
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-2346                                    UNITED STATES,                                      Appellee,                                          v.                             ESPERANZA AGUILAR-ARANCETA,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. P rez-Gim nez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               Rachel Brill, by Appointment of the Court, for appellant.               ____________               Esther  Castro-Schmidt,  Assistant  United States  Attorney,               ______________________          with  whom Guillermo  Gil, United  States Attorney,  and  Jos  A.                     ______________                                 _______          Quiles-Espinosa,  Senior Litigation  Counsel,  were on  brief for          _______________          appellee.                                 ____________________                                    July 13, 1995                                 ____________________                    TORRUELLA,  Chief  Judge.   Esperanza  Aguilar-Aranceta                    TORRUELLA,  Chief  Judge.                                ____________          ("Aguilar-Aranceta") was convicted for possession of cocaine with          intent to distribute, in violation of 21 U.S.C.   841(a)(1).  She          now appeals.  For the following reasons, we reverse.                                I.  STATEMENT OF FACTS                                I.  STATEMENT OF FACTS                    On September 22, 1990, Aguilar-Aranceta went to pick up          two  parcels at  the United States  Post Office in  Old San Juan,          Puerto Rico.   Two yellow  slips had  been left in  her mail  box          prior to that date  notifying her that there were  two registered          parcels  addressed to  her  at the  post  office.1     Addressing          Aguilar-Aranceta in English, the window  clerk at the post office          counter  asked for identification to verify  the signature on the          two  slips.  Aguilar-Aranceta responded by immediately retrieving          a  Puerto Rican driver's license from her purse.  After verifying          the signatures,  the window clerk  brought her two  packages with          return  addresses from  Medell n, Colombia.   Both  packages were          addressed  to Esperanza  Aguilar, P.O.  Box 5739.   Box  5739 was          rented to  Aguilar-Aranceta.   Aguilar-Aranceta  pointed  at  the          return addresses on the packages and stated "no me (sic) family,"          to  which the  attendant replied  that it  was up  to her  if she          wanted to take  them or not.  The window  clerk left the packages          on the counter  and once again  the defendant  said "no me  (sic)          family," and once again the  clerk replied that it was up  to her          if she wanted  to take them or not.   Defendant then proceeded to                                        ____________________          1   These yellow  slips were  the second set  of slips  placed in          defendant's mail box.  The first set of slips were recovered from          defendant's purse after her arrest.                                         -2-          take the two packages.  Immediately upon exiting the lobby of the          Post  Office defendant was detained and placed under arrest.  The          two  packages she  was carrying  had been  intercepted by  a mail          specialist earlier  and found to contain  approximately 224 grams          of cocaine.  Aguilar-Aranceta never opened the packages.                    On September  26, 1990,  a federal  grand  jury in  San          Juan,  Puerto  Rico,  returned  a two  count  indictment  against          defendant, charging her with unlawful possession of approximately          224  grams of cocaine with the intent to distribute, in violation          of 21 U.S.C.   841(a)(1) (count one); and with importation of the          same cocaine  to the  United States  from Medell n,  Colombia, in          violation of  21 U.S.C.    952(a) (count two).   Aguilar-Aranceta          entered pleas of not guilty as to both counts.  The jury returned          a  verdict of not  guilty as  to the  importation count,  but was          unable  to reach  a unanimous  verdict as  to the  count alleging          possession  with  intent  to  distribute.    The  district  court          declared  a mistrial as to count one and subsequently granted the          government's request for a new trial.2                    After  a  second  jury  trial in  June  1993,  Aguilar-          Aranceta was convicted for possession  of cocaine with the intent          to distribute.  Aguilar-Aranceta now appeals.                                        ____________________          2   On March 18, 1991, defendant  filed a motion to dismiss count          one on the grounds  that a second prosecution would  constitute a          violation of  her fifth amendment  right not  to be twice  put in          jeopardy  for the same conduct.   The district  court denied this          motion, a ruling  we affirmed on  appeal.  See  United States  v.                                                     ___  _____________          Aguilar-Aranceta,  957 F.2d 18  (1st Cir.), cert.  denied, 113 S.          ________________                            _____________          Ct. 105 (1992).                                           -3-                                   II.  DISCUSSION                                   II.  