NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0232n.06 No. 10-2340 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. JOSE A. SANDOVAL, Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UNITED STAT ES DIS TRICT C O U R T F O R T H E WEST ERN DISTRICT OF MICHIG AN O P I N I O N

BEFORE: SUHRHEINRICH, GIBBONS, an d McK EAGU E, Circuit Judges. McK eague, Circuit Judge. D e f e n d a n t- A p p e ll a n t J ose A. Sandoval was convicte d in a ju r y trial for obstructing justice in violation of 18 U.S.C. § 1503 by interfe ring with a materia l witness’s g iving of truthful testimony . He se eks re versa l of his conviction, arguing that it rests on evidenc e imp roperly admitted under Fe dera l Rule of Evidence 404(b). Be cause the evidenc e was proper ly admitted to show intent, we AF F IRM the judg ment of the district cour t. I. BACKG ROUND Def endant Sandoval is an attorney who primarily prac ticed in immigra tion, t houg h he sometimes assisted hi s i m m i gration clients who neede d leg al repr esenta tion on other matters. Be g inning in la te 2008, he repr esente d Har lenne Perez Trujillo (“Per ez”) in a series of actions that

eventua lly

led to the ca se at ha

nd.No. 10-2340

USA v. Sandov al Preliminary Eve nts I n November 2008, Perez was put unde r an order of remova l by I mmigration a nd Customs Enforc ement (“ I C E ”) beca use she had been deporte d befor e and had ree ntere d the U.S. without authorization. Sandoval repr esente d her in the remova l pr ocee dings. Fe dera l I CE ag ents had a lso acquir ed e v i d ence that Perez was invol ved in making fra udulent documents such as false driver’ s licenses, perma

nent residenc y car ds, and the like. This evidenc e was acquir ed with the help of I CE informant Be njamin Gar cia Gar cia (“G arc ia”)

. In order to buy more time to continue the document fra ud investigation, I CE consulted with the U.S. Attorney ’s office and decide d to char g e Perez with violating 8 U.S.C. § 1326(a) , which prohibits unauthorized ree ntry afte r deporta tion. Thus, Perez’s

remova l proce eding , which was an ad m i n i s t rative immigra tion proce eding , chang ed to a criminal prosec ution. Sandoval continued his repr esenta tion of Perez in this new criminal matter. D u r in g th e p e n dency of Perez’s ree ntry case , the Gover nment advised Sandoval that his c li e n t

was also being investigated for document fra ud. The lawy ers spoke of a proff er but could not come t o an ag ree ment, and Sandoval testified that he did not think much of the investigation at fi rs t beca use Perez denied that she was involved. On Dec ember 22 , 2 0 0 8 , P erez appea red befor e the district court and pleade d g uilty to the ree ntry char g e. At that appe ara

nce, one of the Gove rnment attorney s informed the c ourt that Perez was a lso being investigated for doc ument fra ud. The Docume nt Fraud Case Against Perez Sandoval t estified at his trial that throug hout his repr esenta tion, Perez maintained that she

was innocent of document fra ud and told him that someone named Migue l Najer a (“N ajer a”) could

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USA v. Sandov al

v er i fy h er i nnocenc e. Perez, howeve r, testified that she told Sandoval she and Najer a wer e bot h involved in the fra

udulent document sche me. I CE lear ned from Gar cia that Najer a was also involved in documen t fr aud. On December 24, 2008, while Najer a was being held in Kent County J ail for a traff ic violation, I CE Ag ent Gwy n paid him a visit. Gwy

n falsely claimed that Perez had implicated him in document fra ud, and Najer a then confe ssed to traff

icking in false documents with Pe re z . S o o n after, Najer a was taken into custody as a materia l witness pursuant to 18 U.S.C. § 3144 in the g rand jury investigation of Perez. Assistant Fe dera l Public Def ender Sean Til ton (“Tilton ”) wa s ap p ointed as Najera’ s counsel. On Fe bruar y 10, 2009, Najer a testified befor e a fede ral g rand jury that he, Perez, and Perez’s domestic partne r, Abel Ba

rre ra (“B arr era ”), wer e involved in traff icking fra udulent d o cu m ents, and an indictment issued ag ainst Perez char g ing her with rela ted crimes. Sandoval co n t i n u ed his repr esenta tion of Perez. Throug hout this time, Sandoval kept Perez’s family apprised of her case . He spoke over the phone with B arr era , who had previously been remove d from the U.S. and was waiting for Perez at the U.S.–Mex ican border

. Sandoval me n ti o n e d to B a r r e r a that Najer a was cooper ating ag ainst Perez, and Ba rre ra informed S an d o v al that Najer a was operating under a false name. Sandoval asked 1 B a r r e r a to o b ta in d o c u

me ntation proving Najer a’s identity so he could challeng e Najer a’s cre dibilit y .

Up to that point, Najer a was known as “Mar cos Guer rer o” to Sandoval and the other 1 attorney s involved in the documents ca se. - 3 -No. 10-2340

USA v. Sandov al Najer a’s deposition was schedule d for Fe bruar y 24, 2009, the same day Perez was schedule d

to be arr aig ned on the document fra ud char g es. Sandoval testified that they planned to enter a plea of not g uilty

at the ar raig nment. Sandoval's February 22 Jail Visit to N ajera On Fe bruar

y 22, 2009, Sandoval visited Perez in the Newa y g o County J ail to talk about the upcoming arr aig nment and deposition. Sandoval’s meeting with Perez was interrupted by another visitor. Be cause their meeting was not o v er , S an d o v al decide d to wait for Perez to see her other visitor. Whil e he was waiting , Sandoval asked to see Najer a, wh o wa s b eing held at the same fac ility

. Sandoval testified that at the time, he was unawa re he was doing any

thing wrong beca

use he did not know there was a differ ence betwee n reg ular witnesses and materia l witnesses. Perez and Ba rre ra, howeve r, testified that Sandoval told them he could not talk to Najer a beca use Najer a was repr esente d by

a lawy er. The jail surveillance video showed tha t Sandoval and Na jera met in a sm all meeting room for approxi mately 11 minutes. The men exit ed the room and talked for about three more mi nutes in the hallway

