# United States Court of Appeals **for the Fifth Circuit**

____________ No. 20-20094

____________ United States of America, Plaintiff—Appellee ,

versus Carmen Saldana Meyer, Defendant—Appellant ,

consolidated with

_____________ No. 20-20584

_____________ United States of America, Plaintiff—Appellee ,

versus

Daniel Polanco Defendant—Appellant

.

______________________________ Appeal from the United States District Court for the Southern District of Texas USDC Nos. 4:15-CR-544-11, 4:15-CR-544-12

______________________________ United States Court of Appeals Fifth Circuit 

### FILED April 3, 2023 Lyle W. Cayce Clerk Case: 20-20094 Document: 00516699213 Page: 1 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

2 Before Wiener, Higginson, and Wilson, Circuit Judges

. Stephen A. Higginson , Circuit Judge : In 2019, after a nine-day jury trial, Defendant-Appellants Carmen Saldana Meyer and Daniel Polanco were convicted on several counts related to their involvement in a drug traffi cking organization. On appeal, Meyer challenges only her kidnapping conv iction while Polanco raises several challenges to each of his conviction s. For the reasons given below, we AFFIRM.

I. Facts and Proceedings The case against both Carmen Saldana Meyer and Daniel Polanco began with an investigation into a dr ug trafficking organization (“DTO”) responsible for transporting narcotics, primarily cocaine but also including methamphetamine and marijuana, from Mexico into the United States. Through that investigation, law en forcement officers learned that members of the DTO (the “conspirators”) were stealing shipments of drugs from the original suppliers. The scheme operated as follows. The conspirators would enter into a contract to transfer drugs for a supp lier. After accepting the drugs, the conspirators would replace the real drug load with a “sham” load containing only small or trace amounts of the drug, just enough for the sham load to pass as real drugs on a field test. Workin g with corrupt law enforcement officers, the conspirators would stage seizures of the sham bundles by law enforcement. Later, the corrupt officers would provide the official seizure paperwork to the conspirators to show to the suppliers as proof the drugs had been seized. With the theft of the drug s covered up, the conspirators would sell the stolen drugs at a profit. This investigation eventually culmin ated in a Superseding Indictment against 17 co-conspirators. Three defendants—Carmen Meyer; Daniel Polanco, a Border Patrol agent; and Hector Beltran, a police officer with Case: 20-20094 Document: 00516699213 Page: 2 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

3 Texas’s Edinburg Police Department—pr oceeded to a joint jury trial. The jury trial lasted nine days, during which the jury heard from thirty-six witnesses (thirty presented by the Government, six by the three defendants). Both Meyer and Polanco were convicted on all counts. 1 Specifically, the jury found both Meyer and Polanco guilty of conspiracy to possess with intent to distribute cocaine in violatio n of 21 U.S.C. § 846, and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). In addition, the jury found Meyer guilty of kidnapping in violation of 18 U.S.C. § 1201(a)(1), and Polanco guilty of givi ng a false statement to a government agent in violation of 18 U.S.C. § 1001(a)(2). Below, we briefly provide an over view of the facts underlying Meyer’s and Polanco’s convictions as support ed by the evidence and testimony presented at trial. A. Carmen Saldana Meyer Meyer, a paralegal from McAllen, Texas, aided the conspiracy by serving as a liaison between the dr ug suppliers and the conspirators. 2 Specifically, Meyer would turn over polic e reports to the suppliers indicating that their drug shipment had been seiz ed by police. In reality, these were staged seizures, and the real drug s were sold by the conspirators. Meyer was recruited into the scheme by Maritssa Salin as. Salinas was friends with Carlos Aaron Oyervide s and Dimas DeLeon (the main conspirators) and had been in a roma ntic relationship with Francisco Arismendez (a drug supplier). In April 2013, Arismendez (who also went by

1 Beltran was convicted on one count of conspiracy to possess with intent to distribute cocaine and acquitted on two counts of possession with intent to distribute a controlled substance. Although Beltran appea led his conviction, his appeal was dismissed for want of prosecution.

2 On appeal, Meyer does not challenge any of her convictions related to the drug conspiracy. Instead, she challenges only he r kidnapping conviction. Accordingly, we address only the facts relevant to that conviction. Case: 20-20094 Document: 00516699213 Page: 3 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

4 “Poncho”) hired Oyervide s and DeLeon to sell around 20 kilograms of cocaine. Rather than sell the cocaine, however, Oyervides and DeLeon stole the drugs and covered it up with a stag ed seizure in Houston, Texas. After the seizure, DeLeon created fake po lice documents to serve as proof of seizure. Oyervides gave these documents to Salinas, who in turn gave the documents to Meyer to give to Aris mendez and his associate, a man known as “Alex.” In November 2013, Oyervides travel ed to Mexico to discuss a new deal to transport drugs for Arismendez. At trial, the Government argued and introduced evidence to support thatOyervides traveled to Mexico on Meyer’s invitation, and that Meyer had informed Arismendez (who had grown suspicious about the seizure in Houston) about the thefts by the time Oyervides was asked to cross the border. 3 While leaving the meeting in Mexico, Oyervides was kidnapped at gunpoint. Oyervides, who was held captive for four-and-a-half-months, was ultimately rescued by the Mexican military.

