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 

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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 trafficking organization. On appeal, Meyer 

challenges only her kidnapping conviction while Polanco raises several 

challenges to each of his convictions. 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 drug 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 enforcement 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 supplier. 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. Working 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 drugs covered up, the conspirators would 

sell the stolen drugs at a profit. 

This investigation eventually culminated 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 

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Texas’s Edinburg Police Department—proceeded 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 violation 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 giving a false statement to a government 

agent in violation of 18 U.S.C. § 1001(a)(2). 

 Below, we briefly provide an overview of the facts underlying Meyer’s 

and Polanco’s convictions as supported 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 drug suppliers and the conspirators.2

Specifically, Meyer would turn over police reports to the suppliers indicating 

that their drug shipment had been seized by police. In reality, these were 

staged seizures, and the real drugs were sold by the conspirators. 

Meyer was recruited into the scheme by Maritssa Salinas. Salinas was 

friends with Carlos Aaron Oyervides and Dimas DeLeon (the main 

conspirators) and had been in a romantic 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 appealed 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 her kidnapping conviction. Accordingly, we 

address only the facts relevant to that conviction. 

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“Poncho”) hired Oyervides 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 staged seizure in Houston, Texas. After 

the seizure, DeLeon created fake police documents to serve as proof of 

seizure. Oyervides gave these documents to Salinas, who in turn gave the 

documents to Meyer to give to Arismendez and his associate, a man known 

as “Alex.” 

In November 2013, Oyervides traveled to Mexico to discuss a new 

deal to transport drugs for Arismendez. At trial, the Government argued and 

introduced evidence to support that Oyervides 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 working 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 stage 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 was off duty) called a friend, Juan 

Balderas, who was an officer with the Edinburg Police Department, to report 

a suspicious vehicle parked off a highway. According to Balderas, Polanco 

3

 At trial, Meyer denied telling Arismendez about the thefts in advance of the 

kidnapping and testified that Salinas, not her, had set up the meeting in Mexico. 

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explained that a backpacker4 who had been apprehended by Border Patrol 

earlier that week had told Polanco that a car, specifically 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 backpacker parked at that location. 

Law enforcement responded to Polanco’s call and recovered packages 

of what appeared to be narcotics from inside the vehicle. The packages tested 

positive on the field test for narcotics, and later testing revealed that the 

packages contained trace amounts of cocaine. 

Balderas testified that Polanco called that afternoon and asked if 

Balderas could send over a photo of the narcotics recovered from the car. 

Balderas sent over the photos. 

Soon after the vehicle was seized, law enforcement began asking 

follow-up questions as to the circumstances 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 had conveyed to other law enforcement 

agencies. On April 23, 2013, Diaz conducted his first follow-up interview. In 

that interview, Polanco explained that a backpacker picked up by Border 

Patrol had informed him that drug traffickers were using small-sized vehicles 

4

 A backpacker is a mule, that is, someone carrying narcotics in a duffel bag, 

backpack, or other container. 

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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 April 24, 2013, Diaz conducted a second 

interview with Polanco. During the interview, 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, Polanco was called in for an interview with DEA 

Agent Anthony R. Santos. In that interview, Polanco denied receiving any 

specific information about a car used for drug trafficking from a backpacker, 

but instead had learned from the backpacker that drug traffickers had 

generally been staging vehicles in abandoned 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 Patrol agent. The Government, however, 

contended that Polanco had worked with DeLeon, one of the primary 

conspirators, to stage this seizure. The evidence presented by each side in 

support of its version of events will be discussed in greater detail below in 

connection with Polanco’s challenge to the sufficiency of the evidence as to 

his convictions. 

II. Discussion 

A. Meyer’s Issues on Appeal 

 On appeal, Meyer raises two issues: (1) whether the district court 

improperly instructed the jury as to the kidnapping charge and (2) whether 

the evidence was sufficient to support her conviction of the kidnapping 

offense. We address each in turn. 