. Najer a testified that Sandoval asked him to chang e his testimony at the deposition, say ing that he would only g et six months in jail for lying in court, and advised hi m t o fire his attorney

. Najer a testified that he told Sandova l that his g rand jury testimony was the truth but that Sandoval still t old him to chang e it. Sandoval testified that he first identified himself as Perez’s attorney and Najer a then beg an discussing how he felt about having a public defe nder. Najer a rema rked that it must be nice to have

a private attorney and told Sandoval that he couldn’t co m m u n i cate with his attorney due to the - 4 -No. 10-2340

USA v. Sandov al lang uag e barr ier. Sandoval told Na j er a h e k n ew Najer a was not g oing by his rea l name. Najer a stay ed quiet for a few seconds and said “they g ot me.” He asked Sandoval what would happen if he chang ed his te stimony

. Sandoval said that it could be perjury , advised him to consult his attorney , and asked Najer a to tell the truth. He also told Najer a that no one is obligated to keep their attorney

. Najer a then resumed complaining about his inability to communicate with the public defe nder. On the way out, Najer a ag ain asked Sandoval what the penalties might be if he chang ed his testimony

. Sandoval ans we re d that it might be six months to two or three y ear s, depending on a person’ s criminal history , and re peate d that Najer a should talk to his attorney

. Sandoval then went back to se e Perez and told he r he met with Naje ra. Per ez testified that she asked Sandoval whether he was g oing to g et in trouble for seeing Najer a, since Sandoval had told her tha t he couldn’t spea

k to him, and that Sandoval responde d he sig ned the jail log book only to

see Perez, not Najer a. Records showed that on Fe bruar y 22, Sandoval signe d his name and date in the jail log book but did not wr ite down who he w as g oing to se e. Pere z also stated that Sandoval sug g ested she send Najer a a note persua ding him not to te stify ag ainst her and to f ire his attorney

. Sandoval denied mentioning the lo g b o o k t o P ere z and emphasized that he knew there was surveillance at the jail. The Postponed February

24 Deposition and Aftermath On Fe bruar

y 24, 2009, Perez and Najer a wer e transporte d in the same van from Newa y g o County J ail to the courthouse in G rand Rapids for the arr aig nment and deposition. During the van ride, P er ez an d Najer a spoke about Najer a’s meeting with Sandoval. Perez testified that she told Najer a what Sandoval had told her—tha t if he rec anted his g rand jury testimony he would be in jail - 5 -No. 10-2340

USA v. Sandov al for a short time for perjury and if he fired his attorney , Mr. Sandoval would be able to visit him. She stated that Najer a responde d he would rec ant if Perez paid for a private attorney

. Naj er a t estified simil arly , stating that Perez told him to rec ant his testimony , ever y thing would be fine, and that Perez would g et him an attorne y when he fired the public defe nder. W h en t h ey arr ived at the courthouse in Gra nd Rapids, Najer a told his attorney Tilto n t h at Sandoval had c ome t o see him in jail and asked him to chang e his testimony and fire his attorney

. Tilton broug ht this to the attention of his supervisor, Fede ral P ublic Def ender Ray Kent (“Kent” ), and, without disclosing specific s, the defe nders reque sted an ad j o u rn m en t. Mag istrate J udg e Scoville gr anted the r equest, a nd the deposition was re schedule d for Ma rch 5. After the deposit io n w a s p o s tp o n e d , Sa n d o v a l a p p r o a c h e d I CE A g e nt Gwy n, the investigating

case ag ent for the document fra ud case ag ainst Perez, and broac hed the subject of a proff er, but they did not come to an ag ree ment. Gwy n then mentioned Perez’s case g oing to trial, to which Sandoval responde d that he didn’t see the case g oing to trial as Perez would probably plead g uilty

. Sandoval admitted he had ma de that comment but said it had si mply been his opinion, he ha d not discussed it with P ere z, and Perez had alwa y s maintained her

innocenc e. Najer a and Perez wer e transporte d back to Newa y g o in the same van. Najer a told Per ez he told his attorney ever

y thing, and Perez told Najer a that there would be another deposition at which he shoul d rec ant hi s g rand jury testimony

. Ba ck at the j ail that same day , Fe bruar y 24, Perez sent

a note to Najer a that mentioned providing a lawy er for him and told him to “trust us.” That evening , Perez made a third-per son call through her s tepfa ther in Gra nd Rapi ds to Ba

rre ra in Mexi co. She informed Ba

rre ra that Najer a was willing to rec ant his testimony but that they would have to pay for - 6 -No. 10-2340

USA v. Sandov al

a lawy er for him. She also asked Ba rre ra to let Sandoval know she had succe ssfully spoken to Najer a. The next day , Fe bruar y 25th, Sandoval called Tilton sever al times and left a messag e say ing he would g o see Najer a unless Tilton called him back. Tilton called Sandoval back and told him not to see Najer a unless Tilton was prese nt, to which Sandoval responde d that he did not think the law preve nted him from seeing Najer a. On Fe bruar y 26, S an d o v al called J udg e Scoville’s chambe rs seeking permission to speak to Najer a. He was told that he would have to g et all the other attorney s

on the line befor e the judge would speak with him or t h at he could file a motion if he wanted a hear ing on the matter. On Fe bruar

y 27, Fe dera l Public Def

ender Kent met with Judge Scoville to ask whether the Def ender ’s Off

i ce h ad a duty to repor

t Sandoval’s conduct to the s tate bar or t o law enforce ment. Kent posed the question as a hy pothetical but J udg e Scoville rea liz ed he was talking about Sandoval. J udg e Scoville then sche duled a status conf ere nce f or Mar ch 3. The March 3 Status Conference At the status confe renc e, Sandoval a rg ued that he should be allowed to se e Najer a beca use Najer a’s family had communicated to Sandoval that Najer a wished to speak to him. J udg e Scoville asked Sandoval whether he had ever had contac t with Najer a, and Sandoval sidestepped the question by answe ring that he had contac t with Najer a months befor e the document fra ud case beg an but did

not mention he had seen Najer a in the Newa y g o County J ail the previous wee k. J udg e Scoville then asked Sandova l point blank, “Did y ou talk to [ Najer a] directly or indirectly while he wa s detained under order of the court? ” Sandoval lied to the J udg e, saying, “No, Your Honor. Aga i n, it was - 7 -No. 10-2340

