F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

S E R G I O R A M O S -A T O N D O ,

Defendant-Appellant

. No. 12-50208

D .C. Nos. 8:11-cr-00087- J ST-7 8:11-cr-00088- J ST

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

A L B E R T O C O R O N A -V I D A L , Defendant-Appellant

. No. 12-50211

D.C. No. 8:11-cr-00087- J ST-3

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

J E A N C A R L O M A R T I N E Z , Defendant-Appellant

. No. 12-50212

D.C. No. 8:11-cr-00087- J ST-4U N I T E D S T A T E S V

. R A M O S -A T O N D O 2

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

V I C T O R R A

M O S , Defendant-Appellant

. No. 12-50214

D.C. No. 8:11-cr-00087- J ST-5

OPI NI ON

A ppeal from the United States District Court for the Central District of California J osephine Staton Tucker, District J udg e, Presiding

Arg ued and Submitted Aug ust 27, 2013—Pasadena, California

F iled October 11, 2013

B efore: Ronald M. Gould and J ohnnie B . Rawlinson, Circuit J udg es, and Paul C. Huck, District J udg e. *

Opinion by

J udg e Gould

* T h e Ho n orab le P au l C. Hu ck
, District J u d g e f o r th e U.S. District Co u rt f o r th e So u th ern District o f Flo rid a, sittin g b y

d esig n atio n

.U NITED S TATES V

. R AMOS -A TONDO 3

SUMMARY **

Criminal Law

The panel affirmed four defendants’ convictions for conspiracy to import marijuana and importation of marijuana.

The panel held that the district court did not abuse its discretion by instructing the jury on a theory of deliberate ignorance in the context of a conspiracy, and that the theory of deliberate ignorance, which may be an alternative argument to actual knowledge, need not be exclusive.

The panel rejected defendant Ramos’s contention that there was insufficient evidence to support his conviction.

The panel concluded that the district court did not abuse its discretion by admitting defendant Ramos-Atondo’s prior alien smuggling conviction under Fed. R. Evid. 404(b) and not excluding it under Fed. R. Evid. 403.

COUNSEL

David J. Zugman (argued), Burcham & Zugman, San Diego, California; Robison D. Harley, Jr. (argued), Santa Ana, California; Jennifer L. Coon, La w Office of Jennifer L. Coon, San Diego, California; and H. Dean Steward, San Clemente, California, for Defendants-Appellants.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.U N I T E D S T A T E S V

. R A M O S -A T O N D O 4

Mark Re m y Y ohalem (arg ued), Office of the United States Attorney
, L os A ng e les, California; Amanda L iskamm, Office of the U nited States A t t o rney , Santa Ana, California, for Plaintiff-Appellee.

OP INION

GOUL D, Circuit J udg e :

D e f e n d a n t s S e r g i o R a

m o s

- A t o n d o , Alberto Co r o n a

- V i d a l
, J eanc a rlo Martinez
, and V ictor Ramos appeal from their convictions for conspiring to import marijuana in v iolation o f 21 U.S.C. § 963 and importation of marijuana in violation o f 21 U.S.C. §§ 952 and 960. 1 Defendants c o n t en d that the district court abused its discretion by instructing t h e jury on

a theory of deliberate ig norance. Defendant Ramos c ontests the sufficiency of the evidence to support his conviction and the d istrict court’s denial of his motion filed under Rule 29 o f the F ederal Rules of Criminal Procedure. Defendant RamosAtondo contends that the d istrict court a bused its discretion by admitting evidence of his p rior alien smug g ling conviction under Rule 4 04 ( b ) o f t he F ederal Rules of E vidence. W e have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

I n the e arly m o r n i n g of April 4, 2011, B order Patrol Ag ent W aller conducted surveillance of Calafia State B e ach in San Cl emente, California, a spot where maritime

1 Ram o s- A to n d o w as also co n v i cted o f b ein g an illeg al alien fo u n d i n th e Un i ted States f

o llo w in g d ep o rtatio n in v io l atio n o f 8 U.S.C. § 1 3 2 6 (a). He d o es n o t ap p eal th at co n v i ctio n o r sen ten ce.U N I T E D S T A T E S V

