* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50769

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ANNA LILIA SANTACRUZ

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:06-CR-201-ALL

Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.

PER CURIAM:*

Anna Lilia Santacruz was convicted by a jury of conspiracy to import,

distribute and possess with intent to distribute fifty grams or more of

methamphetamine. The district court sentenced her to 262 months of

imprisonment and ten years of supervised release. We affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

May 14, 2008

Charles R. Fulbruge III

Clerk
No. 07-50769

2

Santacruz first challenges the sufficiency of the evidence. We review de

novo the district court’s denial of a motion for judgment of acquittal. United

States v. Lopez-Urbina, 434 F.3d 750, 757 (5th Cir. 2005).

We will affirm the jury’s verdict if a reasonable trier of fact could

conclude from the evidence that the elements of the offense were

established beyond a reasonable doubt, viewing the evidence in the

light most favorable to the verdict and drawing all reasonable

inferences from the evidence to support the verdict.

Id. (quoting United States v. Floyd, 343 F.3d 363, 370 (5th Cir. 2003)). In order

to prove the conspiracy,the Government had to prove beyond a reasonable doubt

“(1) the existence of an agreement between two or more persons; (2) the

defendant’s knowledge of the agreement; and (3) the defendant’s voluntary

participation in the conspiracy.” United States v. Tenorio, 360 F.3d 491, 495 (5th

Cir. 2004).

At trial the Government offered the testimony of Santacruz’s coconspirator Rita Tarango, who testified that she transported the drugs for

Santacruz. The Government also introduced cell phone records that revealed

that Tarango and Santacruz were repeatedly in contact with each other,

including multiple calls during the time Tarango testified that she was

transporting the drugs for Santacruz. The Government introduced other

evidence, in particular border crossing records and a receipt, that supported

aspects of Tarango’s testimony.

Santacruz argues that Tarango’s testimony was inherently unreliable.

She notes that Tarango did not implicate her at first and had a motive to lie in

order to lower her sentence. She adds that Tarango had a prior felony conviction

for forgery and was a known drug user. She argues that the only real evidence

of any link between her and Tarango were the cell phone records. She contends

thatthere was no evidence, other than Tarango’s testimony, ofthe content ofthe

calls or the parties to the calls.
No. 07-50769

3

“As long as it is not factually insubstantial or incredible, the

uncorroborated testimony of a co-conspirator, even one who has chosen to

cooperate with the governmentin exchange for non-prosecution or leniency, may

be constitutionally sufficient evidence to convict.” United States v. Westbrook,

119 F.3d 1176, 1190 (5th Cir. 1997). Tarango’s testimony was not incredible or

insubstantial on its face. See United States v. Bermea, 30 F.3d 1539, 1552 (5th

Cir. 1994) (“Testimony is incredible as a matter of law only if it relates to facts

that the witness could not possibly have observed or to events which could not

have occurred under the laws of nature.”). The credibility of a witness is for the

jury to decide, see United States v. Garcia, 995 F.2d 556, 561 (5th Cir. 1993), and

Santacruz had ample opportunity to impeach her. A rational jury could have

found beyond a reasonable doubt that Tarango’s testimony about Santacruz’s

participation in the conspiracy established the necessary elements for a drug

conspiracy.

Santacruz also argues that the admission of evidence of her prior

conviction for possession with intent to distribute marijuana violated Federal

Rule of Evidence 403 and 404(b). The district court ruled that the prior

conviction was relevantto Santacruz’s “state of mind, her intent, her knowledge,

and whether or not she committed this current offense by mistake or accident.”

The court found that the probative value of the evidence outweighed any

prejudice to Santacruz. This court reviews a district court’s decision to admit

Rule 404(b) evidence for abuse of discretion, with heightened review in criminal

cases. United States v. Pompa, 434 F.3d 800, 805 (5th Cir. 2005). United States

v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc), creates a two-step process

for analyzing the admissibility of Rule 404(b) evidence. “‘First, it must be

determined that the extrinsic offense evidence is relevant to an issue other than

the defendant’s character. Second, the evidence must possess probative value

that is not substantially outweighed by its undue prejudice and must meet the

other requirements of [R]ule 403.’” United States v. Miller, __ F.3d __, 2008 WL
No. 07-50769

4

712047, at *4 (5th Cir. Mar. 18, 2008) (quoting United States v. Mitchell, 484

F.3d 762, 774 (5th Cir. 2007)).

Santacruz’s plea of not guilty to the charge of conspiracy placed her intent

at issue for purposes of Rule 404(b). See Pompa, 434 F.3d at 805. The closing

arguments make clear that the principle question in the case was whether the

association between Tarango and Santacruz was innocent or if Santacruz was

involved in a drug conspiracy with Tarango. Nor was the prior conviction so

different from the instant offense that it should not have been admitted. See

United States v. Broussard, 80 F.3d 1025, 1039-40 (5th Cir. 1996) (evidence of

prior conviction for possession of marijuana admissible in trial for cocaine

conspiracy). 

The district court instructed the jury on the limited purpose for which it

could use the evidence of Santacruz’s prior conviction, which minimized the

potential prejudicial effect of the admission of the evidence. See United States

v. Thomas, 348 F.3d 78, 86 (5th Cir. 2003). The district court did not abuse its

discretion in admitting the evidence.

AFFIRMED.