## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 31 2000 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-2059 MARIA ROSARIO FUENTEZ,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. 98-CR-231)
John J. Kelly, United States Attorney, and Terri J. Abernathy, Special Assistant United States Attorney, of Las Cruces, Ne w Mexico for PlaintiffAppellee. Thomas L. Wright, Law Offices of Gary Hill, of El P aso, Texas for Defendant-Appellant.

Before BALDOCK , KELLY , and HENRY , Circuit Judges.

HENRY , Circuit Judge.

Maria Rosario Fuentez appeals her conviction after a jury trial for possession with intent to distribute less than 500 grams of cocaine (count 1) and-2-

possession with intent to distribute more than 500 grams of cocaine (count 2) in violation of 21 U.S.C. §§ 841(b)(1)(B) & (b)(1)(C). She also appeals the denial of her motion for a new trial. Ms. Fuentez claims three errors by the district court require reversal of her conviction. First, she cla ims the district court violated her Sixth Amendment right of confrontation when it limi ted her cross examination of Officer Jerome Sedillo, the government’s primary wi tness. Second, she alleges the district court impermissibly struck Mr. Eloy Ju arez’s testimony in her favor after he asserted his Fifth Amendment right to rema in silent, when it waited to do so until after the jury began deliberations. Third , Ms. Fuentez insists the district court erred when it admitted potential hearsay sugg esting that she was Mr. Juarez’s drug “source.” Finally, she contends thateven if none of the aforementioned errors, standing alone, constitutes reversible error due to harmlessness, the errors cumulatively require rever sal. Because we find no reversible error, we affirm Ms. Fuentez’s convictio n.

I. BACKGROUND A. Proceedings Below In April 1998, a federal grand jury in the Districtof New Mexico indicted Ms. Fuentez with two counts of possession with the intent to distribute cocaine. The trial jury returned a verdict of guilty on Augu st 26, 1998, and the district-3-

court sentenced Ms. Fuentez to a term of seventy-ei ght months’ imprisonment on each count, to be served concurrently, followed by four years’ supervised release. The charges and convictions stem from two drug tran sactions, the first involving the sale of approximately one ounce of cocaine in M arch 1997 and the second involving the sale of approximately one kilogram of cocaine in February 1999. The relevant facts follow, viewed in the light mostfavorable to the government,

see United States v. Hughes , 191 F.3d 1317, 1321 (10th Cir. 1999). B. Factual Background In 1997 and 1998, Officer Jerome Sedillo acted as an undercover narcotics officer for the New Mexico State Police in Roswell, New Mexico. In March 1997, Officer Sedillo’s informant, Gerald Olguin, i ntroduced Officer Sedillo to Mr. Eloy Juarez, a street-level cocaine dealer. Of ficer Sedillo attempted to purchase cocaine from Mr. Juarez, but Mr. Juarez ha d none. Mr. Juarez suggested they travel together to a residence located at 200 East Bonney in Roswell, where he spoke with the woman who answered the door. Upo n returning to the vehicle, Mr. Juarez identified the woman as “Rosario” and de scribed her as his “source.” Mr. Juarez’s liaison with and description of the wo man piqued Officer Sedillo’s interest in her. Accordingly, he assigne d Mr. Olguin, who did not know the woman, to learn her identity and whether she de alt drugs. Mr. Olguin later-4-

informed Officer Sedillo that the woman was Ms. Fue ntez and introduced the two on March 7, 1997. Approximately one week later, Mr. Olguin arranged f or Officer Sedillo to purchase cocaine from Ms. Fuentez. On March 19, 19 97, Officer Sedillo met Ms. Fuentez at her restaurant, and tape-recorded the tr ansaction and conversation that followed. They entered the restaurant’s kitchen, a nd Ms. Fuentez delivered a bag of cocaine to Officer Sedillo in exchange for $1,00 0. During the tape-recorded transaction, Ms. Fuentez demonstrated a knowledge o f the fair market value of the product, noting that this ounce was particularl y expensive. After completing the one-ounce purchase, Officer Se dillo inquired as to whether Ms. Fuentez could obtain a kilogram of the controlled substance. She responded with two options, a kilogram from a local source for $22,000 or a kilogram from her Phoenix source at a cost of $15,0 00. In response to Officer Sedillo’s question about the appropriate manner of payment, Ms. Fuentez stated that he would be required to offer one-half of the total in advance, and pay the final amount upon delivery. Ms. Fuentez then agree d to Officer Sedillo’s request for a few days to gather the money and call her at the restaurant. Officer Sedillo called Ms. Fuentez as agreed, but s he informed him that she had nothing to offer. He received the same respons e when he called a few weeks later. He called again the following month and was again turned away. As a-5-