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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 court, 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 was 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, integrity[,] 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 statutory 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 guilty of this crime, you must be 

convinced that the government has proven each of the following 

beyond a reasonable doubt: 

First: That the defendant, knowingly 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. 

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Meyer takes issue only with the third instruction, which addresses the 

statute’s jurisdictional element. 

 Meyer’s primary argument on appeal is that that the jurisdictional 

element of the federal kidnapping statute 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, Meyer ignores that, in 2006, the statute 

was amended to allow the government to establish jurisdiction 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 kidnapping statute reads as follows: 

Whoever unlawfully seizes, confines, 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 transported 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 furtherance 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 committing 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 

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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 traveled to Mexico to make Oyervides 

feel comfortable attending the meeting 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 connected 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 evidence was insufficient to support her 

kidnapping conviction. We review the denial 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 issue 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 means 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 historic 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 by providing 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 counsel and the defendant” and concluding that the 

failure to do so is error). In light of the absence of any argument from either party in the 

district court or before us on this issue, we note only that had the trial court here read the 

substantive offense instructions aloud, it is likely that this error would have been caught 

contemporaneously. 

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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 affirm if a reasonable trier of fact could 

conclude from the evidence that the elements of the offense were established 

beyond a reasonable doubt, viewing the evidence in the light most favorable 

to the verdict and drawing all reasonable inferences from the evidence to 

support the verdict.”7 Reed, 908 F.3d at 123 (internal 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. 2018) (internal quotation 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 testimony from Oyervides and Maritssa 

Salinas, both of whom were indicted co-conspirators 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 evidence tends to give 

nearly equal circumstantial support to either guilt 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 transported 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. 

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Investigations (“HSI”), who interviewed Meyer in connection with the 

kidnapping. 

Testimony from Oyervides indicated that Meyer initiated the meeting 

with Arismendez, and testimony from Salinas 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 encountered difficulty at the border. And, 

critically, Perez testified that Meyer herself admitted that she had lured 

Oyervides to Mexico with the false promise of a new drug deal on 

Arismendez’s orders. 

Both Oyervides and Salinas also testified to interactions after the 

abduction which further suggested Meyer’s guilt. Oyervides testified that 

Arismendez and Alex told him that Meyer had informed them that he had 

stolen merchandise, and that “she had put [him] there.” Oyervides also 

testified that he had overhead a conversation in which Meyer suggested that 

Arismendez and Alex kill him. Similarly, Salinas testified that she barely 

escaped abduction herself, and was only able to escape thanks to the 

intervention of Arismendez, her ex-boyfriend. Yet in a conversation with 

Meyer immediately following the attempted kidnapping, as Salinas 

attempted to flee to safety in the United States, Meyer acted as though 

nothing had happened and urged Salinas to come back to Mexico. Moreover, 

Salinas testified that in a phone call between Meyer, Salinas, Arismendez, 

and Alex at some point after the kidnapping, Alex threatened Salinas for 

being involved with the drug thefts while thanking Meyer “for everything.” 

 Put simply, this evidence was sufficient 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 issues: (1) whether the evidence was 

sufficient to support his conviction on all three counts, (2) whether the 

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district court abused its discretion in denying his motion for a new trial, (3) 

whether the district abused its discretion 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 Polanco’s Confrontation Clause rights. We 

address each in turn. 

1. Sufficiency of the Evidence 

 Polanco raises sufficiency-of-the-evidence 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 reasonable 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 conviction for conspiracy to possess with 

intent to distribute more than 5 kilograms of cocaine. To sustain this 

conviction, the government was required to show “(1) the existence of an 

agreement between two or more persons to violate narcotics laws, (2) 

knowledge of the conspiracy and intent 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 primarily disputes the sufficiency of the 

evidence with regards to the second element: knowledge of and intent to join 

the conspiracy. 

 At trial, the Government argued that 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. 

