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United States v. Juarez

United States Court of Appeals, Fifth Circuit

August 7, 2017

NOE JUAREZ, Defendant-Appellant.

         Appeal from the United States District Court for the Eastern District of Louisiana

          Before KING, PRADO, and SOUTHWICK, Circuit Judges.

          EDWARD C. PRADO, Circuit Judge.

         Houston police officer Noe Juarez was charged and convicted of two counts related to his participation in a drug trafficking conspiracy. On appeal, he contends the district court erred by (1) admitting extrinsic evidence under Federal Rule of Evidence 404(b), (2) instructing the jury on deliberate ignorance, and (3) applying a sentencing enhancement based on Juarez's sale of body armor to his coconspirators. We AFFIRM Juarez's conviction because the district court did not abuse its discretion in admitting the 404(b) evidence or by giving the instruction. However, because the district court misapplied the body-armor provision of the sentencing guidelines and this error was not harmless, we VACATE Juarez's sentence and REMAND for resentencing.

         I. BACKGROUND

         Noe Juarez was a twenty-year veteran of the Houston Police Department. In April 2015, he was charged with (1) conspiring to distribute five kilograms or more of cocaine hydrochloride in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and (2) conspiring to possess firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(o). Juarez allegedly used his position as a police officer to assist the Grimaldo drug organization-an arm of the Los Zetas drug cartel-in its efforts to traffic drugs from Mexico to the United States. Twenty witnesses testified at trial during the Government's case-in-chief, including three members of the Grimaldo organization: Sergio Grimaldo, one of the leaders; Aldo Perez, a courier who delivered drugs from Houston to Houma, Louisiana; and Sabino Duarte, another courier. The Government sought to prove that Juarez assisted the Grimaldos' drug trafficking business by providing its members with firearms, body armor, police scanners, and vehicles, as well as by helping the conspirators evade detection by law enforcement. Juarez did not testify, but his defense was that he did not intend to join the conspiracy because he did not know he was working with drug dealers. He argued through counsel that he believed the Grimaldos were "legitimate businessmen."

         The district court allowed the Government to introduce evidence of Juarez's involvement in two prior, uncharged conspiracies, referred to by the parties as the "Gallegos conspiracy" and the "Casteneda conspiracy." The Government contended that Juarez provided "virtually the same type of assistance" to these conspiracies as he did to the Grimaldo conspiracy. Particularly significant to the Government's case was an audio and video recording of Juarez speaking to an FBI informant. During these discussions, Juarez offered to sell the informant weapons and body armor to ship to drug dealers in Mexico, gave the informant advice on avoiding detection by law enforcement, and instructed her to delete and replace the serial numbers on the firearms she was provided.

         The jury convicted Juarez on both counts. The district court applied a sentencing enhancement pursuant to U.S.S.G. § 3B1.5 predicated on Juarez's sale of bulletproof police vests to the Grimaldos. The enhancement resulted in a Guidelines range of 292-365 months' imprisonment. The district court sentenced Juarez to 365 months on Count 1 and 240 months on Count 2, to be served concurrently. Juarez timely appealed.


         A. Admission of Extrinsic Evidence

         Juarez first argues that the district court erred in admitting extrinsic evidence of his involvement in the uncharged conspiracies. Under Federal Rule of Evidence 404(b), evidence of a "crime, wrong, or other act is not admissible to prove a person's character"; however, such evidence may be admissible "for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed.R.Evid. 404(b)(1)-(2). This Court's two-step test for admissibility requires a determination that (1) "the extrinsic offense evidence is relevant to an issue other than the defendant's character" and (2) the evidence "possess[es] probative value that is not substantially outweighed by its undue prejudice . . . and meet[s] the other requirements of [Federal Rule of Evidence] 403." United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc). Juarez does not contest that the extrinsic evidence was relevant under step one; rather, he contends that the district court "incorrectly conclud[ed] that the prejudice arising from this evidence did not substantially outweigh its probative value" under the second prong. We consider several factors when weighing the evidence under Rule 403: "(1) the government's need for the extrinsic evidence, (2) the similarity between the extrinsic and charged offenses, (3) the amount of time separating the two offenses, and (4) the court's limiting instructions." United States v. Smith, 804 F.3d 724, 736 (5th Cir. 2015) (quoting United States v. Kinchen, 729 F.3d 466, 473 (5th Cir. 2013)). In addition, we consider the overall prejudicial effect of the extrinsic evidence. See Beechum, 582 F.2d at 917. We address each factor in turn.