result of having been turned away, Officer Sedillo suspected that his identity as an undercover police officer had been revealed. He received permission from Ms. Fuentez to call her in the future, then left Roswel l to conduct other investigations elsewhere in New Mexico. Upon his return to Roswell in February 1998, Office r Sedillo elected to continue his investigation of Ms. Fuentez. He re-e stablished contact with Mr. Olguin, who arranged a transaction with Ms. Fuentez . Officer Sedillo contacted Ms. Fuentez at the restaurant on February 16, 1998. Because the kilogram had not yet arrived, Ms. Fuentez requested and receivedOfficer Sedillo’s cellular telephone number, assuring that the transaction wou ld take place. Ms. Fuentez called Officer Sedillo at approximately9:00 p.m. that evening and invited him to the restaurant. While other off icers observed from nearby, Officer Sedillo arrived at the restaurant. Ms. Fue ntez arrived a few minutes later and led Officer Sedillo into the office. Therein, she removed a one-kilogram brick of cocaine from a plastic bag. Officer Sedil lo and another police officer then arrested Ms. Fuentez, who confessed while in p olice custody after receiving her recitation of rights pursuant to Miranda v. Ari zona , 384 U.S. 436 (1966). During cross-examination at trial, Ms. Fuentez admi tted that on February 16, 1998 she received the kilogram of cocaine from her nephew, who lived in Phoenix. Ms. Fuentez also admitted that prior to h er initial sale to Officer-6-

Sedillo, she had participated in a one-kilogram dru g transaction with a woman named Alicia Salcido.

II. DISCUSSION Ms. Fuentez asserted an entrapment defense as to ea ch of the two counts against her. According to Ms. Fuentez, entrapment as a matter of law occurred during the one-ounce transaction because the govern ment was both the source and the final purchaser of the drug. Ms. Fuentez claim s she was entrapped during the one-kilogram transaction, because Officer Sedillo and confidential informant Gerald Olguin pressured her into obtaining and sell ing the drugs. She claims the following errors prevented her from prevailing on that defense: (1) her inability to cross-examine Officer Sedillo; (2) the judge’s belated striking of Mr. Juarez’s testimony; and (3) the judge’s improper admission o f hearsay testimony. Ms. Fuentez also contends that the alleged errors in th e aggregate require reversal. We shall consider each contention in turn.

A. Limitation on Cross-Examination of Officer Sedi llo Ms. Fuentez argues that the district court infringe d on her Sixth Amendment right of confrontation in connection withher presentation of an entrapment defense when it refused her efforts to c ross-examine Officer Sedillo-7-

regarding an internal affairs investigation. Appar ently, on June 11, 1998, approximately three months after Ms. Fuentez’s arre st, Officer Sedillo engaged in an unauthorized undercover drug operation. He admi tted to making a false statement to his supervisor regarding the undercove r operation and another officer offered to falsify that there was surveillance on t he scene when none was present. The investigation resulted in Officer Sedillo’s rem oval from narcotics assignments to uniformed patrol as a result of his lack of truthfulness and failure to observe department regulations. The district court noted Ms. Fuentez’s arguments th at the evidence may be admissible under either Fed. R. Evid. 608 as a spec ific instance of conduct that might attack his credibility, or under Fed. R. Evid . 404(b) to demonstrate Officer Sedillo’s propensity to lie and to therefore underm ine his credibility. Relying on Fed. R. Evid. 403, the district court refused to al low Ms. Fuentez to ask any questions relating to the Internal Affairs investig ation or the attempted deception. The court stated that such inquiry would “detract f rom the proper focus of the charges,” resulting in a “trial within a trial.” Aplt’s App. at 15 (Memorandum Opinion Denying New Trial). The district court bas ed its ruling primarily on the fact that the disciplinary action was on appeal at the time of trial and there was some controversy as to what exactly took place duri ng the investigation. Ms.-8-