. R A M O S -A T O N D O 5

smug g ling frequently occurred. Around 4 :50 a.m., he spotted

a p a nga b oat – an open-bow vessel commonly used for
smug g ling – approachin g t h e shore without running lig hts. Using an infrared thermal de v i c e f rom his e levated position

on the cliff, Ag ent W alle r c o uld see two people on the b oat and what appeared to be several packag es. T h e boat a t first approached the beach at a hig h r ate of speed, but then stopped fifty to s e v e n t y -five y ards o f fshore for five to ten minutes. Ag ent W aller observed Ag ent Carrell’s flashlig h t o n the beach, at which point the pang a b oat turned around a nd headed o ut to the northwest. The pang a boat was abandoned

a short d i s t ance away at the beach on Dana Point, where borde r patrol ag ents r ecovered more than 740 pounds o f marijuana. Ag ent Carrell testified that he brandished a flashlig ht before apprehending four men wearing tennis shoes and dark clothing on the beach. He identified the men a s Ramos, Martinez
, Corona-Vidal, and R a m i r o G alleg os. None possessed any identify ing documents o r c ell phones. B ut Ag ent Carrell recovered a r o om key for the San Clemente I nn from Ramos. Ramos’s r o o m a t the San Clemente I nn contained two wallets belong ing to th e men arrested on the beach, and two cell phones. T he room also contained a set o f

car key s to a red Chevrolet Silverado that was parked nex t to the room. T wo p articipants in the charg e d smug g ling operation testified ag ainst Defendants at trial. G alleg os, w ho had b e e n a rrested on the beach, testified ag ainst Ramos, Corona-Vidal, and Martinez

. According to Gall e go s, the red Silverado belong ed to Martinez
, a childhood friend

. Galleg os drove to San Clemente a week a ft er h e g ot a job offer from a n unknown

man outside of a liquor store in his hometown, San Dieg o. At
t h e time of the offer, Galleg os understood that the job h ad something to do with marijuana. Galleg os ex pected to makeU N I T E D S T A T E S V

. R A M O S -A T O N D O 6

$4,000 to $8,000 for the job. The unknown m a n gave Galleg os a b lack Motorola phone. L ater that nig ht, Galleg os received a call on the phone with more instructions, including directions to the San C l em e n te I nn. The man on the phone
t o l d him to g et two people to help, and that they should a l l

wear dark clothing

. The m a n also told him that they were g oing to unload packag es off a pang a b oat and transfer them into a c ar. Galleg os w ent over to Corona-Vidal’s house, smoked marijuana with Corona-Vidal and Martinez
, and told them about the job unloadi n g packag es off a b oat. He specifi c a l l y told them that the job involved marijuana, a nd they ag reed to help.

On April 3
, 2011, Galleg os, Corona-Vidal, and Martinez drove to the San Clemente I nn in Martinez ’s red Silverado. They smoked marijuana around t h e truck while they waited in the parking lot. Galleg os tes tified that they were approached by a man with g lasses who introduced himself a s V i c t o r Ramos. They went to Ramos’s hotel room, where Galleg os saw J onathan Peraz a. Ramos t h e n g ave them instructions f

or unloading the packa ge s. Around 3:00 a.m., Ramos woke every

one up, and they g ot into Peraz a’ s b l a c k F ord Ex plorer. They drove down the h ill to the beach, where they g ot out ex cept for Peraz a, who would stay on top of the hill with the car. Galleg os said that after about five minutes

on the b each, they were a r rested b y b o rder pa t r o l ag e nts. Ag ent M u gl i a testified that he received a call a bout a p ang a boat coming in, and that he searched for a “load vehicle” near Calafia State B each. He obse rv e d a b lack F ord Ex plorer in the area, and followed it to a 7-Eleve n

. T h e driver, Peraz a , consented to a sear c h
, a nd they found a San Clemente I nn parking pass.U N I T E D S T A T E S V

. R A M O S -A T O N D O 7

B o rder patrol ag e nts f

ound Ramos-Atondo hiding in a public r estroom near the abandoned p ang a boat around 12:30
p.m. on April 4, 2011. Dordier L iz arrag a-L iz arrag a was also

a pprehended in the restroom. B oth men were covere d w i t h sand that stuck to their clothes as if they had been wet.

