FILED

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS October 12, 2011

TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 10-2149
(D.C. No. 1:09-CR-01044-JEC-1)
(D. N. Mex.)

v.
MARIO MONCAYO,
Defendant-Appellant.

ORDER AND JUDGMENT *

Before BRISCOE, Chief Judge, TYMKOVICH, Circuit Judge, and

FREUDENTHAL, District Judge **

Defendant Mario Moncayo appeals his convictions for possession with

intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C.
841(a)(1) and (b)(1)(A), possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. 924(c)(1)(A), and possession of a
firearm after sustaining a felony conviction, in violation of 18 U.S.C.
*

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**

The Honorable Nancy D. Freudenthal, Chief United States District Judge

for the District of Wyoming, sitting by designation.

922(g)(1) and 924(a)(2). We have jurisdiction pursuant to 28 U.S.C. 1291. At

trial, the district court admitted evidence of a prior drug trafficking offense that
was minimally relevant to the prosecutions case and highly prejudicial to the
defendant. Because we conclude that this error was not harmless, we reverse and
remand for new trial.
I.
On December 17, 2008, Clovis, New Mexico police officers executed a
search warrant at a trailer home located at 905 Delta Street. Officers found
Moncayo, his then-wife, Nicole Ramirez, and a man named Edwin Chavez inside
the trailer home. The officers found money and 133.4 net grams of cocaine base
inside socks hidden under a mattress in a back bedroom. Moncayo was arrested.
Officers also found several firearms, a scanner, scales, and prescriptions and
papers with Moncayos name on them inside the trailer. 1 Moncayo had previously
been convicted of a felony offense.
The grand jury returned a three-count indictment charging Moncayo with
violations of 21 U.S.C. 841(a)(1) and (b)(1)(A), 18 U.S.C. 924(c)(1)(A), and
18 U.S.C. 922(g)(1) and 924(a)(2). After four continuances at Moncayos
request, the case proceeded to trial. The major disputed issue at trial was whether

A handgun magazine was also seized during this search and it was later
found to have Moncayos fingerprint on it this is the 2008 gun evidence later
referenced in this order.
2

Moncayo lived at 905 Delta, where the police arrested him and found the
evidence. Moncayos defense was that he did not live at 905 Delta, and instead
lived at 905 Beta Street. 2 The governments first witness was George
Archibeque, the owner of the trailer at 905 Delta. Archibeque testified that
Moncayo rented the trailer from February through December of 2008. ROA, Vol.
3 at 81. The governments second witness was Wesley Hadley, a probation and
parole officer with the New Mexico Corrections Department. Hadley testified
that, in February 2008, Moncayo asked permission to move from 905 Beta to 905
Delta. Id. at 97. Hadley also testified that he visited Moncayo at 905 Delta in
April 2008, and that he found Moncayo at home at that time. Id. at 97-98. The
government then called several of the Clovis Police Department officers who took
part in the search of the 905 Delta residence on December 17, 2008. The officers
testified that they found Moncayo near the rear bedroom when they entered the
trailer. The officers testified that they found several documents with Moncayos
name on them in the trailer, including an adoption receipt from an animal shelter,
court documents, and a Western Union receipt. Some of the documents had the
905 Delta address. Others had the 905 Beta address or a 3205 Gidding Street
address. Officers also found prescriptions with Moncayos name on them in the
bathroom.

The identity of house numbers appears to be a coincidence.

3

Moncayos first witness was Christina Snell, an employee of a bail bonds

and private investigations office in Clovis. Snell testified that she knew Moncayo
because she had posted bail for him. Snell testified that, during 2007 and 2008,
her records indicated Moncayos residential address was 905 Beta Street and his
mailing address was 8502 Gidding Street. 3 Id. at 289. Snell testified that she
checked on Moncayo occasionally, including in December 2008, and often found
him at 905 Beta. Moncayos second witness was Laura Lopez, Moncayos niece.
Lopez testified that, in December 2008, she lived at 905 Beta with her daughter
and Moncayo. Id. at 302. Moncayos final witness was Nicole Ramirez, who was
married to but separated from Moncayo in December 2008. Ramirez testified that
Moncayo lived at 905 Beta in December 2008. Ramirez testified that her cousin
Phyllis Maez and a man named Jose Soto lived at 905 Delta, and that Maez and
Soto allowed Moncayo to keep his dogs there. She also testified that she went
with Moncayo to 905 Delta to feed his dogs on December 17, 2008, the day
Moncayo was arrested. Ramirez testified that she and Moncayo went inside the
trailer because Maez had asked them to check to see if the pipes had frozen. Id.
at 312. She testified that prescriptions and papers found in the trailer that had her
or Moncayos names on them might have came with some of the stuff that [she]

There was conflicting testimony about the street number of the Gidding
Street residence. It is unclear from the record whether the 3205 and 8502
addresses are meant to refer to the same residence.
4

had. Id. at 315.

