                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          JUL 14 2000

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 99-2222
 v.                                             (D.C. No. CR-96-695-1-LH)
                                                       (New Mexico)
 RAMONA RUIZ,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL, and BRISCOE, 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 Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Ramona Ruiz was convicted of conspiracy to possess with intent to

distribute, importation of, and possession with intent to distribute 100 kilograms

and more of marijuana. She was sentenced to sixty-three months incarceration.

Appellate counsel for Ms. Ruiz filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), and has moved for leave to withdraw as counsel. We grant leave

to withdraw and dismiss the appeal.

      Anders holds that if counsel finds a case to be wholly frivolous after

conscientious examination, he may so advise the court and request permission to

withdraw. Counsel must also submit to both the court and his client a brief

referring to anything in the record arguably supportive of the appeal. The client

may then raise any points she chooses, and the court thereafter undertakes a

complete examination of all proceedings and decides whether the appeal is in fact

frivolous. If it so finds, it may grant counsel’s request to withdraw and dismiss

the appeal. See id. at 744.

      Ms. Ruiz was convicted after a jury trial at which the government presented

evidence that she had been stopped at a border checkpoint between Mexico and

New Mexico driving a pickup truck with a camper shell in which a large amount

of marijuana was concealed in a hidden compartment. Upon questioning at the

checkpoint, Ms. Ruiz said she had driven to Mexico from her home in Deming,

New Mexico, on a short shopping trip and that when her car had broken down in


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Palomas, Mexico, a man had offered her money to drive a truck containing fifteen

pounds of marijuana back across the border. She stated that she needed to return

home to her children and that she needed the money, so she accepted the offer.

The government, however, also presented evidence from a co-defendant who

testified that he had been approached by Ms. Ruiz and her mother in Deming, and

that they had offered to pay him to drive a truck across the border from Palomas.

He testified that he drove Ms. Ruiz and her mother to Palomas, where he and Ms.

Ruiz each selected one of two trucks with camper shells to drive across the

border. The co-defendant was stopped at the border an hour after Ms. Ruiz

attempted to cross. Marijuana was discovered in a hidden compartment of the

truck he was driving, similar to the compartment in the truck Ms. Ruiz was

driving.

      On the morning of the day trial was to begin, trial counsel for Ms. Ruiz

moved for a continuance on the grounds that it was necessary to obtain three

witnesses from Mexico whose testimony would support his client’s version of the

facts and refute the co-defendant’s proposed testimony. Counsel represented to

the court that testimony from a pharmacist who had waited on Ms. Ruiz, a

waitress at the restaurant where she had eaten lunch, and an old friend with whom

she had eaten, would support her testimony that she had gone to Palomas by

herself to shop. Counsel also informed the court that the friend had apparently


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left Palomas for the interior of Mexico to get treatment for her sick child. The

court expressed doubt as to the probative value of these witnesses and requested

assurances that the witnesses would appear to testify. The government expressed

concern as to whether the friend would travel from Mexico, observed that there

were other ways to show Ms. Ruiz had purchased items from the pharmacy, and

noted that the government’s witnesses were there and ready to proceed. The court

denied the continuance, stating that the proposed testimony did not appear to

present a real defense and expressing doubt about the likelihood that the friend

would ever be located or present herself for testimony.

      In his Anders brief, counsel raises two possible points, the trial court’s

failure to grant a continuance and the court’s admission of testimony from the co-

defendant that he had previously driven loads of marijuana across the border from

Mexico for one of Ms. Ruiz’ sisters. Pursuant to Anders, Ms. Ruiz was provided

a copy of counsel’s Anders brief and notified of her right to file a pro se brief.

She has chosen not to respond. Anders holds that if we find the appeal frivolous,

we should grant counsel’s request to withdraw and proceed to a decision on the

merits.

      We will reverse a denial of a motion for continuance only if the decision

was “arbitrary or unreasonable and materially prejudiced the defendant.” United

States v. McKneely, 69 F.3d 1067, 1076-77 (10th Cir. 1995). Factors relevant to


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this determination include:

      [1] the diligence of the party requesting the continuance; [2] the
      likelihood that the continuance, if granted, would accomplish the
      purpose underlying the party’s expressed need for the continuance;
      [3] the inconvenience to the opposing party, its witnesses, and the
      court resulting from the continuance; [4] the need asserted for the
      continuance and the harm that appellant might suffer as a result of
      the district court’s denial of the continuance.

United States v. Wynne, 993 F.2d 760, 767 (10th Cir. 1993) (citations omitted). If

a continuance is sought because a witness is unavailable, the movant must show

that the witness would appear and be willing to testify, and would provide

substantial favorable evidence. United States v. Rodriguez, 15 F.3d 408, 411 (5th

Cir. 1994).

      No such showing has been made here. Trial counsel was not diligent in

obtaining the witnesses or in seeking a continuance, and did not provide adequate

assurances that the witnesses could be located and would be willing to come to

court and testify. The inconvenience to the court and the government is manifest.

Moreover, upon review of the record and the substance of the proffered

testimony, we conclude that lack of these witnesses did not materially prejudice

the defense. Accordingly the trial court did not abuse its discretion in denying the

motion for continuance.

      The admission of evidence over an objection that its probative value is

outweighed by its prejudice is also reviewed for an abuse of discretion. United


                                         -5-
States v. Wacker, 72 F.3d 1453, 1469 (10th Cir. 1995). The evidence at issue, the

co-defendant’s testimony that Ms. Ruiz knew he had previously driven marijuana

across the border for her sister, was offered by the government to explain why he

was approached by Ms. Ruiz to drive the load. Defense counsel had opened the

door to this testimony by asking the co-defendant whether he had driven loads

before. The evidence was probative of Ms. Ruiz’ involvement in the illegal

activity and nothing in the record shows that Ms. Ruiz was unduly prejudiced by

its admission. The trial court did not abuse its discretion in admitting this

testimony.

      We GRANT counsel’s request to withdraw and we DISMISS the appeal.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Chief Judge




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