B. Daniel Polanco In 2013, Daniel Polanco was workin g as a Border Patrol agent. As argued by the Government at trial, he aided the conspiracy by serving as one of the corrupt officers who would help st age seizures of sham drugs and then gave a false statement to federal agents to help hide his involvement in this conspiracy. On April 20, 2013, Polanco (who wa s off duty) called a friend, Juan Balderas, who was an officer with the Edinburg Police Department, to report a suspicious vehicle parked off a high way. According to Balderas, Polanco

3 At trial, Meyer denied telling Arismendez about the thefts in advance of the kidnapping and testified that Salinas, no t her, had set up the meeting in Mexico. Case: 20-20094 Document: 00516699213 Page: 4 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

5 explained that a backpacker 4 who had been apprehended by Border Patrol earlier that week had told Polanco that a car, spec ifically a green, four-door Mazda, used for drug trafficking would be stationed at the intersection of Davis and Highway 281. Polanco noted that he happened to be driving up to San Antonio with a woman named Monica and had just seen a car matching the description provided by the back packer parked at that location. Law enforcement responded to Polanc o’s call and reco vered packages of what appeared to be narcotics from in side the vehicle. The packages tested positive on the field test for narcotic s, and later testing revealed that the packages contained trace amounts of cocaine.

Balderas testified that Polanco ca lled that afternoon and asked if Balderas could send over a photo of th e narcotics recovered from the car. Balderas sent over the photos.

Soon after the vehicle was seiz ed, law enforcement began asking follow-up questions as to the circum stances surrounding Polanco’s report. On April 23, 2013, Balderas was asked to produce a written report about the information he had received about the vehicle. According to Balderas, he gave Polanco the heads-up about the report. At some point, Polanco called Balderas and requested a copy of that report. Polanco, Balderas testified, claimed that he needed a copy because he had also been asked to do a report for his own supervisors. Indeed, Polanco’s shift supervisor, Donicio Diaz, had been asked to conduct a follow-up interview with Polanco to learn more about how Polanco had received the information he ha d conveyed to other law enforcement agencies. On April 23, 2013, Diaz cond ucted his first follow-up interview. In that interview, Polanco explained thata backpacker picked up by Border Patrol had informed him that drug traffi ckers were using small-sized vehicles

4 A backpacker is a mule, that is, someone carrying narcotics in a duffel bag, backpack, or other container. Case: 20-20094 Document: 00516699213 Page: 5 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

6 staged alongside roads. Thus, when Polanco (who was driving up to see a fight in San Antonio), saw a vehicle that he “knew” near a tractor trailer, he called it in. The next day, on Apr il 24, 2013, Diaz conducted a second interview with Polanco. During the in terview, Polanco could not provide any more detail as to the tractor trailer (which he clarified was parked further down the road) but did note that the small car was a green or aqua Nissan with no license plates and a “jacked up” rear. Diaz, who did not interview Polanco again, noted that Polanco did ask a few more times if there had been any more questions or if anything had come from the investigation. Later, in May 2013, Po lanco was called in for an interview with DEA Agent Anthony R. Santos. In that inte rview, Polanco deni ed receiving any specific information about a car used for drug traffi cking from a backpacker, but instead had learned from the back packer that drug traffickers had generally been staging vehicles in ab andoned locations. Polanco indicated that he had just had a “hunch” about the vehicle, based generally on his experience as a Border Patrol agent. At trial, Polanco maintained that he had called in the vehicle based on information received from the backpacker and the knowledge he had obtained while working as a Border Pa trol agent. The Government, however, contended that Polanco had worked with DeLeon, one of the primary conspirators, to stage this seizure. Th e evidence presented by each side in support of its version of ev ents will be discussed in greater detail below in connection with Polanco’s ch allenge to the sufficiency of the evidence as to his convictions.

II. Discussion A. Meyer’s Issues on Appeal On appeal, Meyer raises two issu es: (1) whether the district court improperly instructed the jury as to the kidnapping charge and (2) whether the evidence was sufficie nt to support her conviction of the kidnapping offense. We address each in turn. Case: 20-20094 Document: 00516699213 Page: 6 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

7 1. Jury Instruction Meyer first argues that the district court erred in instructing the jury on the federal kidnapping charge. Where a party did not object to the jury instructions before the district co urt, we review for plain error. 5 United States v. Daniels , 252 F.3d 411, 414 (5th Cir. 2001). “A jury instruction is plain error if (1) it was erroneous; (2) the error wa s plain; and (3) the plain error affected the substantial rights of the defendant.” United States v. Percel , 553 F.3d 903, 909 (5th Cir. 2008) (internal quotation marks and citation omitted). If these three conditions are met, we will use our discretion to correct the error if it “seriously affect[s] the fairness, integrit y[,] or public reputation of judicial proceedings.” Daniels , 252 F.3d at 414 (quoting United States v. Olano , 507 U.S. 725, 736 (1993)). Here, Meyer contends that the district court failed to properly instruct the jury as to all the stat utory elements required for a federal kidnapping offense under 18 U.S.C § 1201 (a)(1). The jury charge instruction on the kidnapping count read as follows: For you to find the defendant gu ilty of this crime, you must be convinced that the government has proven each of the following beyond a reasonable doubt: First : That the defendant, knowingl y acting contrary to law, kidnapped, seized or inveigled Carlos Aaron Oyervides; Second : That the defendant held Carlos Aaron Oyervides for ransom, reward or some purpose or benefit; and Third : That the defendant traveled in interstate or foreign commerce, that is from Hidalgo County, Texas to the United Mexican States.