DISCUSSION                    To  convict   Aguilar-Aranceta   under  21   U.S.C.              841(a)(1),  the   government  was  required  to   show  beyond  a          reasonable  doubt  that  she  knowingly  possessed  a  controlled          substance with  the  intent to  distribute.3   United  States  v.                                                         ______________          Bergodere, 40 F.3d 512, 518 (1st Cir. 1994), cert. denied, 115 S.          _________                                    ____________          Ct. 1439  (1995).   The government presented  evidence concerning          Aguilar-Aranceta's  prior conviction  for possession  of cocaine.          The  district court  admitted this  evidence as  relevant to  the          issue of  whether Aguilar-Aranceta  was in knowing  possession of                                                     _______          cocaine when  she was arrested at the Old San Juan Post Office in          1990.  Aguilar-Aranceta contends  that all evidence pertaining to          her prior conviction  serves no other purpose than to demonstrate          a propensity for criminal activity and should therefore have been          excluded under Federal Rule of Evidence 404(b).                    A.   Admissibility of Prior Bad Acts                    A.   Admissibility of Prior Bad Acts                         _______________________________                    This circuit is no stranger to the problems surrounding          the admissibility  of extrinsic act evidence  under Rule 404(b).4                                        ____________________          3  21 U.S.C.   841(a)(1) provides, in pertinent part:                      [I]t  shall  be unlawful  for  any person                      knowingly  or intentionally  .  . .  [to]                      possess   with  intent   to  manufacture,                      distribute,  or  dispense,  a  controlled                      substance.          4  Federal Rule of Evidence 404(b) provides, in relevant part:                      Evidence of other crimes, wrongs, or acts                      is  not admissible to prove the character                      of a  person in  order to show  action in                      conformity therewith. It may, however, be                      admissible  for  other purposes,  such as                                         -4-          See, e.g., United States v. Guyon, 27 F.3d 723, 728-29 (1st  Cir.          ___  ____  _____________    _____          1994);  United States v. Fields,  871 F.2d 188,  195-99 (1st Cir.                  _____________    ______          1989); United States v. Mateos S nchez, 864 F.2d 232, 234-38 (1st                 _____________    ______________          Cir. 1988); United  States v.  Oppon, 863 F.2d  141, 144-48  (1st                      ______________     _____          Cir. 1988).   We have  adopted a  two-part test to  determine the          admissibility of such evidence.  Oppon, 863 F.2d at  146.  First,                                           _____          the trial judge must  determine whether the evidence  in question          is offered  for any purpose other  than solely to prove  that the          defendant  had a  propensity  to commit  the  crime in  question.          United States v.  Garc a, 983  F.2d 1160, 1172  (1st Cir.  1992);          _____________     ______          United States v. Moccia, 681  F.2d 61, 63 (1st Cir. 1982).   That          _____________    ______          is, the  judge  must  determine  whether the  evidence  has  some          "special" probative  value.  United States  v. Arias-Montoya, 967                                       _____________     _____________          F.2d 708,  709 (1st Cir. 1992).  Prior bad acts may be "specially          relevant" if  they are probative of  motive, opportunity, intent,          preparation, plan, knowledge, identity,  or absence of mistake or          accident.   See, e.g., Guyon, 27 F.3d at 728; Garc a, 983 F.2d at                      ___  ____  _____                  ______          1172.                    If the  judge is satisfied that  the proffered evidence          has "special relevance," the  focus shifts to the second  part of          the  test,  which  applies  Rule  403  to  determine whether  the          probative value  of the evidence is  "substantially outweighed by                                        ____________________                      proof  of  motive,  opportunity,  intent,                      preparation,  plan, knowledge,  identity,                      or absence of mistake or accident . . . .                                         -5-          the danger of  unfair prejudice."5  Fed. R.  Evid. 403; Guyon, 27                                                                  _____          F.3d at 728-29; Garc a, 983  F.2d at 1172.  On appeal,  we review                          ______          the Rule 404(b) determination for abuse of discretion.  Guyon, 27                                                                  _____          F.3d at 728-29; United States v. Cassiere, 4 F.3d 1006, 1022 (1st                          _____________    ________          Cir. 1993); see also Garc a, 983 F.2d at 1172.                      ________ ______                    B.   Special relevance under Rule 404(b)                    B.   Special relevance under Rule 404(b)                         ___________________________________                    Applying  these principles  to  the facts  at hand,  we          first  must  determine  whether  the district  court  abused  its          discretion in finding that Aguilar-Aranceta's 1986 conviction for          misdemeanor possession  of cocaine was specially  relevant to the          issue  of  knowledge  in the  present  case.    