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, New Mexico for PlaintiffAppellee.

Thomas L. Wright, Law Offices of Gary Hill, of El Paso, 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
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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 claims the district court violated her

Sixth Amendment right of confrontation when it limited her cross examination of

Officer Jerome Sedillo, the government’s primary witness. Second, she alleges

the district court impermissibly struck Mr. Eloy Juarez’s testimony in her favor

after he asserted his Fifth Amendment right to remain 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 suggesting that she was Mr.

Juarez’s drug “source.” Finally, she contends that even if none of the

aforementioned errors, standing alone, constitutes reversible error due to

harmlessness, the errors cumulatively require reversal. Because we find no

reversible error, we affirm Ms. Fuentez’s conviction.

I. BACKGROUND

A. Proceedings Below

In April 1998, a federal grand jury in the District of 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 August 26, 1998, and the district
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court sentenced Ms. Fuentez to a term of seventy-eight months’ imprisonment on

each count, to be served concurrently, followed by four years’ supervised release. 

The charges and convictions stem from two drug transactions, the first involving

the sale of approximately one ounce of cocaine in March 1997 and the second

involving the sale of approximately one kilogram of cocaine in February 1999. 

The relevant facts follow, viewed in the light most favorable 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, introduced Officer Sedillo to

Mr. Eloy Juarez, a street-level cocaine dealer. Officer Sedillo attempted to

purchase cocaine from Mr. Juarez, but Mr. Juarez had 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. Upon returning to the vehicle,

Mr. Juarez identified the woman as “Rosario” and described her as his “source.”

Mr. Juarez’s liaison with and description of the woman piqued Officer

Sedillo’s interest in her. Accordingly, he assigned Mr. Olguin, who did not know

the woman, to learn her identity and whether she dealt drugs. Mr. Olguin later
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informed Officer Sedillo that the woman was Ms. Fuentez and introduced the two

on March 7, 1997.

Approximately one week later, Mr. Olguin arranged for Officer Sedillo to

purchase cocaine from Ms. Fuentez. On March 19, 1997, Officer Sedillo met Ms.

Fuentez at her restaurant, and tape-recorded the transaction and conversation that

followed. They entered the restaurant’s kitchen, and Ms. Fuentez delivered a bag

of cocaine to Officer Sedillo in exchange for $1,000. During the tape-recorded

transaction, Ms. Fuentez demonstrated a knowledge of the fair market value of

the product, noting that this ounce was particularly expensive.

After completing the one-ounce purchase, Officer Sedillo 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 $15,000. 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 agreed 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 she informed him that she

had nothing to offer. He received the same response when he called a few weeks

later. He called again the following month and was again turned away. As a
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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 Roswell to conduct other investigations

elsewhere in New Mexico.

Upon his return to Roswell in February 1998, Officer Sedillo elected to

continue his investigation of Ms. Fuentez. He re-established 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 received Officer Sedillo’s cellular

telephone number, assuring that the transaction would take place.

Ms. Fuentez called Officer Sedillo at approximately 9:00 p.m. that evening

and invited him to the restaurant. While other officers observed from nearby,

Officer Sedillo arrived at the restaurant. Ms. Fuentez 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 Sedillo and another police officer

then arrested Ms. Fuentez, who confessed while in police custody after receiving

her recitation of rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).

During cross-examination at trial, Ms. Fuentez admitted 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 her initial sale to Officer
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Sedillo, she had participated in a one-kilogram drug transaction with a woman

named Alicia Salcido.

II. DISCUSSION

Ms. Fuentez asserted an entrapment defense as to each of the two counts

against her. According to Ms. Fuentez, entrapment as a matter of law occurred

during the one-ounce transaction because the government was both the source and

the final purchaser of the drug. Ms. Fuentez claims she was entrapped during the

one-kilogram transaction, because Officer Sedillo and confidential informant

Gerald Olguin pressured her into obtaining and selling 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 of hearsay testimony. Ms.

Fuentez also contends that the alleged errors in the aggregate require reversal. 

We shall consider each contention in turn.

A. Limitation on Cross-Examination of Officer Sedillo

Ms. Fuentez argues that the district court infringed on her Sixth

Amendment right of confrontation in connection with her presentation of an

entrapment defense when it refused her efforts to cross-examine Officer Sedillo
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regarding an internal affairs investigation. Apparently, on June 11, 1998, 

approximately three months after Ms. Fuentez’s arrest, Officer Sedillo engaged in

an unauthorized undercover drug operation. He admitted to making a false

statement to his supervisor regarding the undercover operation and another officer

offered to falsify that there was surveillance on the scene when none was present. 

The investigation resulted in Officer Sedillo’s removal 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 that the evidence may be

admissible under either Fed. R. Evid. 608 as a specific 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 undermine his credibility. Relying on

Fed. R. Evid. 403, the district court refused to allow Ms. Fuentez to ask any

questions relating to the Internal Affairs investigation or the attempted deception. 