5 Meyer concedes that she did not object to the kidnapping jury charge instruction at trial. Case: 20-20094 Document: 00516699213 Page: 7 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

8 Meyer takes issue only with the thir d instruction, which addresses the statute’s jurisdictional element. Meyer’s primary argument on appeal is that that the jurisdictional element of the federal kidnapping st atute cannot be satisfied by the defendant’s travel in interstate or foreign commerce; rather, Meyer claims, the government must show that the victim was transported in interstate or foreign commerce. Yet in so arguing, Meye r ignores that, in 2006, the statute was amended to allow the government to establish juri sdiction by the offender’s travel. See Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 213, 120 Stat. 587, 616 (codified at 18 U.S.C. § 1201(a)(1)). Now, the federal kidnap ping statute reads as follows: Whoever unlawfully seizes, confin es, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when . . . the person is willfully tran sported in interstate or foreign

commerce . . . or the offender travels in interstate or foreign commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furthera nce of the commission of the offense . . . shall be punished by imprisonment for any term of years or for life . . . . 18 U.S.C. § 1201(a) (emphasis added) . It was therefore not error for the district court to instruct the jury that the offender’s own interstate or foreign travel could supply the jurisdictional hook. However, in instructing the jury, the district court did not clarify that the offender’s travel must be “in co mmitting or in furtherance of the commission of the offense.” At oral argument, the Government conceded that this failure was error. See also Fifth Circuit Pattern Jury Instructions (Criminal) § 2.54 (2019) (stating that the jurisdictional element can be met if “the defendant traveled in interstate or foreign Case: 20-20094 Document: 00516699213 Page: 8 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

9 commerce in committing or in furtherance of the commission of the offense ” (emphasis added)). 6 Nonetheless, we find that this error does not warrant a plain error reversal. At trial, the Government argued (and produced evidence supporting the conclusion) that Meyer tr aveled to Mexico to make Oyervides feel comfortable attending the meetin g with Arismendez. And while Meyer disputes that the jury could have found that she had the requisite intent in traveling to Mexico, she does not contest that the Government’s theory of the case, and its trial proof, always conne cted her travel to the kidnapping. Accordingly, although we hold that the district court committed error in instructing the jury as to the kidnapping count, such error does not rise to plain error. 2. Sufficiency of the Evidence Next, Meyer argues that the eviden ce was insufficient to support her kidnapping conviction. We review the de nial of a motion for acquittal based on insufficient evidence de novo

. United States v. Reed , 908 F.3d 102, 123 (5th

6 On our review of the record on appeal, we note that, without contemporaneous objection or identification on appeal as an i ssue from the parties, the substantive offense instructions were not orally read to the jury . Reviewing Federal Rule of Criminal Procedure 30, we see no explicit directive that jury instructions be given orally. See Fed. R. Crim. P. 30(c) (noting that the court “may instruct the jury” either before or after arguments without providing any definition of what it me ans to “instruct” a jury). Although we do not find precedent addressing this issue from our own court, sister circuits have recognized the necessity of providing oral instruction. See United States v. Becerra , 939 F.3d 995, 998, 1001 (9th Cir. 2019) (describing why “the histor ic practice of oral jury instruction remains central to the fairness of jury trials” and noting that “[a] trial court does not satisfy its duty to instruct jurors in a criminal case just byproviding those jurors with a set of written instructions to use during deliberations”); see also United States v. Noble , 155 F.2d 315, 318 (3d Cir. 1946) (holding that it is “essential that all instructions to the jury be given by the trial judge orally in the presence of counse l and the defendant” and concluding that the failure to do so is error). In light of the ab sence of any argument from either party in the district court or before us on this issue, we note only that had the tr ial court here read the substantive offense instructions aloud, it is likely that this error would have been caught contemporaneously. Case: 20-20094 Document: 00516699213 Page: 9 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

10 Cir. 2018). In conducting this review, we do “not evaluate the weight of the evidence or the credibility of witnesses,” United States v. Doggins , 633 F.3d 379, 383 (5th Cir. 2011), and we “will affi rm 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 reasonab le inferences from the evidence to support the verdict.” 7 Reed , 908 F.3d at 123 (inter nal quotation marks and citation omitted). In other words, “[ o]ur question is whether the jury’s verdict was reasonable, not whether we believe it to be correct.” United States v. Bolton , 908 F.3d 75, 89 (5th Cir. 20 18) (internal quot ation marks and citation omitted). Meyer contends that the evidence was not sufficient for the jury to find that she had advance knowledge of and assisted in any way with the kidnapping and, therefore, a reasonable jury could not have concluded that Meyer inveigled Oyervides and traveled to Mexico in furtherance of the crime. 8 At trial, however, the Government produced evidence demonstrating that Meyer had played an integral role in arranging this kidnapping. This evidence primarily consisted of test imony from Oyervides and Maritssa Salinas, both of whom were indicted co-c onspirators who, at the time of trial, had pleaded guilty, and Antonio Perez, IV, an agent with Homeland Security

7 Citing United States v. Gonzales , 436 F.3d 560 (5th Cir. 2006), Meyer advocates for the use of the so-called equipoise rule, which states that “[i]f the ev idence tends to give nearly equal circumstantial support to either gu ilt or innocence then reversal is required.” Id. at 571. But we expressly “abandon[ed] use of the ‘equipoise rule’” in United States v. Vargas-Ocampo , 747 F.3d 299, 301 (5th Cir. 2014) (en banc). See also United States v. GarciaMartines , 624 F. App’x 874, 879 n.12 (5th Cir. 2015) (reiterating that Vargas-Ocampo prohibits the use of the equipoise rule).

