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

                                     TENTH CIRCUIT                             June 10, 2013

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

             Plaintiff - Appellee,
v.                                                            No. 11-2235
                                                  (D.C. No. . 1:10-CR-00460-MCA-1)
MICHAEL LEE MONTOYA,                                           (D. N.M.)

             Defendant - Appellant.




                             ORDER AND JUDGMENT*


Before MURPHY, O'BRIEN, and TYMKOVICH, Circuit Judges.


      Michael Montoya evolved from an unsuccessful armed bank robber to a successful

one. His “success” was short lived and not without consequences. He appeals from

convictions stemming from the attempted robbery of the Wells Fargo Bank in Raton,

New Mexico. He complains about the admission of evidence concerning his role in an




      *
         This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
armed bank robbery six weeks later in Cortez, Colorado, arguing it denied him a fair trial.

We affirm.

                                       BACKGROUND

A.     The Raton Attempted Robbery

       On April 23, 2009, Montoya arrived at the house of his co-conspirator, James

McBride, to travel from Farmington, New Mexico, to Raton, a mountain town on the

New Mexico and Colorado border. The day before, they had discussed robbing the bank

in Raton because McBride needed rent money. McBride drove Montoya’s pickup, a

yellow Dodge with black stripes. When they arrived in Raton, McBride drove by the

bank while Montoya pointed out where McBride should drop him off and where McBride

could park the truck while Montoya went into the bank. Eventually they put their plan

into motion; McBride dropped Montoya off, parked, and waited.

       The robbery did not go as planned. Montoya, carrying a laptop bag, entered the

bank, and told the teller he wanted to see a loan officer. The teller directed him to wait

outside the office of Diane Dixon, the personal banker for the Raton office. A few

minutes later, Dixon invited Montoya into her office. He took a seat across from her and

placed a note on her desk. The typed note was mostly in black print but some words

were in red. The note said: “Read this letter very carefully. I have a gun and I will not be

afraid to use it.” (Vol. 4, Part 4 at 310.) It also stated he had a bomb and threatened

detonation if she did not cooperate.

       Dixon read about one third of the note, then leaned back and asked: “What do you

want me to do?” (Id. at 311.) Montoya said, “I want you to take me over there to that


                                            -2-
vault.” (Id.) Dixon replied, “I can’t do that.” (Id.) She explained the vault was “under

dual control,” and the other person had just left and would not be back for an hour. (Id.)

Dixon offered to get the manager, “Margaret” (the bank’s code for an emergency), but he

did not want her to contact anyone else. (Id. at 312.) He asked how much money the

tellers had and how many employees were in the bank. After Dixon answered, Montoya

sat thinking for a short while, but then a customer arrived and sat in the chair outside

Dixon’s office. Dixon told Montoya the customer was there for an appointment “so if [he

wanted to] take [his] letter and leave . . . [he was] welcome to do that.” (Id. at 322.)

Montoya took his note and Dixon walked him toward the door. When he left, she gave

the alert. Employees locked the front door and called 911. Dixon ran to the window to

see where the robber went, but she lost sight of him. However, the event was captured on

the bank surveillance video. Dixon never saw a gun and so testified.

       When local law enforcement officers arrived, the only lead was given by two

pedestrians who said they saw a man walk behind the bank and get into a yellow and

black Dodge truck. Officers issued a “Be On The Lookout” (BOLO) for the truck, but it

did not result in the capture of the robber or his accomplice. (Vol. 4, Part 5 at 396.)

       According to McBride, as they drove away he asked: “How’d it go?” (Vol. 4,

Part 5 at 621.) Montoya replied: “[I]t didn’t work out.” (Id.) Montoya told McBride he

could not access the vault because it took two keys. McBride asked: “Why would you

try to get in the vault? . . . . [H]ow would you do that with a note?” (Id.) Montoya

answered: “Well, I had this, too” and pulled a gun from the laptop bag. (Id.) McBride

could see the top chrome part of the gun’s slide and the grips “looked like . . . black

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plastic.” (Id. at 622.) Later in his testimony, McBride said he remembered the gun had a

wood grip – “reddish wood, kind of a reddish brown.” (Id. at 642.)