L iz arrag a-L iz arrag a testified a g ainst Ramos-Atondo, statin g that Ramos-Atondo contacted him in March 2011 to help b ring six bales of mari j u ana into the United States. L i z arrag a-L iz arrag a a g reed a nd met Ramos-Atondo in Rosarito, Mex ico, where the loaded pang a boat was waiting

. They used a pre-prog rammed GPS n avig ation sy stem to g u ide the boat to the Unite d States. L iz arrag a-L iz arrag a also testified that w hen he a nd Ramos-Atondo saw lig hts on Calafia State B each, they w ent to a n other b e ach, abandoned the boat, and hid in a nearby public bathroom.

Defendants p resented n o evidence at t r i al

. Defendants’ apparent strateg y was to cast doubt on the credibility o f the
g overnment’s witnesses, especially c o o pera t i ng w itnesses G a lleg os and L iz arrag a-L iz arrag a. The defense al s o contended that Defendants did n ot have the requisite knowledg e that they were involved in a drug smug g ling operation because the pang a boat could have b een carry ing illeg al aliens rather than narcotics.

II

Defendants challeng e the district court’s decision to g ive

a deliberate ig norance instruction to the jury

. We r e v i e w a district court’s decision to g ive a deliberate ig norance instruction for abuse of d iscretion. U nited States v. Heredia
, 483 F .3d 9 13, 922 (9t h C i r. 2007) (en banc). When we review f or abuse of discretion, we “ f irst

. . . consider whetherU N I T E D S T A T E S V

. R A M O S -A T O N D O 8

the district court identified the correct leg al standard

. . . then

. . . determine whether the district court’s finding s of fact, a nd its application of th o s e f i n d ing s o f fact to the correct leg al
st a ndard, were illog ical, implausible, or without support in inferences that may be draw n from facts in the record.” United States v. Hinkson
, 585 F .3d 1247, 1251 (9th Cir. 2 009) (en banc).

The prosecution propos e d a deliberate ig norance instruction t a ken from Ninth Circuit Criminal Model J ury I nstruc t i o n 5.7. Defendants filed a joint objection to the in s t r uction, contending that it was “arg umentative, confusing
, misleading
, and not r ationally supported by the facts of the case.” The district court ruled that the deli b e r a t e ig norance instruction was appropriate because the jury could find deliberate ig norance if it r ejected the g overnment’ s actual knowledg e arg ument. The district court ga v e the following instruction to the jury :

You may find that a d efendant acted knowing ly if y ou find b ey ond a reasonable doubt that the defendant:

1. was aware of a hig

h probability

that drug s were in the pang a-sty le boat, and

2. deliberately

avoided learning

the truth.

You may n ot find such knowledg e, however, if y ou find that t he defendant actually believed that no drug s were in the pang a-sty le boat, or i f y o u find that the defendant was simply careless.U N I T E D S T A T E S V

. R A M O S -A T O N D O 9

W e recog n iz ed the val idity o f a deliberate ig norance instruction in United States v. Jewell
, 532 F .2d 697, 7 00, 704 (9th Cir. 1976) (en b a nc). We c larified that a district court may g ive a deliberate ig n orance instruction if it determines that a jury could rationally find deliberate ig norance, even if the jury had rejected the g o vernment’s evidence of actual knowledg e. Heredia
, 483 F .3d at 9 22. D eliberate ig norance involves “(1) a subjecti v e belief that there is a hig h
pr o b a b i lity a fact ex ists and (2) deliberate actions taken to avoid learning

the truth.” United States v. Y i
, 704 F .3d 800, 804 (9th Cir. 2 013). I n determining the applicab ility of the jury instruction, “the district court must view the evidence in the lig ht most favorable to the party requesting it.” I d

.