Fuentez claims this limitation on the scope of cros s-examination infringed on her Sixth Amendment right of confrontation. The complete denial of access to an area properly s ubject to crossexamination infringes on the Sixth Amendment right of confrontation, and constitutes reversible error. See United States v. Jorgenson , 451 F.2d 516, 519 (10th Cir. 1971). On the other hand, merely limiti ng the scope of crossexamination is a matter well within the trial judge ’s discretion and such an error “will not lead to reversal unless an abuse of discr etion, clearly prejudicial to the defendant, is shown.” United States v. Valentine , 706 F.2d 282, 288 (10th Cir. 1983); see also United States v. Polk , 550 F.2d 1265, 1269 (10th Cir. 1977) (“A complete denial of access to an area properly subje ct to cross-examination constitutes reversible error, but the extent of cro ss-examination is discretionary with the trial judge.”). The record reveals that Ms. Fuentez was not preclud ed from inquiring into an entire area of cross-examination, in this case, Officer Sedillo’s credibility. The district court allowed Ms. Fuentez to cross-examine the officer on subjects relating to his credibility, including the extent o f his relationship with Mr. Olguin (his confidential informant) and his failure to inc lude a criminal complaint for automobile theft in the informant file. Thus, beca use Ms. Fuentez was allowed to-9-

attack Officer Sedillo’s credibility, we review the district court’s decision for an abuse of discretion. Ms. Fuentez claims the evidence of Officer Sedillo’ s behavior during the internal affairs investigation was vital for an ass essment of his credibility, as it demonstrated bias and a propensity to lie regarding drug investigations. She further argues that Officer Sedillo’s testimony wa s “critical to the Government’s case,” so she had “a right to attack [his] credibil ity by wide-ranging crossexamination.” United States v. Morales-Quinones , 812 F.2d 604, 613 (10th Cir. 1987). We agree that “[d]efense counsel should ord inarily be given wide latitude when cross examining a witness about credibility orbias.” United States v.
DeSoto , 950 F.2d 626, 629 (10th Cir. 1991). “The trial c ourt, however, retains discretion to reasonably limit cross-examination . . . .” Id. The trial court noted “[i]t is not at all clear eit her Rule 608 or Rule 404(b) would sanction” the introduction of evidence of the internal affairs investigation and Officer Sedillo’s misrepresentations to his sup ervisors. See Aplt’s App. at 15. Rule 608 would have allowed a question regardi ng Officer Sedillo’s current status with the narcotics division to be asked, butit would have also prevented Ms. Fuentez from introducing extrinsic evidence of Officer Sedillo’s alleged dishonesty. As the Advisory Committee Notes state: (2) Particular instances of conduct, though not the subject of criminal conviction, may be inquired into on cross-examinati on of the-10-

principal witness himself or of a witness who testi fies concerning his character for truthfulness. Effective cross-examin ation demands that some allowance be made for going into matters of th is kind, but the possibilities of abuse are substantial. Fed. R. Evid. 608(b) Advisory Committee Notes. We agree that “[t]here may indeed be situations in which evidence from . . . internal investigations will bear heavily on the cr edibility of a testifying police officer.” United States v. Johnson , 968 F.2d 765, 767 (8th Cir. 1992). Thus, while the admission of testimony regarding the inve stigation would have been proper, especially with the defense of entrapment r aised here, we cannot say the trial court abused its discretion when it limited t he scope of inquiry as to that topic. As the Notes relate, the “substantial” poss ibilities of abuse in this area require safeguards including disallowing the use of instances that are remote in time, requiring the instances to be probative of tr uthfulness, and subject to the overriding protections of Rule 403. See id. Here the matter was certainly probative of truthful ness–the department’s disciplining of the officer underscores that, and t he incident occurred about three months after the defendant’s arrest. Further, it i s not clear that the sought-after cross-examination was “substantially removed from [ Ms. Fuentez’s] attempt to prove that [s]he was not predisposed to commit the crimes alleged in the indictment and thus bore only faint relation to [he r] entrapment defense.” United States v. Crump , 934 F.2d 947, 953 (8th Cir. 1991).-11-

But, the testimony of Officer Sedillo was corroborated by other evidence, including the recordings and Ms. Fuentez’s own conf ession. Ms. Fuentez also appeared well-versed in the value of cocaine, even negotiating prices from multiple sources during the taped transactions. Sh e invited Officer Sedillo to call on her for cocaine in the future. She admitted to participating in a past onekilogram drug transaction, and to selling the drugs because her nephew desired her to do so. The district court noted this corrob orating evidence, and ruled that under Rule 403 the confusion the inquiry would have caused outweighed its probativeness. Although close, we do not see an ab use of discretion nor a showing of prejudice here. Cf. United States v. Hamell , 3 F.3d 1187, 1189 (8th Cir. 1993) (where officer’s sanction of dismissal, two years after the defendant’s arrest was unrelated to the defendant’s trial, othe r evidence corroborated the officer’s testimony, and officer’s testimony “only marginally relevant,” district court’s disallowance of cross-examination not an ab use of discretion.) Accordingly, we cannot conclude that Ms. Fuentez’s confrontation rights were violated by the district court's limitation on cros s-examination as it related to her entrapment defense.