The government sought to introduce evidence of a 2007 incident in which
police observed Moncayo drop a bag of cocaine into a vehicles engine block.
The bag contained smaller baggies of cocaine. The government also sought to
introduce evidence of a handgun magazine that was found during the execution of
the search warrant on December 17, 2008. [I]t

revealed a fingerprint for Mr.

Moncayo. ROA, Vol. 3 at 227.

Prior to any introduction of the 2007 incident or the 2008 gun evidence, the
parties and the district court discussed, at a bench conference, the admissibility of
the evidence under Federal Rule of Evidence 404(b). The government argued that
the 2007 drug evidence was relevant to Moncayos intent to distribute because the
bag found in the engine block contained cocaine divided into small baggies. See
id. at 229. It argued that the 2008 gun evidence was relevant to knowledge and
intent . . . [o]f the presence of the gun [and] the control of the gun. Id. at 230.
Moncayos counsel objected, arguing the government had not established that the
prior 2007 incident was relevant, and that the evidence regarding both the 2007
incident and the 2008 gun evidence was unduly prejudicial
One of the judges law clerks was involved in this exchange. She stated to
the court that she would have trouble identifying the governments specific
legitimate purpose under Federal Rule of Evidence 404(b) in admitting the
evidence. Id. at 231. She also advised the judge that there was a recent reversal,
5

and we had to retry a case because the 404(b) evidence came out without the
specificity that the circuit requires. Id. In response, the government repeated its
earlier contention that the evidence regarding the drugs found in the engine block
in 2007 was admissible to show an intent to distribute. Id. at 231. Moncayos
counsel then asked that the court require the government to make a factual
showing as to how the 2007 incident established intent to distribute in this case.
He argued that Moncayos character and prior bad acts [were] being introduced
for the sole purpose of attempting to convince the jury that he acted in
conformance with prior bad acts. Id. at 232.
At this point, the judge asked the law clerk for her opinion. The law clerk
replied, its a really close call. I havent looked at the briefing on it in a while,
but are these specified in the record? Did you articulate the specificity in the
briefing? Id. After more argument from the parties, the following discussion
and ruling occurred:
THE COURT: I dont think I will allow it. Proceed without that.
MR. ANDERSON [for the United States]: Both?
THE COURT: No. What was the first one?
LAW CLERK: The cocaine.
THE COURT: The cocaine is all right. What do you think?
LAW CLERK: Do you want to go off the record and talk?
THE COURT: No. Just tell me.
6

LAW CLERK: I think its very close.

THE COURT: If its that close, Id rather -LAW CLERK: I think its super prejudicial, and thats the problem.
THE COURT: I think if were gong to make a mistake, I would
rather make a mistake against the government than I would the
defendant, so Im not going to allow it.
MR. ANDERSON: In either?
THE COURT: In either. No, the first one is all right, the cocaine.
LAW CLERK: The cocaine?
THE COURT: Yes. Thats all right. Okay?
MR. ANDERSON: Thank you, Your Honor.
MR. KLIPSTINE [for Moncayo]: The incident the Court is going to
allow is the one currently on appeal, where there hasnt been a
factual determination of whether my client is guilty of that? [4]
THE COURT: That is on appeal.
MR. KLIPSTINE: Judge, what well end up doing in this case is
basically retrying a different charge.
LAW CLERK: The danger is that a jury would just simply say,
Okay, he did it before, he must have done it this time. And thats
what the rule is designed to prevent. There are legitimate purposes,
and intent to distribute would be a legitimate purpose, if you find
that the probative value is outweighed by the danger of the prejudice.
Thats the call. Because it would show his knowledge and intent.

Moncayos first trial on the 2007 state trafficking charge resulted in a

hung jury. The second trial resulted in a conviction, and Moncayos appeal from
that conviction was pending when this discussion took place.
7

THE COURT: Right.

