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United States v. Moncayo, 10th Cir. (2011)
United States v. Moncayo, 10th Cir. (2011)
Elisabeth A. Shumaker
Clerk of Court
v.
MARIO MONCAYO,
Defendant-Appellant.
This order and judgment is not binding precedent, except under the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.
**
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.
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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.
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.
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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.
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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
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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
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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
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
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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.
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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
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IV.
The judgment of the district court is REVERSED, and the case is
REMANDED for new trial.
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