B.    The Cortez Robbery

      On June 8, 2009, McBride and Montoya were stopped by a San Juan County

Sheriff as they drove in Montoya’s yellow and black pickup from Kirtland, Colorado, to

Cortez, Colorado; McBride was driving and received the citation. Later that day, they

robbed a bank in Cortez, Colorado, located approximately 70 miles north of Farmington,

New Mexico. This time, Montoya brandished a gun during the robbery and witnesses

identified the get-away vehicle as McBride’s tan and maroon Ford Bronco. After the

robbery, McBride drove Montoya to his Dodge pickup and they separated. This time, a

BOLO for McBride’s Bronco was successful. He was stopped and arrested. A search of

his truck revealed the citation from that morning. Subsequent investigation showed

McBride had been driving Montoya’s truck and Montoya was a passenger when the

citation was issued. In addition, officers discovered McBride’s cell phone, which was

registered under Montoya’s account. Eventually, McBride agreed to cooperate with law

enforcement and identified Montoya as his accomplice in Cortez and, later, told officers

about Raton. McBride pled guilty to the Cortez robbery and, in exchange for immunity

on the Raton robbery, agreed to testify against Montoya.

      Montoya’s home was searched on June 18, 2009. Officers found three partial

robbery demand notes on his computer, a laptop bag and, in his dresser, three typewritten

robbery demand letters bearing his finger and palm prints.




                                          -4-
       Montoya was charged with (1) conspiracy to rob the Raton bank; (2) carrying a

firearm during the conspiracy; (3) attempting to rob the Raton bank; and (4) carrying a

firearm during the attempted robbery.1 Prior to trial, the government sought to introduce

evidence of other bank robberies attributed to McBride and Montoya, including the

Cortez robbery and Montoya’s use of a gun during that robbery. The government’s

theory of admissibility was res gestae2 and Rule 404(b) of the Federal Rules of Evidence.

       After a hearing, the district judge carefully addressed the government’s proposed

evidence and decided much of the government’s other crime evidence was inadmissible.

However, she allowed the government to present limited res gestae evidence about the

Cortez robbery to explain the circumstances leading to Montoya’s arrest. The judge also

decided to permit the bank teller in the Cortez robbery, Erin Goad, to testify about seeing

Montoya use a silver gun with wooden grips during the robbery. The testimony was

admissible under Rule 404(b), the judge said, because a jury could reasonably conclude

Montoya carried the same gun in Cortez as the one McBride saw in Montoya’s laptop

bag following the Raton attempted robbery.

       In the Raton trial, McBride testified about driving to Cortez, waiting in the truck,

and leaving after the robbery. He said he did not know a gun was used. In addition,


       1
        Montoya was charged separately for the Cortez robbery in Colorado federal
court. The jury found him guilty.
       2
         “The doctrine of ‘res gestae’ allow[s] use of otherwise inadmissible evidence to
place an event in its proper context.” 21A The Late Charles Alan Wright, Kenneth W.
Graham, Jr., Victor James Gold, Michael H. Graham, Federal Practice & Procedure
Evidence § 5072.2 (2d ed. 2012).


                                            -5-
various investigators testified about their involvement in the Cortez investigation and the

circumstances leading them to suspect Montoya as the perpetrator. They did not testify

about the details of the Cortez robbery.

       The only testimony of Montoya’s use of a gun in Cortez was Goad’s. In summary

it went as follows. At approximately 4 p.m., Goad was doing paperwork when Montoya

approached her. She looked up and asked if she could help him. She saw Montoya had a

gun and began emptying the money from her drawer and placing it on the counter. The

gun was “silver” with “tan . . . on the sides of the handle.” (Supp. R. at 120.)3 The “gun

was pointed at [her] the whole time” and Montoya’s “finger was on the trigger.” (Id. at

120.) Following Goad’s testimony, the judge gave the jury an instruction limiting its

consideration of Goad’s testimony.

       The jury found Montoya guilty of the conspiracy and attempted bank robbery

charges. It could not reach a verdict on the gun charges, which were later dismissed.

