                                                               FILED
                                                   United States Court of Appeal
                    UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                                January 25, 2013

                      ___________________________________                     Elisabeth A. Shumaker
                                                                                  Clerk of Court
UNITED STATES OF AMERICA,

         Plaintiff-Appellee,
                                                              No. 11-4195
v.                                                     (D.C. No. 2:10-CR-1109-TS)
                                                                (D. Utah)
VIRGIL HALL,

         Defendant-Appellant.

                      ___________________________________
                                                              *
                           ORDER AND JUDGMENT
                     ____________________________________

                                                                                 
Before LUCERO and BALDOCK, Circuit Judges, and SKAVDAHL, District
         
Judge.
                     ____________________________________



                                     I. Background

         On November 3, 2010, while traveling north on Interstate 15 near Cedar

City, Utah, Virgil Hall (hereinafter “Hall”) was stopped by a Utah Highway Patrol


*
  This order and judgment is not binding precedent except under the doctrines of law of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.

  The Honorable Scott W. Skavdahl, United States District Judge for the District of
Wyoming, sitting by designation.

    After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G).
Officer and found to be driving under the influence of alcohol. At the time, Hall

was driving a 2008 Ford Explorer and accompanied by his co-defendant, Larry

Woods (hereinafter “Woods”). During the course of the stop, a consensual search

of the Ford Explorer was conducted and officers discovered four kilograms of

cocaine concealed in the spare tire.       On December 15, 2010, Hall and his

passenger Woods were indicted by a federal grand jury on a single count of

possession with intent to distribute 500 grams or more of cocaine. (Vol. I at 23-

24.) Prior to trial, co-defendant Woods entered into a plea agreement and pled

guilty, agreeing to testify against Hall at trial. (R. Vol. III at 69.) After a two-day

jury trial, Hall was convicted on the single count of possession with intent to

distribute cocaine.

       Hall alleges a single error on appeal, contending the trial court erred in

admitting inadmissible Rule 404(b) evidence of his prior interaction and drug deal

with his passenger and co-defendant. In rejecting this argument, the district court

determined that evidence of Hall’s prior interaction and drug transaction with

Woods was not 404(b) evidence, but rather inextricably intertwined with the

charged offense. (Vol. I, Doc. 84 at 7-8.) The issue was addressed by the district

court at two different times.

       Prior to trial, the United States filed a “Notice of Government’s Cautionary

Notice of 404(b) Evidence”. (Supp. Vol. I, Doc. 64 at 1.) This Notice summarized

the anticipated testimony as follows:



                                            -2-
       In late 2009, Larry Woods (a likely government witness) first met
       defendant Virgil Hall.      That meeting revolved around drug
       trafficking. Specifically, Woods gave Hall a significant amount of
       money (approximately $3,600) and a few days later Hall gave
       Woods a significant amount of cocaine base (approximately 14
       grams). Between that exchange and the currently charged conduct
       (November 2010), Hall periodically called Woods asking whether
       Woods needed Hall for any drug-related business.


(Id. at 2.) The district court addressed the United States’ Cautionary Notice in a

written order prior to trial, finding the anticipated testimony was inextricably

intertwined with the charged offense because it formed an integral and natural part

of that witness’s proffered account of the circumstances surrounding the offense

alleged. (R. Vol. I at 39.) The district court concluded “[a]s such it would not be

404(b) evidence.” (Id.) In the alternative, the district court found that even if it

were, it would qualify for admission under Rule 404(b). (Id. at 40.) The district

court directed defense counsel to proffer, outside the hearing of the jury, any

specific objections to the admissibility of this evidence at the time it was offered

by the government at trial. (Id.)

       The United States called Woods as a witness at trial, and Hall’s counsel

objected to the admission of any evidence regarding how Woods and Hall met. (R.

Vol. III, at 73, 75-76.) In response, the United States proffered that Woods would

testify that in the fall of 2009, Hall was introduced to Woods by his brother, Terry

Hall. (Id. at 75-76, 84.) This 2009 introduction was for the purpose of conducting

a drug transaction. (Id. at 83, 88-89; 144-45.) During this drug transaction, Virgil

Hall indicated to Woods that he would be willing to transport drugs for Woods in

                                           -3-
the future, if such a need arose. This was how, in November of 2010, Hall came

to be traveling with Woods and allegedly transporting drugs. (Id. at 76, 84.) After

hearing and considering the parties’ respective positions, the district court

concluded:

       Counsel, it is a close call, but I do believe, based on the Court’s
       understanding of the testimony to be elicited, that it is, in fact,
       inextricably intertwined with the offense in question here, and the
       Court will grant the request of the government to elicit that
       testimony, deny the motion of the defendant to exclude it.