LAW CLERK: On the amount that was distributable.
THE COURT: All right. You can go into the cocaine in the engine,
throwing the coke in the engine, but thats it.
MR. ANDERSON: Not the gun?
THE COURT: Not the gun.
Id. at 234-35.
The government presented evidence of Moncayos prior 2007 trafficking
offense through the testimony of Brian Encinias, a Clovis Police Department
officer. On July 27, 2007, Encinias executed a search warrant at 512 West Street
in Clovis. As Encinias approached the residence, he saw Moncayo standing next
to a car with its hood up. Encinias observed Moncayo reach under the hood and
drop an object into the engine block. Id. at 238. The object was a clear plastic
baggie with several different baggies inside. The small baggies contained
cocaine. Encinias testified that this manner of packaging was commonly used for
ease of sale in the drug trade. He stated, Everything is divided into different
weights for sale and then put into one baggie to keep them all together. Id. at
239. At the conclusion of Enciniass testimony, the district court gave the jury
the following instruction:
You have heard evidence of an act engaged in by the defendant on
July 27, 2007. You may consider this evidence only as it bears on
the defendants knowledge, intent, preparation, plan, and absence of
mistake or accident, and for no other purpose. Of course, the fact
8

that the defendant may have previously committed an act similar to

the one charged in this case does not mean that the defendant
necessarily committed the act charged in this case.
Id. at 241.
Immediately after the court gave the limiting instruction, Moncayo moved
for a mistrial. Id. at 241. He argued that Enciniass testimony [did] not
establish nor did it show in any way the requirements with specificity that the
government is required to show using this type of evidence concerning his
character. Id. at 241-42. The court denied the motion.
The government also introduced photographs taken at the 905 Beta Street
residence. Several of the photographs were of court documents containing
Moncayos name. One of the documents related to Moncayos conviction on the
July 2007 drug offense. Redacted copies of the photographs, which did not
contain descriptions of the offenses to which they related, see ROA, Vol. 1 at 6871, were introduced over Moncayos objection at trial. ROA, Vol. 3 at 129.
The jury found Moncayo guilty on all three counts. The district court
sentenced Moncayo to a total term of imprisonment of 270 months.
II.
Moncayo argues that the district court erred by permitting evidence, over
his objections, that Officer Encinias saw Moncayo drop a bag containing cocaine
into an engine block in 2007. Moncayo contends that Enciniass testimony was of
minimal relevance to the case and created the danger that the jury would consider
9

the evidence as relevant to Moncayos criminal propensity. Moncayo also argues

that the court erred in admitting a photograph of a court document relating to
Moncayos arrest in 2007 for substantially the same reasons. The government
counters that the evidence was relevant to show Moncayos intent.
This court reviews a district courts decision to admit evidence pursuant to
Federal Rule of Evidence 404(b) for an abuse of discretion. United States v.
Wilson, 107 F.3d 774, 782 (10th Cir. 1997). Even if the district court abused its
discretion, this court will not disturb a jury verdict based on a Rule 404(b) error
if it was harmless. United States v. Caldwell, 589 F.3d 1323, 1334 (10th Cir.
2009).
Under this rule, the government may introduce evidence of a defendants
prior bad acts only if it is relevant to something material other than criminal
propensity. United States v. Shepherd, 739 F.2d 510, 512 (10th Cir. 1984).
Rule 404(b) governs the admissibility of such evidence, providing that:
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 proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . . .
Fed. R. Evid. 404(b). Our analysis of a district courts admission of evidence
under this rule is guided by the Supreme Courts ruling in Huddleston v. United
States, 485 U.S. 681 (1988). See United States v. Zamora, 222 F.3d 756, 762
(10th Cir. 2000) (To determine whether Rule 404(b) evidence was properly
10

admitted we look to the four-part test set out by the Supreme Court in Huddleston
v. United States.). Huddleston requires that: (1) the evidence was offered for a
proper purpose under Fed. R. Evid. 404(b); (2) the evidence was relevant under
Fed. R. Evid. 401; (3) the probative value of the evidence was not substantially
outweighed by its potential for unfair prejudice under Fed. R. Evid. 403; and (4)
the district court, upon request, instructed the jury to consider the evidence only
for the purpose for which it was admitted. Wilson, 107 F.3d at 782. Rule
404(b) admissibility is a permissive standard and if the other act evidence is
relevant and tends to prove a material fact other than the defendants criminal
disposition, it is offered for a proper purpose under Rule 404(b) and may be
excluded only under Rule 403. United States v. Davis, 636 F.3d 1281, 1298
(10th Cir. 2011) (quoting United States v. Parker, 553 F.3d 1309, 1314 (10th Cir.
2009)).
III.
The first Huddleston condition, that the evidence was offered for a proper
purpose, is satisfied here. Evidence is admitted for a proper purpose if it is
allowed for one or more of the enumerated purposes in Rule 404(b). United
States v. Mares, 441 F.3d 1152, 1156 (10th Cir. 2006). Intent is one of the listed
purposes. See Fed. R. Evid. 404(b). Evidence of past crimes is admissible to
establish intent to distribute in a drug trafficking offense. See United States v.
Cherry, 433 F.3d 698, 701 (10th Cir. 2005). The government contended at trial
11