The court stated that such inquiry would “detract from 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 based 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 during the investigation. Ms.
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Fuentez claims this limitation on the scope of cross-examination infringed on her

Sixth Amendment right of confrontation.

The complete denial of access to an area properly subject 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 limiting 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 discretion, 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 subject to cross-examination

constitutes reversible error, but the extent of cross-examination is discretionary

with the trial judge.”).

The record reveals that Ms. Fuentez was not precluded 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 of his relationship with Mr. Olguin

(his confidential informant) and his failure to include a criminal complaint for

automobile theft in the informant file. Thus, because Ms. Fuentez was allowed to
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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 assessment of his credibility, as it

demonstrated bias and a propensity to lie regarding drug investigations. She

further argues that Officer Sedillo’s testimony was “critical to the Government’s

case,” so she had “a right to attack [his] credibility by wide-ranging crossexamination.” United States v. Morales-Quinones, 812 F.2d 604, 613 (10th Cir.

1987). We agree that “[d]efense counsel should ordinarily be given wide latitude

when cross examining a witness about credibility or bias.” United States v.

DeSoto, 950 F.2d 626, 629 (10th Cir. 1991). “The trial court, however, retains

discretion to reasonably limit cross-examination . . . .” Id. 

The trial court noted “[i]t is not at all clear either Rule 608 or Rule 404(b)

would sanction” the introduction of evidence of the internal affairs investigation

and Officer Sedillo’s misrepresentations to his supervisors. See Aplt’s App. at

15. Rule 608 would have allowed a question regarding Officer Sedillo’s current

status with the narcotics division to be asked, but it 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-examination of the
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principal witness himself or of a witness who testifies concerning his

character for truthfulness. Effective cross-examination demands that

some allowance be made for going into matters of this 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 credibility 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 investigation would have been

proper, especially with the defense of entrapment raised here, we cannot say the

trial court abused its discretion when it limited the scope of inquiry as to that

topic. As the Notes relate, the “substantial” possibilities 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 truthfulness, and subject to the

overriding protections of Rule 403. See id.

Here the matter was certainly probative of truthfulness–the department’s

disciplining of the officer underscores that, and the incident occurred about three

months after the defendant’s arrest. Further, it is 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 [her] entrapment defense.” United

States v. Crump, 934 F.2d 947, 953 (8th Cir. 1991). 
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But, the testimony of Officer Sedillo was corroborated by other evidence,

including the recordings and Ms. Fuentez’s own confession. Ms. Fuentez also

appeared well-versed in the value of cocaine, even negotiating prices from

multiple sources during the taped transactions. She 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 corroborating evidence, and ruled that

under Rule 403 the confusion the inquiry would have caused outweighed its

probativeness. Although close, we do not see an abuse 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, other evidence corroborated the

officer’s testimony, and officer’s testimony “only marginally relevant,” district

court’s disallowance of cross-examination not an abuse of discretion.) 

Accordingly, we cannot conclude that Ms. Fuentez’s confrontation rights were

violated by the district court's limitation on cross-examination as it related to her

entrapment defense.

B. Striking of Mr. Juarez’s Testimony
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Although the “[s]triking [of] the testimony of a witness 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 testimony 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 sell drugs. She also attempted to

establish entrapment as a matter of law by demonstrating a circular transaction

occurred, i.e., the government supplied her the drugs through Mr. Olguin and he

purchased the drugs from her through Officer Sedillo. In support of that defense,

she called Mr. Eloy Juarez to testify on her behalf.

Before Mr. Juarez testified, the district court informed 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, during which it urged

the court to once again remind Mr. Juarez of his right 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 asserted his Fifth

Amendment privilege, refusing to answer any further questions regarding the
1

 Ms. Fuentez’s counsel, outside the presence of the jury, summarized the

testimony she expected Mr. Juarez to offer as follows. 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. Ms. 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 there. There the two men

informed her that Mr. Olguin actually owned the drugs and planned a sale. 

Ms. Fuentez claims that the next day, Officer Sedillo 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 ounce 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).

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ounce of cocaine at issue in the March 1997 transaction. 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 cross-examine the witness.1 At

the time of the objection, there was apparently some 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. Juarez had testified to the receipt of

drugs from Mr. Olguin, then later asserted his Fifth Amendment privilege. The

jury stressed the importance of their considerations, stating “this is critical.” 

Supp. App. vol. VI, at 20. The district judge then instructed the jury to disregard
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any uncounseled testimony to which Mr. Juarez later invoked his Fifth

Amendment right.