USA v. Sandov al throug h other persons who he made known to me that he wanted to talk to me . . . . I haven’ t talked

to him direc tly or otherwise, sent him messag es or any thing like that, no, espec ially with the strong advice from his counsel.” Sandoval admitted he lied to the J udg e and testified that he was nervous beca use he h ad consulted with three differ ent people afte r visiti ng Najer a and rea liz ed he was on shaky g round, though still not e ntirely sure whe ther he had done some thing wr ong . He stated that by the time Judge Scoville a sked him the direc t que stion, he was “re ally scar ed” and “didn’t know what the hell [was] g oing on” and “wa nt ed t h e co u rt t o rul e on the merits of my argument as to

acc ess to the witness without considering what may have be en wr ong by

me.” The March 5 De

position Sometime in betwee n the postponed depositi o n o n Februar y 24 and the resc heduled deposition on Marc h 5, Najer a rece ived a letter from his g irlfriend, D ulce Esquivel, that infor med him Ba rre ra had visited Najer a’s family i n M ex i co aski ng for documents and had been calling Esquivel asking her to tell Najer a to fire his attorney

. Najer a testi fied that afte r reading the l etter, he beca me afr aid. He was afr aid of Ba rre ra beca use he hear d Ba

rre ra had been involved in a murder. At the deposition on Marc h 5, Najer a told Tilton about the letter from his g irlfriend and that he did not want to testify

. The deposition proce eded any way , and Najer a stated ear ly on that he did

not want to make a statement. Assista nt U.S. Attorney Fr ank (“F rank” ) continued to ask him questions, and Najer a beg an testify ing inconsistently with his g rand jury testimony , denying that he sold fake documents for Perez. Najer a stated at trial that he lied during this deposition. After some attempts to persua de Najer a to tell the truth, Kent and Tilton disclosed the letter to Fr ank, explaining that the letter was why Najer a was testify ing inconsistently

. Najer a, with his counsel, then met with - 8 -No. 10-2340

USA v. Sandov al Gover nment attorney s in a proff er meeting during which the Gover nment lear

ned that Sandoval had visited Najera

in jail on Febr

uary 22. The Case Against Sandoval After the Gover

nment lear

ned that Sandoval had visited Najer a in jail, the cas e ch anged

course and beca

me an investigation and eventua l prosec ution of Sandoval. Perez was appointed new counsel and proce eded to cooper ate with the Gover nment in Sandoval’s prosec ution in exchang e for dismiss al of the document case , work authorization, a nd immigra tion be nefits for herse lf, Ba rre ra, and her children. Ba

rre ra and Najer a also rec eived work authorization and simil ar immi gra t i o n benef its in ex chang e for

their coope ration. Sandoval was ul t i m at ely indicted on two counts. First, he was char g ed with corr uptly influencing , o bstructing , and impeding, or endea voring to influence , obstruct, or impede, the due administration of justice in violation of 18 U.S.C. § 1503 “by committing numerous acts desig ned

to interf er e with the g iving of truthful testimony by a materia l witness for the United States[.] ” Second, he was charged wi t h wi llfully suborning and procur ing Najer a “to commit perjury by testify ing f

alsely under oath to a materia l matter in [the Perez documents case ].” The Rule 404(

b) Motion Prior to tr ial, the Gover

nment notified the defe nse of its intent to of fer , under Fe dera l Rule of Evidence 404(b), evidenc e of Sandoval’s actions in a n immigra tion pr ocee ding unrela ted to the Perez case . Gar cia, the informant who initially told I CE about Perez’s and Najer a’s fr au d u l en t activities, was a former client of Sandoval’s. He would testify that in 2007, Sandoval advised him

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USA v. Sandov al to falsely attest on an immigr ation form, and subse quently claim in a sworn inter

view, that he ha d

never previously

been de ported. Sandoval filed a motion in limine objecting to the evidenc e. The district court ruled that the Gover nment could not offe r the evidenc e i n i t s ca se in chief but could ref er to it on cross examination and call Gar cia for rebuttal if Sandoval chose to testify

. I t cited United States v. Colon , 880 F.2d 650 (2d C ir. 1989), as the basis for its ruling

. The defense rene wed its o b j ec t i on at t rial based on information from an interview with Gar cia that the Gover nment h ad t u rn ed over to the defe nse the night befor e, which reve aled that Gar cia claimed not only that Sandoval had advised him

to lie in the 2007 matter but that Sandoval’s supervising attorney at the time had also advised Gar cia

to lie about the same matter in 2001. The argument was that this new evidence cast doubt on whether the prior act—the advice to lie—ever occur red. The district court stated it was “not g oing to g et that deep into this,” and told de fense counsel that “the way y ou are proce eding we are g oing to have a nother trial.” The c ourt then enf orce d its ruling. Sandoval’s Trial I n add i t i o n t o the fore g oing testimony from Perez, Najer a, Ba rre ra, Tilton, Kent, and Sandoval, the Gover

nment prese nted testimony from Alex M u rr i et a, Perez’s cousin, and Gar cia. Murrieta testified that in April 2009, afte r Sandoval beca me the targ et of an investigation, Sandoval

contac ted him and asked to meet him in an Offic e Max. Sandoval told Murrieta he was g oing to be

remove d from Perez’s case , that he had done something he didn’t think would cause a problem but would now cost him his law license, and that Perez could cooper ate if she wanted but should “take into account e very

thing he had done [for] them.” - 10 -No. 10-2340

USA v. Sandov al Gar cia testified twice during the course of trial. He testified in the Gover nment’s direc t case that he soug ht Sandoval’s leg al advice when his perma nent residenc y application was d e n ie d a n d that Sandoval prese nted him with the option of becoming an informant for I CE. Gar cia also testified that he informe d on Perez and Na jera