Although the  law          regarding  prior  bad  acts  as  evidence  of  knowledge is  well          settled, it is complex and merits some discussion.                    In   prosecutions   for  "possession"   offenses,6  the          central  issue is  often  whether the  defendant  was in  knowing                                                                    _______          possession.  The  knowledge element  is difficult  to prove,  and          defendants  commonly  claim   that  they  were  merely   innocent          bystanders  or unwitting  participants.   Where  the evidence  is                                        ____________________          5  Fed. R. Evid. 403 states:                      Although   relevant,   evidence  may   be                      excluded  if  its   probative  value   is                      substantially outweighed by the danger of                      unfair   prejudice,   confusion  of   the                      issues,  or misleading  the  jury, or  by                      considerations of undue  delay, waste  of                      time,   or   needless   presentation   of                      cumulative evidence.          6    Possession  offenses  include,  inter  alia,  possession  of                                               ___________          narcotics, possession  of stolen merchandise,  and possession  of          firearms.                                         -6-          susceptible  to   the  explanation  that  the   acts  alleged  to          constitute the  crime were  innocently performed and  the crucial          issues  of intent and knowledge are keenly disputed, we have held          that it is within the judge's discretion to permit the government          to introduce  evidence of  prior similar offenses  to demonstrate          the unlikeliness  that the defendant  was merely an  innocent and          unknowing bystander.  For  example, in United States  v. Spinosa,                                                 _____________     _______          982  F.2d 620 (1st Cir.  1992), we held  that evidence concerning          the  defendant's history  of cocaine  possession and  dealing was          probative of  his knowledge and intent to  participate in cocaine          transaction charged because it directly contradicted  his defense          that he was involved only by accident or mistake.                      The justification often advanced for admitting evidence          of other crimes to prove knowledge is that no inference as to the          defendant's character  is required.  See United States v. Ferrer-                                               ___ _____________    _______          Cruz,  899 F.2d 135, 138 (1st Cir.  1990); see also 22 Charles A.          ____                                       ________          Wright  & Kenneth A. Graham, Jr., Federal Practice and Procedure,                                            ______________________________            5245 (1978).  Rather, the probative value emanates from the law          of probabilities.  We consider the following example illustrative          of the permissible inferential chain:                      The  fact  that   an  illegal  alien  was                      previously  found  stowed away  under the                      hood  of defendant's  car does  not prove                      that a  second alien found  there did not                      creep in  undetected  while the  car  was                      parked.  However,  it does seem  unlikely                      that  the  same  person  could  be  twice                      victimized in  this fashion, particularly                      when   a   reasonable   person  who   had                      previously  gotten  into trouble  in this                      way would probably take care to see  that                                         -7-                      he  had only  an  engine  under the  hood                      before heading for the border.          22 Wright  & Graham, supra,    5245.  Along these  lines, we also                               _____          have explained that jurors might permissibly hypothecate that the          defendant's  repetitive   involvement  in  criminal   conduct  is          unlikely to have left her oblivious to  the true character of the          acts  in question.    See, e.g.,  Ferrer-Cruz,  899 F.2d  at  138                                ___  ____   ___________          (noting that "[s]ince one who has previous experience  with drugs          is more  likely  to see  'car  switching' as  part of  drug  sale          technique  than  one  who has  no  such  experience,  . .  .  the          inferences at  issue do not involve character"); United States v.                                                           _____________          Simon,  842 F.2d 552 (1st Cir. 1988); United States v. Estabrook,          _____                                 _____________    _________          774 F.2d 284, 288 (8th Cir. 1985).                    "There  is,  however,   a  danger  that  the   supposed          inferences  to  knowledge  will  be  obscured  by  the  forbidden          inference  to  propensity, particularly  in  cases  in which  the          theory  of knowledge is the probability  that the defendant would          have obtained  knowledge in the course  of repetitive involvement          in criminal  conduct."  