                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                         February 9, 2007
                                  TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                            Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                          No. 06-2035
          v.                                              (D. New M exico)

 AARO N TH OM AS GATES,                              (D.C. No. 05-CR-1079 RB)

               Defendant-Appellant.




                             OR D ER AND JUDGM ENT *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges.


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

unanimously that oral argument would not materially assist the determination of

this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Aaron Thomas Gates appeals his conviction for conspiracy to possess

m arijuana and actual possession of marijuana with intent to distribute. He

contends that the district court plainly erred in allowing Drug Enforcement


      *
         This order and judgment is not binding precedent except under the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 and 10th
Cir. R. 32.1.
Administration (“DEA”) Agent Tenille Kinsey to testify regarding a previous

conversation she had with M r. Gates’s codefendant in which the codefendant

implicated M r. Gates. Because M r. Gates cannot establish plain error, we affirm

his conviction.

                                I. BACKGROUND

A. The Checkpoint Stop

       On February 16, 2005, Border Patrol Agent Daniel Romero was on duty at

the Interstate 25 checkpoint located north of Las Cruces, New M exico, when a

gray Honda Accord with Oklahoma plates drove through the checkpoint. Agent

Romero yelled at M r. Gates, the driver, to stop. M r. Gates was traveling from

Arizona with his friend Juan Yanez. After M r. Gates stopped the car, Border

Patrol Agent Florencio M ontellano’s drug-detecting canine alerted to the trunk of

the car.

       Agent Romero asked M r. Gates if he was carrying anything in the trunk,

and M r. Gates replied he was not. M r. Gates consented to a search of the trunk.

W hen Agent M ontellano opened the trunk, he testified that a strong odor of

m arijuana w as present. A gent M ontellano found three bundles of marijuana, tw o

inside a duffel bag. The duffel bag was inscribed with “Gates, U.S.M .C., United

States M arine Corps.” Rec. vol. III, Tr. at 26-27. The agents also found a loaded

.357 magnum revolver in the trunk.




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       At the time of his arrest, M r. Gates was a cadet in the University of

Oklahoma A rmy ROTC program. He had served in the United States M arine

Corps, was about to start on another military career as an officer in the Army.

Having completed the Reserve Officer Training Program, he was to start Officer

Training School on April 11, 2005. M r. Gates, who had been commissioned as a

second lieutenant in the A rmy on December 17, 2004, wore his military

camouflage uniform, although he was neither on military orders nor on the

Army’s payroll at the time of the arrest.

       M r. Gates was employed part-time as a security guard. According to his

testimony, he was scheduled to stop that job and to go on active duty in the Army

on February 21, working as a campus recruiter.

B. M r. Gates’s Post-A rrest Statements

       Agent M ontellano testified that, in a post-M iranda interview, M r. Gates

told him that he knew the marijuana was in the vehicle, but claimed that it did not

belong to him. According to Agent M ontellano, M r. Gates also admitted that he

let M r. Y anez load it into his car.

       DEA Special Agent Kinsey testified that she responded to the call at the

checkpoint and interviewed M r. Gates and M r. Yanez. According to her

testimony, M r. Gates told Agent Kinsey that M r. Yanez asked him if he would

help drive the vehicle from Oklahoma to Tucson to pick up the marijuana in

exchange for $1,500. M r. Gates admitted that the revolver found in the vehicle


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belonged to him. M r. Gates also told Agent Kinsey that his wife had left three

weeks before and that they had financial problems.

       During direct examination, Agent Kinsey was asked if she had submitted

the marijuana bundles for fingerprint analysis. Id. at 46. Agent Kinsey said that

she had not done so. When asked w hy not, Agent Kinsey responded: in“Because

I had tw o conversations. I knew who the dope— the marijuana belonged to. I

didn’t need to fingerprint it.” Id. The prosecution then asked “did M r. Gates or

M r. Yanez claim to loading the marijuana?” Agent Kinsey responded, “No. They

did not.” Id.

C. M r. Yanez’s Trial Testimony

       M r. Yanez testified that about a week before the arrest, he made

arrangements with another friend to pick up a load of marijuana in Tucson.

According to M r. Yanez, he had been friends with M r. Gates for three years and

that he trusted M r. Gates more than any of his other friends. M r. Yanez testified

that he decided to ask M r. G ates to drive him to Tucson to pick up the marijuana.

At the time, M r. Yanez did not have a vehicle or a driver’s license. M r. Yanez

told agents he was to be paid about $3,000, but at trial he testified he expected to

be paid $1,500 to transport the load of marijuana. He planned to split the money

with M r. G ates.

       M r. Yanez testified that M r. Gates picked up M r. Yanez in Oklahoma City

on the afternoon of February 15, 2005. W hen they arrived in Tucson, M r. Gates


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and M r. Yanez took the vehicle to a shopping center where it was picked up and

loaded by a person named “Dinken.” Id. at 75-77. Neither M r. Yanez nor M r.

Gates were present when the vehicle was loaded.

