                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                              October 12, 2005
                        FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                        _____________________                     Clerk

                            No. 04-50532
                        _____________________



UNITED STATES OF AMERICA

          Plaintiff - Appellee

     v.

ANGEL CHAVEZ

          Defendant - Appellant

_________________________________________________________________

           Appeal from the United States District Court
             for the Western District of Texas, Pecos
                          No. P-04-CR-15
_________________________________________________________________

Before KING, Chief Judge, and DAVIS, Circuit Judge, and
FITZWATER,* District Judge.

PER CURIAM:**

     On March 24, 2004, a jury convicted Defendant-Appellant

Angel Chavez of drug trafficking under 21 U.S.C. §§ 841(a)(1),

952, and 960 and 18 U.S.C. § 2.   He now appeals his conviction


     *
        District Judge of the Northern District of Texas, sitting
by designation.
     **
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.


                                  1
and sentence, arguing that the district court (1) erred by

admitting impermissible guilt-by-association evidence at trial,

(2) erred by failing to give a limiting instruction concerning

the guilt-by-association evidence, and (3) improperly instructed

the jury on the defense of duress.    For the following reasons, we

AFFIRM the judgment of the district court.

               I.   FACTUAL AND PROCEDURAL BACKGROUND

     On January 17, 2004, Angel Chavez drove a truck containing

marijuana from Ojinaga, Mexico into the United States.    At a

border checkpoint south of Marfa, Texas, U.S. Border Patrol Agent

Richard Russell stopped Chavez and asked him about his

citizenship.   Chavez replied that he was a U.S. citizen and

produced a Texas identification card and a birth certificate

showing that he was born in the United States.1   When Russell

asked Chavez where he was going, Chavez responded that he was

going to Marfa to pick up a friend, and then on to Odessa, Texas

to see a doctor.    Russell, finding it odd that Chavez would be

visiting a doctor on a Saturday, continued questioning Chavez and

noticed that Chavez appeared nervous.

     In addition to questioning Chavez, Russell observed paper

tags on the truck, indicating that the truck had recently been

purchased.   He testified that in his experience as a border

     1
        Chavez did not produce a driver’s license. Russell
testified that when he questioned Chavez about not having a
driver’s license, he noticed that Chavez “started to get
nervous.” 6 R. at 55-56.

                                  2
patrol agent, narcotics traffickers use paper tags to distance

themselves from knowledge of the contents of the vehicle.

Russell also noticed fresh scratch marks and grease around the

rim of the tire, which indicated that the tire had recently been

removed and might contain narcotics.    Based on these observations

and Chavez’s suspicious answers, Russell asked Chavez if he could

search the truck.   Chavez consented to the search.

     Border patrol agents searched the tires and the contents of

the truck and found thirty-nine taped bundles of marijuana hidden

in the backseat of the truck.   After receiving his Miranda rights

and indicating that he understood his rights and was willing to

talk, Chavez told Russell and other federal agents that he was

transporting the marijuana for Sergio Aranda, an alleged leader

of a powerful drug cartel in Ojinaga.   According to Chavez, his

father owed Aranda a debt that he could not repay, and Aranda had

threatened to kill his father and other family members if he did

not deliver marijuana from Ojinaga to Odessa.

     While searching the truck, federal agents found papers in

the truck with telephone numbers, some of which corresponded with

numbers found in Chavez’s wallet.    One of the pieces of paper had

a telephone number that matched the number of Rosabla Carrasco,

an Odessa resident who had been arrested, but not convicted, for

drug trafficking.   Agents also found a current Odessa College

student identification card picturing Chavez.   The agent who

investigated the identification card discovered that it was for a

                                 3
membership to the athletic facility at the college, which Chavez

shared with three other individuals.2

     On February 5, 2004, a federal grand jury indicted Chavez

for (1) knowingly importing into the United States from Mexico

less than fifty kilograms of marijuana, and (2) knowingly

possessing with intent to distribute less than fifty kilograms of

marijuana.     Chavez pleaded not guilty to both counts.   Before the

trial began, the government moved to introduce evidence that (1)

