                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 11-1440
                                     _____________

                            UNITED STATES OF AMERICA

                                            v.

                                 EUDINIA MARTINEZ,
                                              Appellant
                                   _____________

                       Appeal from the United States District Court
                               for the District of New Jersey
                         (D.C. Criminal No. 3-10-cr-00219-003)
                       District Judge: Honorable Freda L. Wolfson
                                      _____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 21, 2012

            Before: AMBRO, VANASKIE, and ALDISERT, Circuit Judges

                                 (Filed: August 29, 2012)
                                      _____________

                                       OPINION
                                     _____________

VANASKIE, Circuit Judge.

       Defendant Eudinia Martinez appeals her conviction for conspiracy to distribute

and possess with intent to distribute various illegal drugs. Martinez contends that the

District Court abused its discretion under Fed. R. Evid. 404(b) by admitting evidence of



                                             1
events occurring prior to the charged conspiracies. Finding no abuse of discretion, we

will affirm.

                                              I.

       Since we write principally for the parties, we set forth only those facts essential to

our analysis.

       Martinez is a Cuban national who immigrated to the United States in April 2008 to

join her husband, Roberto Carmenate Osorio. At the time, Osorio worked as a driver

transporting drugs from Florida to New Jersey for Juan Orama, a drug dealer in Miami.

Osorio completed more than twenty drug runs for Orama between 2008 and 2009, and

Martinez accompanied him on four or five of these runs.

       In June 2008, the Drug Enforcement Agency (“DEA”) obtained a search warrant

for Martinez‟s and Osorio‟s Florida residence based on suspicions that it was being used

as a marijuana grow house. Martinez was present when the DEA conducted the search

and discovered 41 marijuana plants and various paraphernalia used in the growing

operation. Both Osorio and Martinez were arrested, although criminal charges against

Martinez were later dismissed because she claimed she was unaware of the growing

operation.

       In the fall of 2009, Martinez and Osorio moved to North Bergen, New Jersey,

where they shared an apartment with two Mexican drug dealers, Bernabe Osuna and Juan

LaBrada. Martinez negotiated the rent for the North Bergen apartment and was

responsible for paying the security deposit and rent for November and December.



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       In October 2009, Nestor Gibbs, a distributor who had worked with Osorio on the

drug runs, began cooperating with law enforcement as a confidential informant. Gibbs

informed law enforcement officials that Osorio was no longer working for Orama, and

that Osuna and LaBrada were now supplying Osorio with drugs.

       In December 2009, Gibbs negotiated two drug sales with Osorio. The first sale

took place on December 2, 2009, in the parking lot outside of a laundromat near the

North Bergen residence. A DEA Agent saw Osorio and LaBrada load a laundry basket

containing two kilograms of cocaine into Gibbs‟s car, and observed Martinez at the

laundromat during the sale. Earlier that day, the Agent had observed Osorio, LaBrada

and Martinez loading the laundry basket along with other bags into their vehicle at the

North Bergen residence.

       On December 8, 2009, Osorio and Osuna were arrested while en route to conduct

a second sale of six kilograms of cocaine and 100 grams of heroin. Later that day,

Martinez was at the North Bergen residence when law enforcement officials executed a

search warrant for the apartment and discovered 8 kilograms of marijuana and 41 grams

of crack cocaine, a large amount of cash, drug paraphernalia, and a drug ledger listing a

$58,000 debt that Gibbs owed for the two kilos of cocaine. Martinez was subsequently

arrested.

       Following their arrests, Martinez and Osorio, still unaware that Gibbs was an

informant, attempted to collect the $58,000 that Gibbs owed for the sale at the

laundromat. Since both were in jail, Martinez solicited her sister to collect the money.



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       In March 2010, a grand jury sitting in the District of New Jersey returned a four-

count indictment charging Martinez, Osorio, and Osuna with conspiracies to distribute

and possess with intent to distribute cocaine (Count I), cocaine base or “crack” (Count

II), heroin (Count III), and marijuana (Count IV), in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A), 841(b)(1)(B), 841(b)(1)(C), 841(b)(1)(D), and 846. The indictment

charged that the conspiracies operated from May 2009 through March 2010. Osorio and

Osuna pleaded guilty to the charges and Martinez proceeded to trial.

