FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SERGIO RAMOS-ATONDO,

Defendant-Appellant.

No. 12-50208

D.C. Nos.

8:11-cr-00087-

JST-7

8:11-cr-00088-

JST

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALBERTO CORONA-VIDAL,

Defendant-Appellant.

No. 12-50211

D.C. No.

8:11-cr-00087-

JST-3

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JEANCARLO MARTINEZ,

Defendant-Appellant.

No. 12-50212

D.C. No.

8:11-cr-00087-

JST-4
2 UNITED STATES V. RAMOS-ATONDO

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

VICTOR RAMOS,

Defendant-Appellant.

No. 12-50214

D.C. No.

8:11-cr-00087-

JST-5

OPINION

Appeal from the United States District Court

for the Central District of California

Josephine Staton Tucker, District Judge, Presiding

Argued and Submitted

August 27, 2013—Pasadena, California

Filed October 11, 2013

Before: Ronald M. Gould and Johnnie B. Rawlinson,

Circuit Judges, and Paul C. Huck, District Judge.*

Opinion by Judge Gould 

* The Honorable Paul C. Huck, District Judge for the U.S. District Court

for the Southern District of Florida, sitting by designation.
UNITED STATES V. RAMOS-ATONDO 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, Law 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.
4 UNITED STATES V. RAMOS-ATONDO

Mark Remy Yohalem (argued), Office of the United States

Attorney, Los Angeles, California; Amanda Liskamm, Office

of the United States Attorney, Santa Ana, California, for

Plaintiff-Appellee.

OPINION

GOULD, Circuit Judge:

Defendants SergioRamos-Atondo, Alberto Corona-Vidal,

Jeancarlo Martinez, and Victor Ramos appeal from their

convictions for conspiring to import marijuana in violation of

21 U.S.C. § 963 and importation of marijuana in violation of

21 U.S.C. §§ 952 and 960.1 Defendants contend that the

district court abused its discretion by instructing the jury on

a theory of deliberate ignorance. Defendant Ramos contests

the sufficiency of the evidence to support his conviction and

the district court’s denial of his motion filed under Rule 29 of

the Federal Rules of Criminal Procedure. Defendant RamosAtondo contends that the district court abused its discretion

by admitting evidence of his prior alien smuggling conviction

under Rule 404(b) of the Federal Rules of Evidence. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

In the early morning of April 4, 2011, Border Patrol

Agent Waller conducted surveillance of Calafia State Beach

in San Clemente, California, a spot where maritime

1 Ramos-Atondo was also convicted of being an illegal alien found in

the United States following deportation in violation of 8 U.S.C. § 1326(a). 

He does not appeal that conviction or sentence.
UNITED STATES V. RAMOS-ATONDO 5

smuggling frequently occurred. Around 4:50 a.m., he spotted

a panga boat – an open-bow vessel commonly used for

smuggling – approaching the shore without running lights. 

Using an infrared thermal device from his elevated position

on the cliff, Agent Waller could see two people on the boat

and what appeared to be several packages. The boat at first

approached the beach at a high rate of speed, but then stopped

fifty to seventy-five yards offshore for five to ten minutes. 

Agent Waller observed Agent Carrell’s flashlight on the

beach, at which point the panga boat turned around and

headed out to the northwest. The panga boat was abandoned

a short distance away at the beach on Dana Point, where

border patrol agents recovered more than 740 pounds of

marijuana. Agent Carrell testified that he brandished a

flashlight before apprehending four men wearing tennis shoes

and dark clothing on the beach. He identified the men as

Ramos, Martinez, Corona-Vidal, and RamiroGallegos. None

possessed any identifying documents or cell phones. But

Agent Carrell recovered a room key for the San Clemente Inn

from Ramos. Ramos’s room at the San Clemente Inn

contained two wallets belonging to the men arrested on the

beach, and two cell phones. The room also contained a set of

car keys to a red Chevrolet Silverado that was parked next to

the room. Two participants in the charged smuggling

operation testified against Defendants at trial. Gallegos, who

had been arrested on the beach, testified against Ramos,

Corona-Vidal, and Martinez.

