. Smith, 995 F.2d 662, 672 (7th
Cir. 1993). For example, in Smith, the defendant claimed
that he was unaware that he had hauled marijuana
from Louisiana to Colorado. 995 F.2d at 671-72. The
court held that evidence that the defendant had “picked
up” a previous load of marijuana was relevant to estab-
lishing his knowledge and intent to distribute marijuana
as charged. Id. at 672. Similarly, in United States v. Moore,
531 F.3d 496, 499-500 (7th Cir. 2008), we held that evidence
of a prior drug buy was admissible to show that the
defendant knew that a bag he threw from a vehicle con-
tained drugs.
  Vargas’s prior involvement in drug distribution was
likewise relevant to his knowledge in this case. Vargas
concedes that his sole argument at trial was that he was
No. 07-2026                                                11

unaware that the trailer contained a secret compartment
in which drugs were stowed. The fact that Vargas had, on
previous occasions, hauled marijuana in refrigerated
trailers containing produce makes it more likely that
he knew the trailer contained drugs and less likely that
he was an innocent victim.
  As the crux of his argument that the prior bad acts were
not relevant to establish knowledge, Vargas contends
that the prior acts were not similar enough to the charged
crime. Vargas argues that although these acts were
similar in some respects, they were not similar in a way
that shows knowledge. Namely, Vargas maintains that
the evidence had little bearing on Vargas’s knowledge
that the trailer contained a hidden compartment.
  We have repeatedly held in the context of Rule 404(b)
that “similarity is relevant only insofar as the acts are
sufficiently alike to support an inference of criminal
intent. . . . The prior acts need not be duplicates of the one
for which the defendant is now being tried.” United States v.
Lloyd, 71 F.3d 1256, 1265 (7th Cir. 1995) (alteration in
original) (quotation omitted). This test is not unduly
rigid, and the term “similarity” has been loosely inter-
preted and applied. United States v. Montani, 204 F.3d 761,
768 (7th Cir. 2000). Thus, we analyze whether the prior
conduct is similar enough on a case-by-case basis, a
determination that “depend[s] on the theory that makes
the evidence admissible.” United States v. Wheeler, 540
F.3d 683, 692 (7th Cir. 2008) (alteration in original) (quota-
tion omitted).
  Vargas’s prior involvement in transporting drugs under
cover loads of produce was certainly similar enough to
12                                             No. 07-2026

produce an inference of criminal intent. The government’s
theory was that Vargas was aware that refrigerated
trailers and produce are commonly used to transport
drugs. Although the previous instances did not involve
the use of hidden compartments, this distinction is not
substantial enough for us to overturn the district court’s
decision. Vargas’s prior bad acts certainly show that he
was familiar with the technique of using cover loads of
produce and refrigerated trailers. The jury could have
easily believed that because Vargas had previously partici-
pated in this type of drug-hauling activity, it was more
likely that he knew that the trailer he was hauling con-
tained contraband.
  Yet Vargas goes so far as to ask us to adopt a per se
rule that “standard operating procedures” of drug dealers
alone cannot establish sufficient similarity to be
probative of knowledge under Rule 404(b). For this, Vargas
relies upon United States v. Owens, 424 F.3d 649 (7th Cir.
2005). In Owens, we held that evidence of a prior bank
robbery was not admissible to demonstrate the
defendant’s knowledge, namely his familiarity with the
bank that he robbed in the charged incident. Id. at 655.
After ruling that knowledge was not in issue in the case,
we noted that, at any rate, “the evidence of the [prior]
robbery does not demonstrate any special knowledge of
the bank used to commit the present crime. While both . . .
robberies were committed in substantially the same way,
in that both involved the use of a demand note, the
same may be said of most all bank robberies.” Id. Thus, we
held that the probative value of the evidence was low. Id.
No. 07-2026                                              13

  Owens provides no support for a per se rule that prior bad
acts involving only “standard operating procedures”
cannot meet the threshold requirements of Rule 404(b).
First, unlike in this case, we found it significant in
Owens that knowledge was in no way at issue. Id. Further-
more, Owens never established that because using a
demand note was a relatively standard procedure for
bank robberies it could not be considered in a similarity
analysis; indeed, we did not hold that the acts were too
dissimilar to be relevant. See id. Instead, we merely noted
that this particular common procedure did not have
sufficient probative value in demonstrating the de-
fendant’s familiarity with the bank he was charged
with robbing. Id. The evidence in Vargas’s case, on
the other hand, is extremely probative in that it does
demonstrate his familiarity with the use of cover loads
of produce and refrigerated trailers to transport drugs.
  If we were to adopt Vargas’s proposed rule that some-
thing beyond the “standard operating procedures” of drug
dealers is required to show similarity, the government
would be hard-pressed to find any evidence that would
be admissible under Rule 404(b) in drug cases. Yet this
type of evidence is often crucial to the government’s
case because the only way to ascertain the defendant’s
mental state is often to draw inferences from his prior
conduct. See Huddleston v. United States, 485 U.S. 681, 685
(1988). This is precisely why Rule 404(b) allows such
evidence to be admitted when it is probative of knowl-
edge. Thus, whether Vargas’s prior bad acts involved only
“standard operating procedures” of drug dealers is
irrelevant. What matters is that the evidence was
14                                                No. 07-2026