D. The W ritten Statement Signed by M r. Yanez

      During a court proceeding after their arrest, M r. Gates gave M r. Yanez a

written statement and asked him to sign it. The statement said that M r. Gates did

not know about the marijuana until they arrived at the checkpoint and that at no

time before the border stop did M r. Gates have any knowledge about the presence

of marijuana in his car. M r. Yanez testified that if he signed the statement, he

thought M r. Gates w ould take responsibility for the gun found in the car. M r.

Yanez signed the document, which was admitted at trial.

E. M r. Gates’s defense

      In addition to cross-examining the government’s witnesses, defense counsel

presented evidence that M r. Gates drove his friend to Arizona because he thought

M r. Yanez was considering purchasing a vehicle there. M r. Gates testified he was

planning to visit his sister in Phoenix, and, on redirect, Agent Kinsey recalled

some mention of a sister there. M r. Gates also clarified that he did know about

the marijuana, but not before M r. Yanez told him about it at the checkpoint. M r.

Gates testified in his defense, as did his then-separated spouse, and both testified

about M r. Gates’s clean record and the unlikelihood that M r. Gates would be




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involved in the scheme, given the relatively small amount of money and the high

risk of tarnishing his record.

E. Procedural background

      A federal grand jury indicted M r. Gates and M r. Yanez for conspiracy to

possess with intent to distribute less than 50 kilograms of marijuana, in violation

of 21 U.S.C. § 846, and for possession with intent to distribute less than 50

kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. §

841(b)(1)(D). The grand jury also indicted M r. Gates for carrying a firearm

during and in relation to a drug trafficking offense, in violation of 18 U.S.C. §

924(c)(1)(A)(I). M r. Yanez pleaded guilty to the charges.

       Before the case w as submitted to the jury, the district court granted M r.

Gates’s motion for judgment of acquittal on the firearm charge. The jury

convicted M r. Gates on both the drug charges. The district court sentenced Gates

to 21 months’ imprisonment, a sentence six-months below the low end of the

guideline range. M r. Gates now timely appeals.

                                   II. DISCUSSION

      M r. Gates raises one contention on direct appeal: that Agent Kinsey’s

testimony improperly referred to a prior consistent statement made by M r. Y anez.

Because M r. Gates failed to raise this argument at trial, we review for plain error.

“Plain error occurs w hen there is (1) error, (2) that is plain, which (3) affects

substantial rights, and which (4) seriously affects the fairness, integrity, or public


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reputation of judicial proceedings.” United States v. Bowen, 437 F.3d 1009, 1021

(10th Cir. 2006) (internal quotation marks omitted).

      Tom e v. United States, 513 U.S. 150, 155-166 (1995), provides that prior

consistent statements offered to rebut a charge against the declarant of recent

fabrication are only admissible under Federal Rule of Evidence Rule 801(d)(1)(B)

if the declarant made the statements before the alleged motive to fabricate arose.

W e agree with M r. Gates that it may be possible to infer the nature and substance

of Agent Kinsey’s previous conversation with M r. Yanez. However, we need not

decide whether the previous conversation violated Fed. R. Evid. 801(d)(1)(B)

because M r. Gates cannot establish that any error affected his substantial rights.

      For this reason, we hold that even assuming arguendo that M r. Gates could

meet the first two prongs of plain error analysis, he has failed to show that the

impact of the district court’s alleged error affected his substantial rights. As the

Supreme Court noted in United States v. Olano, in most cases the determination

that an error has affected substantial rights “means that the error must have been

prejudicial: It must have affected the outcome of the District Court proceedings.”

507 U.S. 725, 734 (1993). “It is the defendant rather than the Government who

bears the burden of persuasion with respect to prejudice.” Id.

      M r. Gates has failed to show that Agent Kinsey’s testimony regarding a

previous conversation affected the jury’s verdict. Not only did Agent Kinsey

testify that M r. Gates told her he knew of the presence of the marijuana, but also


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Border Patrol Agent M ontellano testified that, while he w as processing M r. Gates,

M r. Gates told him that he knew about the presence of marijuana. In addition,

M r. Yanez testified as to M r. Gates’s involvement in the conspiracy and of his

knowledge of the presence of marijuana that was in M r. G ates’s own duffel bag.

There was more than sufficient evidence supporting his conviction.

      Furthermore, M r. Gates’s counsel had every opportunity to cross-examine

the prosecution’s witnesses, and indeed, thoroughly did so. In particular, defense

counsel cross-examined M r. Yanez regarding his signed statement accepting

responsibility for the marijuana, and stressed that M r. Gates’s only knowledge of

the marijuana w as after M r. Yanez told him it was in the car.

      The jury considered all of the above evidence, credited the prosecution’s

witnesses, and found M r. Gates guilty. Given the amount of evidence against

him, M r. Gates cannot establish that any error affected his substantial rights.

                                 III. CONCLUSION

      Accordingly, we AFFIRM M r. Gates’s conviction.

                                                Entered for the Court,


                                                Robert H. Henry
                                                Circuit Judge




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