                                      DISCUSSION

       Montoya makes two claims of error: First, the evidence of the Cortez robbery was

not res gestae and, even if it was, it was barred by Federal Rule of Evidence 403.

Second, Goad’s testimony was inadmissible under Rule 404(b) because its only purpose

was to show his propensity to carry a gun during robberies. Because he preserved these

claims with timely and specific objections, we review the evidentiary rulings for an abuse

of discretion. United States v. Ford, 613 F.3d 1263, 1267 (10th Cir. 2010).

       3
        A mistake by the court reporter omitted several pages of the trial transcript.
These pages were provided to this court following oral argument.


                                           -6-
A.    Evidence of Cortez Robbery – Res Gestae

      After considering Montoya’s objections to the introduction of evidence relating to

the Cortez robbery, the judge allowed the government to introduce limited evidence

about the robbery itself, McBride’s arrest, and the subsequent investigation. The judge

determined the evidence was admissible under the doctrine of res gestae to place the

Raton investigation in context and explain how Montoya came to be charged with

committing the Raton attempt.

      Montoya maintains the res gestae doctrine does not apply because “evidence of

the Cortez robbery was unnecessary to explain the course of the government’s

investigation of the Raton attempted robbery.” (Appellant’s Br. at 13.) According to

Montoya:

      The jury could have been informed that McBride was stopped because
      officers received information linking him to a bank robbery; that officers
      uncovered a citation from McBride’s vehicle that he received while driving
      Montoya’s truck; they began investigating Montoya and searched
      Montoya’s residence. In the course of McBride’s discussion with
      authorities, he informed them of information concerning the Raton robbery,
      which led to further investigation. To the extent that evidence of crimes
      other than the Raton attempted robbery was necessary to prevent the jury
      from concluding that McBride got full immunity from prosecution in
      exchange for his cooperation, the jury could have been informed that
      McBride had faced prosecution on other charges.

(Id. at 18-19.) We disagree.

      “An uncharged act is admissible as res gestae — intrinsic evidence not subject to

Federal Rule of Evidence 404(b) — if it was inextricably intertwined with the charged

crime such that a witness’s testimony would have been confusing and incomplete without

mention of the prior act.” Ford, 613 F.3d at 1267 (quotation marks omitted). “Evidence

                                          -7-
of other crimes should not be suppressed when those facts come in as res gestae — as

part and parcel of the proof of the offense charged in the indictment.” Id.

       McBride’s arrest for the Cortez robbery could not be separated from the Raton

investigation. Montoya’s theory of defense was that McBride set him up and he was not

at the bank in Raton. Thus, for the jury to understand the importance of the evidence

found in McBride’s Bronco and his connection to Montoya, it needed to know McBride

was arrested after he and Montoya robbed the Cortez bank. McBride’s arrest was the

turning point in the Raton investigation. Authorities did not know the two incidents were

connected until McBride began to cooperate. It is likely the Raton attempt would have

continued unresolved if the two men had not continued to plot robberies and one been

caught. In short, the evidence of the Cortez robbery and McBride’s arrest is res gestae —

intrinsic evidence inextricably connected to the charged crimes.

       Although relevant res gestae evidence must also meet the requirements of Federal

Rule of Evidence 403. The district judge must exclude the evidence “if its probative

value is substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403

(emphasis added). “[U]nfair prejudice . . . ‘makes a conviction more likely because it

provokes an emotional response in the jury or otherwise tends to affect adversely the

jury's attitude toward the defendant wholly apart from its judgment as to his guilt or

innocen[c]e of the crime charged.’” Ford, 613 F.3d at 1268 (quoting United States v.

Tan, 254 F.3d 1204, 1211–12 (10th Cir. 2001)).