Wright &  Graham, supra,   5245.   It is,                                                    _____          therefore,   important    to   explain   what    inferences   are          impermissible.  It is impermissible to suggest that a defendant's          prior conviction for possession of cocaine somehow makes her more                                                                       ____          likely to  have acted in a  similar manner in the  context of the          ______          present  possession charges.    Similarly, a  prosecutor may  not          argue that  the defendant's prior  conviction for a  drug offense          demonstrates her propensity for involvement in drug trafficking.                                         -8-                    Moving  to   the  present   case,  we  note   that  the          circumstances surrounding Aguilar-Aranceta's 1986  conviction are          similar to  those of the  present charges in  several significant          aspects.   We have held that similarity between the prior act and          the current charges is often the predominant factor or touchstone          in the  test for special  relevance as to  defendant's knowledge.          See  United   States  v.   Arias-Montoya,  967  F.2d   at  712-13          ___  _______________       _____________          (summarizing  circumstances  which   would  constitute   "special          relevance," including  that prior  bad acts (1)  closely mirrored          the newly  charged crime, (2) were  part of a common  scheme or a          course of continuous dealing, or (3) provided the context for the          newly charged  crime); see also  United States  v. Hadfield,  918                                 ________  _____________     ________          F.2d 987, 994  (1st Cir. 1990)  (upholding admission of  evidence          concerning  prior drug  involvement  in a  drug trafficking  case          because the  past actions  were "proximate  in  time and  closely          allied  with the type of  crimes for which  appellants were being          tried"), cert. denied,  500 U.S.  936 (1991).   Here, both  cases                   ____________          involved  packages containing  cocaine that  had been  shipped to          Aguilar-Aranceta's  post  office box  at  the Old  San  Juan Post          Office.    In both  instances,  the  packages were  addressed  to          Aguilar-Aranceta with return addresses  indicating that they  had          been  sent from Medell n, Colombia.  The cases differ with regard          to  the  circumstances  of  arrest.    In 1986,  the  authorities          followed Aguilar-Aranceta from the  Old San Juan Post Office  and          arrested  her at her home.  In the present case, Aguilar-Aranceta          was arrested before she  left the Post Office Building.   In both                                         -9-          cases Aguilar-Aranceta had not opened the packages at the time of          her arrest.   In the 1986 case, the unopened packages had been in          her possession for several hours.                    With regard to whether  the prior conviction clears the          special  relevance  hurdle,  it   is  a  close  call.     We  are          particularly  concerned  with the  four-year  period between  her          prior  conviction and the facts leading to the present charges as          well  as the  fact  that  the  packages  were  unopened  in  both          instances.   Nevertheless, we do not find that the district court          abused its  discretion in concluding that the  1986 conviction is          so similar that it is  relevant to the issue of knowledge  in the          present case.  A  jury could have permissibly made  the following          inferential analysis: many people  in the general population have          little  or no knowledge of how narcotics traffickers use the mail          system  to ply their trade, and for this reason might unwittingly          accept  two packages sent to  them from an  unfamiliar address in          Medell n,  Colombia.    Aguilar-Aranceta's  prior  conviction for          possession  of cocaine that had been mailed to her from Medell n,          Colombia suggests that she cannot plausibly make this claim.  See                                                                        ___          United  States  v.  Nickens,  955 F.2d  112,  124-25  (1st  Cir.)          ______________      _______          (holding that  where defendant claimed  to have been  an innocent          dupe  with  regard to  cocaine found  in  his luggage,  his prior          narcotics conviction was relevant to issue of knowledge because a          jury  might permissibly  infer  that someone  who has  experience          selling  cocaine  is  more  likely  to know  how  drug  smugglers          operate),  cert. denied, 113 S.  Ct. 108 (1992).   Of course, her                     ____________                                         -10-          prior  conviction  does  not  conclusively  prove  that  Aguilar-          Aranceta   knew   that   the   packages   contained   contraband.          Nevertheless,  we  think that  the  jury  permissibly could  have          inferred that  someone  with a  previous  mail-related  narcotics          conviction would be reluctant to again accept mysterious packages          from Colombia, and that  Aguilar-Aranceta's failure to reject the          packages given her prior  experiences bears on the  crucial issue          of knowledge.  