Defendants contend that the district court should not have
g iven the instruction because the g overnment did not advance

a deliberate ig norance theory at trial or mention deliber a te ig norance in its closing arg ument. W e disag ree. I t i s t r ue that m o s t of the g overnment’s e vidence focused on Defendants’ actual kno w l e dg e that the boat contained marijuana. B ut at trial, D efendants mai n t a i ned that they could have b elieved this was an alien smu ggling operation and did not know that the boat contai n ed a controlled substance. To be convicted under 21 U.S.C. § 952, a person must k nowing ly import a controlled substance

. Defendants contended that they could not b e convicted o f this offense if they believed that the boat contained illeg al aliens. B ecause the Defendants disputed their actual knowledg e , the
g overnment was “entitled to instructi o n s supporting all rational i n ferences the jury mig ht draw from the evidence.” Heredi a , 483 F .3d at 923. I f the jury believed Defendants’ position that they did not h av e actual knowledg e, then the
g overnment’s evidence could still sup port the inference that Defendants k

new that there w as a hig h probability that drug sU N I T E D S T A T E S V

. R A M O S -A T O N D O 10

were on the boat but deliberately cho s e n o t to confirm that suspicion.

To show deliberate ig nora n ce , a defendant must have a sub j ective b elief that there is a hig h probability that a fact

ex ists. Y i
, 704 F .3d a t 8 0 4

. There is ample evidence to support the inference that all Defendants were aware of a hig h probab i l i t y that the boat had o n it marijuana or another controlled substance r ather than illeg al aliens. G a l l e g os testified that h e told both Corona-Vidal and Martinez that he had b een solicited to do a j o b i n v o lving marijuana. He also
test i f i ed that at the San Clemente I n n, Ramos ex p lained the plan for u nloading the “packag es” from the boat to Galleg os, Corona-Vidal, and Martin e z

. Galleg os ex plained that he, Corona-Vidal, Martinez
, and Ramos went down to the beach with the plan to take packag es off the boat and put them in a

car. L iz arrag a-L iz arrag a testified that R amos-Atondo told him that they would be transporting marijuana, that the p ang a boat contained several packag es, and that the boat traveled b y

a pre-prog r a mmed GPS at nig h t from Mex ico to th e United States. The jury h eard evidence that Ramos-A t ondo had a pr i or conviction for alien smug g ling from Mex ico to the United States, so there is a h i gh p r o bability that he would understand that this trip w ith a skeleton crew on the p ang a boat differed from his previous smug g ling ex perience when ther e were more than fifteen alien passeng ers aboard the
pang a boat.

The record also supports the inference that Defendants
eng ag ed in a deliberate act to avoid learning the truth. See Y i
, 704 F. 3 d at 805. “A deliberate a c tion is one that is intentional; premeditated; fully considered.” Hered ia
, 483 F .3d at 920 (internal q u otation m a r k s and citation omitted). A failure to investig ate can be a deliberate action.U N I T E D S T A T E S V

. R A M O S -A T O N D O 11

Id. I f the jury believed that Defend a n t s did not know that
t hey were involved in a d rug smug g ling operation, the ju r y could have inferred that Defendants’ lack o f knowledg e resulted from their f

ailure to investig ate. See United States v

. McAllister
, 747 F .2d 1273, 1 276 (9th Cir. 1984). The j ury could have inferred that Corona-Vidal, Martinez
, and Ramos deliberately chose not to ask why they were g oing to unload packag es at the beach in th e d ar k
, wearing dark clothing
, without any identification or p ossessions. The j u r y could have inferre d that Ramos-Atondo chose not to ex amine the packag es on the b oat, or a sk why he was taking a boat full o f packag es from Mex ico to a beach in the United States in the dark using a pre-prog

rammed GPS.