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 To support the charge, the Government 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 Patrol 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. Instead, 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 corroborated that Polanco was DeLeon’s 

Border Patrol contact. For instance, although Solis did not know the name of 

the Border Patrol agent, Polanco does not 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 Polanco and DeLeon were in close 

communication on April 19 and 20, 2013, with their phone numbers 

exchanging three calls and thirty-four texts 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 station for over half an hour the morning 

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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, Polanco’s girlfriend at the time of the 

seizure, in which she stated that Polanco got the information about the 

suspicious vehicle from Dimas DeLeon.9

In his testimony at trial, Polanco 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 such 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 (who 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 gas 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 evidence was primarily circumstantial 

and its witnesses unreliable, the evidence was insufficient to support his 

conviction. In other words, Polanco would 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 conviction for possession with intent to 

distribute. To sustain this conviction, the government was required to show 

9

 Garcia recanted this testimony, as well as statements she had made in earlier 

interviews with law enforcement, at trial. However, pursuant to Federal Rule of Evidence 

801(d)(1)(A), the jury could consider her grand 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. 

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“(1) the defendant knowingly possessed a controlled substance; (2) the 

substance was in fact [the controlled 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 Cir. 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 either actually or constructively possessed 

cocaine. Yet the jury was instructed that they could find liability under the 

theory of aiding and abetting. 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 aiding and abetting is simply “another 

means of convicting someone of the underlying offense,” the district court 

may give the aiding and abetting instruction 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 must show proof that “the substantive 

offense occurred and that the defendant (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 defendant “must share in the intent to 

commit the offense as well as participate 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) 

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(citation omitted). Thus, “[t]o be guilty of aiding and abetting possession of 

drugs with intent to distribute, each defendant must have aided and abetted 

both the possession of the drug and the intent to distribute it.” United States 

v. Williams, 985 F.2d 749, 753 (5th Cir. 1993). 

The same evidence supporting Polanco’s conspiracy conviction 

supports his possession conviction on an aiding and abetting theory of 

liability. From that evidence, a reasonable jury could conclude that, by calling 

in the car so that the sham cocaine could be seized and the real drugs 

successfully sold, Polanco associated and participated in the 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 aiding and abetting conviction). For the 

reasons given above, this challenge must similarly fail. 

Finally, Polanco challenges his conviction 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 defendant]: 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, specifically DEA Agent Santos, by stating that he did not 

receive a tip about the suspicious vehicle 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 amounts of cocaine. This is sufficient to prove 

this element of the underlying offense. Polanco’s remaining challenge to his possession 

conviction mirrors that raised against his conspiracy conviction: namely, that the 

Government failed to show that he reported the car on DeLeon’s behalf rather than of his 

own accord. 

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him information about the car. In challenging his conviction on this count, 

Polanco raises only conclusory 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 receive information about the car from 

DeLeon as part of his participation in the conspiracy, we correspondingly 

find that the jury had sufficient evidence from which to find that Polanco’s 

statements to DEA Agent Santos were false. 

For these reasons, we find that Polanco’s sufficiency challenges as to 

each of his convictions 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 new trial. Federal Rule of Criminal 

Procedure 33 permits a district 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, and “[f]or a district court to disturb a jury’s verdict 

and order a new trial, the evidence must preponderate heavily against the 

verdict, such that it would be a miscarriage of justice to let the verdict stand.” 

United States v. Reagan, 725 F.3d 471, 481 (5th Cir. 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 credibility of the witnesses during its 

consideration of the motion 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 “cautiously reweigh[ing]” the evidence and 

“[finding] it preponderated heavily against the guilty verdict”). 