that Officer Enciniass testimony about the 2007 incident would show that
Moncayo had intent to distribute in this case. We conclude that the evidence was
admitted for a proper purpose.
The second condition is that the evidence must have been relevant. This
circuit has held that the government bears the burden of demonstrating how the
proffered evidence is relevant to an issue in the case. United States v. Hogue,
827 F.2d 660, 662 (10th Cir. 1987). Prior acts may be probative of intent as long
as the uncharged acts are similar to the charged crime and sufficiently close in
time. United States v. Zamora, 222 F.3d 756, 762 (10th Cir. 2000).
The government contends that the evidence relating to the 2007 incident is
relevant because it involved substantial factual similarity in that [b]oth
incidents involved distributable quantities of essentially the same drug. Aplee.
Br. at 21. The government also argues that the 2007 incident was close enough in
time to the charged conduct in the present case to be probative of Moncayos
intent to distribute cocaine.
The factual differences between the prior 2007 incident and the 2008
charges at issue undermine the governments argument that the 2007 incident was
relevant to establish Moncayos intent to distribute. From the trial testimony, it is
not clear whether the cocaine found at 905 Delta Street was packaged in several
smaller baggies inside of a larger bagas in the 2007 incidentor if it was
packaged in several bags of varying content and volume. In fact, the government
12

presented little evidence regrading how the cocaine was packaged in this case.
Several Clovis police officers testified that they found socks under the mattress in
the bedroom. They testified that some of the socks contained currency and coins,
and some of the socks contained cocaine. However, the officers did not describe
in detail how the cocaine was packaged inside of the socks. See, e.g., ROA, Vol.
3 at 123 (testimony that [s]ome of the socks contained cash currency, and some
of the others contained a substance that, through our training and experience, we
believed to be cocaine). Officer Timothy Marshall gave the most specific
testimony regarding packaging. 5 He stated, There were several socks with
change. I believe one sock actually had dollar bill currency. And there were also
located baggies of a white rock-like substance and other individual baggies of a
crystal-like substance. Id. at 171-72. Raymond Bly, a DEA agent, testified that
the items found in the trailer, including scales, a scanner, firearms, and the
quantity of cocaine base, were consistent with distribution. However, Bly was
not questioned regarding the manner in which the cocaine was packaged and,
notably, did not testify that the cocaine was packaged for distribution in this case.
Because there is little evidence of how the cocaine was packaged in the instant

The government also introduced photographs of the socks and their

contents. E.g., ROA, Vol. 3 at 137-38 (introduction of the governments exhibits
18-J and 18-L). However, the photographs are not included in the record on
appeal. Thus, this court cannot determine whether the jury was shown exactly
how the cocaine was packaged in this case and what any such packaging looked
like.
13

incident, we conclude that the government failed to establish sufficient factual

similarities between the 2007 incident and the one in this case. Cf. Wilson, 107
F.3d at 785 (determining that the district court erred by admitting evidence of a
prior drug possession incident where the underlying circumstances of these two
events are so factually dissimilar that evidence of the prior conviction provides
little, if any, probative value in assessing whether the defendant violated the law
in the case before the court). In the absence of similarity regarding packaging or
other attendant circumstances, the evidence of the prior incident is minimally
relevant on the issue of intent to distribute. The second condition from
Huddleston was not met. 6
The third condition is that the probative value of the evidence was not
outweighed by the potential for unfair prejudice. The district court did not make
findings on this issue. Although explicit findings are clearly preferable, United
States v. Lazcano-Villalobos, 175 F.3d 838, 847 (10th Cir. 1999), the failure to
make such findings is not error per se. See Wilson, 107 F.3d at 783 (determining
that the district court implicitly considered the issue of probative value and
unfair prejudice when it ruled that the evidence was admissible). However, when
the district court has not made explicit findings, this court may conduct its own de