According to Gallegos, the red Silverado belonged to

Martinez, a childhood friend. Gallegos drove to San

Clemente a week after he got a job offer from an unknown

man outside of a liquor store in his hometown, San Diego. At

the time of the offer, Gallegos understood that the job had

something to do with marijuana. Gallegos expected to make
6 UNITED STATES V. RAMOS-ATONDO

$4,000 to $8,000 for the job. The unknown man gave

Gallegos a black Motorola phone. Later that night, Gallegos

received a call on the phone with more instructions, including

directions to the San Clemente Inn. The man on the phone

told him to get two people to help, and that they should all

wear dark clothing. The man also told him that they were

going to unload packages off a panga boat and transfer them

into a car. Gallegos went over to Corona-Vidal’s house,

smoked marijuana with Corona-Vidal and Martinez, and told

them about the job unloading packages off a boat. He

specifically told them that the job involved marijuana, and

they agreed to help.

On April 3, 2011, Gallegos, Corona-Vidal, and Martinez

drove to the San Clemente Inn in Martinez’s red Silverado. 

They smoked marijuana around the truck while they waited

in the parking lot. Gallegos testified that they were

approached by a man with glasses who introduced himself as

Victor Ramos. They went to Ramos’s hotel room, where

Gallegos saw Jonathan Peraza. Ramos then gave them

instructions for unloading the packages. Around 3:00 a.m.,

Ramos woke everyone up, and they got into Peraza’s black

Ford Explorer. They drove down the hill to the beach, where

they got out except for Peraza, who would stay on top of the

hill with the car. Gallegos said that after about five minutes

on the beach, they were arrested by border patrol agents. 

Agent Muglia testified that he received a call about a panga

boat coming in, and that he searched for a “load vehicle” near

Calafia State Beach. He observed a black Ford Explorer in

the area, and followed it to a 7-Eleven. The driver, Peraza,

consented to a search, and they found a San Clemente Inn

parking pass.
UNITED STATES V. RAMOS-ATONDO 7

Border patrol agents found Ramos-Atondo hiding in a

public restroom near the abandoned panga boat around 12:30

p.m. on April 4, 2011. Dordier Lizarraga-Lizarraga was also

apprehended in the restroom. Both men were covered with

sand that stuck to their clothes as if they had been wet.

Lizarraga-Lizarraga testified against Ramos-Atondo,

stating that Ramos-Atondo contacted him in March 2011 to

help bring six bales of marijuana into the United States. 

Lizarraga-Lizarraga agreed and met Ramos-Atondo in

Rosarito, Mexico, where the loaded panga boat was waiting. 

They used a pre-programmed GPS navigation system to guide

the boat to the United States. Lizarraga-Lizarraga also

testified that when he and Ramos-Atondo saw lights on

Calafia State Beach, they went to another beach, abandoned

the boat, and hid in a nearby public bathroom.

Defendants presented no evidence at trial. Defendants’

apparent strategy was to cast doubt on the credibility of the

government’s witnesses, especially cooperating witnesses

Gallegos and Lizarraga-Lizarraga. The defense also

contended that Defendants did not have the requisite

knowledge that they were involved in a drug smuggling

operation because the panga boat could have been carrying

illegal aliens rather than narcotics.

II

Defendants challenge the district court’s decision to give

a deliberate ignorance instruction to the jury. We review a

district court’s decision to give a deliberate ignorance

instruction for abuse of discretion. United States v. Heredia,

483 F.3d 913, 922 (9th Cir. 2007) (en banc). When we

review for abuse of discretion, we “first . . . consider whether
8 UNITED STATES V. RAMOS-ATONDO

the district court identified the correct legal standard . . . then

. . . determine whether the district court’s findings of fact, and

its application of those findings of fact to the correct legal

standard, were illogical, implausible, or without support in

inferences that may be drawn from facts in the record.” 

United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009)

(en banc).

The prosecution proposed a deliberate ignorance

instruction taken from Ninth Circuit Criminal Model Jury

Instruction 5.7. Defendants filed a joint objection to the

instruction, contending that it was “argumentative, confusing,

misleading, and not rationally supported by the facts of the

case.” The district court ruled that the deliberate ignorance

instruction was appropriate because the jury could find

deliberate ignorance if it rejected the government’s actual

knowledge argument. The district court gave the following

instruction to the jury:

You may find that a defendant acted

knowingly if you find beyond a reasonable

doubt that the defendant:

1. was aware of a high probability that drugs

were in the panga-style boat, and

2. deliberately avoided learning the truth.