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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 credibility of witnesses in ruling on a 

motion for a new trial, “[i]n our capacity as 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 district court erred in admitting evidence 

pursuant to Rule 404(b) that implied that he had once assaulted Garcia. We 

review a preserved objection to a trial 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 “heightened” when the evidence is admitted 

pursuant to Rule 404(b) “because evidence in criminal trials must be strictly 

relevant to the particular 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, preparation, plan, knowledge, identity, absence 

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of mistake, or lack of accident.” Fed. R. Evid. 404(b). In general, Rule 

404(b) “only excludes evidence of other 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 evidence sought to be introduced is 

uncharged, we must first determine if the evidence is “sufficient to support 

a finding that the crime or act actually occurred.” 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, similar 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 satisfied, we then turn to the question 

of whether the evidence is admissible under Rule 404(b). This requires a twoprong determination that “(1) [the evidence] 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 its 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 “whether 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 consequence 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 prejudicial impact of the evidence under Rule 

403, we consider “(1) the government’s need for the extrinsic evidence, (2) 

the similarity between the extrinsic and 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.” 

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United States v. Juarez, 866 F.3d 622, 627 (5th Cir. 2017) (internal quotation 

marks and citation omitted). 

Polanco challenges the admission of evidence that Garcia, during the 

time she was dating Polanco, filed a police report stating that she had been 

assaulted by a boyfriend. First, he argues that the evidence was not sufficient 

to show that he committed the alleged assault. As Polanco notes, the police 

report introduced as evidence did not name him as the alleged assailant and 

Garcia never testified that Polanco assaulted her. In fact, at trial, Garcia 

indicated that she may not have been assaulted at all, but rather that she had 

fallen while drunk and that some of her bruises were from sex. 

Yet other evidence introduced at trial supports that Polanco assaulted 

Garcia. At trial, Garcia confirmed that she had reported to Edinburg police 

that she had been assaulted by a boyfriend 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 maintained at trial 

that she had not been assaulted at all). Additionally, at trial, Garcia avoided 

explicitly denying that Polanco assaulted her, even when given multiple 

opportunities to do so. Rather than confirm that Polanco did not assault her, 

Garcia instead emphasized that she never 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 Polanco’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 

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and urged Polanco to call it in). Specifically, evidence of the assault suggested 

that Garcia may have been afraid of testifying 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 evidence is not substantially outweighed by undue 

prejudice such that it was an abuse of discretion for the district court to allow 

for its admission into evidence. First, the Government demonstrated 

sufficient need for the evidence: 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 between the charged offenses, all of which 

stemmed from participation in a drug conspiracy, 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 charged offense, it also 

occurred years before Garcia’s testimony 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 the jury that some evidence goes to the 

truthfulness of the witness and not 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 decision under a commonsense assessment 

of all the circumstances surrounding the extrinsic offense.” United States v. 

Jones, 930 F.3d 366, 374 (5th Cir. 2019) (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 

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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 district court’s rulings violated his 

Confrontation Clause rights. Specifically, Polanco argues that because the 

backpacker did not testify at trial, the Government should not have been 

allowed to introduce testimony from Jose Mares, a Border Patrol agent. 

Mares, who conducted the interview with the backpacker who Polanco 

processed and from whom Polanco allegedly received information about the 

suspicious vehicle, testified as to his own conversations 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 Confrontation 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, this 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). Although the determination as to 

whether to accept Garcia’s testimony before the grand jury or at trial as to why Polanco 

reported the car likely impacted the jury’s credibility determinations, particularly as to 

Polanco’s own testimony, it was well-established that Garcia was a reluctant witness and 

that she had changed her story to protect Polanco even without the introduction of the 

alleged assault. Moreover, the district court’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. 

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the evidence introduce a testimonial statement by a nontestifying witness? 

Second, was any such statement offered to prove the truth of the matter 

asserted? Third, was the nontestifying witness 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 testify 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 testimonial 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, rather 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 definition 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 that “hearsay rules and the Confrontation 

Clause are generally designed to protect similar values and stem from the same roots”) 

(cleaned up). 

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offered to prove the truth of the matter asserted.”) (internal quotation marks 

and citation omitted). Polanco suggests that because evidence that the 

backpacker did not tell Mares any details about the drug 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 criminal trial (his guilt or lack thereof) 

and the matter asserted in the statement (whether drug trafficking was 

occurring, whether the drugs were cocaine 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. 

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