8 Meyer also argues that the evidence was not sufficient for a jury to find that Oyervides, the victim, was unwillingly transport ed in interstate or foreign commerce. As already discussed, this argument ignores that the federal kidnapping statute now includes the defendant’s own travel as a basis for jurisdiction. Case: 20-20094 Document: 00516699213 Page: 10 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

11 Investigations (“HSI”), who interv iewed Meyer in connection with the kidnapping. Testimony from Oyervides indicated that Meyer initiated the meeting with Arismendez, and testimony from Sa linas indicated that Meyer traveled to Mexico to help make Oyervides feel comfortable attending the meeting— in the past, Oyervides had experienced issues with his passport, and wanted Meyer with him in case he encounte red difficulty at the border. And, critically, Perez testified that Meye r herself admitted that she had lured Oyervides to Mexico with the fals e promise of a new drug deal on Arismendez’s orders. Both Oyervides and Salinas also test ified to interactions after the abduction which further suggested Meye r’s guilt. Oyervides testified that Arismendez and Alex told him that Meyer had informed them that he had stolen merchandise, and that “she ha d put [him] there.” Oyervides also testified that he had overhead a conver sation in which Meyer suggested that Arismendez and Alex kill him. Similarly, Salinas testified that she barely escaped abduction herself, and was on ly able to escape thanks to the intervention of Arismendez, her ex-boy friend. Yet in a conversation with Meyer immediately following the a ttempted kidnapping, as Salinas attempted to flee to safety in the Un ited States, Meyer acted as though nothing had happened and urged Salinas to come back to Mexico. Moreover, Salinas testified that in a phone ca ll between Meyer, Salinas, Arismendez, and Alex at some point after the kidn apping, Alex threatened Salinas for being involved with the drug thefts wh ile thanking Meyer “for everything.” Put simply, this evidence was suffi cient for a jury to conclude that Meyer inveigled Oyervides to travel to Mexico and that Meyer had traveled to Mexico in furtherance of the kidnapping. B. Polanco’s Issues on Appeal On appeal, Polanco raises four is sues: (1) whether the evidence was sufficient to support his conviction on all three counts, (2) whether the Case: 20-20094 Document: 00516699213 Page: 11 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

12 district court abused its discretion in denying his motion for a new trial, (3) whether the district abused its discreti on in admitting evidence of an assault pursuant to Federal Rule of Evidence 404(b), and (4) whether the district court’s rulings at trial violated Pola nco’s Confrontation Clause rights. We address each in turn. 1. Sufficiency of the Evidence Polanco raises sufficiency-of-the-evid ence challenges to all three of his counts of conviction. As already discussed, we will affirm a conviction “if, after viewing all the evidence and all re asonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Sims , 11 F.4th 315, 321 (5th Cir. 2021) (quoting United States v. VargasOcampo , 747 F.3d 299, 301 (5th Cir. 2014) (en banc)); see also Reed, 908 F.3d at 123, n.82. First, Polanco challenges his convic tion for conspiracyto possess with intent to distribute more than 5 k ilograms of cocaine. To sustain this conviction, the government was required to show “(1) the existence of an agreement between two or more person s to violate narcotics laws, (2) knowledge of the conspiracy and inte nt to join it, and (3) voluntary participation in the conspiracy.” United States v. Peters , 283 F.3d 300, 307 (5th Cir. 2002). On appeal, Polanco pr imarily disputes the sufficiency of the evidence with regards to the second el ement: knowledge of and intent to join the conspiracy. At trial, the Government argued th at Polanco, a Border Patrol agent, was one of the corrupt law enforcement officers who, working with members of the conspiracy, would stage seizures of sham drugs to cover up the thefts from the suppliers. Specifically, the Government alleged that on April 20, 2013, Polanco called in a seizure on a vehicle loaded with 17 kilograms of (sham) cocaine on behalf of Dimas DeLeon, one of the main conspirators. Case: 20-20094 Document: 00516699213 Page: 12 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

13 To support the charge, the Govern ment called several witnesses to testify about their involvement with the staged seizure, the conspiracy, and Polanco. First, Mario Alejandro Solis, a co-conspirator, testified about how he and DeLeon prepared for the April 20, 2013, seizure. In preparation for the seizure, DeLeon told Solis to park the car at an abandoned gas station selected by DeLeon and his “Border Pa trol friend,” who would be calling in the seizure, to serve as the drop site . Solis testified that DeLeon explained that the Border Patrol contact had chosen the gas station because he was planning to drive up to San Antonio to see a fight and the gas station was on his route. Solis also testified that, on April 20, 2013 (the day of the planned seizure), he did not park the car out in the front of the gas station as he had been instructed to do. In stead, he parked off to the side, by the back. According to Solis, DeLeon was upset by this deviation from the plan, as it made it difficult for his Border Patrol contact to see the car. Eventually, Solis (who had stayed in the area) saw law enforcement nearby, presumably responding to Polanco’s call to Balderas. Solis told the jury that he later heard from DeLeon that the seizure had gone well and that DeLeon was going to pay his Border Patrol friend at the fight in San Antonio.