You may not find such knowledge, however,

if you find that the defendant actually

believed that no drugs were in the panga-style

boat, or if you find that the defendant was

simply careless.
UNITED STATES V. RAMOS-ATONDO 9

We recognized the validity of a deliberate ignorance

instruction in United States v. Jewell, 532 F.2d 697, 700, 704

(9th Cir. 1976) (en banc). We clarified that a district court

may give a deliberate ignorance instruction if it determines

that a jury could rationally find deliberate ignorance, even if

the jury had rejected the government’s evidence of actual

knowledge. Heredia, 483 F.3d at 922. Deliberate ignorance

involves “(1) a subjective belief that there is a high

probability a fact exists and (2) deliberate actions taken to

avoid learning the truth.” United States v. Yi, 704 F.3d 800,

804 (9th Cir. 2013). In determining the applicability of the

jury instruction, “the district court must view the evidence in

the light most favorable to the party requesting it.” Id.

Defendants contend that the district court should not have

given the instruction because the government did not advance

a deliberate ignorance theory at trial or mention deliberate

ignorance in its closing argument. We disagree. It is true

that most of the government’s evidence focused on

Defendants’ actual knowledge that the boat contained

marijuana. But at trial, Defendants maintained that they

could have believed this was an alien smuggling operation

and did not know that the boat contained a controlled

substance. To be convicted under 21 U.S.C. § 952, a person

must knowingly import a controlled substance. Defendants

contended that they could not be convicted of this offense if

they believed that the boat contained illegal aliens. Because

the Defendants disputed their actual knowledge, the

government was “entitled to instructions supporting all

rational inferences the jury might draw from the evidence.” 

Heredia, 483 F.3d at 923. If the jury believed Defendants’

position that they did not have actual knowledge, then the

government’s evidence could still support the inference that

Defendants knew that there was a high probability that drugs
10 UNITED STATES V. RAMOS-ATONDO

were on the boat but deliberately chose not to confirm that

suspicion.

To show deliberate ignorance, a defendant must have a

subjective belief that there is a high probability that a fact

exists. Yi, 704 F.3d at 804. There is ample evidence to

support the inference that all Defendants were aware of a high

probability that the boat had on it marijuana or another

controlled substance rather than illegal aliens. Gallegos

testified that he told both Corona-Vidal and Martinez that he

had been solicited to do a job involving marijuana. He also

testified that at the San Clemente Inn, Ramos explained the

plan for unloading the “packages” from the boat to Gallegos,

Corona-Vidal, and Martinez. Gallegos explained that he,

Corona-Vidal, Martinez, and Ramos went down to the beach

with the plan to take packages off the boat and put them in a

car. Lizarraga-Lizarraga testified that Ramos-Atondo told

him that they would be transporting marijuana, that the panga

boat contained several packages, and that the boat traveled by

a pre-programmed GPS at night from Mexico to the United

States. The jury heard evidence that Ramos-Atondo had a

prior conviction for alien smuggling from Mexico to the

United States, so there is a high probability that he would

understand that this trip with a skeleton crew on the panga

boat differed from his previous smuggling experience when

there were more than fifteen alien passengers aboard the

panga boat.

The record also supports the inference that Defendants

engaged in a deliberate act to avoid learning the truth. See Yi,

704 F.3d at 805. “A deliberate action is one that is

intentional; premeditated; fully considered.” Heredia,

483 F.3d at 920 (internal quotation marks and citation

omitted). A failure to investigate can be a deliberate action. 
UNITED STATES V. RAMOS-ATONDO 11

Id. If the jury believed that Defendants did not know that

they were involved in a drug smuggling operation, the jury

could have inferred that Defendants’ lack of knowledge

resulted from their failure to investigate. See United States v.

McAllister, 747 F.2d 1273, 1276 (9th Cir. 1984). The jury

could have inferred that Corona-Vidal, Martinez, and Ramos

deliberately chose not to ask why they were going to unload

packages at the beach in the dark, wearing dark clothing,

without any identification or possessions. The jury could

have inferred that Ramos-Atondo chose not to examine the

packages on the boat, or ask why he was taking a boat full of

packages from Mexico to a beach in the United States in the

dark using a pre-programmed GPS.

Defendants also contend that the district court erred by

giving the deliberate ignorance instruction because it is

impossible to conspire to be deliberately ignorant. This

argument lacks merit. We have previously upheld a

defendant’s conviction for conspiracy to possess marijuana

after concluding that the district court did not err by giving a

deliberate ignorance instruction. United States v. Nicholson,

677 F.2d 706, 710 (9th Cir. 1982) (“The circumstances

surrounding the investment opportunity presented to

[defendant] would have put any reasonable person on notice

that there was a ‘high probability’ that the undisclosed

venture was illegal.”). We said that “[t]he Jewell standard

eliminates the need to establish such positive knowledge to

obtain a conspiracy conviction.” Id. at 711.