Rodolfo Valdez, an Odessa resident who shared the college gym

membership with Chavez, had twice been convicted of marijuana

offenses, and (2) Carrasco, who was linked to Chavez through the

papers with her telephone number found in Chavez’s wallet and

truck, had been arrested for marijuana smuggling.     The district

court denied the government’s motion, finding the evidence

irrelevant.3    On March 23, 2004, the trial began and during its

     2
        An Odessa College administrator testified that Chavez,
Rodolfo Valdez, Eric Gomez, and Obed Hernandez opened a corporate
athletic club membership named “Cuatro Los Chulos,” meaning a
group of cute guys. 6 R. at 175, 215. According to the
testimony of Raymond Rodriguez, a police officer assigned to the
drug enforcement administration task force, the address provided
by the corporate members on the gym application corresponded to
the private residence of Carrasco. When Rodriguez visited
Carrasco’s residence, she claimed that she did not know Chavez.
Id. at 150-51.
     3
        The judge ruled that:
     [T]he government is not going to be allowed to bring [the
     evidence of Valdez’s prior drug convictions and
     Carrasco’s arrest for drug smuggling] up on its case in
     chief. . . . If Mr. Chavez takes the stand and raises the
     issue of duress, then the Government will be allowed to
     introduce that evidence. . . . I don’t see anything, at

                                   4
direct case, the government again moved to admit evidence of

Valdez’s prior convictions and Carrasco’s arrest for drug

trafficking.    The court again denied the government’s motion.

     At the end of the government’s case, Chavez took the stand

in his own defense.    Using the alleged death threats from Aranda

as support, Chavez claimed that he acted under duress in

transporting marijuana across the U.S. border.    During Chavez’s

direct testimony, his attorney laid the groundwork for the duress

defense.    In an attempt to establish the second element of the

duress defense,4 Chavez and his attorney engaged in the following

colloquy:


     least in what the Government has shown me so far, that
     connects the Defendant with these two people in Odessa,
     other than he had a phone number, and nothing that
     connects him back to their prior drug dealings.
6 R. at 8-9.
     4
         The defense of duress requires the defendant to prove by
a preponderance of the evidence that:
      1. The defendant was under an unlawful present, imminent,
      and impending threat of such a nature as to induce a
      well-grounded fear of death or serious bodily injury to
      himself [or to a family member]; and
      2. The defendant had not recklessly or negligently placed
      himself in a situation in which it was probable that he
      would be forced to choose the criminal conduct; and
      3. The defendant had no reasonable legal alternative to
      violating the law, that is, he had no reasonable
      opportunity to avoid the threatened harm; and
      4. A reasonable person would believe that by committing
      the criminal action he would directly avoid the
      threatened harm.
FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS: Criminal § 1.36 (West 2001)
(alteration in original); see also United States v. Posada-Rios,
158 F.3d 832, 873 (5th Cir. 1998) (setting forth the elements of
this defense in essentially the same terms as the Fifth Circuit
pattern jury instruction).

                                  5
          Q:   Did you recklessly or negligently hang around with
               the Sergio Aranda people and get yourself involved
               in this when you didn’t have to?

          A:   Do you mean if I –- I mean, I didn’t understand your
               question.

          Q:   Did you involve yourself, before this happened, with
               drug traffickers?

          A:   No, ma’am.

On cross examination, the following exchange occurred between

Chavez and the prosecutor:

          Q:   Mr. Chavez, [defense counsel] just asked you, you do
               not associate with people who are drug traffickers.
               Is that your testimony?

          A:   Yes, sir.

The prosecutor then questioned Chavez about his relationship with

Valdez.    Chavez testified that they were friends from work and

that they had joined a gym as part of a group.    Later during

cross examination, the prosecutor once again asked:

          Q:   And, again, you’re very clear on the fact that you
               do not associate with people who are involved in
               drug trafficking; is that correct?

          A:   Yes, sir.

     For the third time, over the defense attorney’s objections,

the government moved to introduce evidence of Valdez’s prior drug

convictions and Carrasco’s arrest for drug trafficking.    This

time, the district court admitted evidence of Valdez’s prior

drug-trafficking convictions, finding that (1) the prosecutor

could use the evidence to rebut Chavez’s duress defense, and (2)

Chavez’s attorney opened the door to the evidence by asking

                                  6
Chavez whether he had ever associated with drug traffickers.    The

district court, however, refused to admit evidence concerning

Carrasco’s prior arrest for drug trafficking.   After the district

court’s ruling, the prosecutor asked Chavez whether he was aware

that Valdez had twice been convicted for trafficking marijuana.

Chavez responded that he “did not know–-[he] knew he was in jail,

but [he] did not know why.”   6 R. at 283.   After further probing

by the prosecutor about Valdez’s prior marijuana offenses, Chavez

again responded, “I know [sic] he was in jail but not that he was

in there for all these problems that you are telling me about.”