. Sandoval was the sole witness for his defense . On cross examination, he was asked about his former repr esenta tion of Gar cia. I n October 2007, Sandoval had signe d an I -485 form for Gar cia, attesting that Gar cia had never previously been deporte d from the U.S. An I -485 form is submitt ed under penalty of perjury

. Sandoval denied that he knew Gar cia had in fac t been deporte d befor e and that he advised Gar cia to lie on the form and at the follow-up i n t er v i ew. On redire ct, Sandoval explained that “depor

tation” is a leg al term of a rt. I f someone is simply turned a way at the borde r without any leg al proce eding , it is not a deporta tion. I f, howeve r, a person takes part in an interview and falsely m i s repr esents him or herse lf as a U.S. citizen, then it would count as a deporta tion. Sandoval testified that Gar cia had not told him the critica l information that he had falsely repr esente d himself as a U.S. citizen. Gar cia told him that he had been stopped at the border and fing erpr inted but nothing more. Sandoval contac ted the border point whe re Gar cia had crosse d and did not find any information. Thus, Sandoval signe d the I -485 form believing Gar cia had never been deporte d. S andoval stated that only later, when Gar cia rec eived notice to appea r for an interview, Ga rc i a

reme mbere d and tol d Sandoval t hat he had portray ed him self as a citiz en at t he border. Sandoval told him that he could be detained at the interview and that he could not qualify for perma nent residenc y . Gar cia went to the interview any way and returne d to Sandoval’s office when he rec eived

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USA v. Sandov al

a notice of denial. I t was then that Sandoval contac ted I CE to see if they had any interest in Gar cia as an infor

mant. The Gover

nment called Gar cia ag ain as a rebuttal witness. Gar cia testified that h e t o ld Sandoval from the beg inning that he had been deporte d for misrepre senting himself as a U.S. citizen. He said Sandoval advised him to lie on the I -485 form and ag ain at the interview about never having been de ported. Ga

rcia asked Sandova l to accompa ny him to the interview, but Sandoval told him it would be expensive to r etain him f or the meeting

. Gar cia, howeve r, g ot the money toge ther and asked Sandoval ag ain, but Sandoval told him he was busy with other cour

t a ppointments that day

. Gar cia also testified that Sandoval told him if he g ot caug ht, he should say Sandoval was unawa

re of the situation. The Gover

nment’s theory of the case was that Sandoval knew all along Perez was involved i n d o cu ment fra

ud, that he endea

vored to g et Najer a to chang e his testimony knowing that t h e chang ed testimony would be false, and that he t ri ed t o cover up his trac ks afte r the Fe bruar y 22 meeting b y s ee k i n g a leg itimate meeting with Najer a and ly ing to J udg e Scoville. Sandoval’s defe nse wa s that he believe d Perez was innocent and thus ha d not encour ag ed Na jera to give false testimony

. The jury was g iven the following limit ing instruc tion: You have hear d testimony that the defe ndant committed acts and wrong s other than the ones char g ed in the indictment. I f y ou find the defe ndant did t h o s e acts and wrong s, y ou can consider the evidenc e only as i t rela tes to the gover

nment’s claim on the def endant’ s intent or absenc e of mistake or acc ident. You must not consider it for any other purpose

.

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USA v. Sandov al The jury returne d a verdic t of g uilty on the obstruction of justice c harg e but ac quitted Sandova l of suborning perjury

. Sandoval appea ls the admission of Gar cia’ s rebuttal testimony as improper under Rule 404(b). II. ANALYSIS A. Standard of

Review and Ap plicabl e Law Fe dera l Rule of Evidence 404(b) pr ovides: Eviden ce o f a cr i me, wrong , or other act is not admissible to prove a person' s char acte r in order to show that on a particula r o cc asi on the person acte d in acc ordanc e with the char acte r. This evidenc e may be admissible for another purpose, such as proving motive, opportunity , intent, pr epar ation, plan, knowledg e, identity , absenc e of mistake, or

lack of acc ident. This Circuit has outlined a three -step proce ss to deter mine the admissibili ty of evidenc e under 404(b). First, the district court must decide whether there is sufficie nt evidenc e that the other

acts actua lly occur

red. United States v. Haywood , 280 F.3d 715, 720 (6th Cir. 2002). Second, the

court must decide whether evidenc e of the other acts is admissible for a leg itimate purpose, meaning that it is “probative of a materia l issue other than char acte r.” Id

. (quoting United States v. Johnson , 27 F.3d 1186, 1191 (6th Cir. 1994)). Third, the court must apply Rule 403 to deter mine whether the probative va lue of the evidenc e is substantially outweig hed by

the dang er of

unfair pr ejudice. Id

. Sandoval cha lleng es the district cour t’s deter mination at eac h step. The standard of revie w gover ning these st eps i s an ar ea of continuing inc onsistency in our circ uit. This disag ree ment is cente red on the proper interpre tation of the Supreme Court’s decision in Gene ral Electric Co. v. Joiner , 522 U.S. 136, 141 (1997), which s t at ed b ro ad ly that “abuse of discretion is the proper standard of revie w of a district court’s evidentiar y ruling s” and specific ally - 13 -No. 10-2340

USA v. Sandov al applied the standa

rd to revie w a district court’s exclusion of expert scientific e vidence under Rule 702. Rely ing on Joiner ’s pronounce ment, this court held that hear say evidentiar y deter minations are revie wed f

or an abuse of discretion, depa rting from pre cede nt that such deter minations were to be revie wed de no v o . T

r epel v. Roadway Exp., Inc. , 194 F.3d 708, 716-17 (6th Cir. 1999). I n so holding, we noted the oddity of apply ing an abuse of discretion standard to evidentiar y deter minations that are , in essenc e, questions of law. We stated, “I t is not clea r t o u s h o w a trial

court would have ‘discre tion’ to ignor e t h e d ef i n ition of inadmissible hear say in Fe dera l Rule of Evidence 801 or the foundation requireme nts for establishing exceptions to the hear say rule under Fe d er al Rules of Evidence 803 or 804[ .]” Id. We conclude d, howeve r, t hat “it is not thi s co u rt ’s privileg e to ‘question why ’” and revie wed the district court’s hear say deter mination for an abuse of discretion. Id. at 717. This court has not been so acquie scent in revie wing Rule 404(b) deter minations. Some case s have continued t o apply a three-pa rt standard: clear err or on whether other acts occur red, de novo