The district court has discretion to refuse to give a

deliberate ignorance instruction where the jury may become

confused or where a defendant only disputes identity. 

Heredia, 483 F.3d at 924. The government focused on and

stressed its proof of Defendants’ actual knowledge. But no
12 UNITED STATES V. RAMOS-ATONDO

established principle of law declares that the deliberate

ignorance instruction cannot be given unless deliberate

ignorance is the main thrust of the government’s case-in-chief

or closing argument. The law indeed is to the contrary. See

id. at 923 (“A party may present alternative factual theories,

and is entitled to instructions supporting all rational

inferences the jury might draw from the evidence.”). The

jury could rationally have drawn from the evidence presented,

depending on how credible they deemed Gallegos’s

testimony in relation to the other evidence presented, that

Defendants, collectively, were deliberately ignorant that the

object of the smuggling operation was marijuana.

We hold that if the factual predicates of a deliberate

ignorance instruction are present, it is not error to give such

an instruction. And the theory of deliberate ignorance need

not be exclusive, it may be an argument alternative to actual

knowledge. Viewing the evidence in the light most favorable

to the party requesting the instruction, here the government,

the district court’s decision to give the deliberate ignorance

instruction to the jury was not “illogical, implausible, or

without support in inferences that may be drawn from facts in

the record.” See Hinkson, 585 F.3d at 1251.

III

Defendant Ramos contends that the district court erred in

denying his motion for judgment of acquittal under Rule 29

of the Federal Rules of Criminal Procedure. Ramos

maintains that the government’s evidence was insufficient: In

support of that contention, he argues that he made no

incriminating statement, that he was not identified in court by

Gallegos, that the government only demonstrated that he was

present on the beach, and that the government did not prove
UNITED STATES V. RAMOS-ATONDO 13

that Ramos knew that there were drugs in the panga boat. 

The government, to the contrary, argues that the evidence was

sufficient for the jury to believe that Ramos knew, or was

willfully ignorant, of the fact that the smugglers were

unloading narcotics. Ramos misunderstands the sufficiency

of evidence standard. We construe the evidence “in the light

most favorable to the prosecution . . . then determine whether

any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” United

States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en

banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319,

99 S. Ct. 2781, 61 L.Ed.2d 560 (1979)). We are persuaded

that the government has the better argument under the

standard set forth in Jackson v. Virginia.

Ramos argues that his “mere presence” on the beach is

insufficient for a conviction for conspiracy or importation,

both of which require knowledge. In support, Ramos relies

on Gallegos’s inability to identify Ramos in court. This

argument lacks merit. Gallegos testified that he did not know

Ramos, and had only met him on April 3, 2011 at the San

Clemente Inn; however, Gallegos did correctly identify

Ramos as the only one wearing glasses on the beach. 

Moreover, Ramos’s identity is not in question, as border

patrol agents identified him as one of the men arrested on the

beach.

Ramos also cites Gallegos’s lack of credibility, including

his lies to border patrol agents upon arrest, and how Gallegos

had been smoking marijuana all day on April 3, 2011. These

assertions were raised at trial and rejected by the jury. We

will not assume the function of the jury to make credibility

determinations. See Nevils, 598 F.3d at 1170 (“We cannot

second-guess the jury’s credibilityassessments; rather, ‘under
14 UNITED STATES V. RAMOS-ATONDO

Jackson, the assessment of the credibility of witnesses is

generally beyond the scope of review.’”) (quoting Schlup v.

Delo, 513 U.S. 298, 330, 115 S. Ct. 851, 130 L.Ed.2d 808

(1995)). The jury had the opportunity to weigh Gallegos’s

use of marijuana and any other credibility factors in their

assessment of his testimony.

We view the testimony of the border patrol agents and

Gallegos in a light most favorable to the prosecution, as

required by Jackson. We conclude that a rational jury could

believe Gallegos’s testimony, conclude that it was consonant

with that of the border patrol agents, and conclude beyond a

reasonable doubt that Ramos knew, or was deliberately

ignorant of, the objective of importing marijuana. See Nevils,

598 F.3d at 1169. The district court correctly denied Ramos’s

Rule 29 motion.