B. Striking of Mr. Juarez’s Testimony-12-

Although the “[s]triking [of] the testimony of a wi tness is a drastic remedy not lightly invoked,” United States v. McKneely , 69 F.3d 1067, 1076 (10th Cir. 1995), we review the district court’s decision to strike t estimony for abuse of discretion. See id. During her trial, Ms. Fuentez asserted an entrapment defense, arguing that Officer Sedillo and Mr. Olguin pressured her to sel l drugs. She also attempted to establish entrapment as a matter of law by demonstr ating a circular transaction occurred, i.e., the government supplied her the dru gs through Mr. Olguin and he purchased the drugs from her through Officer Sedill o. In support of that defense, she called Mr. Eloy Juarez to testify on her behalf

. Before Mr. Juarez testified, the district court inf ormed him of his Fifth and Sixth Amendment rights. Mr. Juarez then testified that Mr. Olguin gave him an ounce of cocaine in March 1997, asking him to hold it because Mr. Olguin feared being caught by the police while possessing it. The government then requested a bench conference, d uring which it urged the court to once again remind Mr. Juarez of his ri ght to counsel. The court did so, and Mr. Juarez requested an attorney, then met with a court-appointed attorney during the court’s recess. When direct examination resumed, Mr. Juarez asserte d his Fifth Amendment privilege, refusing to answer any furtherquestions regarding the1 Ms. Fuentez’s counsel, outside the presence of th e jury, summarized the

testimony she expected Mr. Juarez to offer as follo ws. In February or March 1997, Mr. Olguin provided an ounce of cocaine to Mr . Juarez, asking him to hold it until police pressure on Mr. Olguin dissipated. Shortly thereafter, Mr. Juarez asked Ms. Fuentez to hold that same ounce, because he feared being caught with it while driving under the influence of alcohol. M s. Fuentez apparently stored the ounce in her home, because when Messrs. Juarez and Olguin visited the restaurant a few days later to retrieve the drug, it was not t here. There the two men informed her that Mr. Olguin actually owned the dru gs and planned a sale. Ms. Fuentez claims that the next day, Officer Sedil lo visited the restaurant, informed her that he was the purchaser of the ounce , and paid her $1000. Ms. Fuentez claims the ounce she sold was the same ounc e owned by Mr. Olguin and delivered by Mr. Juarez. She asserts this “circular transaction” constitutes entrapment as a matter of law. See United States v. Bueno , 447 F.2d 903 (5th Cir. 1971). -13- ounce of cocaine at issue in the March 1997 transac tion. The government moved to strike Mr. Juarez’s testimony on the basis that the invocation of his Fifth Amendment privilege denied it the opportunity to cr oss-examine the witness. 1 At the time of the objection, there was apparently som e confusion as to whether the government’s motion to strike referred to all of Mr . Juarez’s testimony or merely to his invocation of his rights. However, during the jury deliberations, the jurors forwarded a question to the judge indicating they were aware that Mr. Juare z had testified to the receipt of drugs from Mr. Olguin, then later asserted his Fifth Amendment privilege. The jury stressed the importance of their consideration s, stating “this is critical.” Supp. App. vol. VI, at 20. The district judge then instructed the jury to disregard-14-

any uncounseled testimony to which Mr. Juarez laterinvoked his Fifth Amendment right. When Mr. Juarez invoked his Fifth Amendment rights after returning from a recess to confer with counsel, the government mov ed to strike his earlier testimony to the effect that Mr. Olguin had given h im an ounce of cocaine in March of 1997. Ms. Fuentez sought to use this test imony to advance her theory of entrapment as a matter of law–that the governmen t had supplied the cocaine through Mr. Olguin, delivered it through Mr. Juarez and purchased it through Officer Sedillo. Unfortunately, the district courtdid not strike the testimony at that time, and later the jury sent a question to th e judge which resulted in his striking the testimony after the jury had begun del iberations. While the government notes that its inability to qu estion Mr. Juarez means that his testimony would have to be stricken, Ms. F uentez argues that this striking removed evidence in support of her entrapment defen se from the jury. In addition, she argues the striking of the testimony proscribed any opportunity to present the evidence in other ways, in violation of her Fifth Amendment right to due process and her Sixth Amendment right to compul sory process. The right to present witnesses is essential to due process just as the right to present witnesses under the Sixth Amendment is mean ingful only if those witnesses may present their testimony. See United States v. Esparsen , 930 F.2d-15-