Defendants also contend tha t t h e district court erred b y g iving the d eliberate ig norance ins t ruction because it is impossible to conspire to be d eliber a t e l y ig norant. This
arg ument lacks merit. W e have previously upheld a defendant’s conviction for conspiracy t o p o ssess marijuana after concluding that the district court did not err by g iving a deliberate ig norance instruction. United States v. Nicholson
, 677 F .2d 706, 710 (9th Cir. 1982) (“The circumstances surrounding the investme n t opportunity presented to [ defendant] would have put any reasonable p erson on notice
t h a t there was a ‘ hig h probability ’ that the undisclosed
venture was i l l e g al.”). W e said that “[ t] he Jewell standard eliminates the nee d t o establish such positive knowledg e to obtain a conspiracy

conviction.” I

d. at 711.

The district court has discretion to refuse to gi ve a deliberate ig norance instru c t ion where the jury may become confused or wh e r e a defendant only disputes identity

. Heredia
, 483 F .3d at 924. T h e g overnment focused on a nd

s t r e ssed its proof o f D efendants’ actual knowledg e. B u t n oU N I T E D S T A T E S V

. R A M O S -A T O N D O 12

established principl e o f law declares that the deliberate ig norance in s truction c annot be g iven unless deliberate ig norance is the main thrust of the g overnment’s case-in-chief or closing arg ument. The law indeed is to the contrary

. See id. at 923 (“A party may present a lternative factual theories, and is entitled to instructions supporting all rational inferences the jury mig h t d r aw from the evidence.”). The jury could rationally have drawn from the evidence p resented, depending on how credible they d eemed Galleg os’s testimony i n r elation to the other evidence p resented, that Defendants, collectively
, were deliberately ig n orant that the object of the smug g ling operation was marijuana.

W e hold that if the factual predicates of a deliberate ig norance instruction are present, it is not error to g ive such

an i n s t r u ction. And the theory of deliberate ig norance need not be ex c lusive, it may

be an arg ument alternative to actual knowledg e. Viewing the evidence in the lig ht most favorable
to the party requesting the instruction, here the g ove r n m e n t, the district court’s decision to g ive the deliberate i gnorance instruction to the jury was not “ illog ical, implausible, o r without support in inferences that may be drawn from facts in the record.” See Hinkson , 585 F .3d at 1251.

III

Defendant Ramos c ontends that the district court erred in deny ing h is motion for judg men t of acquittal under Rule 29 of the F ederal Rules of Criminal Proc e d ure. Ramos maintains that the g overnment’s e vidence was insufficient: I n sup p o rt of that contention, he arg ues that he made no incriminating statement, that he w as not identified in court b y Galleg os, that the g overnment only d emonstrated that h e was present on the beach, and that the g overnment did not proveU N I T E D S T A T E S V

. R A M O S -A T O N D O 13

that Ramos knew that there were drug s in t h e p a n ga boat. The g overnment, to the contrary , arg u es that the evidence was

s ufficient f

or the jury to b elieve that Ramos knew, or w a s willfully ig norant, of the fact that the smug g lers were unloading narcotics. Ramos misunderstands the sufficiency of evidence standard. W e construe the evidence “in the lig ht
most favorable to the prosecution

. . . then determine whether
any rational trier of f

act c o u ld have found the essential elements of the c rime bey ond a reasonable doubt.” United States v. Nevils
, 598 F

. 3d 11 5 8
, 1 1 6 1 (9th Cir. 2010) (en banc) (quoting Jackson v. Virginia
, 443 U.S. 3 0 7
, 319, 99 S. Ct. 2781, 61 L .Ed.2d 5 60 ( 1 9 7 9 ) )

. W e are persuaded
t h a t the g overnment has the better a rg ument under the standard set forth in J

a c k son v. Virginia

.

Ramos arg ues that his “mere presence” on the beach is i n sufficient for a conviction for conspiracy or importati o n , both of which require knowledg e. I n sup p o r t , R amos relies

on Galleg os’s inability to identify Ra m o s i n c ourt. This
arg ument lacks merit. Galleg os testified that he did n ot know Ramos, and had only met him on April 3, 2011 at the S an Clemente I nn; h o wever, Galleg os did correctly identify Ramos as the only one we a r i ng g lasses on the b each. M o r eover, Ramos’s identity is not in question, as bord e r patrol ag ents identified him as one of the men arrested on the beach.