IV

Defendant-Appellant SergioRamos-Atondo contends that

the district court abused its discretion when it admitted

Ramos-Atondo’s prior conviction for alien smuggling under

Rule 404(b) of the Federal Rules of Evidence. The

government to the contrary contends that Ramos-Atondo

waived his right to challenge the admission of his prior

conviction because he stipulated to its introduction. Absent

waiver, the government maintains that the district court did

not err because Ramos-Atondo’s alien smuggling conviction

was relevant to prove his knowledge, intent, common plan or

scheme, and absence of mistake in his participation in a

conspiracy to smuggle marijuana. We review a district

court’s admission of evidence for abuse of discretion. United

States v. Rizk, 660 F.3d 1125, 1130 (9th Cir. 2011). Although

we reject the government’s waiver argument, and address the
UNITED STATES V. RAMOS-ATONDO 15

propriety of admission of the alien smuggling conviction on

its merits, we conclude there was not error under the

applicable rules of evidence, and we affirm.

A

ConsideringRamos-Atondo’smotion in limine to exclude

the alien smuggling conviction, the district court found that

evidence of Ramos-Atondo’s alien smuggling conviction was

not too remote in time because it occurred within the last two

years. The district court further found that Ramos-Atondo

committed the act since he pleaded guilty to the offense, and

that cross-border alien smuggling using a panga boat was

sufficiently similar to the marijuana smuggling charge here. 

In its opposition to Ramos-Atondo’s motion, the government

urged that the prior alien smuggling conviction was relevant

to Ramos-Atondo’s knowledge and that it showed that his

actions were intentional. At the evidentiary hearing, the

district court asked the government further to address whether

the prior conviction tended to prove a material point. The

government responded that the prior alien smuggling

conviction would show that Ramos-Atondo had a plan, and

that the use of a panga boat to smuggle is a common scheme

that he uses. The government also offered the conviction as

evidence that Ramos-Atondo’s presence on the panga boat

was not a mistake. The district court admitted the prior

conviction under Rule 404(b) of the Federal Rules of

Evidence, determining that with a limiting instruction, the

evidence was not unfairly prejudicial under Rule 403 of the

Federal Rules of Evidence, because prejudice did not

outweigh probative value.

At trial, the government called two border patrol agents

to testify regardingRamos-Atondo’s prior conviction. Agent
16 UNITED STATES V. RAMOS-ATONDO

Swaine testified that he conducted surveillance on an alien

smuggling operation involving 15–20 people and a panga

boat, on July 17, 2009. Agent Martinez testified that he

interviewed Ramos-Atondo on July 17, 2009, and that

Ramos-Atondo said that his role was to load the gasoline on

the boat and change nozzles on the gas can during the trip. 

The record contained the following stipulation:

Plaintiff United States of America . . . and

Defendant Sergio Ramos-Atondo . . . hereby

stipulate to the following: On November 16,

2009, Defendant Sergio Ramos-Atondo

pleaded guilty to a single-count information

charging him with a violation of Title 8,

United States Code Section 1324(A)(1)(A)(II)

and (B)(2) for bringing in illegal aliens and

aiding and abetting in the United States

District Court in the Southern District of

California.

In her closing argument, the prosecutor referred to RamosAtondo’s smuggling history. The prosecutor said that

Ramos-Atondo admitted to being part of the boat crew in a

prior smuggling event, and that this participation

demonstrates his intent, motive, plan, and knowledge of how

to conduct panga-boat smuggling from Mexico into the

United States.

We are not persuaded that Ramos-Atondo waived

objection to the introduction of his prior smuggling

conviction or the facts underlying that conviction. First, the

language of the stipulation is narrow. It refers only to

Ramos-Atondo’s guilty plea. Second, the stipulation in our

view does not mean more than that if the conviction is
UNITED STATES V. RAMOS-ATONDO 17

admitted, this identifies the prior crime. In the totality of

circumstances here, we conclude that Ramos-Atondo did not

waive his objection to the admission and use of his prior alien

smuggling conviction based on his narrow stipulation about

his prior guilty plea. We do not think that this record shows

an intentional relinquishment of Ramos-Atondo’s right to

challenge the admission of evidence. We conclude that there

was no waiver, and so 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 bad

character, but they may be admissible to show “motive,

opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.” Fed. R. Evid.