on whether evidenc e was admitted for a proper 404(b) purpose, and an abuse of discretion on Rule 403 balanc ing. O thers, re ly ing on Joiner , have a pplied abuse of

discretion to all three steps. 2

See, e.g. , United States v. Haywood , 280 F.3d 715, 720 (6th Cir. 2002) (apply ing abuse of 2 discretion standard to all three steps, noting tension in the case law but sta ting it wa s bound by the prior published case to the extent it conflicte d with subsequent case s, citing Trepel ); United States v. Jenk ins , 345 F.3d 928, 936 (6th Cir. 2003) (apply ing abuse of discretion standard) ; United States v. Ayoub , 498 F.3d 532, 547 (6th Cir. 2007) (apply ing three -par

t standard) ; United States v. Bell , 516 F.3d 432, 440 (6th Cir. 2008) (apply ing three -par

t standard but noting disag ree ment in Haywood ); United States v. Allen , 619 F.3d 518, 523 ( 6th Cir. 2010) (applying a buse of discr etion standard)

. - 14 -No. 10-2340

USA v. Sandov al Most rec ently , United States v. Clay , – F.3d –, 2012 WL 43592 (6th Cir. 2012), attempted

to rec oncile the three -par

t standard with Joiner , stating that revie wing a trial court’s conclusions of law de novo “is consistent with the Supreme Court’s admonition in Gene ral Ele ctric Co. v

. Joiner that we revie w evidentiar y decisions for an abuse of discretion, beca use it is an abuse of discretion

to make err ors of law or clea r err ors of fac tual deter

mination.” Clay , 2012 WL 43592, at *4 (citing United States v. McD aniel , 398 F.3d 540, 544 (6th Cir. 2005)). Clay explained that “ McD aniel simply took over wher e Trepel left off by clar ify ing that the abuse of discretion revie w of evidentiar y deter minations which Joiner commands is not inconsistent with the court’s abiding duty to revie w questions of law de novo.” Id. This conclusion, we believe, is technica lly inconsistent wi th Trepel , wher e this court acknow ledg ed the seeming incong ruity of apply ing a discretionar y standard to a district court’s leg al deter minations, y et applied the discretionar y standard any

way in defe renc e to Joiner

. Howeve r, we ag ree with the g ener al principle that “it is an abuse of discretion to make err ors of law or clea r err ors of fac tual deter

mination” and do not believe i t fo re cl o s ed by Trepel

. See, e.g. , United States v. 3 Allen , 619 F.3d 518, 523 (6th Cir. 2010 ) (“ Ge n erally , an abuse of discretion is evident when the

re v i ew i n g co u rt is firmly convince d that a mistake has been made. A district court abuses its

The Trepel court, in fac t, seeme d to apply the abuse of discretion stand ar d i n n am e only , 3 finding that “the court err ed—that is, abused its ‘discre tion’—by not allowing the experts to testify reg arding the basis of their opinions.” Trepel , 194 F.3d at 7 1 7

. W e also note that this Court has subsequently rec og nized, in the context of hear say and other evidentiar y deter minations, that though “we revie w the district court’s admission or exclu s i o n o f evidenc e under an abuse- of-discr etion standard

. . . [,] this Court revie ws de novo the court’s conclusions of law and revie ws for clea r err or the court’s fac tual deter

minations that underpin it s leg al conclusions.” United St ates v. Martinez , 588 F.3d 301, 309 ( 6th Cir. 2009) (interna l citations and altera tions omi tted). - 15 -No. 10-2340

USA v. Sandov al discretion when it relies on clea rly err oneous finding s of fac t, or when it improperly applies the law

or uses an err oneous leg al standard.” ) (quoting Ross v. Duggan , 402 F.3d 575, 581 (6th Cir. 2004)); United States v. Spikes , 158 F.3d 913, 927 (6th Cir. 1998) (“A trial court abuses its discretion ‘whe n it relies o n cl ea rl y err oneous finding s of fac t, or when it improperly applies the law or uses an

err oneous leg al standard.’ ”) (quoting Christ ian Schmidt Brewing Co. v. G. Heileman Brewing Co. , 753 F.2d 1354, 1356 (6th Cir. 1985)). Ultimately , the decision to admit or exclude 404(b) evidenc e is revie wed for an abuse of discretion. But, like other discretionar y judgme nts (such as the decision

to issue or deny a preliminary injunction, see Christ i a n S ch mi d t B rewing Co. , 753 F.2d at 1356, 1358), fa ctual and le g al issues may reside within the ul timate decision. A discretionary judgme nt that rests on clea

rly err oneous fac ts or an improper application of the law or err oneous leg al standard, then, is not a s ound deploy ment of discretion but an abuse of it. We revie w the district court’s evidentiar y ruling for an abuse of discretion, rec og nizi ng that such an abuse occur s wher e the ruling rests on cle arly

err oneous fa cts or an imprope r application of the law or e rrone ous leg al standar d. See, e .g. , Spikes , 158 F.3d a t 927. B. Su ff icient Evidence that Other Act s Occurr ed Sandoval raises two issues reg a r ding the sufficie ncy of the other acts evidenc e: (1) the district

court err ed in failing to expli citly find that the other act occur red and (2) even had the district court made an expli cit finding , such finding would have been err or beca use the alleg ed act was established

on the testimony of a sole, uncorr oborate d witness wh o was not cre dible. On his second point, Sandoval points out that Gar cia was an info rm ant for I CE, part of his testimony about how he beca me an I CE informant was contra dicted by the testimony of I CE Ag ent Ba bcock, his claim that - 16 -No. 10-2340