Ramos also cites Galleg os’s lack of c redibility
, including his lies to border patrol ag ents upon arrest, and how Galleg os had been smoking marijuana all day on April 3, 2011. These assertions were raised at trial and rejected by the jury

. W e will not assume the function of the jury t o make credibility determinations. See Nevils
, 598 F .3d at 1170 (“W e ca n n o t second-g uess the jury ’s credibility a s s e s s m e nts; r ather, ‘underU N I T E D S T A T E S V

. R A M O S -A T O N D O 14

J a c k s on , the a ssessment of the c redibility of witnesses i s g enerally b ey ond the scope o f revi ew.’”) (quoting S chlup v

. Delo
, 5 13 U.S. 298, 330, 115 S. Ct. 851, 130 L

. E d

. 2 d 808 ( 1 9 95)). The jury had the opportunity to weig h Gallego s ’s

use of marijuana and a

n y o t h er credibility factors in their assessment of his testimony

.

W e view the testimony of the b order patrol ag ents a nd Galleg os in a lig ht most favorable to the prosecution, a s required by Jackson

. W e conclude that a rational jury could believe Galleg os’s testimony
, conclude that it was consonant with that o f the border patrol ag ents, and conclude bey o nd a reasonable doubt that Ramos knew, or was deliberately ig norant of, the objective of importing marijuana. See Nevils
, 598 F

. 3d at 1169. The d istrict court correctly denied Ramos’s Rule 29 motion.

IV

Defendant- A

p p e l l a n t S e r g i o R a

m o s

- A t o n d o c ontends that the district court abused its discretion w h e n it admitted Ramos-Atondo’s prior conviction for alien smug g ling under R ule 404(b) of the F ederal Rules o f E vidence. T h e g overnment to the c ontrary c ontends that Ramos

- A tondo

w a i ved h is rig ht to challeng e the admission of his prior convi ction because he stipulated to its introduction. Absent waiver, the g overnment maintains that the district court did
not err because Ramos-Atondo’s alien smug g ling conviction

was relevant to prove his knowledg e, intent, c ommon plan o r scheme, and abse n c e of mistake in his participation in a conspiracy to smug g le marijuana. W e review a district court’s admission of e v idence for a buse of discretion. United States v

. Rizk
, 6 60 F .3d 1125, 1130 (9th Cir. 2011). Althoug h

we reject the g overnment’s waiver arg ument, and address theU N I T E D S T A T E S V

. R A M O S -A T O N D O 15

propriety of admission of the alien smug g ling conviction on its mer i t s , w e conclude there was not e rror u nder the applicable rules of evidence, and we affirm.

A

Considering Ramos

- A t o n d o ’ s m o t i o n i n limine to ex clude the alien s m u g g ling conviction, the district c ourt f ound that evidence of Ramos-Atondo’s a lien smug g ling conviction was not too remote in time because it occurred within the last two y ears. T he district court further f ound that R amos-Atondo committed the act since h e pleaded g uilty to the offense, a nd that c ross-border ali e n smug g ling using a pang a boat was sufficiently similar to the marijuana smug g ling charg e h ere. I n its opposition to Ramos-Atondo’s motion, the g overnment urg ed that the prior alien smug g ling conviction was relevant
to Ramos-Atondo’s knowledg e and that it showed that his actions were intentional. At the eviden t i a r y hearing
, the district court asked the g overnment further to address whether the prior conviction tended to prove a m a t erial point. The
g overnment responded that the prior alien smug g li n g

co n v iction would show that Ramos-Atondo had a p lan, a nd that the u se o f a pang a boat to smug g le is a common scheme that he uses. The g overnment also offered the conviction as evidence that Ram o s -Atondo’s presence on the pang a b oat

was not a mistake. The district court admitt e d the prior conviction u nder Rule 404(b) o f the F ederal Rul e s o f Evidence, deter m i n i n g that with a limiting instruction, the evidence was not u nfairly prejudicial under Rule 4 03 o f the F ederal Rules of Evidence, b e c au se prejudice did not outweig h probative value.