Id. at 284.   On rebuttal, the government presented the testimony

of Valdez’s state and federal probation officers to introduce the

indictments and formal judgments of conviction for Valdez’s drug-

trafficking offenses.

     At the close of evidence, Chavez’s attorney argued that the

Fifth Circuit pattern jury instruction on duress impermissibly

shifted the burden of proof to the defendant.   She submitted a

proposed jury instruction derived from the Federal Judicial

Center.5   She admitted, however, that she could point to no Fifth

     5
        Defense counsel proposed that the court model its
instruction on duress after Instruction 56 of the Pattern
Criminal Jury Instructions promulgated by the Federal Judicial
Center. Under this instruction,
     [o]n [the issue of duress], just as on all others, the
     burden is on the government to prove the defendant’s
     guilt beyond a reasonable doubt. To find Angel Chavez
     guilty, therefore, you must conclude beyond a reasonable
     doubt that when he participated in the attempt to smuggle
     the marijuana, he did not have a reasonable belief that

                                 7
Circuit or Supreme Court case indicating that the Fifth Circuit

pattern jury charge was erroneous.     She also requested a

cautionary instruction regarding evidence of Valdez’s prior

convictions.    After asking defense counsel whether she had a

proposed instruction and receiving a negative reply, the court

denied defense counsel’s request.     Although the district judge

did not specifically mention the evidence on Valdez, he did give

a cautionary instruction to the jury to consider only the crimes

charged to Chavez in the indictment.6

     On March 24, 2004, the jury began its deliberations.     After

approximately two hours of deliberations, the jury sent a note to

the court indicating that they could not reach a unanimous

verdict on the duress defense.    The court overruled Chavez’s

motion for a mistrial and instructed the jury to continue

deliberating.    About an hour later, the jury returned a guilty

verdict on both counts.    On May 26, 2004, the district court



     such participation was the only way he could save himself
     from serious harm.
1 R. at 69.
     6
        The judge gave the following cautionary instruction to
the jury:
          You are here to decide whether the Government has
     proved beyond a reasonable doubt that the Defendant is
     guilty of the crimes charged in the indictment.      The
     Defendant is not on trial for any act, conduct, or other
     offense not alleged in the indictment. Nor should you be
     concerned with the guilt of any other person or persons
     not on trial as a Defendant in this case, except as you
     are otherwise instructed.
7 R. at 339-40.

                                  8
sentenced Chavez to thirty-three months imprisonment, three years

supervised release, and special assessments of $200.00 on both

counts.   On June 1, 2004, Chavez filed this timely appeal.

                           II.   DISCUSSION

A.   Admissibility of Valdez’s Prior Drug-Trafficking Convictions

     Chavez argues that the district court erred by admitting

Valdez’s prior drug convictions.       First, Chavez contends that

this evidence was not relevant to any of the issues in the case

and was offered only for the improper purpose of showing that

Chavez associates with a felon.    According to Chavez, this

court’s precedent prohibits such guilt-by-association evidence,

and the district court’s admittance of such evidence constitutes

reversible error.    See United States v. Singleterry, 646 F.2d

1014, 1018 (5th Cir. 1981) (noting that the government may not

attempt to prove a defendant’s guilt by showing that the

defendant associates with “unsavory characters”).       Second, Chavez

argues that his attorney did not open the door to Valdez’s prior

convictions because defense counsel’s second question was

directed at those drug traffickers who had threatened Chavez’s

family.   Even if defense counsel opened the door, Chavez

maintains that Valdez’s prior drug convictions were irrelevant

because Chavez never accused Valdez of forcing him to transport

drugs and no evidence exists to show that Chavez knew Valdez was

a drug trafficker.   Finally, Chavez contends that even if


                                   9
Valdez’s prior drug convictions have some minor relevance to the

issues in the case, the district court should have excluded the

evidence as unduly prejudicial under FED. R. EVID. 403.    See

United States v. Polasek, 162 F.3d 878, 885 n.2 (5th Cir. 1998)

(noting that even if the defendant’s associates’ convictions were

relevant for some purpose, the prejudicial effect of the evidence

substantially outweighed its probative value).