404(b). We employ a four-part test to determine the

admissibility of Rule 404(b) evidence:

Such evidence may be admitted if: (1) the

evidence tends to prove a material point; (2)

the other act is not too remote in time; (3) the

evidence is sufficient to support a finding that

defendant committed the other act; and (4) (in

certain cases) the act is similar to the offense

charged.

United States v. Bailey, 696 F.3d 794, 799 (9th Cir. 2012). 

To show relevance under the first prong, “the government

must articulate precisely the evidential hypothesis by which

a fact of consequence may be inferred from the other acts

evidence.” United States v. Mayans, 17 F.3d 1174, 1181 (9th

Cir. 1994) (internal quotation marks and citations omitted). 

Where the defendant’s knowledge is contested, we have
18 UNITED STATES V. RAMOS-ATONDO

“emphasized that the government must prove a logical

connection between the knowledge gained as a result of the

commission of the prior act and the knowledge at issue in the

charged act.” Id. at 1181–82. Even if relevant, Rule 404(b)

evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice. 

See Fed. R. Evid. 403; United States v. Flores-Blanco,

623 F.3d 912, 919 (9th Cir. 2010).

Ramos-Atondo contends that the government did not

show a clear connection between the prior conviction for

alien smuggling and the marijuana smuggling charges. We

disagree. The alien smuggling conviction was relevant

evidence for several reasons. First, it demonstrated RamosAtondo’s knowledge of cross-border smuggling procedures,

including managing the gas and engine on a panga-style boat

as it made its way from Mexico to the United States in the

middle of the night. That Ramos-Atondo had previous

experience in handling the gas and engine during a smuggling

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

not merely present on the boat with no knowledge of the

underlying smuggling operation. Second, the prior

conviction further tends to prove the material point that

Ramos-Atondo would understand the difference between

smuggling aliens and smuggling marijuana, which goes to his

knowledge, plan, and intent to smuggle narcotics. See

Flores-Blanco, 623 F.3d at 919–20 (“[T]he prior acts were

sufficiently similar to the present offense to show

[defendant’s] knowledge of the present smuggling scheme

and his intent and plan to participate in it.”). Third, the

conviction was also relevant to show a modus operandi of

smuggling involving use of open panga boats that were to be

unloaded on a dark beach in earlymorning hours. See United
UNITED STATES V. RAMOS-ATONDO 19

States v. Ramirez-Jiminez, 967 F.2d 1321, 1326 (9th Cir.

1992).

The alien smuggling conviction was not a prior bad act

offered to show bad character of Ramos-Atondo. Rather, it

was relevant evidence tending to show that what RamosAtondo did in this case was illegal, that he was participating

in drug smuggling. Even if a district court permissibly could

have decided otherwise and excluded the evidence, we

conclude that the district court did not abuse its discretion in

admitting Ramos-Atondo’s prior alien smuggling conviction

under Rule 404(b) of the Federal Rules of Evidence. As

explained above, there were several logical theories that made

the evidence relevant and supported the conclusion that the

probative value of the evidence was not outweighed by

prejudice from it.

Ramos-Atondo possibly suffered some practical prejudice

as a result of admitting evidence of his prior smuggling

crime, in the sense that any evidence that tends to show guilt

admitted against a defendant charged with crime may cause

prejudice because the relevant evidence of guilt increases the

likelihood of a conviction. But because of the probative

value of the evidence, it was not unfair prejudice that would

warrant exclusion under Rule 403 of the Federal Rules of

Evidence. See Flores-Blanco, 623 F.3d at 920 (“The

evidence was probative of [defendant’s] knowledge and

intent and not of the type that would provoke an unfairly

prejudicial emotional response [from the jury].”). Further,

any such practical prejudice was minimized by the district

court’s careful limiting instruction to the jury. Id. We

conclude that the district court did not abuse its discretion by

admitting Ramos-Atondo’s prior alien smuggling conviction
20 UNITED STATES V. RAMOS-ATONDO

under Rule 404(b) and not excluding it under Rule 403 of the

Federal Rules of Evidence.

V

The district court did not abuse its discretion by

instructing the jury on a theory of deliberate ignorance in the

context of a conspiracy to import marijuana, did not err in

denying Ramos’s Rule 29 motion, and did not abuse its

discretion by admitting evidence of Ramos-Atondo’s prior

alien smuggling conviction under Rule 404(b) of the Federal

Rules of Evidence.

AFFIRMED.