       The Government argued at trial that Martinez participated in the conspiracy by

renting the apartment used to store the drugs, helping to load the drugs into the car prior

to the laundromat sale, receiving money from at least one drug sale, and attempting to

collect the drug debt from Gibbs. It contended that her presence at the laundromat sale

and in the house where the drugs were stored supported an inference that she was aware

of the conspiracy and joined it intentionally. Martinez maintained that she had no

knowledge of the drug-dealing activities of Osorio, Gibbs, Osuna, and LaBrada, and

therefore that she lacked the requisite intent to join the conspiracy.

       Prior to trial, the Government filed a motion pursuant to Rule 404(b) to introduce

evidence of Martinez‟s presence in drug-dealing situations that predated the events in the

charged conspiracies. The evidence concerned two events: (1) Martinez‟s presence at the

June 2008 search and arrest of Osorio at the Florida grow house; and (2) her presence

during a February 12, 2009 drug run to New Jersey when Osorio delivered drugs to

Gibbs. According to Gibbs, Martinez was sitting in the passenger seat while he and

Osorio unloaded marijuana from the hidden compartment in the back of the car and

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replaced it with $45,000 cash. The Government sought to introduce this evidence to

discredit Martinez‟s “mere presence” defense. The Court granted the Government‟s

motion, finding the evidence admissible under Rule 404(b) to show Martinez‟s

knowledge of her husband‟s drug-dealing activities and her intent to join the conspiracy.

The evidence was admitted at trial, and the Court gave the jury a limiting instruction

explaining the restricted purposes for which the evidence was offered and could be

considered.

       On July 20, 2010, following a seven-day trial, the jury returned a verdict finding

Martinez guilty on all four counts. On September 8, 2010, the District Court denied

Martinez‟s Rule 29 motion for a judgment of acquittal. On February 14, 2011, the Court

sentenced her to four concurrent 30-month terms of imprisonment.

       On appeal, Martinez contends that the Court abused its discretion by admitting the

evidence of her presence on the drug run and at the grow house. She argues that the

evidence was not admissible under Rule 404(b) or the other Federal Rules of Evidence,

and that the error in admitting it was not harmless because the Government could not

have proven its case without this evidence.

                                               II.

       We exercise jurisdiction over this case pursuant to 28 U.S.C. § 1291. We review a

district court‟s rulings concerning the admissibility of evidence for abuse of discretion.

United States v. Higdon, 638 F.3d 233, 238 (3d Cir. 2011). “To the extent that our

review of this ruling requires us to consider the district court‟s interpretation of the rules

of evidence, our review is plenary.” United States v. Givan, 320 F.3d 452, 460 (3d Cir.

                                               5
2003) (citation omitted). “This includes plenary review „of whether evidence falls within

the scope of Rule 404(b).‟” United States v. Green, 617 F.3d 233, 239 (3d Cir. 2010)

(quoting United States v. Cruz, 326 F.3d 392, 394 (3d Cir. 2003)).

                                               III.

       Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not

admissible to prove a person‟s character in order to show that on a particular occasion the

person acted in accordance with the character,” but such evidence “may be admissible for

another purpose, such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b). We

apply a four-part test for admission of Rule 404(b) evidence: “(1) the evidence must have

a proper purpose; (2) it must be relevant; (3) its probative value must outweigh its

potential for unfair prejudice; and (4) the court must charge the jury to consider the

evidence only for the limited purposes for which it is admitted.” Givan, 320 F.3d at 460;

(citing Huddleston v. United States, 485 U.S. 681, 691-92 (1988)). Applying this test, we

hold that the District Court properly admitted the evidence of Martinez‟s presence during

the February 2009 drug run and the June 2008 search of the grow house.

       Evidence of prior acts “satisfies the first two requirements if it is „probative of a

material issue other than character.‟” United States v. Cross, 308 F.3d 308, 321 (3d Cir.

2002) (quoting Huddleston, 485 U.S. at 685). The Government introduced evidence of

Martinez‟s presence in prior drug-dealing situations to establish her knowledge of and

intent to join the conspiracies. Knowledge and intent are acceptable non-propensity

purposes for prior acts evidence and are also material issues in this case, as the

                                              6
Government not only had the burden of proving these elements, but Martinez also put

them at issue by disputing them.

