* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### OCT 18 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PASQUAL CERPA, Defendant-Appellant. No. 99-2264 (D.C. No. 99-CR-7-LH) (District of New Mexico)

ORDER AND JUDGMENT *

Before EBEL , PORFILIO , and LUCERO , Circuit Judges.

Pasqual Cerpa appeals his conviction for distributi on of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2. Mr. Cerpa challenges: 1) the admission of testimony concernin g previous drug sales he made to the government’s chief witness, Thomas Chav ez, as intrinsic to the crime charged; 2) the admission of testimony of undercove r Officer Matthew Lujan- 2 -

about a previous purchase of crack cocaine from Mr. Cerpa; 3) the sufficiency of the evidence supporting his conviction; and 4) the calculation used to determine the amount of cocaine for which he was sentenced. After a review of the record, we conclude the district court’s mischaracterizatio n of certain evidence as intrinsic and the resulting lack of a limiting instruction did not prejudice Mr. Cerpa. None of Mr. Cerpa’s other challenges have m erit. On December 15, 1998, the Albuquerque, N.M., police conducted undercover operations at the Bow and Arrow Motel, alocation reputed for crack cocaine distribution. Albuquerque Police Officers Matthew Lujan and Herman Martinez contacted Thomas Chavez and asked if he co uld get them crack cocaine. Mr. Chavez said he would. The officers gave Mr. Ch avez a previously photocopied twenty-dollar bill and watched him go t o room 18, knock on the door, and enter. Shortly after, Mr. Chavez rejoine d the police officers in the parking lot and delivered to them a rock of crack c ocaine. Upon delivery of the cocaine, Mr. Chavez was arrested, and officers ente red room 18 and arrested Leslie Mora and Pasqual Cerpa. Ms. Mora had in herpocket the pre-identified twenty-dollar bill. Officers located additional co caine on Ms. Mora and in a small box belonging to her. A search of the room r evealed male clothing and some female clothing, but no other contraband.- 3 -

At trial, Mr. Chavez testified when he approached r oom 18 of the Bow and Arrow, Ms. Mora answered the door and allowed him t o enter. Mr. Cerpa was present. Mr. Chavez stated he purchased crack coca ine from Ms. Mora while Mr. Cerpa watched. During the transaction, Ms. Mora ad dressed a question in Spanish to Mr. Cerpa, to which he replied “okay.” Mr. Cerpa was convicted and the district court imposed a sentence of seventy-ei ght months’ incarceration to be followed by three years of supervised release. Mr. Cerpa then filed timely notice of this appeal. Mr. Cerpa first contends the district court erred i n characterizing as intrinsic evidence Mr. Chavez’s testimony about pre vious drug transactions with Mr. Cerpa at the Bow and Arrow. In addition to des cribing the sale of December 15, Mr. Chavez also testified that he had purchased crack cocaine directly from Mr. Cerpa on no less than fifty occas ions at the Bow and Arrow Motel. The district court admitted this evidence a s intrinsic to the sale of December 15. Mr. Cerpa argues that because any pre vious transactions were separate and distinct, not part of the sale in ques tion, the evidence was not intrinsic and Mr. Chavez’s testimony constituted impermissible character evidence inadmissible under Fed. R. Evid. 404(b).- 4 -

Federal Rule of Evidence 404(b) provides, “[e]viden ce of other crimes, wrongs, or acts is not admissible to prove the char acter of a person in order to show action in conformity therewith,” but may be ad mitted for a proper purpose if reasonable notice is given. Rule 404(b) only appli es to evidence of acts extrinsic to the crime charged. United States v. Lambert , 995 F.2d 1006, 1007 (10th Cir. 1993) (emphasis added). Direct or intrinsic eviden ce of the crime charged does not fall within the ambit of the rule. We have hel d that evidence of other acts is intrinsic when evidence of the other acts and evide nce of the charged crime “are inextricably intertwined or both acts are part of asingle criminal episode or the other acts were necessary preliminaries to the crim e charged.” Id. Also, evidence is intrinsic “if the witness’ testimony wo uld be incomplete or confusing without it.” United States v. Record, 873 F.2d 1363, 1372 (10th Cir. 1989). We review the characterization of Mr. Chavez’s testimo ny as intrinsic for an abuse of discretion. United States v. Green , 175 F.3d 822, 831 (10th Cir. 1999). It is clear that the prior drug transactions betwee n Mr. Chavez and Mr. Cerpa, spread out over six months, did not combine with the sale of December 15 to form a “single criminal episode.” The sale of D ecember 15 was a separate incident prompted by Officer Lujan’s asking Mr. Chavez to obtain crack cocaine for him. Nor are the prior sales somehow “inextric ably intertwined” with the sale- 5 -