         1. The Government's Need for Extrinsic Evidence

         Extrinsic evidence has high probative value when intent is the key issue at trial. See, e.g., United States v. Rojas, 812 F.3d 382, 405 (5th Cir. 2016); Smith, 804 F.3d at 736; Beechum, 582 F.2d at 914-15. This is particularly true when the evidence is "necessary to counter [a defendant's] claim that he was merely an ignorant participant in the operation and never knowingly agreed to participate in a[n] [illegal] business." United States v. Jackson, 339 F.3d 349, 356 (5th Cir. 2003). We also consider whether there was other evidence of intent that might have made extrinsic evidence unnecessary. Id. For example, in United States v. Hernandez-Guevara, 162 F.3d 863 (5th Cir. 1998), this Court found that the district court did not abuse its discretion in allowing references at trial to the defendant's past misconduct, noting that the probative value of such evidence was "relatively great" because the defendant "based his defense on a claim that he was merely in the wrong place at the wrong time and had been framed." Id. at 872. The probative value was further heightened by the fact that the other evidence "shed little light on [the defendant's] intent and whether his alleged crime was the result of mistake or accident." Id.

         Here, the district court found that the Government's need for the extrinsic evidence weighed in favor of admission. The district court explained that "[b]y pleading not guilty, Juarez placed his criminal intent directly at issue."[1] Moreover, because Juarez "denied knowing that any of his alleged cohorts were drug dealers, " evidence of his prior activity helped "eliminate alternative explanations, such as ignorance of drugs and the drug trade." See United States v. Thomas, 294 F.App'x 124, 130 (5th Cir. 2008). At trial, there was some independent evidence of Juarez's intent; for example, Sergio Grimaldo testified that Juarez knew Grimaldo was "moving cocaine" and "knew what [Grimaldo] was doing." But the extrinsic evidence was nonetheless highly persuasive in corroborating that testimony and refuting Juarez's defense that he was an ignorant participant. Accordingly, the district court did not err in its determination that this factor weighs in favor of admission.

         2. Similarity Between the Extrinsic and Charged Offenses

         Similarity between the prior and charged offenses increases both the probative value and prejudicial effect of extrinsic evidence. See Hernandez-Guevara, 162 F.3d at 872. Despite the prejudicial effect of similar prior bad act evidence, however, this Court has maintained that "it does not follow that similarity requires exclusion of the evidence." Kinchen, 729 F.3d at 473; see also Cockrell, 587 F.3d at 679-80 (allowing admission of defendant's prior drug conviction even though it was for "substantially the same crime charged"). In Beechum, we reasoned that if the offenses are mostly dissimilar or only share one element, "the extrinsic offense may have little probative value to counterbalance the inherent prejudice of this type of evidence." 582 F.2d at 915. Thus, "the probative value of the extrinsic offense correlates positively with its likeness to the offense charged." Id. As with the overall balancing act under Rule 403, the district court must assess the similarity of the offenses and weigh enhanced probative value against the prejudice that almost certainly results when evidence of prior misconduct is admitted. Id.

         The district court recognized that similarity "can cut both ways." In the charged conspiracy, Juarez assisted the Grimaldos by purchasing vehicles for their use, selling them firearms and body armor, and assisting them in evading detection by law enforcement. The evidence presented regarding the uncharged conspiracies suggested that Juarez's participation in the Gallegos and Casteneda conspiracies was essentially identical, a fact which was undoubtedly prejudicial to Juarez. But given that the probative value of the extrinsic offense correlates positively with its likeness to the charged offense, the similarity factor also weighs in favor of admission.

         3. Amount of Time Separating the Offenses

         Probative value is "augmented by [a] lack of temporal remoteness" between the offenses. Id. at 971. This Court has found that evidence of misconduct committed less than three years prior to the charged crime is admissible, while suggesting that ten years may be too remote. See United States v. Adair, 436 F.3d 520, 527 (5th Cir. 2006); United States v. Grimes, 244 F.3d 375, 384-85 (5th Cir. 2001). It is even more probative when the offenses occur "concurrently." Smith, 804 F.3d at 736.

         The district court noted that "Juarez allegedly participated in the charged offense, as well as the other drug conspiracies, at roughly the same time." His participation in the charged conspiracy to distribute drugs began "'at a time unknown until in or about the year 2012, " and the conspiracy to possess firearms began "on a date unknown but prior to July 17, 2013." The district court found that Juarez's alleged participation in the Gallegos conspiracy ended at most eight or nine years before the charged offense. With regard to the Casteneda conspiracy, it appears that Juarez's conduct took ...

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