1461, 1469 (10th Cir. 1991). These rights, however , “are not absolute,” as one cannot invoke her Sixth Amendment rights in supportof her presentation of a half-truth, free from the “legitimate demands of th e adversarial system.” Taylor v. Illinois , 484 U.S. 400, 412-13 (1988); see Esparsen , 930 F.2d at 1469 (“Reaching the truth is a fundamental goal of trial s and cross-examination is critical to the process.”). We further explained in Esparsenthat [a] defendant cannot invoke due process or compulso ry process rights to immunize his witnesses from cross-examination onissues relevant to the truth of the direct testimony. . . . When th e refusal to answer cross-examination questions involves collateral matters, we have held in the analogous situation of a prosecution witness who invokes the Fifth Amendment that the testimony should not be struck. Id. (internal quotations omitted); see United States v. Nunez , 668 F.2d 1116, 1122 (10th Cir. 1981). When a nonparty witness takes the stand and testifi es, he “obviously waives whatever privilege he may have had to refuse to ans wer the questions that he answers.” United States v. Seifert , 648 F.2d 557, 661 (9th Cir. 1980). The district court, in its order denying Ms. Fuentez a new trial, and in retroactively striking Mr. Fuentez’s testimony, correctly balance d all of these “competing concerns by drawing a line between direct and collateral matters.” Id ; United States v. McKneely , 69 F.3d 1067, 1075-76 (10th Cir. 1995).-16-

Because Mr. Juarez’s testimony regarding his handli ng of the cocaine went to matters put at issue by the indictment, that is, Ms. Fuentez’s involvement in the transaction, the testimony was non-collateral, or d irect. See McKneely , 69 F.3d at 1076; Williams v. Borg , 139 F.3d 737, 742-43 (9th Cir. 1998) (explaining distinction between collateral and non-collateral t estimony). Because the truth-seeking function of the court would be impair ed, and because the questions Mr. Juarez refused to answer were germane to issues in the indictment, the testimony was not collateral. See McKneely , 69 F.3d at 1076; Esparsen , 930 F.2d at 1470. Because his testimony was not reliable wi thout subsequent cross-examination, it was properly, although very b elatedly, excluded. The government admits, in rare candor, that “it may have been better for the district court to strike the testimony immediat ely after Juarez invoked his Fifth Amendment rights,” but counters with the argu ment that any error would be harmless because the only other source available to Ms. Fuentez to make this argument would have been Mr. Olguin, who was subpoe naed but did not show up at trial. The defendant simply asserts, without explanation, that “the court deprived the defendant of the opportunity to call M r. Olguin or other witnesses who could have provided the same factual testimony as Mr. Juarez.” Aplt’s Br.
at 14.-17-

Although Ms. Fuentez did not point to specific evid ence on appeal, the record indicates that Mr. Olguin did not respond to a subpoena to appear. We note that the government’s witness, Officer Sedillo , acknowledged during crossexamination that he did not want Mr. Olguin to test ify as a witness in this case, but there is no evidence Officer Sedillo had contac t with Mr. Olguin immediately before the trial. Further, Mr. Olguin was not desi gnated to be a material witness and the expected content of his testimony was not c ertain. During trial, several hours after it was apparent Mr. Olguin had not arri ved to testify, Ms. Fuentez requested the court to grant a continuance, issue abench warrant for Mr. Olguin, and moved for a mistrial, all of which the court de nied. Finally, during the recess while the jury was deliberating, Ms. Fuentez also asked for a grant of immunity for Mr. Juarez: the government declined a nd the court refused to order the government to do so. Although it would have been preferable for the court to have ruled at the time of the first motion, we cannot say that the di strict court abused its discretion in its decision to correct that error when it becam e clear that the jury was confused.

C. Drug Source Hearsay-18-

Ms. Fuentez claims the trial court improperly admitted testimony by Officer Sedillo that Ms. Fuentez was Mr. Juarez’s drug sour ce. See Aplt’s App. 49-56 (Trial Transcript of Officer Sedillo’s testimony). Officer Sedillo testified that when he attempted to purchase cocaine from Mr. Juar ez in March 1997, Mr. Juarez had none. He further testified that Mr. Jua rez took him to “Rosario’s” (Ms. Fuentez’s) house and named her as his source. At trial, Ms. Fuentez objected to Officer Sedillo’s testimony on the basis that it was excludable hearsay. For the first time , on appeal Ms. Fuentez claims the “source” evidence was improper character eviden ce that should have been excluded under Fed. R. Evid. 404(b). The government claims the evidence was properly admitted for a nonhearsay purpose: to dem onstrate the basis for Officer Sedillo’s interest in Ms. Fuentez, and that the dis trict court provided a proper limiting instruction. The government further argue s that Ms. Fuentez waived her 404(b) argument by not raising it at trial.