directed toward establishing Vargas’s knowledge, and
was sufficiently similar to the charged offense to be
probative on that issue.
  Even Vargas conceded in the district court that the
government met these two prongs of our test. In his brief
to the district court,3 Vargas explicitly noted that “[t]he
prior similar drug transactions sought to be introduced by
the Government here are very similar to the crime at bar.”
Instead, Vargas’s sole argument at the district court
level was that the probative value of the evidence was
substantially outweighed by the danger of unfair prej-
udice. We now turn to this argument.
  Under Rule 404(b), evidence of a defendant’s prior bad
acts is not admissible where its probative value is substan-
tially outweighed by the risk of unfair prejudice. Diekhoff,
535 F.3d at 617. We have noted that “most relevant evi-
dence is, by its very nature, prejudicial, and that evidence
must be unfairly prejudicial to be excluded.” United States
v. Pulido, 69 F.3d 192, 201 (7th Cir. 1995). Evidence is
unfairly prejudicial if it will induce the jury to decide the
case on an improper basis, such as propensity. Old Chief v.
United States, 519 U.S. 172, 180-81 (1997). “[T]he more
probative the evidence, the more the court will tolerate
some risk of prejudice, while less probative evidence will


3
  The brief in which Vargas made this argument is entitled
“Response to Government’s Second Notice of Introduction of
Evidence under Federal Rule of Evidence 404(b).” However,
because Vargas requested in that brief that the district court
bar the evidence, the court treated it as a motion in limine to
exclude the government’s proffered evidence.
No. 07-2026                                                15

be received only if the risk of prejudice is more remote.”
United States v. Menzer, 29 F.3d 1223, 1234 (7th Cir. 1994)
(alteration in original) (quotation omitted).
  As noted above, the evidence of Vargas’s prior involve-
ment in drug transportation was probative of his knowl-
edge of the use of cover loads of produce and refrigerated
trailers to haul drugs. Knowledge that the refrigerated
trailer contained drugs was not only an element of the
crime, but the focus of Vargas’s defense. Cf. Moore, 531
F.3d at 500 (relying, in part, on the fact that lack of knowl-
edge was the focus of the defense in admitting evidence
under Rule 404(b)). It is true that the evidence was
slightly less probative than it would have been had it
involved the use of hidden compartments. However, the
risk of unfair prejudice was slight, and therefore did not
substantially outweigh the probative value of the
evidence to establish Vargas’s knowledge.
  The district court explicitly instructed the jury that it
could consider Vargas’s prior bad acts only on the ques-
tion of knowledge, and as we have often noted, we
assume that limiting instructions are effective in re-
ducing or eliminating unfair prejudice. See id.; United
States v. Denberg, 212 F.3d 987, 994 (7th Cir. 2000). Vargas
claims that the district court’s “formulaic” limiting in-
struction “left the jury out to sea” because it failed to
explain how Vargas’s prior bad acts were relevant to the
issue of knowledge. (Petr.’s Br. 46-48 (citing United States
v. Jones, 455 F.3d 800, 811 (7th Cir. 2006) (Easterbrook, J.,
concurring)).) This argument is unavailing. First, we have
often held that similar or identical jury instructions,
16                                               No. 07-2026

modeled after pattern instruction 3.04 of this circuit, were
effective in removing prejudice. See, e.g., Jones, 455 F.3d at
809; United States v. Puckett, 405 F.3d 589, 599 (7th Cir.
2005). Second, the prosecutor explained to the jury how
Vargas’s bad acts were relevant in his opening statement
by clarifying that the testimony would “shed light on the
defendant’s knowledge of the use of refrigerated tractor-
trailers and cover loads of produce to transport large
amounts of contraband.” Thus, the jury was explicitly
told how to consider the evidence.
  Furthermore, any unfair prejudicial value of the evi-
dence was mitigated by the fact that it was “a drop in the
fairly large bucket of evidence” of Vargas’s involvement in
drug trafficking. United States v. Coleman, 179 F.3d 1056,
1062 (7th Cir. 1999). Vargas repeatedly engaged in
evasive driving maneuvers while the truck was empty,
which the jury could interpret as an effort to avoid
leading law enforcement to the location where the drugs
were to be loaded. Furthermore, he acted nervous and was
visibly shaking when pulled over for speeding. Finally, he
admitted to Morris, his cellmate after arrest, that he was
caught transporting drugs, and that he had expected to
be paid between $500 and $1,000 per kilo for his efforts.
With 282 kilograms of cocaine in the trailer, that means
Vargas would have been paid between $141,000 and
$282,000 for this delivery. Considering this payment
scheme, it is simply impossible that Vargas believed he
was merely transporting produce. With a record replete
with evidence of Vargas’s guilt, any prejudice was rela-
tively harmless and did not substantially outweigh its
probative value. See id.
No. 07-2026                                                17

                     III. C ONCLUSION
   We therefore find that the district court did not abuse
its discretion in admitting the evidence of Vargas’s prior
bad acts under Rule 404(b). The evidence was directed at
showing that Vargas knew the trailer contained drugs, and
it was sufficiently similar to be relevant. The risk of unfair
prejudice was minimal because it was mitigated by the
district court’s use of limiting instructions and the ex-
tensive evidence of Vargas’s guilt; this minimal risk did
not substantially outweigh the probative value of the
evidence. The judgment of the district court is A FFIRMED.




                           12-31-08