(Id. at 85.) Thereafter, Woods testified as to the history of his relationship with

Virgil Hall. Consistent with the United States’ proffer, Woods testified he had

met Hall through Hall’s brother about a year prior to the charged conduct. (R. Vol.

III at 89.) Woods testified that this initial meeting was for the purpose of making

a drug deal. (Id. at 90.) After briefly describing the circumstances surrounding the

initial meeting and drug deal, Woods testified he asked Hall if he could give him

more cocaine in the future and whether Hall would be willing to make some drug

runs for him in the future. (Id. at 91-92.) It was this initial meeting and discussion

that prompted Woods to call Hall in approximately October 2010, after he was

contacted by “a friend” in Las Vegas to transport cocaine from Las Vegas to St.

Louis. (Id. at 92-94.) Using the cell phone number he had from their initial

meeting, Woods contacted Hall and told Hall he had “something going” and he

would get back with him. (Id. at 95.) Woods testified that approximately three

weeks later, Hall called him back asking if the deal was on, to which Woods

responded he was still working on it. (Id. at 95.) After confirming the drug

                                            -4-
transport would occur with his Las Vegas friend, Woods contacted Hall and

arranged for him to come to St. Louis. (Id. at 95-96.) Woods arranged to have

Hall drive Woods’ 2008 Ford Explorer to Las Vegas, where Woods met up with

him. (Id. at 103-115.) After some delay, the drugs were obtained and placed

inside the Explorer’s spare tire. (Id. at 130.) Woods and Hall then left Las Vegas

together en route to St. Louis. (Id. at 131-34.) Shortly after leaving Las Vegas,

just outside St. George, Utah, Hall was pulled over for drunk driving. This stop

ultimately lead to the discovery of the cocaine in the spare tire of the Ford

Explorer. (Id. at 134, 139-40.)

       At trial, the trial court allowed Mr. Woods to testify regarding his prior

interactions with Virgil Hall but granted Hall’s Motion in Limine, excluding the

introduction of evidence of Hall’s prior drug trafficking convictions. (R. Vol. I at

37-38.)      The district court also excluded evidence of Woods’ prior drug

conviction. (R. Vol. III at 157-58.)

       On June 9, 2011, the jury returned a verdict of guilty on the sole count of

possession with intent to distribute. A judgment of conviction was entered on

November 9, 2011. (R. Vol. I at 46-51.) Defendant’s timely appeal followed. The

single issue raised on appeal is a claim that the district court erred in admitting

evidence of the prior drug transaction between Hall and co-defendant Woods,

finding it inextricably intertwined with the current drug charge and not excludable

under Fed. R. Evid. 404(b). Exercising jurisdiction pursuant to 28 U.S.C. § 1291,

we affirm.

                                           -5-
                             II. Standard of Review

      We apply an abuse of discretion standard of review to a district court’s

evidentiary rulings, considering the record as a whole. U.S. v. Blechman, 657 F.3d

1052, 1063 (10th Cir. 2011).    This standard also applies to alleged errors under

Fed. R. Evid. 404(b). U.S. v. Irving, 665 F.3d 1184, 1211 (10th Cir. 2011).

                                 III. Discussion

      Rule 404(b) prohibits the introduction of evidence of a person’s prior

crime, wrong, or other act to prove that person's character, in order to show that

the person acted in accordance with the character on a particular occasion. Fed. R.

Evid. 404(b). However, Rule 404(b) “only applies to evidence of acts extrinsic to

the charged crime.” Irving, 665 F.3d at 1212 (citations omitted). “If the contested

evidence is intrinsic to the charged crime, then Rule 404(b) is not even

applicable.” Id. However, intrinsic evidence remains subject to analysis under

Rule 403 and may not be admitted if its probative value is substantially

outweighed by the danger of unfair prejudice. See United States v. Lambert, 995

F.2d 1006, 1007-08 (10th Cir. 1993).

      “Other act evidence is intrinsic when the evidence of the other act and the

evidence of the crime charged are inextricably intertwined or both acts are part of

a single criminal episode or the other acts were necessary preliminaries to the

crime charged.” Lambert, 995 F.2d at 1007. This Court has explained:

      Generally speaking, intrinsic evidence is that which is directly
      connected to the factual circumstances of the crime and provides
      contextual background information to the jury. Extrinsic evidence,

                                           -6-
      on the other hand, is extraneous and in not intimately connected or
      blended with the factual circumstances of the charged offense.