USA v. Sandov al not only Sandoval but another

attorney advised him to lie on his immig ration form was somewhat outrag eous, and, in an int ervie w wit h I CE ag ents about S andoval’ s case , he failed to mention that he tol d Sandoval t hat he falsely repr esente d himself as a citiz en at the U.S. border , which was the critica l piece of information nece ssary for Sandoval to have known that the information on Gar cia’ s immigra tion form was fa lse. Reg arding Sandoval’s first point, this court does no t require a district court to make an expli cit finding that prior acts occur red. “[S] uch finding s [t hat other acts o cc u rr ed ] n eed not be express, but rathe r, may be implicit by virtue of t h e fa ct t h at the court admitted the evidenc e.” United States v. Matthews , 440 F.3d 818, 828 (6th Cir. 2006), abrogated on other grounds by Joiner , 522 U.S. at 1 4 1 ; s ee also United States v. W heele r , 349 F. App’x 92, 96 (6th Cir. 2009) (finding district court’s conclusion that prior act occur red was not e rror “[r]ega

rdless of any purported lack of ana ly sis”). On Sandoval’s se cond point, this court has found that “the testimony of a sing le witness is sufficie nt for a rea sonable jury to conclude that the defe ndant committed the prior acts, even wher e the witness is less than completely reliable .” Uni ted States v. Johnson , No. 10-5290, 2012 WL 284300, at *4 (6th Cir. J an. 31, 2012) (citing Matthews , 440 F.3d at 828–29). The fa ct that the testimony establishing a defe ndant’s o t h er ac t s is impeacha ble does not rende r the evidenc e irrele vant or insufficient, as long as “the jury can rea sonably conclude that the act occur red and that the defe ndant was the ac t o r.” Huddleston v. United States , 485 U.S. 681, 689 (1988). Whil e the Supreme Court has cautioned that the Gover nment may not introduc e evidenc e of other acts based

on “unsubstantiated innuendo,” id. , here , the other acts wer e established by the testimony of a sworn - 17 -No. 10-2340

USA v. Sandov al witness who claimed to be involved in the prior bad act. Fur ther, the above- mentioned issues casting doubt on Gar cia’ s cre dibilit y wer e draw n out on cross examination for the jury to consider. On this

rec ord, t he dis trict court did not abuse its discretion in impl i citly deter mining there was sufficie nt evidenc e of Sandova l’s alleg ed prior ba d act. C. Adm issib le for a Legitim ate P urpose “Evidenc e of other acts is probative of a materia l issue other than char acte r if (1) the evidenc e is offe red for an admissible purpose, (2) the purpose for which the evidenc e is offe red is materia l or ‘in issue,’ and (3 ) t h e evidenc e is probative with reg ard to the purpose for which it is offe red.” United States v. Be ll , 516 F.3d 432, 441–42 ( 6th Cir. 2008). The district court did not specify the purpose for which it was admitting the evidenc e, but it cited to United States v. Colon , 880 F.2d 650 (2d Cir. 1989) , as the basis for its ruling , which ca se discusses the admissibili ty of 404(b) evidenc e to show intent. The court ultimately instructed the 4 jury at the close of trial that it could consider the other acts only as it rela ted to the defe ndant’s intent or abse nce of

mistake or acc ident, which ar e admissible purposes unde r Rule 404(b). We a naly ze in turn whether eac h purpose was in issue and whether the evidenc e was probative of such purpose. 1. Intent Whether intent was in issue depends on the proofs and the defe ndant’s theory at trial. E.g. , United States v. Johnson , 697 F.2d 735, 738-39 (6th Cir. 1983) (“[W] e have held that wher e intent

Colon advised that wher e 404(b) evidenc e is offe red t o p ro v e k n owledg e or intent, its 4 introduction should be delay ed until the close of the defe ndant’s case when it is clea r whether those issues are rea lly in dispute. 880 F.2d at 660. This is why the distric t co u rt h er e disallowed the 404(b) e vidence in the Gover nment’s ca se in chief

. - 18 -No. 10-2340

USA v. Sandov al is a formal element of the g overnme nt’s case , but criminal intent can proper ly be inferr ed from the commission of the act itself, Rule 404(b) ’s intent e x ception may not justi fy admission of the prior

ac t evidenc e.”) ; United States v. Merriweather , 78 F.3d 1070, 1077 (6th Cir. 1996) (find i n g t h at knowledg e and ab s ence of mistake wer e not in issue beca use t he defenda

nt never claimed he was unwittingly eng ag ing in unl aw ful activity ). Where the char g ed offe nse is a specific intent crime, howeve r, “the prosec utor may use 404(b) evidenc e to prove that the defe ndant acte d with the specific intent notwithst anding any defe nse the de fenda

nt might ra ise.” Johnson , 27 F.3d a t 1192. Sandoval was indicted for obstructing the d u e administration of justice in violation of 18 U.S.C. § 1503 and suborning perjury in violation of 18 U.S.C. § 1622. On the obstruction of justice count, Sandoval was char g ed under the third clause of the statute, known as the “omnibus clause ,” which provides, “Whoever

. . . corr uptly or by threa ts o r fo rc e, o r by any threa tening letter or communication, influenc es, obstructs, or impedes, or endea vors t o influence , obstruct, or impede , the due administration of

justice, shall be punished as provided in subsection (b).” 18 U.S.C. § 1503. This court has interpre ted the statute to include “a mens rea require ment that limit s the scop e to those who ‘cor

ruptly ’ or intentionally seek to obstruct justice.” United States v. Bashaw , 982 F.2d 168, 170 (6th Cir. 1992 ) (c i t i n g Un i ted St ates v. Jeter , 775 F.2d 670, 675 (6th Cir. 1985)). “This require s that one impede the due administration of justice with ‘the g ener al intent of knowledg e as well as the specific intent of purpose to obstruct.’” Id. (quoting Jete r , 775 F.2d at 679). Subornation of perjury require s that the suborner “know that the suborned person’ s statements are false and that [t he perjure r] knows them to be false.” 60A A M . J U R . 2d Perjury § 108 (W es t, Westlaw throug h 2011); see also Riley v. United States , 647 A.2d 1165, 1174–75 (D.C. Cir. 1994) (“I t must be shown - 19 -No. 10-2340