Other evidence at trial corrobo rated that Polanco was DeLeon’s Border Patrol contact. For instance, al though Solis did not know the name of the Border Patrol agent, Polanco does no t dispute that he was a Border Patrol agent with plans to travel to San Antonio to see a fight on April 20, 2013. Phone records also showed that Po lanco and DeLeon were in close communication on April 19 and 20, 2013, with their phone numbers exchanging three calls and thirty-four te xts on the 19th and thirteen calls and fifty-three texts on the 20th. Additionally, the Government introduced testimony from William Shute, an expert in using cell phone records to track locations, that cell phone location records demonstrated that Polanco remained in the area around the gas stat ion for over half an hour the morning Case: 20-20094 Document: 00516699213 Page: 13 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

14 of April 20, 2013, consistent with Solis’s testimony that the Border Patrol agent had difficulty locating the car. And the Government introduced grand jury testimony from Monica Garcia, Po lanco’s girlfriend at the time of the seizure, in which she stated that Polanco got the info rmation about the suspicious vehicle from Dimas DeLeon. 9 In his testimony at trial, Polanc o provided his own explanation of these facts. He testified that he had no agreement with DeLeon to call in the vehicle, and instead had called in the car because its back was “jacked up,” that is, the shocks had been adjusted su ch that it rode higher in the back, which was consistent with cars used to transport contraband. As for his communications with DeLeon, Polanco stated that he had purchased his tickets to the fight from DeLeon (w ho had a business as a local fight promoter) and was having difficulty getting DeLeon to deliver them. And as to the cell location data showing that he lingered in the area, Polanco claimed that he and Garcia had stopped for ga s and food in the area before heading out on the highway. On appeal, Polanco argues that even if the jury did not accept his own testimony, because the Government’s ev idence was primarily circumstantial and its witnesses unreliable, the evidence was insufficient to support his conviction. In other words, Polanco woul d have us step into the shoes of the jury to re-evaluate the weight of the evidence and re-assess the credibility of the witnesses. We decline to do so, and find that the evidence summarized above was sufficient to support his conspiracy conviction. Next, Polanco challenges his convic tion for possession with intent to distribute. To sustain this conviction , the government was required to show

9 Garcia recanted this testimony, as we ll as statements she had made in earlier interviews with law enforcement, at trial. Ho wever, pursuant to Federal Rule of Evidence 801(d)(1)(A), the jury could consider her g rand jury testimony as substantive evidence. Whether the jury accepted the version of events contained in Garcia’s grand jury testimony or her later trial testimony is a determination of credibility we do not disturb on review. Case: 20-20094 Document: 00516699213 Page: 14 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

15 “(1) the defendant knowingly possesse d a controlled substance; (2) the substance was in fact [the controlle d substance]; and (3) the defendant possessed the substance with the intent to distribute it.” United States v. Vinagre-Hernadez , 925 F.3d 761, 764 (5th Ci r. 2019) (citation omitted). “Possession may be actual or constructive . . . and may be proved by direct or circumstantial evidence.” United States v. Valdiosera-Godinez , 932 F.2d 1093, 1095 (5th Cir. 1991) (citation omitted). On appeal, Polanco primarily argues that the Government did not present evidence showing that he eitheractually or constructively possessed cocaine. Yet the jury was instructed th at they could find liability under the theory of aiding and abetti ng. Pursuant to 18 U.S.C. § 2, “[w]hoever . . . aids, abets, counsels, commands, induces or procures” the commission of an offense “is punishable as a principal.” 18 U.S.C. § 2(a). “Aiding and abetting is not a separate offense, but it is an alternative charge in every indictment, whether explicit or implicit.” United States v. Neal , 951 F.2d 630, 633 (5th Cir. 1992) (citation omitted). Because ai ding and abetting is simply “another means of convicting someone of the un derlying offense,” the district court may give the aiding and abetting instru ction so long as evidence is presented to support that theory of liability at trial. United States v. Sorrells , 145 F.3d 744, 752 (5th Cir. 1998) (citations omitted). To find a defendant guilty of the charged offense under a theory of aiding and abetting, the Government mu st show proof that “the substantive offense occurred and that the defendan t (1) associated with the criminal venture; (2) purposefully participated in the crime; and (3) sought by his actions for it to succeed.” United States v. Scott , 892 F.3d 791, 798 (5th Cir. 2018) (citation omitted). Although a de fendant “must share in the intent to commit the offense as well as particip ate in some manner to assist its commission, . . . [t]he defendant need not, however, commit all elements of the substantive underlying offense as long as he aided and abetted each element.” United States v. Fischel , 686 F.2d 1082, 1087 (5th Cir. 1982) Case: 20-20094 Document: 00516699213 Page: 15 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