At trial, the g overnment c a l l e d two border patrol ag ents to testify reg arding Ramos-Atondo’s prior conviction. Ag entU N I T E D S T A T E S V

. R A M O S -A T O N D O 16

Swaine testified that he conducted su r v e illance on an alien
smug g ling operation involving 15–20 p e o p l e and a p ang a boat, on J uly 17, 2 009

. A ge n t Martinez testified that he interviewed Ramos-Atondo on J uly 1 7, 2009, and that Ramos-Atondo said that his role was to load the g asoline on the boat and chang e no z z les on the g as can during the trip. The record contained the following stipulation:

Plaintiff United States o f A merica

. . . a nd Defendant Serg io Ramos-Atondo

. . . hereby

s t i pulate to the following : On November 16, 2009, Defendant S e rg io Ramos-Atondo pleaded g uilty to a sing le-count info r m ation charg ing him with a violation of Title 8, Uni t e d States Code Section 1324(A)(1)(A)(I I )

an d (B) (2) for bring ing in illeg al aliens a nd aiding and abetting in the United Sta t e s District Court in the Southe r n District o f California.

I n her closing arg ument, the prosecut or referred to RamosAtondo’s smug g ling history

. The prosecutor said that Ramos-Atondo a dmitted to b eing part of the b oat c rew in a prior smug g l ing event, and that this participation demonstrates his intent, motive, p lan, a nd knowledg e of h ow to conduct pang a-boat smug g ling from Mex ico into the United States.

W e are not persuaded that R amos-Atondo waived objection to the introduction of his prior smug g ling conviction or the facts underly ing that conviction. F irst, the lang uag e of the stipulation is narrow. I t refers o n ly to R a m o s-Atondo’s g uilty p lea. Second, the stipulation in o ur view does not mean more than that if the conviction isU N I T E D S T A T E S V

. R A M O S -A T O N D O 17

a dmitted, this identifies the prior c rime. I n the totality o f circumstances here, w e conclude that Ramos-Atondo did not waive his objection to the admission and use of his prior alien

s mug g ling c onviction based on his narrow stipulation a b o u t his prior g uilty

plea. W e do not think that this record shows

an intentional relinquishment of Ramos-Atondo’s rig ht to challeng e the admission o f evidence. W e conclude that there

was no waiver, a n d s o the propriety of admitting this prior crime in evidence should be addressed by us on the merits.

B

Prior crimes are not admissible to show propensity or b ad character, b u t they may be admissible to show “motive, opportu n ity
, intent, preparation, plan, knowledg e, identity
, absence of mistake, or lack o f a ccident.” F ed. R. Evid. 404(b). W e employ a four-part test to de t e r m i ne the admissibility

of Rule 404(b) evidence:

S u c h evidence may be admitted if: (1) th e evidence tends to prove a material po i n t ; (2) the other act is n ot too remote in time; (3) the evidence is sufficient to support a finding that defendant committed the other act; and (4) ( in
certa i n cases) the act is similar to the offense charg ed.

United States v

. Bailey
, 696 F .3d 794, 799 (9th Cir. 2012). To show relevance under the first prong , “the g overnment must a rticulate precisely the evidential hy pothesis b y w h ich

a fact of consequence may be inferred from the o th er acts evidence.” United States v. Mayans
, 17 F .3d 1174, 1181 (9th Cir. 1 994) (internal quotation marks a n d citations omitted). W h ere the defendant’s knowledge is contested, we haveU N I T E D S T A T E S V

. R A M O S -A T O N D O 18

“emphasiz ed that the g overnment must prove a log ical connection between the k nowledg e g ained as a result o f the commission of the prior act and the knowledg e at issue in the charg ed act.” Id. at 1181–82. Even if relevant, Rule 404(b) evidence may be ex cluded if i t s p robative value is substantially outweig h e d b y the dang er of unfair prejudice. See F e d. R. Evid. 4 0 3 ; United States v. Flores-Blanco
, 623 F .3d 912, 919 (9th Cir. 2010).

