                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        January 31, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court

 UNITED STATES OF AM ERICA,
               Plaintiff–Appellee,                       No. 06-2197
          v.                                      (D.C. No. 05-CR-1417-RB)
 HENRY LOPEZ,                                              (D .N.M .)
               Defendant–Appellant.



                           OR D ER AND JUDGM ENT *


Before K ELLY, M cK AY, and LUCERO, Circuit Judges.


      After examining the briefs and the appellate record, this panel has

determined unanimously to honor the parties’ request for a decision on the briefs

without oral argument. See Fed. R. App. P. 34(f). The case is therefore ordered

submitted without oral argument.

      Appellant Henry Lopez challenges the admission of certain testimony

offered by a government witness as a violation of Federal Rules of Evidence

404(b) and 403. Appellant was convicted by a jury for conspiracy to import fifty

kilograms or more of marijuana, in violation of 21 U.S.C. § 963, and sentenced to



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
fifty-one months’ imprisonment. The facts elicited at trial show that Appellant

offered Cruis Orozco money in exchange for driving a vehicle from New M exico

into M exico, where two men met M r. Orozco, loaded the vehicle with marijuana,

and brought the vehicle back to M r. O rozco for the return trip to New M exico.

M r. Orozco was apprehended at the border and later confessed. He testified

against A ppellant at trial.

       Anthony Flores and Priscilla Dominguez, friends of M r. Orozco, testified

that Appellant offered them money in exchange for transporting drugs across the

border; both declined to participate. Appellant’s counsel objected to the proffered

testimony of M s. Dominguez, M r. Flores’ girlfriend, that Appellant told her that

people in M exico wanted to kill M r. Flores and M r. Orozco.

       Admission of evidence under Fed. R. Evid. 404(b) is reviewed for abuse of

discretion. United States v. M ares, 441 F.3d 1152, 1156 (10th Cir. 2006). W e do

not reverse a district court’s ruling “if ‘it fall[s] within the bounds of permissible

choice in the circumstances’ and is not ‘arbitrary, capricious or whimsical.’” Id.

(alteration in original) (quoting United States v. Shumway, 112 F.3d 1413, 1419

(10th Cir. 1997)). Rule 404(b) governs the admission of “other crimes, wrongs,

or acts,” and a ruling on Rule 404(b) admissibility requires that we examine the

following four factors: “(1) whether the evidence is offered for a proper purpose,

(2) its relevancy, (3) that the probative value of the evidence is not substantially

outweighed by its prejudicial effect, and (4) a limiting instruction is given if the

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defendant so requests.” Id. (citing Huddleston v. United States, 485 U.S. 681, 691

(1988)).

      The district court admitted the statement as evidence of A ppellant’s

knowledge of the conspiracy. In conjunction with M s. Dominguez’s earlier

testimony that Appellant had approached her on a prior occasion to inform her

that the police were looking for M r. Flores because M r. Orozco had “snitched”

(Trial Tr. at 133), the objected-to statement was evidence of A ppellant’s

knowledge of and participation in the conspiracy. Although the district court

acknow ledged the prejudicial nature of the comment, it found— and we

agree— that it was not more prejudicial than probative. The district court also

issued a limiting instruction. Accordingly, we cannot say that the district court

abused its discretion in admitting this testimony.

      Regardless, any error in admitting this testimony was harmless given the

overwhelming evidence presented at trial against Appellant. This evidence

included the detailed testimony of M r. Orozco about the conspiracy, the testimony

of M r. Flores and M s. Dominguez regarding Appellant’s attempted solicitation of

them in the drug-smuggling enterprise, and the admission of records establishing

that the vehicle M r. Orozco was driving belonged to Appellant.




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      Accordingly, because the Rule 404(b) testimony of M s. Dominguez was not

admitted in error, the conviction is AFFIRM ED.

                                            Entered for the Court



                                            M onroe G. M cKay
                                            Circuit Judge




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