16 (citation omitted). Thus, “[t]o be guilty of aiding and abe tting possession of drugs with intent to distribute, each defendant must have aided and abetted both the possession of the drug an d the intent to distribute it.” United States v. Williams , 985 F.2d 749, 753 (5th Cir. 1993). The same evidence supporting Po lanco’s conspiracy conviction supports his possession conviction on an aiding and abetting theory of liability. From that eviden ce, a reasonable jury coul d conclude that, by calling in the car so that the sham cocaine could be seized and the real drugs successfully sold, Polanco associated an d participated in th e drug trafficking venture in a way calculated to bring about its success. 10 See United States v. Salazar , 958 F.2d 1285, 1292 (5th Cir. 1992) (recognizing that the same evidence used to prove a defendant’s conviction for conspiracy to possesses cocaine will typically support an aidi ng and abetting conviction). For the reasons given above, this challenge must similarly fail. Finally, Polanco challenges his conv iction for making a false statement in violation of 18 U.S.C. § 1001(a)(2). A violation of this section “requires the government to prove that [the defe ndant]: 1) knowingly and willfully; 2) made a statement; 3) to a federal agency; 4) that was false; and 5) material.” United States v. Taylor, 582 F.3d 558, 562 (5th Cir. 2009). At trial, the Government argued that Polanco made a false statement to law enforcement, specific ally DEA Agent Santos, by stating that he did not receive a tip about the suspicious vehi cle when, in fact, DeLeon had given

10 Polanco does not dispute that an underlying drug offense was committed, although he does dispute the type of narcotic involved. In his briefing, Polanco suggests that the Government failed to prove that the underlying offense involved cocaine, rather than methamphetamine (for which the sham bundles field-tested positive). At trial, however, Polanco admitted via stipulation that later testing at a DEA laboratory showed that the recovered bundles contained trace amou nts of cocaine. This is sufficient to prove this element of the underlying offense. Pola nco’s remaining challenge to his possession conviction mirrors that raised against hi s conspiracy conviction: namely, that the Government failed to show that he reported th e car on DeLeon’s behalf rather than of his own accord. Case: 20-20094 Document: 00516699213 Page: 16 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

17 him information about the car. In challe nging his conviction on this count, Polanco raises only co nclusory arguments, essentially arguing that the evidence was not sufficient because he is not guilty of the underlying substantive offense. Because we have found that the jury had sufficient evidence to find that Polanco did re ceive information about the car from DeLeon as part of his participation in the conspiracy, we correspondingly find that the jury had sufficient eviden ce from which to find that Polanco’s statements to DEA Agent Santos were false. For these reasons, we find that Pola nco’s sufficiency challenges as to each of his convicti ons must fail.

2. Motion for a New Trial

Polanco also attacks his convictions by arguing that the district court erred in denying his motion for a ne w trial. Federal Rule of Criminal Procedure 33 permits a distri ct court to grant a motion for a new trial “if the interest of justice so requires.” Fed. R. Crim. P. 33(a). Ordering a new trial is no small matter, an d “[f]or a district court to disturb a jury’s verdict and order a new trial, the evidence mu st preponderate heavily against the verdict, such that it would be a misca rriage of justice to let the verdict stand.” United States v. Reagan , 725 F.3d 471, 481 (5th Ci r. 2013) (cleaned up). And where a defendant moves for a new trial based on the weight of the evidence, “[a]n appellate court may reverse only if it finds” the district court’s denial of the motion to be a “clear abuse of discretion.” United States v. Robertson , 110 F.3d 1113, 1118 (5th Cir. 1997) (citation omitted).

When a district court reviews a motion for a new trial, it may consider the credibility of the witnesses. See id. at 1117 (“The trial judge may weigh the evidence and may assess the cred ibility of the witnesses during its consideration of the moti on for a new trial.”); see also United States v. Herrera , 559 F.3d 296, 302 (5th Cir. 2009 ) (explaining that a district court acts within its discretion in “cauti ously reweigh[ing]” the evidence and “[finding] it preponderated heavil y against the guilty verdict”). Case: 20-20094 Document: 00516699213 Page: 17 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

18 On appeal, Polanco primarily argues that we should do the same and reconsider the jury (and the district court’s) credibility determinations to find in his favor. However, he points to no case law suggesting that we have such authority. In fact, in United States v. Tarango , 396 F.3d 666 (5th Cir. 2005), the court stated that while the district court (taking care not to usurp the role of the jury) may assess the cr edibility of witnesses in ruling on a motion for a new trial, “[i]n our capacityas an appellate court, we must not revisit evidence, reevaluate witness credibility, or attempt to reconcile seemingly contradictory evidence.” Id. at 672. Instead, we ask only whether the district court’s denial of a motion for a new trial “constituted a clear abuse of its discretion.” Id. Here, Polanco’s arguments as to his motion for a new trial are essentially the same as those raised in his sufficiency challenge. As discussed above, we find the evidence sufficient to support each of his convictions. We thus find that the district court did not abuse its discretion in denying Polanco’s motion for a new trial. 3. Rule 404(b) Evidence Polanco next argues that the distri ct court erred in admitting evidence pursuant to Rule 404(b) that implied th at he had once as saulted Garcia. We review a preserved objection to a tria l court’s evidentiary ruling under an abuse of discretion standard. United States v. Sumlin , 489 F.3d 683, 688 (5th Cir. 2007). This standard is “heigh tened” when the evidence is admitted pursuant to Rule 404(b) “because evidence in criminal trials must be strictly relevant to the partic ular offense charged.” United States v. Smith , 804 F.3d 724, 735 (5th Cir. 2015) (cleaned up).