U.S. v. Parker, 553 F.3d 1309, 1314 (10th Cir. 2009) (internal quotation marks

and citation omitted). When found to be intrinsic, the other act evidence is not

subject to analysis under Rule 404(b). Irving, supra at 1212.

      Hall contends that evidence of his prior interaction and drug deal with

Woods was extrinsic to the charged crime and should have been subjected to

analysis under Rule 404(b). In making this argument, Hall contends that the

“inextricably intertwined” doctrine is so “vague and amorphous” that it is subject

to abuse and overly broad application by trial courts and should not be allowed to

circumvent the evaluation required under Rule 404(b). (App. Brief at 8.) Hall has

not articulated how the prior interaction between Mr. Woods and Mr. Hall is

extrinsic to the charged offense. Defendant fails to do so because this argument

cannot be sustained based on the facts and controlling precedent.

      In this case, at the time of the charged crime, Hall was traveling with

Woods in Woods’ Ford Explorer outside of St. George, Utah, in a vehicle

transporting four kilograms of cocaine. Less than a year prior to this, Hall and

Woods had met for the purpose of conducting a drug deal. During this initial

encounter, Woods asked Hall if he could “make some runs for [Woods] to pick up

some cocaine.” (R. Vol. III at 90.) Hall said he would get back to Woods. (Id. at

91.) This initial interaction and drug deal is directly connected to the factual

circumstances of the charged crime and provides contextual or background


                                           -7-
information as to how it came to be that Woods contacted Hall to make the drug

run in November of 2010. See U.S. v. Richardson, 764 F.2d 1514, 1521-22

(evidence that witness contacted defendant after being asked to obtain drugs

because he had previously dealt with him before in buying drugs was intrinsic to

the charged crimes and not subject to Rule 404(b) analysis); U.S. v. Miranda, 248

F.3d 434, 440-41 (5th Cir. 2001) (trial court did not error in admitting evidence of

prior drug transaction between defendant and witness where evidence was

admitted for the purpose of establishing and explaining connection between

witness and defendant).     Evidence of this prior interaction was necessary to

provide the jury with the background and context of how Hall was involved with

Woods, the nature of their relationship, and why he was riding in the Ford

Explorer with Woods on November 3, 2010.         The district court properly found

evidence of Hall and Woods’ prior relationship was intrinsic to the charged crime.

       Even though this evidence was intrinsic to the charged offense, it still may

be excluded under Rule 403 “if its probative value is substantially outweighed by

the danger of unfair prejudice.” Fed. R. Evid. 403. We have interpreted “unfair

prejudice” to mean an undue tendency to suggest decision on an improper basis,

commonly, though not necessarily, an emotional one. United States v. Tan, 254

F.3d 1204, 1211 (10th Cir. 2001). In this case, the district court did not make an

explicit finding under Rule 403. Although an explicit finding is preferable, the

failure does not constitute error per se. United States v. Wilson, 107 F.3d 774, 782

(10th Cir. 1997). Moreover, a district court need not make an explicit Rule 403

                                           -8-
ruling, so long as the determination as to prejudice is supported by the record.

United States v. Wenger, 427 F.3d 840, 855 (10th Cir. 2005). In those cases where

no explicit Rule 403 finding has been made by the district court, this Court may

conduct a de novo balancing. United States v. Lazcano-Villalobos, 175 F.3d 838,

846 (10th Cir. 1999).

      Woods’ testimony concerning the prior meeting of Hall and the nature of

that meeting was clearly probative of the relationship between Hall and Woods. It

was also probative of his knowledge and involvement in the transportation of the

cocaine.   Hall’s primary defense, as set forth in defense counsel’s opening

statement was “Virgil Hall was not a part of this transaction, this drug running.

He didn’t have anything to do with it.” (R. Vol. III at 8.) Defense counsel also

elicited testimony from one of the investigating officers (Agent Miles) that during

his interview of Hall he claimed to have no knowledge that there were drugs in the

spare tire. (Id. at 237-38.) Thus, evidence of the prior interaction between Woods

and Hall was relevant and extremely probative of Hall’s involvement and

knowledge that drugs were being transported in the spare tire of Woods’ Ford

Explorer. While the prior drug deal between Hall and Woods was prejudicial in

the wider sense, given the nature of Hall’s defense, the probative value of

evidence concerning his prior interaction and the nature of that interaction with

Woods was not substantially outweighed by the danger of unfair prejudice or

misleading the jury. Accordingly, the district court did not err in admitting this

evidence under Fed. R. Evid. 403.

                                          -9-
                         IV. Conclusion

For the foregoing reasons, we AFFIRM Virgil Hall’s conviction.

                          Entered for the Court



                          Scott W. Skavdahl
                          United States District Judge




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