                                                                             FILED
                            NOT FOR PUBLICATION
                                                                             MAR 13 2018
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-30021

               Plaintiff-Appellee,               D.C. No. 3:11-cr-00494-HZ-1

          v.
                                                 MEMORANDUM*
FULGENCIO ARIAS, Jr., AKA Stomper,

               Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Oregon
                   Marco A. Hernandez, District Judge, Presiding

                        Argued and Submitted March 6, 2018
                                 Portland, Oregon

Before: FISHER, N.R. SMITH and HURWITZ, Circuit Judges.

      Fulgencio Arias appeals his convictions for conspiracy to distribute

methamphetamine, distribution of methamphetamine, attempted distribution of

methamphetamine and conspiracy to commit money laundering. See 18 U.S.C.

§§ 2, 1956(a)(1)(A)(i); 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. He raises a single


      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
issue on appeal, contending the district court abused its discretion by admitting

evidence regarding his association with two criminal organizations, including the

Mexican Mafia. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1. Under the Federal Rules of Evidence, “[t]he court may exclude relevant

evidence if its probative value is substantially outweighed by a danger of . . . unfair

prejudice.” Fed. R. Evid. 403. The evidence challenged here was relevant. The

evidence of Arias’ gang associations was relevant to explain the development of

the relationship between Arias and his co-conspirator, Francisco Fregoso, and to

establish Arias’ motive or opportunity to engage in drug trafficking. See Fed. R.

Evid. 401, 404(b). The evidence of Arias’ nickname was relevant to establish the

close relationship between Arias and a second co-conspirator, Art Casas. The

expert testimony was relevant to explain the relationship between the Mexican

Mafia and the Sureño gangs and to explain the difference between a member and

affiliate of the Mexican Mafia.

      Arias validly points out that the relevance of much of this evidence was

limited. The government, for example, could have explained the development of

Arias and Fregoso’s relationship without mentioning Arias’ gang affiliations.

Similarly, although the evidence showed Arias had a historical connection to the

Mexican Mafia, there was no evidence actually linking the Mexican Mafia to the


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charged conspiracy. Arias’ ties to the Mexican Mafia therefore provided only a

tenuous theory of motive and opportunity. Evidence of Arias’ nickname was only

minimally probative, given Arias’ identity was not at issue.

        On the other side of the equation, gang affiliation evidence carries a

significant risk of unfair prejudice. See Estate of Diaz v. City of Anaheim, 840

F.3d 592, 602 (9th Cir. 2016); Kennedy v. Lockyer, 379 F.3d 1041, 1055-56 (9th

Cir. 2004). Given the limited probative value of the evidence and the risk of unfair

prejudice, the district court might reasonably have excluded the challenged

evidence under Rule 403. The standard of review, however, is highly deferential.

“A district court’s Rule 403 determination is subject to great deference, because

‘the considerations arising under Rule 403 are susceptible only to case-by-case

determinations, requiring examination of the surrounding facts, circumstances, and

issues.’” United States v. Hinkson, 585 F.3d 1247, 1267 (9th Cir. 2009) (en banc)

(quoting R.B. Matthews, Inc. v. Transamerica Transp. Serv., Inc., 945 F.2d 269,

272 (9th Cir. 1991)). We cannot say the district court abused its broad discretion

here.

        In any event, even if the evidence should have been excluded, we will not

reverse where, as here, “it is more probable than not that the error did not

materially affect the verdict.” United States v. Vera, 770 F.3d 1232, 1240 (9th Cir.


                                            3
2014) (quoting United States v. Gonzalez-Flores, 418 F.3d 1093, 1099 (9th Cir.

2005)). The government’s case against Arias was built not only on the testimony

of Arias’ two principal co-conspirators, Fregoso and Casas, but also on recorded

phone conversations in which Arias described his methamphetamine and money

laundering crimes in his own words. The district court also took steps to limit the

possibility of prejudice. Any error, therefore, was harmless. Arias’ contention that

we should apply the harmless error standard applicable to constitutional error is not

supported by relevant authority and is therefore rejected.

      2. We review Arias’ challenge to the gang task force evidence for plain

error. See United States v. Lloyd, 807 F.3d 1128, 1152 (9th Cir. 2015). Because

the error, if any, was not obvious, Arias’ argument fails.

      AFFIRMED.




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