     We review a district court’s decision to admit evidence for

abuse of discretion.   United States v. Gutierrez-Farias, 294 F.3d

657, 662 (5th Cir. 2002); see also United States v. Caldwell, 820

F.2d 1395, 1403 (5th Cir. 1987) (“[T]his court is guided by the

principle that the district court has wide discretion in

determining relevancy, and its decision will not be overturned

absent a substantial abuse of that discretion.”).    For

evidentiary issues arising under FED. R. EVID. 403, the district

court has broad discretion to weigh the relevance, probative

value, and prejudice of the evidence.   United States v. Wilson,

355 F.3d 358, 361 (5th Cir. 2003).   Based on the district court’s

broad discretion, we will not reverse a district court’s ruling

under Rule 403 absent a clear abuse of discretion.    Caldwell, 820

F.2d at 1404; see also United States v. Dula, 989 F.2d 772, 778

(5th Cir. 1993) (“The balancing of probative value against

prejudicial effect is committed to the sound discretion of the

trial judge, a decision that is final in the absence of abuse of

discretion.”).

                                10
     We note at the outset that by categorically denying on

direct examination that he did not involve himself with drug

traffickers, Chavez effectively opened the door to the questions

that the prosecutor put to him concerning his connections with

Valdez.    See Walder v. United States, 347 U.S. 62, 64-66 (1954)

(noting that where the defendant testified on direct examination

that he had never possessed any narcotics, the government was

allowed to impeach this broad assertion by introducing rebuttal

witnesses); United States v. Caron, 474 F.2d 506, 508 (5th Cir.

1973).    In United States v. Caron, the defendant denied that he

was a bookmaker or engaged in bookmaking operations.     Caron, 474

F.2d at 507-08.    On cross-examination of the defendant, the

district court allowed the introduction of evidence showing the

defendant’s dealings with another bookmaker though it was

collateral to the issues raised by the indictment and for which

the defendant was on trial.    Id. at 508.   On appeal, we held that

the defendant opened the door to the prosecutor’s rebuttal

evidence by categorically denying on direct examination that he

was a bookmaker.    Id.; see also United States v. Walker, 613 F.2d

1349, 1352-53 (5th Cir. 1980) (holding that because the defense

counsel had opened the door by asking a witness about her

profession as a prostitute and eliciting testimony concerning the

defendant’s connection with the witness, the government was

allowed on redirect to ask specific questions about whether the

witness was working for the defendant as a prostitute and how

                                 11
much money the witness paid to the defendant from her work as a

prostitute, even though this testimony related to evidence of

another crime by the defendant); United States v. Delk, 586 F.2d

513, 516 (5th Cir. 1978) (“[I]f the defendant opens the door to

the line of testimony, he cannot successfully object to the

prosecution accepting the challenge and attempting to rebut the

proposition asserted . . . .”) (internal quotation marks and

citation omitted); cf. United States v. Ochoa, 609 F.2d 198, 204-

05 (5th Cir. 1980) (finding that the defendant in this case

“never testified that any of these people were good people or

placed their character in issue” and contrasting this case with

those in which “the defendant opened the door on direct and can

now be required to give full details”).    Although Chavez’s

counsel strenuously contended at oral argument that Valdez’s

prior drug convictions have no logical relevance to whether

Chavez is guilty of drug trafficking, the evidence is relevant--

and admissible--to rebut Chavez’s assertion that he did not

associate with drug traffickers.    See FED. R. EVID. 401 & 402

(noting in Rule 402 that all relevant evidence is admissible and

defining relevant evidence in Rule 401 as “evidence having any

tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable

than it would be without the evidence”) (emphasis added).

     Chavez has also failed to show that the district court

clearly abused its discretion by admitting the evidence under

                               12
FED. R. EVID. 403.   To exclude evidence under Rule 403, the trial

court must find that “the probative value of that evidence ‘is

substantially outweighed by the danger of unfair prejudice.’”

Caldwell, 820 F.2d at 1404 (quoting FED. R. EVID. 403) (emphasis

added).   Evidence of Valdez’s prior convictions was extremely

probative to rebut Chavez’s testimony that he did not associate

with drug traffickers.    While the evidence certainly carried some

risk of prejudice by linking Chavez with a drug trafficker, the

danger of unfair prejudice was reduced by the district court’s

cautionary instruction to the jury.    See United States v.

Sanders, 343 F.3d 511, 518 (5th Cir. 2003) (noting that a court

minimizes the danger of undue prejudice when it provides a

cautionary instruction); United States v. Gonzalez-Lira, 936 F.2d

184, 192 (5th Cir. 1991) (determining that the trial court’s

limiting instruction to the jury reduced the risk of prejudice).