       Moreover, the evidence of Martinez‟s presence in these two situations was indeed

probative of her knowledge of and intent to join the drug conspiracy. Her presence

during the search of the Florida grow house and Osorio‟s drug delivery to Gibbs supports

a reasonable inference that she was aware that Osorio and Gibbs were involved in drug-

dealing activities. This awareness makes it more probable that she knew about the

charged conspiracies, and thus undercuts her principal defense that she lacked knowledge

of their drug dealing and thus had no intent to join the conspiracies.

       Her knowledge also supports an inference that her actions—including renting the

apartment where the drugs were stored and attempting to recover the drug debt from

Gibbs—were done with an intent to facilitate the conspiracy. Indeed, her awareness of

the drug dealing makes it more probable that she knew she was collecting a drug debt

from Gibbs, and she knew that the apartment she rented would be used to store drugs for

the conspiracy.1 Thus, inasmuch as showing Martinez‟s knowledge of and intent to join

the conspiracies was essential for the Government to meet its burden of proof, and

       1
        Martinez contends that her presence on the February 2009 drug run “proves only
that [she] kept her husband company as he drove from Florida to New Jersey,” and that
this companionship is “what one could expect a spouse to do; it is not an act in
furtherance of the illegal acts of the claimed conspiracy.” (Appellant Br. at 17-18.)
Martinez‟s presence on the February 2009 drug run, however, serves to undermine her
lack-of-knowledge defense, and was not presented as an act in furtherance of the
conspiracies. Gibbs testified at trial that Martinez was in the passenger seat while he and
Osorio, sitting next to her in the driver‟s seat, had a discussion about the drug
compartment in the car, and when he and Osorio unloaded the drugs from the
compartment and replaced it with cash. This evidence supports a reasonable inference
that Martinez knew that Osorio and Gibbs were involved in a drug transaction.
                                             7
evidence of her presence in these situations made it more probable that she knew about

and thus acted with intent to facilitate the conspiracies, the Court properly admitted this

evidence. The Court also properly concluded that the evidence was not unduly

prejudicial because it merely established her knowledge of her husband‟s drug-dealing

activities, and was not evidence of her own bad conduct.

       Martinez argues that the evidence of her presence at the grow house is

inadmissible because “[p]rior presence is not a prior act,” and “Rule 404(b) only permits

evidence of „a crime, wrong or other act.‟ There was no crime; there was no wrong and

there was no act.” (Appellant Br. at 16.) In support of this argument she cites Merriam

Webster‟s definition of “act,” which she says “demands something more than mere

presence,” and cannot “simply refer[] to being with one‟s spouse.” (Id. at 21.)

       Rule 402 provides for the admissibility of all relevant evidence unless it is

prohibited by the United States Constitution, federal statute, other Federal Rules of

Evidence, or rules prescribed by the Supreme Court. Rule 404(b) creates a narrow

exception to this default of admissibility: it prohibits evidence of a person‟s past “crimes,

wrongs, or other acts” when used for an improper propensity purpose. Thus, contrary to

Martinez‟s contention, Rule 404(b) does not “only permit[]” evidence of past acts; rather,

it only prohibits such evidence when used for an improper purpose, and is inapplicable to

evidence not pertaining to past acts. Evidence that does not fall within the ambit of Rule

404(b) is admissible under the less-stringent, generally applicable evidentiary rules,

which permit introduction of relevant evidence whose probative value is not substantially

outweighed by a danger of unfair prejudice. See Fed. R. Evid. 401, 402, and 403.

                                              8
       The District Court properly found that the evidence of Martinez‟s presence in the

drug-dealing situations was relevant for non-propensity purposes, and more probative

than prejudicial, easily meeting the test under Rule 403. Thus, we need not decide

whether presence constitutes an act for the purposes of Rule 404(b), because the evidence

of Martinez‟s presence is admissible even if it is not 404(b) evidence.

                                             IV.

       For the reasons discussed above, we will affirm the judgment of the District Court.




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