The second relevance inquiry, temporal proximity, does not weigh in

favor or against the relevance of the prior incident. The 2007 incident occurred
16 months before the arrest in this case. This is neither too remote nor
particularly recent.
14

novo balancing of probative value and prejudice. Lazcano-Villalobos, 175 F.3d at

847 (discussing this courts authority to conduct a de novo balancing where the
trial court failed to make explicit findings to support a Rule 403 ruling).
We conclude that the probative value of Officer Enciniass testimony was
substantially outweighed by the potential for unfair prejudice and confusion of the
issues. The evidence had only a modicum of probative value because it was
offered to prove an essential element of the case that Moncayo did not dispute.
Moncayo did not dispute the governments evidence that the amount of cocaine
found in the trailer was a distributable quantity, or that tools of the drug trade
were found in the trailer. Rather, Moncayos defense was that he did not live at
the address where the drugs were found and the drugs, firearms, and other items
found there were not his. Even so, the evidence was not irrelevant for purposes
of Rule 401 because the government still had the burden to show Moncayos
intent. See United States v. Mares, 441 F.3d 1152, 1156 (10th Cir. 2006) ([Rule
404(b) evidence] is relevant if it tends to prove or disprove one of the elements
necessary to the charged offense.).
While the evidence meets the minimal relevance threshold of Rule 401, its
probative value is significantly diminished by the fact that Enciniass testimony
was relevant only to an undisputed element of the case. This minimal relevance
is easily outweighed by the danger of unfair prejudice inherent in producing
evidence of Moncayos prior bad acts relating to distributable quantities of
15

cocaine. The evidence was highly prejudicial because it tended to incriminate

Moncayos character and portray him has a drug dealer, who thus was likely to be
the one responsible for the cocaine, firearms, and other incriminating evidence
found at 905 Delta. Wilson, 107 F.3d at 785; see also Shepherd, 739 F.2d at 513
(noting that [e]vidence of prior criminal acts is almost always prejudicial to the
defendant and concluding that evidence of other crimes was prejudicial and
fraught with the possibility of diverting the jurys attention from the crucial
issue). We conclude that the evidence was of a kind that tends to affect
adversely the jurys attitude toward the defendant wholly apart from its judgment
as to his guilt or innocence of the crime charged. See United States v.
Rodriguez, 192 F.3d 946, 951 (10th Cir. 1999) (quoting United States v. Roberts,
88 F.3d 872, 880 (10th Cir. 1996)). Thus, the third condition from
Huddleston was not met.
Fourth, the district court must issue an appropriate limiting instruction, if
requested. At the outset, we note that while Moncayo moved for a mistrial after
Enciniass testimony, he did not specifically object to the district courts limiting
instruction. Still, we conclude that the courts limiting instruction was so broad
that it would not have been apparent to the jury that they were only to consider
Enciniass testimony for a specific purpose.
A limiting instruction must adequately advise the jury of the limited
purposes for which the evidence was admitted. United States v. Hardwell, 80
16

F.3d 1471, 1491 (10th Cir. 2006). In Hardwell, this court held that a limiting
instruction was too broad where the Rule 404(b) evidence was admitted only to
prove intent and knowledge to commit the charged conspiracy . . . but the
instructions permitted the jury to consider the evidence as proof of identity, plan,
preparation, and motive, none of which were in issue. Id. The district courts
instruction in this case was similar to the one in Hardwell. Although the
government introduced Moncayos prior offense solely to show intent, the
instruction permitted the jury to consider the evidence as it bears on the
defendants knowledge, intent, preparation, plan, and absence of mistake or
accident, and for no other purpose. ROA, Vol. 3 at 241.
A district courts failure to instruct the jury regarding the specific purpose
for which Rule 404(b) evidence is admitted is harmless if its purpose is apparent
from the record and it was properly admitted. Wilson, 107 F.3d at 783. In this
case, we conclude that the error was not harmless because the purpose for which
the evidence was admitted likely was not apparent to the jury. Because intent to
distribute was not a disputed issue at trial, it would not have been clear to the jury
that it was to consider Moncayos prior act only to the extent that it was relevant
to establish intent to distribute the drugs which were found at 905 Delta.
After considering the four conditions for admission of evidence under Rule
404(b), we conclude that the district court abused its discretion in admitting