Accordingly, we cannot say that the district court’s weighing of

the probative value and prejudice of the evidence and decision to

admit it amounted to a clear abuse of discretion.    See Gonzalez-

Lira, 936 F.2d at 192.    Based on our review of the record, we

hold that the district court did not err by admitting evidence of

Valdez’s prior convictions.7

B.   Limiting Instruction on Valdez’s Prior Convictions

     7
        Because we hold that Chavez’s attorney opened the door
during direct testimony to Valdez’s prior drug convictions, we
need not decide whether the district court abused its discretion
in admitting the evidence to rebut Chavez’s duress defense.

                                  13
     Chavez next argues that the district court erred in not

giving a limiting instruction telling the jury that Chavez’s

association with a convicted felon could not serve as proof of

his guilt without additional evidence.   See United States v.

Parada-Talamantes, 32 F.3d 168, 170 (5th Cir. 1994) (finding that

the admission of highly prejudicial evidence without any curative

instruction amounts to reversible error).   At oral argument, both

parties focused on whether Chavez had waived his right to receive

a limiting instruction by failing to provide the district court

with a substantially correct jury instruction.   In addition to

this discussion over waiver, Chavez’s counsel contended that the

district court’s failure to give the jury a limiting instruction

added to the prejudice in this case.8

     Contrary to the discussion at oral argument over waiver,

appellate counsel on both sides failed to note that the district

judge did provide a cautionary instruction to the jury to

consider only the crimes charged to Chavez.9   We have held that a

district court’s cautionary instruction mitigates potential

prejudicial effect, even where the instruction is general and

     8
        At oral argument, Chavez’s counsel paraphrased the trial
attorney’s request for a limiting instruction as “Your honor, can
we have an instruction something like the mere presence
instruction--you know, mere presence at a crime doesn’t mean
you’re guilty. Can we have an instruction that without more, you
can’t convict him just ‘cause he knows people who have been
convicted of drugs?” The record indicates that Chavez’s trial
counsel made almost this exact request. See 7 R. at 329.
     9
         See supra note 6.

                               14
does not specifically mention the prejudicial evidence at issue.

See United States v. Walters, 351 F.3d 159, 167 n.5 (5th Cir.

2003) (noting that “[t]he fact that the district court’s limiting

instruction did not specifically mention [the evidence at issue]

does not diminish its mitigation of prejudicial effect”); see

also Gonzalez-Lira, 936 F.2d at 192 (determining that the

limiting instruction sufficiently reduced the danger of

prejudice).   Because the district court did in fact provide a

cautionary jury instruction, we find Chavez’s contention without

merit.

C.   The Fifth Circuit’s Pattern Jury Instruction on Duress

     Finally, Chavez argues that this circuit’s pattern

instruction on the defense of duress improperly places the burden

of proof on the defendant to prove the four elements of the

defense.    According to Chavez, the instruction “saddled him with

an unfair presumption that he recklessly or negligently placed

himself in a situation that forced him to choose the criminal

conduct in which he engaged.”   Appellant Br. at 15.   Chavez

acknowledges that this court’s precedent forecloses this

argument.   See United States v. Willis, 38 F.3d 170, 178-79 (5th

Cir. 1994).   Chavez raises this argument, however, to preserve it

for possible further review by this court en banc or by the

Supreme Court.

     The district court has broad discretion in formulating its



                                 15
instructions, and we therefore review the district court’s

refusal to include the defendant’s proposed jury instruction for

abuse of discretion.    United States v. Chaney, 964 F.2d 437, 444

(5th Cir. 1992).    In applying this deferential standard of

review, “we read the district court’s instruction as a whole to

determine whether that instruction fairly and accurately reflects

the law and covers the issues presented in the case.”    Id.

       In United States v. Willis, we found that the Fifth Circuit

pattern jury instruction for duress accurately and fairly

reflects the law of duress in this circuit.    With regard to the

same duress instruction now at issue, we held that “the duress

instruction given by the district court herein was drawn directly

from circuit precedent. . . . The district court was not free to

ignore precedent . . . and neither are we.”    Willis, 38 F.3d at

179.    Accordingly, as Chavez correctly recognizes, our precedent

forecloses his jury instruction argument.

                          III.   CONCLUSION

       For the foregoing reasons, we AFFIRM the judgment of the

district court.




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