USA v. Sandov al that the suborner induced the witness to testify in a cer tain way and that the suborner knew or believed that such testimony would constitute a fa lse oath.”) (quoting 4 Charles E. Torcia , W H A R T O N ’ S C R I M I N A L L A W , § 607, at 330 (14th ed. 1981 & Supp. 1993)). The crime of obstructing j u stice involves the specific intent of purpose to obstruct, and Sandoval also put his g ener al intent in issue by denying that he “cor ruptly ” or intentionally soug ht

to obstruct justice but rathe r spoke with Najer a intending to bring the truth to light. Sandoval’s state of mind was also in issue on the perjury char g e, as his defe nse was that he acte d under the belief that Perez was innocent and conseque ntly did not know that asking Najer a to tell the truth (as Sandoval understood it) would constitute perjury

. I t is clea r t h at n o t o n l y was intent in issue, it was the battleg round of tria l. Sandoval does not dispute that intent was in issue but argues that the rele vant intent was the intent to obstruct justice , not the intent to dece ive, and Gar cia’ s testimony was not probative of an intent t o obstruct justice. He also argues that Gar cia’ s testimony was not probative of his intent b ec au s e t h er e is no connec tion betwee n his alleg ed prior act of advising a client to lie on an immigra tion form and at a subsequent interview and the curr ent offe nse of asking a materia l witness

to rec ant his former

truthful testimony

. Neither contention i s well t aken. First, advisin g a cl ient to lie under penalty of perjury on

a form in connec tion with an immigra tion proce eding is cer tainly probative of an intent to obstruct justice. Where, as here , a defe ndant is char g ed with obstructing justice by endea voring to pr ocure falsehoods in a leg al proce eding , the intent to dece ive is subsumed in the intent to obstruct justice.

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USA v. Sandov al See , e.g. , United States v. Ellison , 336 F. App’x 483, 488 (6th Cir. 2009) (discussing willful intent to dece ive and willful intent to obstruct justice interc hang eably ). Second, we find Gar cia’ s testimon y probative of such i ntent. For other acts offe red under Rule 404(b) t o be probative of intent, they must be “substantially simil ar and rea sonably near in time” to the intent offe n s e at hand. Haywood , 280 F.3d at 721 (quoting United States v. Blankenship , 775 F.2d 735, 739 (6th Cir. 1985)). “[T] he prior acts need not duplicate ex actly the instant c harg e, but need only be sufficie ntly analog ous to support an infere nce of criminal intent.” United States v. Benton , 852 F.2d 1456, 1468 (6th Cir. 1988). Advising a client to lie d uring immigra tion proce eding s is, of course , not the same thing as attempting to g et a materia l witness to

rec ant truthful testimony in a criminal case , but they are simil ar in the rele vant respe ct: intentionally injecting falsity into leg al proce eding s wher e truth is of para mount importance

. This court has found 404(b) evidenc e admissible to show intent wher e t h e p ri or bad acts made it more probable that a defe ndant was acting dishonestly rathe r than ho n es t l y i n the char g ed conduct. See, e.g. , United States v. Gold Unlimited , Inc ., 177 F.3d 472, 488 (6th Cir. 1999) (finding evidenc e that defe ndants previously ran a fra

udulent business admissible to show that they intended to run their current

o peration as a py

ramid scheme wher e defe ndants claimed they ran a leg itimate business); United States v. Bro w n , 1 47 F.3d 477, 483 (6th Cir. 1998) (finding evidenc e that defe ndant defr auded

customers throug h one telemar keting company was admissible to s h ow he acte d with intent to defr aud at another wher e defe nd an t claimed he was a leg itimate salesman) ; Morganroth & Mo r g a n roth v. DeLorean , 123 F.3d 374, 379 (6th Cir. 1997) (finding evidenc e that defen d an t

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USA v. Sandov al

co n s istently failed to pay other lawy ers was admissible to show he intended to defr aud plaintif f lawy er in the instant ca se). Similarly , we f ind Garc ia’s testimony

probative of

intent here

. 2. Absence of Mistake or Ac cident Sandoval argues that absenc e of mistake was not in issue beca use his defe nse at trial was not that he had unknowing ly or unwittingly asked Najer a to lie but that he had never asked Najer a to lie

at all. This mischara cter izes the issue. Sandoval’s defe nse was that he asked Najer a to tell the truth

as Sandoval honestly but mistakenly understood it, which, phrase d in another way , is that he had unknowing ly or unwittingly asked Najer a to lie: a cl as s i c m istake defe nse. This court has consistently rec og nized that absenc e of mistake is in issue wher e a defe ndant admits involvement in a specific event but a sserts that he acte d unwittingly or with hone st intent. See , e.g. , McD onald

v. Moorman , 225 F.3d 660 (6th Cir. J uly 24, 2000) (per curiam) (unpublished table d ec i s i o n ) (finding other acts evidenc e admissible to show absenc e of mistake wher e defe ndant admitted he had delivere d a bag of coca ine but c laimed he did not know what wa s inside the bag ); United States v. Stokes , 392 F. Ap p ’x 362, 367 (6th Cir. 2010) (unpublished) (finding evidenc e of prior audit notifications admissible to show intent, k n o w le d g e , a

n d absenc e of mistake wher e defe ndant char g ed with healthca

re fra ud asser ted a defe nse of g ood faith mistake); cf. United States v. W ard , 190 F.3d 483, 489 (6th Cir. 1999) (finding absenc e of mistake was not in issue wher e the defe ndant’s “def ense was not that she mistakenly thought she was selling powder ed sug ar instea d of coc aine” ). Thoug h we find that absenc e of mistake or acc ident was in issue, Gar cia’ s testimony was not probative of those issues. I n the case s cited above, the prior bad acts wer e rele vant to show that the defe ndant could not ha

ve bee n mistaken about the na ture of his c harg ed conduct beca use the prior - 22 -No. 10-2340