17

Officer Enciniass testimony about the 2007 incident. 7

Harmless Error
This court will not overturn a conviction obtained through erroneous
admission of Rule 404(b) evidence if such error was harmless. The harmless
error doctrine derives from Federal Rule of Criminal Procedure 52(a), which
states that [a]ny error, defect, irregularity or variance which does not affect
substantial rights shall be disregarded. When a defendant objects to a district
courts admission of evidence under the Federal Rules of Evidence, we apply the
nonconstitutional harmless error standard. See United States v. Jefferson, 925
F.2d 1242, 1255 (10th Cir. 1991). Under this standard, we look to see if the error
either had a substantial influence on the outcome at trial or leaves us in grave
doubt as to whether it had such effect. Id. (quoting United States v. Rivera, 900
F.2d 1462, 1469 (10th Cir. 1990)). In making this assessment, we review the

Moncayo also argues that the district court erred by permitting the
government to introduce a photograph of a court document relating to the 2007
offense. In order to show that Moncayo lived at 905 Delta Street, the government
introduced photographs of various documents with Moncayos name on them that
were found in the trailer at that address. Moncayos argument fails because the
government introduced only redacted copies of photographs. The redacted
photographs do not indicate the nature of any offense to which they relate, nor do
they even indicate that Moncayo was convicted of anything. To the extent that
they could suggest that Moncayo engaged in some unidentified bad act, the
photographs were not unfairly prejudicial. At the beginning of trial, the parties
stipulated that Moncayo had previously been convicted of a felony. The redacted
photographs did not further prejudice Moncayo because they showed only that
Moncayo had some prior correspondence with the courts. The district court did
not abuse its discretion by admitting the redacted photographs.
18

entire record de novo, examining the context, timing, and use of the erroneously
admitted evidence at trial and how it compares to properly admitted evidence.
United States v. Blechman, No. 10-3034, 2011 WL 4060250, at *11 (10th Cir.
Sept. 14, 2011) (quoting United States v. Hanzlicek, 187 F.3d 1228, 1237 (10th
Cir. 1999)). When the evidence against a defendant is overwhelming, an
erroneous admission of prior convictions is harmlessespecially when the trial
court issues a proper limiting instruction. United States v. Caldwell, 589 F.3d
1323, 1334 (10th Cir. 2009). The government bears the burden of showing that
the nonconstitutional error is harmless. Blechman, 2011 WL 4060250, at *11.
The government contends that any error was harmless because [t]he
fundamental question before the jury was whether Moncayo was living at 905
Delta Street in December 2008. Aplee. Br. at 24. Thus, because Officer
Enciniass testimony did not bear on that fundamental question, it could not
have affected the jurys ultimate decision. Further, the government argues that
the prompt limiting instruction vitiated any harm.
It is true that a key issue at trial was whether Moncayo lived at 905 Delta
or some other residence. The government put on substantial evidence that
Moncayo did in fact live at 905 Delta in December 2008. Moncayo also put on
credible evidence that he did not live at that address. While the governments
evidence on the issue of Moncayos residence was substantial, its significance
paled in comparison to the later-admitted evidence that Moncayo had been
19

previously arrested with a distributable quantity of cocaine. The erroneously

admitted evidence likely tipped the scale in favor of the government in light of
the conflicting testimony concerning Moncayos residence.
It is the governments burden to show harmless error. It has not met that
burden. Moreover, even when this court conducts a de novo review of all of the
evidence against Moncayo, we conclude that the erroneous admission of the 2007
incident was not harmless. There is a high likelihood that the jury considered the
testimony regarding the 2007 incident to be evidence of Moncayos criminal
propensity and not of his intent to distribute, which played little to no role in the
prosecutions case. Moreover, the overbroad limiting instruction did nothing to
focus the jurys attention on the specific legitimate purpose of intent to distribute.
Without a proper limiting instruction, we think it likely that Officer Enciniass
testimony substantially affected the jurys verdict. The prejudicial effect of the
erroneously admitted evidence so overshadowed the conflicting testimony about
Moncayos actual residence that its admission could not have been harmless.
Continuance and Subpoena Issues
Moncayo also contended that the district court erred by not granting a
continuance when a subpoenaed witness failed to appear and by not compelling
the appearance of the subpoenaed witness by issuing a bench warrant. Because
we conclude that a new trial is warranted on Rule 404(b) grounds, we need not
decide this additional issue.
20

IV.
The judgment of the district court is REVERSED, and the case is
REMANDED for new trial.

Entered for the Court

Mary Beck Briscoe

Chief Judge

21