of December 15; they are logically separable from t his sale. Indeed, the sale of December 15 can be coherently discussed without anymention of the prior sales. In a minimal sense, the prior sales of cocaine fromMr. Cerpa to Mr. Chavez were “necessary preliminaries” to the sale o f December 15 because they provided Mr. Chavez with the knowledge of where to get crack cocaine. Nevertheless, this knowledge is not the sort of log ical precursor indicated by “necessary preliminaries.” The prior sales were no t preparations, planning, or initial steps in the events of December 15; they we re instead merely similar transactions and relationships among the actors who happened to be involved in the sale of December 15. See United States v. Sullivan , 919 F.2d 1403, 1412-13 (10th Cir. 1990). While the testimony concerning prior sales does pro vide context for the transaction of December 15 and Mr. Cerpa’s alleged role, Mr. Chavez’s testimony would not be incomplete or confusing without it. T he tale is coherent without mention of prior sales. The sale by Ms. Mora to Mr . Chavez in room 18 and the contemporaneous presence and conversation with Mr. Cerpa are clearly established by Mr. Chavez’s testimony without refer ence to prior transactions among the participants. Thus, the testimony offere d by Mr. Chavez of prior drug transactions with Mr. Cerpa fits none of the charac teristics of intrinsic evidence defined by our previous cases.1 Rule 404(b) provides that evidence of prior bad a cts is admissible for

purposes other than to show action in conformity wi th character. Such purposes include, but are not limited to: proof of motive, o pportunity, intent, preparation, plan, knowledge, identity, or absence of mistake oraccident. - 6 - Moreover, the government itself provides reason to categorize Mr. Chavez’s testimony as Rule 404(b) rather than intri nsic evidence. The government proffers this portion of Mr. Chavez’s te stimony, at least in part, “to show Cerpa’s continuing plan (to sell crack cocaine from the Bow and Arrow to previous customers) and mode of operation (use of the motel and refusing to sell in presence of persons he did not know).” We note that these evidentiary purposes, continuing plan and mode of operation, ar e classic examples of just the sort of evidence that Rule 404(b) governs. 1 To achieve these evidentiary purposes the government must subject its evidence to the inq uiry mandated by Rule 404(b) and to the limiting instruction that would accompany such a submission. The district court erred in allowing this testimony as intrinsic to the charged crime. Nevertheless, for two reasons, the district court’s admission of this evidence does not change our disposition. First, the remedy for the district court’s error would have been a limiting instructio n to the jury on the allowable uses for Mr. Chavez’s testimony. As appellant’s co unsel conceded in oral argument, the jury could have reached the same verd ict despite such an2No arrest arose from this incident because the Alb uquerque police were

unable to locate the suspect after the purchase. O fficer Lujan purchased the cocaine in the outside area of the motel, watched w hile Mr. Cerpa went into room 5 to retrieve it, and asked him for a pager number. Mr. Cerpa had no number, but told the officer to return to the Bow and Arrow if he wanted to purchase more. One hour later, officers were unable to locate Mr. Cerpa for arrest, nor did they have his name. - 7 - instruction. Second, and more important, the evide nce against Mr. Cerpa supported a conviction even if Mr. Chavez’s testimo ny about the prior sales had been excluded entirely. For these reasons then, we believe although the district court abused its discretion in allowing Mr. Chavez’ s testimony without a limiting instruction, it did not prejudice Mr. Cerpa. Mr. Cerpa also raises a challenge to the district c ourt’s admission of Officer Lujan’s testimony about his previous crack cocaine purchase from Mr. Cerpa. After Mr. Cerpa’s arrest, Officer Lujan realized th at he had previously purchased crack cocaine from him at the Bow and Arr ow Motel on September 9,
1998. 2 The United States served notice of intent to intr oduce Officer Lujan’s testimony about this incident against Mr. Cerpa pur suant to Rule 404(b). The testimony was admitted at trial with a limiting ins truction. Mr. Cerpa contends the evidence was improper character evidence barred by Rule 404(b). The district court rejected this argument and found the evidence properly admissible.- 8 -