We think that  these inferences might be even more          plausible  given that  Aguilar-Aranceta  claims to  have been  an          unwitting pawn  in the  events that  led to  her  guilty plea  in          1986.7   Accordingly,  we find  that the  district court  did not          abuse  its discretion  in  finding that  Aguilar-Aranceta's prior          conviction was specially relevant to the issue of knowledge.                    C.   Rule 403 balancing                    C.   Rule 403 balancing                         __________________                    We  now  consider  whether the  district  court  should          nevertheless  have  excluded the  evidence under  Rule 403.   The          tenets of Rule 403 balancing are familiar and often  quoted:  "If          the evidence brings unwanted baggage,  say, unfair prejudice or a                                        ____________________          7   Aguilar-Aranceta  testified regarding the  events surrounding          her   1986  conviction.     She   testified  that   Jos   Perales          ("Perales"),  a man she had  met while studying,  asked to borrow          her post office box so he  could receive some greeting cards from          Colombia.  She testified that when the authorities arrived at her          home, she gave them  the packages, which were unopened,  and told          them about Perales.   The authorities waited  for a few hours  to          see if Perales would arrive,  and when he did not,  they arrested          her.             She testified that she  subsequently pled guilty to possession          of cocaine even though the packages were not hers because she was          in  an advanced state of pregnancy and wanted to avoid jail time.          She was sentenced to two years probation.                                           -11-          cognizable  risk  of confusing  the  jury, and  if  the baggage's          weight substantially  overbalances any probative value,  then the          evidence must be excluded."   United States v. Rodr guez-Estrada,                                        _____________    _________________          877 F.2d 153, 155 (1st Cir. 1989).  We note, however, that, "[b]y          design,  all  evidence is  meant to  be  prejudicial; it  is only          unfair prejudice which must be avoided."  Id. at  156.  Moreover,          ______                                    ___          "[t]he phrasing of Rule 403 makes it clear that the discretion to          exclude  does not arise  where the balance  between the probative          worth and the countervailing factors  is debatable; there must be          a significant tipping of the scales against the evidentiary worth          of the proffered  evidence."  Wright &  Graham, supra,   5221  at                                                          _____          309-10.   Accordingly, we review  only for  abuse of  discretion.          United States v. Desmarais, 938 F.2d 347, 351 (1st Cir. 1991).          _____________    _________                    Aguilar-Aranceta argues that  the legitimate  probative          value of her prior conviction, if any, is completely overshadowed          by  the  danger of  unfair  prejudice.    We  agree.   The  prior          conviction  is probative  on the  issue of  knowledge only  in an          attenuated manner, dependent on the following "once burned, twice          shy"  chain  of  inferences:   (1)  someone  who  has a  previous          conviction  stemming from  the receipt of  cocaine-laden packages          would likely  be reluctant  to innocently and  unwittingly accept          mysterious packages from Colombia; and (2) the fact that Aguilar-          Aranceta  did  in  fact  accept the  packages  despite  her prior          conviction  suggests that she knew their contents.  While in some          circumstances this inferential chain might be strongly probative,          the  circumstances here render it  of limited value.    First, we                                         -12-          note  the remoteness  in time  of her  prior conviction.   Common          sense  dictates  that the  time  span  between the  events  bears          directly  on the probative weight of  the prior conviction vis-a-          vis  the government's  "once burned,  twice shy"  argument.   Cf.                                                                        ___          United States v. Lynn, 856 F.2d  430 (1st Cir. 1988) (noting that          _____________    ____          six year  period between  the prior  conviction  and the  instant          offense significantly diminishes the probative value of the prior          conviction).   Second, we  note that  Aguilar-Aranceta apparently          spoke little or no English.  She testified that she was expecting          a  letter from  her sister  and became  confused when  the window          clerk produced  packages with  unfamiliar return addresses.   She          testified  further  that  she  eventually  accepted  the packages          because the window  clerk kept insisting  that the packages  were          hers  even  though  she  repeatedly  tried  to explain  that  the          packages were  not from  her family.    Third, we  note that  the          window clerk was aware that Aguilar-Aranceta would be arrested if          she took the  packages, which  suggests that he  might have  been          especially zealous in encouraging  her to take the packages.   We          think these circumstances limit the probative value of the  prior          conviction evidence.                    