       Damning evidence is most often prejudicial to a defendant’s case, but to be

excluded it must be unfairly prejudicial. As discussed above, the circumstances of

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McBride’s arrest following the Cortez robbery were relevant to the investigation of the

Raton attempted robbery. The prejudice Montoya may have suffered as a result was not

unfair. The judge carefully limited the testimony of the Cortez robbery to the

investigatory process. The testimony at trial never veered from those limitations. Only

Goad was allowed to discuss Montoya’s activities during the Cortez robbery, and that

testimony was admitted for another purpose, as we will later discuss. The judge did not

abuse her discretion in finding the probative value of the limited testimony was not

substantially outweighed by the danger of unfair prejudice.

B.     Evidence of Gun Used in Cortez – Federal Rule of Evidence Rule 404(b)

       Montoya also contends Goad’s testimony describing the gun pointed at her during

the Cortez robbery was not offered for a proper purpose. Rather, it was relevant only by

virtue of the impermissible inference that he has a propensity to employ deadly weapons

when committing crimes. This argument is foreclosed by our recent decision in United

States v. McGothlin, 705 F.3d 1254, 1265 (10th Cir.), cert. denied, 2013 WL 1758738 (S.

Ct. 2013), where we held possession of the same (or a very similar) weapon on another

occasion is not Rule 404(b) evidence. Rather, it is circumstantial evidence of the

knowing possession of the weapon. Id.

       In McGothlin, the defendant was charged with being a felon in possession of a

firearm after an officer discovered a pistol in the closet of a bedroom where he had been

staying. Id. at 1257. The trial judge determined, subject to the testimony at trial, the

government could introduce evidence of two prior incidents potentially falling within the

parameters of Rule 404(b). One incident was the defendant’s possession of a loaded

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handgun in 2007, which led to his conviction for illegal possession of a handgun. Id.

The second incident, an assault on Ersel Waits, occurred in 2009 – three months before

the gun was found in McGothlin’s closet. At trial, Waits testified about McGlothin’s

assault on her. She said he carried a gun indistinguishable from the gun found in the

apartment although she “could not positively say it was the same gun.” Id. at 1259 n.7.

       McGlothin claimed the judge erred in admitting the evidence of the prior incidents

under Rule 404(b) because it was offered for the purpose of showing his “propensity to

possess firearms.” Id. at 1260. We took note of our decision in United States v. Moran,

503 F.3d 1135, 1144 (10th Cir. 2007), which rejected the exclusion of all propensity

evidence under Rule 404(b). Even if evidence shows propensity, it may be admissible to

show intent and knowing possession under Rule 404(b). Id. at 1263; see also Tan, 254

F.3d at 1208 (“Rule 404(b) is considered to be an inclusive rule, admitting all evidence of

other crimes or acts except that which tends to prove only criminal disposition.”)

(quotation marks omitted).

       Specifically addressing the 2009 incident, we said:

       [T]he record makes clear the highly relevant evidence regarding the 2009
       Incident was adduced for a proper purpose. The purpose of Rule 404(b) is
       to prevent the use of prior bad acts to prove a defendant has a propensity to
       commit acts of that sort. Fed. R. Evid. 404(b). Despite McGlothin’s
       arguments to the contrary, no reasonable juror would have perceived the
       purpose of Waits’s testimony for anything other than demonstrating
       McGlothin possessed the [pistol] during a time temporally proximate to the
       possession alleged in the indictment. This testimony then does not have
       anything to do with propensity, either the kind identified in Moran or the
       improper kind identified in Rule 404(b). Instead, it is circumstantial
       evidence that he knowingly possessed the [pistol] found in his closet.




                                           - 10 -
McGothlin, 705 F.3d at 1265 (citation omitted); see also United States v. Smith, 101 F.3d

202, 210–11 (1st Cir. 1996) (holding that evidence the defendant possessed the same

weapon earlier in the evening admissible to show knowing possession of felon-in-

possession charge); United States v. Tenorio, 312 Fed. App’x 122, 127 (10th Cir. 2009)

(unpublished disposition cited for persuasive value pursuant to 10th Cir. R. 32.1) (“If

Tenorio possessed the same gun on past occasions, it is considerably more likely that the

gun still belonged to him at the time it was found in . . . [the] car and correspondingly less

likely that the gun belonged to someone else or was simply there when he entered.”).