When Mr. Juarez invoked his Fifth Amendment rights after returning from

a recess to confer with counsel, the government moved to strike his earlier

testimony to the effect that Mr. Olguin had given him an ounce of cocaine in

March of 1997. Ms. Fuentez sought to use this testimony to advance her theory

of entrapment as a matter of law–that the government had supplied the cocaine

through Mr. Olguin, delivered it through Mr. Juarez and purchased it through

Officer Sedillo. Unfortunately, the district court did not strike the testimony at

that time, and later the jury sent a question to the judge which resulted in his

striking the testimony after the jury had begun deliberations.

While the government notes that its inability to question Mr. Juarez means

that his testimony would have to be stricken, Ms. Fuentez argues that this striking

removed evidence in support of her entrapment defense 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 compulsory process.

The right to present witnesses is essential to due process just as the right to

present witnesses under the Sixth Amendment is meaningful only if those

witnesses may present their testimony. See United States v. Esparsen, 930 F.2d
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1461, 1469 (10th Cir. 1991). These rights, however, “are not absolute,” as one

cannot invoke her Sixth Amendment rights in support of her presentation of a

half-truth, free from the “legitimate demands of the 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 trials and cross-examination is

critical to the process.”).

We further explained in Esparsen that

[a] defendant cannot invoke due process or compulsory process rights

to immunize his witnesses from cross-examination on issues relevant

to the truth of the direct testimony. . . . When the 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 testifies, he “obviously waives

whatever privilege he may have had to refuse to answer 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 balanced 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). 
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Because Mr. Juarez’s testimony regarding his handling 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 direct. 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 testimony). Because the

truth-seeking function of the court would be impaired, 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 without subsequent

cross-examination, it was properly, although very belatedly, excluded. 

The government admits, in rare candor, that “it may have been better for

the district court to strike the testimony immediately after Juarez invoked his

Fifth Amendment rights,” but counters with the argument 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 subpoenaed but did not show up

at trial. The defendant simply asserts, without explanation, that “the court

deprived the defendant of the opportunity to call Mr. Olguin or other witnesses

who could have provided the same factual testimony as Mr. Juarez.” Aplt’s Br.

at 14.
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Although Ms. Fuentez did not point to specific evidence 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 testify as a witness in this case,

but there is no evidence Officer Sedillo had contact with Mr. Olguin immediately

before the trial. Further, Mr. Olguin was not designated to be a material witness

and the expected content of his testimony was not certain. During trial, several

hours after it was apparent Mr. Olguin had not arrived to testify, Ms. Fuentez

requested the court to grant a continuance, issue a bench warrant for Mr. Olguin,

and moved for a mistrial, all of which the court denied. Finally, during the

recess while the jury was deliberating, Ms. Fuentez also asked for a grant of

immunity for Mr. Juarez: the government declined and 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 district court abused its discretion

in its decision to correct that error when it became clear that the jury was

confused. 

C. Drug Source Hearsay
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Ms. Fuentez claims the trial court improperly admitted testimony by Officer

Sedillo that Ms. Fuentez was Mr. Juarez’s drug source. 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. Juarez in March 1997, Mr.

Juarez had none. He further testified that Mr. Juarez 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 evidence that should have been

excluded under Fed. R. Evid. 404(b). The government claims the evidence was

properly admitted for a nonhearsay purpose: to demonstrate the basis for Officer

Sedillo’s interest in Ms. Fuentez, and that the district court provided a proper

limiting instruction. The government further argues 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 fact

specific nature of hearsay objections, we accord greater deference to the district
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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-opponents, see Fed. R. Evid.

801(d). During Officer Sedillo’s testimony, the government offered the statement

by Mr. Juarez not to show that Ms. Fuentez was actually 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 limited purpose of explaining

why a Government investigation was undertaken”). We hold the district court

correctly admitted the evidence for a nonhearsay purpose.

2. Exclusion Under Fed. R. Evid. 404(b)

Because Ms. Fuentez did not object to the statement on 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 entire trial in doubt” or affected 
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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 errors that seriously affect the fairness,

integrity, or public reputation of Judicial proceedings.” (internal quotations

omitted)).

According to Fed. R. Evid. 404(b):

Evidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other 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 exclusive; evidence of other

crimes or acts relevant to any issue at trial may be admitted unless this evidence

tends to prove only criminal disposition.” Culpepper, 834 F.2d at 883.

We addressed a nearly identical allegation of error in Hill, wherein the

defendant failed to object on the basis of 404(b) to a statement that he was a

“drug dealer.” Hill, 60 F.3d at 675. We held there was no plain error because 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
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testify, and the judge provided a proper limiting instruction. We hold that

admitting the statement did not constitute reversible plain error. See id.

D. Cumulative Error

Finally, Ms. Fuentez argues that even if not reversible individually, the

cumulative effect of her alleged trial errors requires 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 possibility.” 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 appellants that reversal is warranted.”).

“We evaluate whether cumulative errors were harmless by determining whether

defendant's substantial rights were affected.” McNeely, 69 F.3d at 1080. 

Because we identified but one error in this case there is no basis for a cumulative

error determination. 

III. CONCLUSION

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