1. Admission for a Nonhearsay Purpose We review the district court’s evidentiary rulings for an abuse of discretion.
See United States v. Wilson , 107 F.3d 774, 780 (10th Cir. 1997). Given the fa ct specific nature of hearsay objections, we accord gr eater deference to the district-19-

court’s hearsay rulings. See United States v. Trujillo , 136 F.3d 1388, 1395 (10th Cir. 1998). Hearsay is a out-of-court “statement . . . offered in evidence to prove the truth of the matter asserted,” Fed. R. Evid. 801(c) , excluding, of course, certain prior witness statements and admissions by party-op ponents, see Fed. R. Evid. 801(d). During Officer Sedillo’s testimony, the go vernment offered the statement by Mr. Juarez not to show that Ms. Fuentez was actu ally Mr. Juarez’s drug supplier, but rather to demonstrate Officer Sedillo ’s reason for investigating her.
See United States v. Freeman , 816 F.2d 558, 563 (10th Cir. 1987) (holding a statement was not hearsay “when offered for the lim ited purpose of explaining why a Government investigation was undertaken”). W e hold the district court correctly admitted the evidence for a nonhearsay pu rpose.

2. Exclusion Under Fed. R. Evid. 404(b) Because Ms. Fuentez did not object to the statementon the basis of the limitation on character evidence included in Fed. R . Evid. 404(b), we review the district court’s failure to exclude the evidence on that basis for plain error. See United States v. Martinez , 76 F.3d 1145, 1150 (10th Cir. 1996). Under this standard, we will reverse a district court only if we determine that “admitting the statement placed the underlying fairness of the ent ire trial in doubt” or affected-20-

Ms. Fuentez’s substantial rights. United States v. Hill , 60 F.3d 672, 675 (10th Cir. 1995); see also United States v. Culpepper , 834 F.2d 879, 883 (10th Cir. 1987) (“Under the plain error standard, reversal is mandated only to correct particularly egregious errors, that is, those error s that seriously affect the fairness, integrity, or public reputation of Judicial proceed ings.” (internal quotations omitted)). According to Fed. R. Evid. 404(b): Evidence of other crimes, wrongs, or acts is not ad missible to prove the character of a person in order to show ac tion in conformity therewith. It may, however, be admissible for othe r purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . . “The grounds specified for admissibility are not ex clusive; evidence of other crimes or acts relevant to any issue at trial may b e admitted unless this evidence tends to prove only criminal disposition.” Culpepp er , 834 F.2d at 883. We addressed a nearly identical allegation of errorin Hill , wherein the defendant failed to object on the basis of 404(b) t o a statement that he was a “drug dealer.” Hill , 60 F.3d at 675. We held there was no plain errorbecause the statement was an isolated remark in the context of the entire trial, the declarant was subject to examination, and the judge properly instructed the jury regarding the use of the testimony. See id. As in Hill , the statement was isolated within the context of the trial, Ms. Fuentez called Mr. Juarez , who made the statement, to-21-

testify, and the judge provided a proper limiting i nstruction. We hold that admitting the statement did not constitute reversib le plain error. See id.

D. Cumulative Error Finally, Ms. Fuentez argues that even if not revers ible individually, the cumulative effect of her alleged trial errors requi res reversal. “The cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error. The purpose of a cumulative-error analysis is to address that possib ility.” United States v. Rivera , 900 F.2d 1462, 1469 (10th Cir. 1990). See, e.g. , United States v. Wallace , 848 F.2d 1464, 1475 (9th Cir. 1988) (“Although each of the above errors, looked at separately, may not rise to the level of reversible error, their cumulative effect may nevertheless be so prejudicial to the appellant s that reversal is warranted.”). “We evaluate whether cumulative errors were harmles s by determining whether defendant's substantial rights were affected.” McNeely , 69 F.3d at 1080. Because we identified but one error in this case th ere is no basis for a cumulative error determination.

III. CONCLUSION For the reasons stated above, we AFFIRM Ms. Fuentez ’s conviction.