Under Federal Rule of Evidence 404(b), “[e]vidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character,” but “may be admissible for another purpose, such as proving motive, opportunity, intent, preparatio n, plan, knowledge, identity, absence Case: 20-20094 Document: 00516699213 Page: 18 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

19 of mistake, or lack of accident.” Fed. R. Evid. 404(b). In general, Rule 404(b) “only excludes evidence of ot her crimes when offered to prove the conduct of a person by resort to an inference as to his character.” United States v. Ebron , 683 F.3d 105, 132 (5th Cir. 2012) (quoting Wright & Graham, Federal Practice and Procedure: Evidence § 5248). As a threshold matter, when the evid ence sought to be introduced is uncharged, we must first determine if the evidence is “sufficient to support a finding that the crime oract actuallyoccurred.” Smith , 804 F.3d at 735 (citation omitted); see also Huddleston v. United States , 485 U.S. 681, 689 (1988) (“In the Rule 404(b) context, si milar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor.”)). If this threshold requirement is satisfi ed, we then turn to the question of whether the evidence is admissible un der Rule 404(b). This requires a twoprong determination that “(1) [the eviden ce] is relevant to an issue other than the defendant’s character, and [that] (2) it ‘possess[es] probative value that is not substantially outweighed by it s undue prejudice’ under Federal Rule of Evidence 403.” Smith , 804 F.3d at 735 (quoting United States v. Beechum , 582 F.2d 898, 911 (5th Cir. 1978) (en banc)). As to the first prong, the relevancy of the evidence, we follow the inquiry established under Rule 401 of the Federal Rules of Evidence and ask “wheth er the evidence has ‘any tendency to make a fact more or less probable than it would be without the evidence’ and ‘the fact is of consequenc e in determining the action.’” United States v. Kinchen , 729 F.3d 466, 472 (5th Cir. 2013) (quoting Fed. R. Evid. 401)). As to the second prong, the prejudicia l impact of the ev idence under Rule 403, we consider “(1) the government’ s need for the extrinsic evidence, (2) the similarity between the extrinsic an d charged offenses, (3) the amount of time separating the two offenses, and (4 ) the court’s limiting instructions,” in addition to the “overall prejudicial effect of the extrinsic evidence.” Case: 20-20094 Document: 00516699213 Page: 19 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

20 United States v. Juarez , 866 F.3d 622, 627 (5th Cir. 2017) (internal quotation marks and citation omitted). Polanco challenges the ad mission of evidence that Garcia, during the time she was dating Polanco, filed a po lice report stating that she had been assaulted by a boyfriend. First, he argu es that the evidence was not sufficient to show that he committed the alleged assault. As Polanco notes, the police report introduced as evidence did no t name him as the alleged assailant and Garcia never testified that Polanco assa ulted her. In fact, at trial, Garcia indicated that she may not have been assa ulted at all, but ra ther that she had fallen while drunk and that some of her bruises were from sex.

Yet other evidence introduced at tr ial supports that Polanco assaulted Garcia. At trial, Garcia confirmed that she had repo rted to Edinburg police that she had been assaulted by a boyf riend during the time she was dating Polanco. Garcia also confirmed that an investigator looking into the assault assumed that Polanco was the assailant (although Garcia ma intained at trial that she had not been assaulted at all). Additionally, at tria l, Garcia avoided explicitly denying that Polanco assaul ted her, even when given multiple opportunities to do so. Rather than co nfirm that Polanco did not assault her, Garcia instead emphasized that she neve r filed an official report naming him as the assailant. Given this evidence, the jury could reasonably conclude that Garcia’s later denials that an assault occurred were not credible and that Polanco was the assailant. We therefore turn to the first prong of the Beechum test, whether the proffered evidence was relevant to an issue other than Po lanco’s character. While Polanco contends that evidence as to the assault was entered solely to malign his character, the trial record shows that it was offered for the permissible purpose of explaining why Garcia’s testimony may have changed between the time she testified before the grand jury in 2017 (when she stated that Polanco received information about the suspicious vehicle from DeLeon) and the time of trial (when she claimed that she spotted the vehicle Case: 20-20094 Document: 00516699213 Page: 20 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

21 and urged Polanco to call it in). Specifically, evidence of the assault suggested that Garcia may have been afraid of te stifying publicly against Polanco, who had previously been violent with her. Turning next to the second prong of the Beechum test, we find that the probative value of this ev idence is not substantially outweighed by undue prejudice such that it was an abuse of di scretion for the district court to allow for its admission into evidence. First, the Government demonstrated sufficient need for the ev idence: Garcia’s testimony before the grand jury that Polanco had received the location of the vehicle from DeLeon was highly relevant to each of the three charges against him, and the Government was attempting to explain why her testimony may have shifted by the time of trial. Second, there is little similarity betw een the charged offenses, all of which stemmed from participation in a drugconspiracy, and domestic assault. See Kinchen , 729 F.3d at 473 (noting that the “more closely an extrinsic offense resembles the charged offense, the greater the prejudice to the defendant”). As for the third factor, the time between offenses, we note that although the alleged assault occurred within the same year as the charge d offense, it also occurred years before Garcia’s testimon y before both the grand jury and at trial. Admittedly, this temporal remoteness weakens the Government’s argument that Garcia may have changed her testimony out of fear of publicly testifying against Polanco. However, the existence of the fourth factor—the district court’s limiting instruction to th e jury that some evidence goes to the truthfulness of the witness and no t to the truth of the underlying allegations—helps assuage any concern as to its admission. “Even if all four factors weigh in the Government’s favor,” we “must still evaluate the district court’s de cision under a commonsense assessment of all the circumstances surrounding the extrinsic offense.” United States v. Jones , 930 F.3d 366, 374 (5th Cir. 20 19) (internal quotation marks and citation omitted). Here, although the alleged assault was likely prejudicial, United States v. Ricard, 922 F.3d 639, 654 (5th Cir. 2019) (describing extrinsic Case: 20-20094 Document: 00516699213 Page: 21 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