R a mos-Atondo c ontends that the g overnment did n o t show a clear connection between the prior conviction for alien smug g ling an d the marijuana smug g ling charg es. W e disagr ee

. The alien smug g ling conviction was relevant evidence for s e veral r easons. F irst, it demonstrated RamosAtondo’s knowledg e of c ross-border smug g ling procedures, including manag ing the g as and eng ine o n a pang a-sty le b oat

as it made its way from Mex ico to the Uni t e d States in the

m i d d le o f the nig ht. That Ramos-Atondo had p r evious

ex p erience in h andling the g as and eng ine during a smug g ling

run tends to prove a material point, that Ramos-Atondo was

n o t merely present on the boat with no knowledg e o f t h e underly ing smug g ling operation. S e cond, the prior conviction f

urther tends to prove the mate r ial point that Ramos-Atondo wo u l d understand the difference b etween smug g ling aliens and smug g ling marijuana, which g oes to his knowledg e, plan, a

n d intent to smug g le nar co t i c s

. See Flores-Blanco
, 623 F .3d at 9 19–20 (“[ T] he prio r a c t s were sufficiently similar to the present of f e n s e to show [ defendant’s] knowledg e of the present smug g ling scheme and his intent and plan to participate in it.”). Th i r d
, the conviction was also r e l e vant to show a modus operandi o f
smug g ling involving use of open pang a b oats that w ere to be unloaded on a dark beach in early morning hours. See UnitedU N I T E D S T A T E S V

. R A M O S -A T O N D O 19

States v. Ramirez-Jiminez
, 967 F .2d 1321, 1 3 2 6 (9th Cir. 1992).

T h e a lien smug g ling conviction w as not a prior b ad a ct

o f fered to show b a d character of Ramos-Atondo. Rathe r, i t

was r eleva n t e v i dence tending to show that what RamosAtondo did in this case was illeg al, that he was participating in drug smug g ling

. E ven if a d istrict c ourt permissibly could have decided otherwise and ex cluded the evidence, we conclude that the district court did not abuse its d iscretion in admitting Ramos-Atondo’s p rior alien smug g ling conviction under R u l e 4 0 4(b) of the F ederal Rules o f Evidence. A s

ex p lained above, there w ere several log ical theories that made
t h e evidence relevant and supported the conclusion that t h e probative value of t he evidence was not outweig hed b y prejudice from it.

R a mos-Atondo possibly suffered some p r a c t i c a l p r e j u d i c e

as a result of admitting evidence of hi s prior smug g ling crime, in the sense that any evidence that tends to show g u ilt admitted ag a inst a defendant c harg ed wit h c r i me may cause prejudice because the relevant evidence of g uilt increases the likelihood o f a c onviction. B ut because o f the probative value of the evidence, it was not unfair prejudice that would

w a r r a n t ex clusion under Rule 403 of the F ederal Rules o f Evidence. S

ee Flores-Blanco
, 623 F .3d at 920 (“The evidence was probati v e o f [defendant’s] knowledg e a nd intent and not of the ty

pe that would provoke an unfairly
p r e judicial emotional r esponse [from the jury ] .”). F urth e r, any such practical prejudice was minimiz ed by the district court’s careful limiting in s truction to the jury

. Id. W e conclude that the district court did not abuse its discretion b y admitting Ramos-Atondo’s p rior alien smug g ling convictionU N I T E D S T A T E S V

. R A M O S -A T O N D O 20

under Rule 404(b) and not e x cluding it under Rule 403 of the F ederal Rules of Evidence.

V

The d istrict court did n ot abuse its discr et i o n b y instructing the jury on a theory of d eliberate ig norance in the
contex t of a con s p i r a c y to import marijuana, did not err in deny ing Ramos’s Ru l e 2 9 motion, and did not abuse its discretion b y a dmitting evidence of Ramos-Atondo’s prior alien smug g ling conviction u nder Rule 4 04(b) of the F ederal Rules of Evidence.

AF F IRMED.