In reviewing the district court’s admission of the controverted evidence, we apply a four-part test examining whether: (1) th e prosecution offered the evidence for a proper purpose under Rule 404(b); (2 ) the evidence is relevant under Fed. R. Evid. 401; (3) the evidence’s probati ve value is not substantially outweighed by its potential for unfair prejudice un der Fed. R. Evid. 403; and (4) the district court, upon request, gave a proper ins truction limiting the jury’s consideration of the evidence to the purpose for wh ich it was admitted. United States v. Segien , 114 F.3d 1014, 1022-23 (10th Cir. 1997) (citing Huddleston v.
United States , 485 U.S. 681, 691 (1988)). Here, the district court found the testimony was of fered for a proper purpose: to show intent and knowledge. In evaluating the relevance of prior narcotics involvement in a subsequent narcotics cas e, we have noted that prior narcotics involvement is relevant when that conductis “close in time, highly probative, and similar to the activity with which t he defendant is charged.”
United States v. Wilson , 107 F.3d 774, 785 (10th Cir. 1997). The sale tes tified to by Officer Lujan took place just more than three mo nths prior to the sale of December 15, which is sufficiently close in time. The sale involved the same drug, in similar quantities, at the same motel, usi ng similar terminology, making the evidence highly probative of Mr. Cerpa’s knowle dge and intent, and similar activity. Moreover, the evidence is highly probati ve, and its probative value is- 9 -

not substantially outweighed by danger of unfair pr ejudice. The district court gave an appropriate limiting instruction after the evidence was admitted. The district court’s decisions were in accord with the law and procedure of this Circuit and certainly not an abuse of discretion. In assessing a claim of insufficient evidence to su stain a conviction, we review the entire record de novo in the light most favorable to the government to determine whether a reasonable jury could find guil t beyond a reasonable doubt, based on the direct and circumstantial evidence, to gether with reasonable inferences to be drawn therefrom. United States v. Jenkins , 175 F.3d 1208, 1215 (10th Cir. 1999). The evidence must be substantial , raising more than a mere suspicion of guilt. United States v. Anderson , 189 F.3d 1201, 1205 (10th Cir. 1999)

. Mr. Cerpa was charged with knowingly and intentiona lly distributing cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), as a principal, and as an aider and abetter, 18 U.S.C. § 2. A conv iction under either theory is of equal consequence to Mr. Cerpa, so the government n eed only demonstrate evidence that would allow a conviction as an aider and abetter. To ground liability as an aider and abetter, the government m ust show the defendant deliberately associated himself with the crime in s ome way and participate in it- 10 -

with the intent to bring about the crime. United States v. Green , 175 F.3d 822, 832 (10th Cir. 1999). Construing the evidence in favor of the government, even entirely disregarding the testimony of Mr. Chavez about prev ious sales, leaves little room to doubt that a rational jury could have convicted Mr. Cerpa of aiding and abetting in the sale of December 15. Mr. Cerpa fur nished the room that was the scene of the transaction in a motel known as a locu s of the drug trade. When Ms. Mora sold the cocaine to Mr. Chavez, Mr. Cerpa was in a position to observe what she was doing. The expert testimony of Office r Lujan at trial, unchallenged by the appellant, established that some dealers hab itually had others, particularly women, handle their drugs for them. Moreover, Offi cer Lujan’s testimony about the sale of September 9, 1998, demonstrates Mr. Cerpa’s knowledge and intent to deal crack cocaine from the Bow and Arrow. The evi dence, taken as a whole, is enough to ground a reasonable jury’s decision that the government had carried its burden on Mr. Cerpa’s association with the crime an d desire for its success. The government has the burden of establishing by a preponderance of the evidence the quantity of drugs for which Mr. Cerpa is responsible. We review the district court’s calculation of that amount as a fi nding of fact which will be set aside only if it is clearly erroneous. Id. at 835.- 11 -

Here, the district court calculated the amount of c ocaine attributable to Mr. Cerpa as at least 8 grams. It did so by accepting the testimony of Mr. Chavez that he had bought crack cocaine from Mr. Cerpa at leastfifty times, and using the December 15 purchase of .16 grams as the average we ight of those purchases (50 x .16 = 8). Mr. Cerpa protests the only weight attributable to him is the .16 grams of December 15 and the testimony of Mr. Chavez is “ unreliable, unbelievable and unverifiable.” The determination of credibility, h owever, is made in the district court by the finder of fact. It has no place on ap peal. As finder of fact in this instance, the district co urt was in a position to evaluate Mr. Chavez’s testimony directly, and its d etermination of his credibility is entitled to considerable deference. United States v. Cook , 949 F.2d 289, 297 (10th Cir. 1991). Mr. Chavez’s testimony was not c ontradicted by extrinsic evidence nor was it internally inconsistent or impl ausible on its face. There is no clear error here.
AFFIRMED

. ENTERED FOR THE COURT John C. Porfilio Senior Circuit Judge