22 evidence of “violent acts” as one of the “hallmarks of highly prejudicial evidence”) (citation omitted), Polanco was on trial for serious drug offenses. Under these circumstances, we see no substantial undue prejudice and do not find an abuse of discretion. 11

4. Confrontation Clause Finally, Polanco contends that the di strict court’s rulings violated his Confrontation Clause rights. Specifica lly, Polanco argues that because the backpacker did not testify at trial, the Government should not have been allowed to introduce testimony from J ose Mares, a Border Patrol agent. Mares, who conducted the interview with the backpacker who Polanco processed and from whom Polanco alle gedly received information about the suspicious vehicle, testifie d as to his own conversati ons with the backpacker. A preserved Confrontation Clause objection is reviewed “ de novo , subject to harmless error analysis.” United States v. Alvarado-Valdez , 521 F.3d 337, 341 (5th Cir. 2008).

Under the Sixth Amendment’s Conf rontation Clause, an “accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. Amend. VI . When determining whether admitted evidence violated the Confrontation Clause, th is court asks three questions: “ First , did

11 Finally, “erroneous admissions under Rule 404(b) are subject to a harmless error inquiry.” United States v. McCall , 553 F.3d 821, 827 (5th Cir. 2008). Under this inquiry, “[w]hen the other evidence of guilt is overwhelming, and the error would not have substantially influenced the jury’s verdict, the error is harmless.” United States v. Flores , 640 F.3d 638, 643 (5th Cir. 2011) (citation omitted). Althou gh the determination as to whether to accept Garcia’s testimony before th e grand jury or at trial as to why Polanco reported the car likely impacted the jury’s credi bility determinations, particularly as to Polanco’s own testimony, it was well-establis hed that Garcia was a reluctant witness and that she had changed her story to protect Po lanco even without the introduction of the alleged assault. Moreover, the district cour t’s limiting instruction provided immediately before the introduction of the alleged assault, also blunted the impact of any prejudice to Polanco. Given these factors, as well as the other evidence (discussed above) supporting Polanco’s conviction, we find that any error was harmless. Case: 20-20094 Document: 00516699213 Page: 22 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

23 the evidence introduce a testimonial st atement by a nontestifying witness? Second , was any such statement offered to prove the truth of the matter asserted? Third , was the nontestifying witn ess available to testify, or was the defendant deprived of an opportunity to cross-examine him?” United States v. Hamann , 33 F.4th 759, 767 (5th Cir. 2022). If the answer to each question is “yes,” then the Confrontation Clause was violated and we must review for harmless error. Id. As to the first question , Polanco is unable to point to any statement by the witness introduced through Mares’s objected-to testimony. To begin, Mares testified about the lack of any statement from the backpacker about cocaine or its transportation in specific types of cars or on specific highways. 12 Accordingly, because Mares did not te stify about any out-of-court statement, there is no Confrontation Clause violation. As to the second question, even if we considered the backpacker’s (non) statements to Mares to be test imonial statements for purposes of the Confrontation Clause, Polanco fails to show that the (non) statements by the backpacker were offered for the truth of the matter asserted. Instead, the significance of Mares’s testimony was whether he could confirm Polanco’s story about where he got the information about the suspicious vehicle. It was not offered for the truth of the matter asserted. See United States v. Cantu , 876 F.2d 1134, 1137 (5th Cir. 1989) (“If the significance of a statement lies solely in the fact that it was made, rath er than in the veracity of the out-ofcourt declarant’s assertion, the statement is not hearsay because it is not

12 The Government’s definition of a “statement” is taken from the text of Federal Rule of Evidence 801, which defines a statement in the context as “a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.” Fed. R. Evid. 801(a). Although this definitio n arises in the context of the hearsay rules, we find it instructive as to our Confrontation Clause analysis. See White v. Illinois , 502 U.S. 346, 353 (1992) (recognizing th at “hearsay rules and the Confrontation Clause are generally designed to protect similar values and stem from the same roots”) (cleaned up). Case: 20-20094 Document: 00516699213 Page: 23 Date Filed: 04/03/2023No. 20-20094 c/w No. 20-20584

24 offered to prove the truth of the matter asserted.”) (internal quotation marks and citation omitted). Polanco suggest s that because evidence that the backpacker did not tell Mare s any details about the dr ug trafficking tends to prove or disprove his own narrative of events, it is necessarily offered for the truth of the matter asserted. In taking this position, Polanco improperly conflates the matter asserted in the crimin al trial (his guilt or lack thereof) and the matter asserted in the stat ement (whether drug trafficking was occurring, whether the drugs were coca ine or marijuana, whether the cars used in the trafficking were big or small). In sum, Polanco cannot show that Mares’s testimony violated his rights under the Sixth Amendment. The district court therefore did not err in admitting the testimony.

III.

We AFFIRM the district court. Case: 20-20094 Document: 00516699213 Page: 24 Date Filed: 04/03/2023