Against the  marginal relevance of the prior conviction          evidence, we  weigh the  danger that  it unfairly prejudiced  the          jury.   Here,  we  cannot escape  the  conclusion that  the  most          powerful  inference that  the jury  was likely  to make  from the          prior conviction is also the forbidden one:  that because she was          previously  convicted under  nearly identical  circumstances, she                                         -13-          must be  guilty here.    The specter  of impermissible  character          evidence  is  likely  to   have  significantly  overshadowed  any          legitimate probative value.  We find this especially likely given          that  there  was  virtually  no other  evidence  suggesting  that          Aguilar-Aranceta was  in knowing possession of  cocaine.  Leaving                                   _______          aside  her previous  conviction, the  evidence pertaining  to the          defendant's state of mind  was equivocal.  The  government points          out that  although  Aguilar-Aranceta was  poor  and was  able  to          receive mail at her  home, she kept a post office  box at the Old          San  Juan  Post  Office.     Nevertheless,  Aguilar-Aranceta  was          apparently in no hurry to  get the packages.  In fact,  nine days          passed between the time the first set of claim slips were  placed          in Aguilar-Aranceta's box and the time that Aguilar-Aranceta went          to pick up the packages.  Similarly, her  behavior at the counter          was of uncertain significance.  The window clerk could only state          that  since  she  did  not  expressly  refuse  the  packages,  he          continued to  leave  them  on  the  counter.    The  government's          argument  that  Aguilar-Aranceta's  demonstrated  reluctance  was          merely  a smokescreen to conceal her knowledge of the contents of          the packages is dubious, especially in light of the fact that the          window  clerk could  have taken  back the  packages at  any time.          Perhaps because  the government's evidence was  weak with respect          to  the  current charges  (particularly  so  because it  arrested          Aguilar-Aranceta before she had  a chance to open the  packages),          it focused the jury's attention on her prior  conviction.  In any          case,  we  think that  the  amount  of  evidence introduced  with                                         -14-          respect  to  her  prior  conviction  dramatically  increased  the          likelihood that the jury  convicted Aguilar-Aranceta on the basis          of the 1986 conviction alone rather than on  a fair assessment of          the evidence.                    The  gravity  of  the  unfair prejudice  is  even  more          apparent  when one  considers that  the prior conviction  was not          merely one part of the government's attempt to establish Aguilar-          Aranceta's state of mind.   It was the entire case.   The offense          of possession with intent to distribute cannot be "established by          proof merely  that a  package  containing drugs  was mailed  from          outside this country and was received and opened by the addressee          of the package  inside this country.  The  threat this would pose          to  innocent  victims  of  mere  mistake  or  actual  set-ups  is          obvious."  United States v. Samad, 754 F.2d  1091, 1096 (4th Cir.                     _____________    _____          1985).  This logic applies with equal or greater force to someone          with  a  previous  conviction  for  narcotics  trafficking.    In          essence,  admitting  Aguilar-Aranceta's prior  conviction allowed          the jury  to convict her upon  facts that would  likely have been          insufficient to convict a  similarly situated defendant without a          prior conviction.   In sum,  we think that  evidence of  Aguilar-          Aranceta's prior conviction should have been excluded because its          marginal probative value, coupled with the scarcity and equivocal          nature of  the other evidence relating  to the Aguilar-Aranceta's          state of mind, created  an unacceptable risk that the  jury would          assume  that  Aguilar-Aranceta  had  a  propensity for  narcotics          trafficking and convict on that basis alone.                                         -15-                    D.   Harmless error                    D.   Harmless error                         ______________                    A  non-constitutional  evidentiary  error   under  Rule          404(b)  will be  treated  as  harmless  only  if  it  is  "highly          probable"  that  the error  did  not contribute  to  the verdict.          Arias-Montoya, 967 F.2d at 714  (citing United States v.  Garc a-          _____________                           _____________     _______          Rosa, 876 F.2d 209, 222 (1st  Cir. 1989)).  Given the scarcity of          ____          other evidence pertaining to Aguilar-Aranceta's state of mind, we          think it is highly probable that the evidentiary error did affect          the  verdict.   Accordingly, we  find that  the district  court's          error was not harmless.8                    Reversed.                    ________                                        ____________________          8   Because we reverse on  the 404(b) error, we  decline to reach          the other issues raised by Aguilar-Aranceta.                                         -16-