       As in McGothlin, Goad’s testimony was circumstantial evidence of Montoya’s

knowing possession of a gun inside the laptop bag during the Raton attempt. No gun was

ever found from the Raton incident or the Cortez robbery. But, McBride described how

Montoya had shown him a chrome handgun with wood grips. Goad’s testimony

described the bank robber’s gun as a silver one with tan grips, [a gun very similar to the

one McBride described on the day of the Raton attempt]. This is not Rule 404(b)

evidence; it is direct evidence demonstrating the likelihood Montoya carried a gun in his

laptop bag while he attempted to rob the bank in Raton. Rule 404(b) presents no bar to

its admissibility. See United States v. Dorsey, 677 F.3d 944, 952 (9th Cir. 2012) (holding

testimony defendant was seen with same or similar gun not “other act” evidence subject

to Rule 404(b)); see also United States v. Adams, 604 F.3d 596, 599 (8th Cir. 2010)

(holding four previous instances of defendant’s possession of same firearm not subject to

Rule 404(b)).




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       Even if Rule 404(b) were implicated, there was no error here. After all, Montoya

was on trial for two weapons offenses in addition to conspiracy to rob a bank and

attempted bank robbery. To be admissible under Rule 404(b), the evidence must satisfy a

four part test:

           (1) evidence of other crimes, wrongs, or acts must be introduced for a
           proper purpose; (2) the evidence must be relevant; (3) the court must
           make a Rule 403 determination whether the probative value of the
           similar acts is substantially outweighed by its potential for unfair
           prejudice; and (4) the court, upon request, must instruct the jury that the
           evidence of similar acts is to be considered only for the limited purpose
           for which it was admitted.

United States v. Diaz, 679 F.3d 1183, 1190 (10th Cir. 2012) (quotation marks omitted).

“Evidence is proper if it tends to prove, among other things, motive, knowledge, or

intent.” Id.

       The judge relied on two other permissible rationales for admissibility. Goad’s

testimony was offered to show Montoya knowingly possessed the same gun on June 8th

(Cortez robbery) that he carried with him during the April Raton attempted robbery. This

evidence was also admissible to corroborate McBride’s testimony. See United States v.

Porter, 881 F.2d 878, 886 n.8 (10th Cir. 1989) (noting corroboration of government

witness is proper use of 404(b)(1) evidence).

       But that does not end the debate. While evidence of Montoya’s use of a similar

gun is not propensity evidence under Rule 404(b), it must still pass muster under Rule

403. That rule allows judges to exclude evidence when the probative value of the

evidence is “substantially outweighed by a danger . . . of unfair prejudice, confusing the

issues, [or] misleading the jury.” Fed. R. Evid. 403. Evidence is unfairly prejudicial

                                            - 12 -
when it has the capacity “to lure the factfinder into declaring guilt on a ground different

from proof specific to the offense charged.” Old Chief v. United States, 519 U.S. 172,

180 (1997). In considering whether evidence is unfairly prejudicial, a judge may

consider the availability of alternative probative evidence. Id. at 184–85.

       Rule 403 does not bar Goad’s relevant testimony. As the trial judge reasoned:

       Investigators never recovered a gun like the one described by McBride and
       E.G. Eyewitness testimony will therefore be crucial to the United States’
       ability to establish that Defendant carried a firearm. The Court anticipates
       that Defendant’s strategy will be to attack McBride’s credibility. Evidence
       corroborating McBride’s testimony that Defendant possessed a semi-
       automatic pistol with chrome and wood pistol grips will be very
       important . . . .

While the judge recognized the potential for prejudice caused by Montoya’s presence at a

second bank robbery and the impact of the circumstances surrounding Goad’s

observation of the gun, on balance, she determined the probative value of the evidence

was not substantially outweighed by the danger of unfair prejudice. We agree. The

evidence of the Cortez robbery was appropriately limited and accompanied by proper

instructions to the jury. Indeed, the jury was hung, failing to reach a verdict on the gun

charges. There was no abuse of discretion in admitting Goad’s testimony.

AFFIRMED.

                                           Entered by the Court:

                                           Terrence L. O’Brien
                                           United States Circuit Judge




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