USA v. Sandov al

occur renc es put the defe ndant on notice that his char g ed conduct was criminal. I n Moorman , the defe ndant was char g ed with aiding and abetting the distribution of coca ine, to which he asser ted that he did not know the bag he delivere d was filled with coca ine. This court found admissible evidenc e that the defe ndant had used coca ine befor e and had delivere d coca ine for the same person on prior

occa sions be cause it tende d to show that the defe ndant was not mistaken a bout the contents of the bag on the occa sion at hand. Moorman , 225 F.3d at 660. I n Stokes , the defe ndant, char g ed with health ca re fraud, asserted a defense of g ood faith m istake. This court found admissible evidence that the def

endant ha d previously

rec eived a

udit notifications fr om insura nce companies about his billing prac tices beca

use it tended to show that the defe ndant’s inacc urate billings wer e not a product of mistake but intentional fra ud. Stokes , 392 F. App’x at 367. Her e, howeve r, the fac t that Sandoval may have advised a client to lie in immigra tion procee dings in 2007 ha s no bear ing on whether he knew Perez was involved in document fra ud in 2009 and there fore knew he was acting corru p tly when he asked Najer a to vouch for Perez’s innocenc e. Thus, Gar cia’ s testimony was not probative of an a bsence of mistake in this case a nd err oneously

admitted on this ground. D. Rule 403 Balancin g The last step in the 404(b) inquiry is to d et er m ine whether , under Rule 403, the probative value of the evidenc e is substantially outweig hed by the dang er of unfair prejudice

. Haywood , 280 F. 3d at 720. This Court aff ords a district court’s Rule 403 balanc ing decision “broa d discretion,” looking at the evidenc e “in the light most favor able to its proponent, maxi miz ing its probative value and minimi zing its prejudicia l eff ect.” United States v. Poulsen , 655 F.3d 492, 509 (6th Cir. 2011) (quoting United States v. Bonds , 12 F.3d 540, 567 ( 6th Cir. 1993)). - 23 -No. 10-2340

USA v. Sandov al “One fac tor in balanc ing unfair prejudice ag ainst probative value u n d er R u l e 403 is the availability of other means of proof.” Merriweather , 78 F.3d at 1077; see also Huddleston , 485 U.S.

at 688 (quoting Advisory Commi ttee Notes on Rule 404(b) that urg e the balanc ing decision be made “in view of the availability of other means of proof” ); Old Chief v. United States , 519 U.S. 172, 182 (1997) (stating that courts should consider the “full evidentiar y context” of the case when weig hing probative value ag ainst potential prejudice ). Another fac tor is the closene ss in time of the other acts, “thoug h this court has not a dopted a brig ht-line rule conce rning remotene ss.” Matthews , 440 F.3d at 830 ( citing United States v. Ismail , 756 F.2d 1253, 1260 (6th Cir. 1985)); see also Brown , 147 F.3d at 483 (taking into acc ount when the o t h er ac t o ccurred in the balanc ing analy sis). Also rele vant is whether the district court g ave a corr ect limit ing instruction to the jury

. See, e.g. , United States v. My ers , 123 F.3d 350, 363–64 ( 6th Cir. 1997). Sandoval makes two arguments reg arding the Rule 403 balanc ing question. First, he takes issue with the fac t that the district court made no expli cit fi n d i n g t hat the proff ere d evidenc e was

more probative than prejudicia l. This arg ument is without merit, as “[t] his Court has stated that ‘this balanc ing a

naly sis may

be subsumed in the court’s ruling admitting the evidenc e.’” United States

v. Blankenship , 954 F.2d 1224, 1229 (6th Cir. 1992) (quoting United States v. Acosta-Cazares , 878 F.2d 945, 950 ( 6th Cir. 1989)). Second, Sandoval argues that the Gover nment had other means to prove his intent to obstruct justice—namely , the fa ct that he lied to J udg e Scoville a bout me eting with N ajer a. Whil e the f act that Sandoval lied to J udg e Scovill e i s ce rt ainly rele vant, as it tends to demonstrate a g uilty conscie nce and a lack of cre dibilit y , it is not strong ly probative of the key issue in the case : whether - 24 -No. 10-2340

USA v. Sandov al Sandoval endea

vored to g et a materia l w itness to testify falsely , which turned on whether he knew that Perez was involved in document fra ud as of Fe bruar

y 22, 2009. This is not a case wher e, by virtue of the fac t that Sandoval lied to J udg e Scoville, it is immediately appar ent that he acte d with

corr upt intent when speaking with Najer a. Cf. United States v. Jenk ins , 593 F.3d 480, 485–86 (6th Cir. 2010) (finding probative value of prior drug conviction was substantially outweig hed by the risk of prejudice wher e knowledg e and intent to distribute could be clea rly inferr ed from t h e s h ee r quantity of drug s, cash, and wea pons seized from a stash house). I n fac t, thoug h the trial involved thirteen witnesses and spanne d four and a half day s, there was very littl e evidenc e that bore convincing ly on that key issue. Whil e Gar cia’ s testimony was also not strong ly probative of whether Sandoval knew Perez was g uilty and thus acte d with corr upt intent, it was probative of corr upt intent nonetheless and valuable considering the lack of other strong evidenc e at trial. This court has noted that 404(b) evidenc e is e specia lly probative when it re lates to dec eitful intent, “which is not easily susceptible of pr oof.” Morganroth , 123 F.3d at 379, cited in Gold Unlimited , 177 F.3d at 488. I n light of the rela tively wea k proofs at trial on the key issue of intent, the rela tive closene ss in time of t he allege d incident wit h Ga rc i a (2 y ear s prior to the charg ed offense) , and the limit ing instruction to the jury that corr ectly focuse d on the purpose of demons t ra t i n g intent, the district 5 court’s implicit deter

mination that the probative value was not substantially outweig hed by the risk

Thoug h the district court’s instruction to th e ju r y c o n ta ine d the err oneous purpose of absenc e 5 of mistake or acc ident, this court has previously declined to f ind suc h a flaw fata l to the validity of the overa ll instruction and the ultimate conviction in a simil ar instance. See United States v. Mye rs , 123 F.3d 350, 36 4 (6th Cir. 1997) (finding limit ing instruction that included both a proper and improper purpose “ade quately war ned the jury of the potential misuses of the other-a cts evidenc e”)

.

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USA v. Sandov al of prejudice was not an abuse of discretion. The evidenc e was admissible to show intent under Rule 404(b). III. CONCLUSION For the re asons above , we AF F IRM the judg ment of the district cour t.

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