### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-41382

UNITED STATES OF AMERICA, Plaintiff - Appellee
v. HUGO CRUZ, Defendant - Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 5:11-CR-494-1

Before REAVLEY, JOLLY, and SMITH, Circuit Judges. PER CURIAM: * Hugo Cruz w as indicted for con s p i r a c y and possession with i ntent to distribute in excess of 50 kilograms of marijuana in violation o f 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. A jury convicted him on b oth counts. O n appeal, Cruz argues that t he government violated Brady v. Maryland , 3 73 U.S. 83 (1963), by f

ailing to disclose that one of its witness’s visa did not allow him to be l a wfully employed in the U nited S tates. Additionally, Cruz c hallenges the admission of a Michigan state trooper’s testimony regarding Cruz’s prior drugU n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D April 18, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 11-41382 Document: 00512213617 Page: 1 Date Filed: 04/18/2013No. 11-41382

related arrest and conviction under Federal Rules of Evidence 4 03 a nd 404(b), arguing that the e vi d e n c e was irrelevant and its probative value w as outweighed by its tendency to prejudice the j ury. 1 Concluding t hat the di s trict court committed no error, we AFFIRM. I. The government a l leged that in June 2010, Cruz offered t o p ay Marco Toledo $10,000 to help him s muggle mari j u a n a from Mexico into the United States. The p lan called for Cruz and Toledo to drive a v an from Chicago, Illinois, to Guadalajara, Mexico. Hidden compartments i n t he van would b e loaded with marijuana in Mexico, Toledo would drive the van back to t he United States, and Cruz would fly back to Chicago. The van was a 1997 Ford registered to Cruz’s father, Andres Cruz. Eviden c e s h o w ed that Cruz transferred title to the van to Toledo and procured insurance f

o r t h e v an before t he pair left Chicago. Cruz and Toledo drove the van to Mexico. The van was loaded with marijua n a u n d e r t he supervision o f both Cruz and Toledo. Toledo attempted to drive the van back to the U nited States, but h e was apprehended. Toledo c o nfessed, pled guilty, and testified against Cruz. C ruz’s counsel argued t hat Toledo’s testimony would not be w orthy o f b e l i ef b ecause he was a c onvicted drug smuggler who w as trying desperately to decrease his sentence b y providing assistance to the p rosecution. One of the government witnesses at Cruz’s trial w as G uillermo Gonzalez Perales (“Gonzalez”). Gonzalez, through an i nterpreter, testified that he was currently employed by the Magnum Insurance Agency in North Aurora, Illinois, and had b een i n June 2010, w hen Cruz came in to buy insurance f or the van. He testified that C ruz came i n with one or tw o o t h e r men. G onzalez stated that

1 Cruz als o as s erts cum ulative error, but there clearly was no accum ulation of errors neces s itating revers al in this cas e und er our cas elaw

. See U ni ted Sta tes v. Del

ga do , 672 F

. 3d 320, 343- 44 ( 5th Cir. 2012) ( en banc) , cert deni ed , 133 S. Ct. 525 (2012)

. 2 Case: 11-41382 Document: 00512213617 Page: 2 Date Filed: 04/18/2013No. 11-41382

Cruz p u rchased policies for Illinois a nd for Mexico to cover the van, with the title holder being Toledo. Gonzalez testified that he often s o ld insurance p olicies to

one person for the benefit of another wit h o u t seeing identification from the beneficiary. The other evidence relevant to this appeal w as the testimony of Michigan state trooper John Norvell. Norvell testified that w h e n Cruz was 16 years old he wa s found driving a vehicle with approximately three pounds of cocaine concealed in a s p e a k e r b o x in the trunk. The district court allowed the government t o introduce evidence of the prior incident to show Cruz’s knowledge and intent. Cruz’s timely objection to t he admission of this e vidence under Rules 403 and 404(b) was overruled. Following the trial, the j ury convicted C ruz on both counts of the indictment. Cruz filed a motion f or a new t rial, alleging the existence of newly discovered evidence that had been withheld in violation of Brady

. Specifically, Cruz asserted that the government withheld information that Gonzalez was an alien in violation of the terms of his visa, was potentially u sing false documents to secure employment, and had not been prosecuted c riminally or h ad any adverse immigration a ction taken against him. T he district court d e nied Cruz’s motion, and the case proceeded to sentencing. Cruz was sentenced to 51 months of imprisonm e n t on each count, to run concurrently. The district court also imposed three- and two

- y e a r c o ncurrent terms of s upervised release. Cruz timely appealed. I I. We first address Cruz’s Brady claim. Cruz argues th a t t h e government violated Bradyby failing to disclose that Gonzalez’s immigration s tatus under

a “B1-B2” visa would not have permit t e d h i m legally to w ork in the United States—meaning t hat Gonzalez was illegally working at the insurance agency when he sold Cruz insurance f or the van in which the marijuana was discovered.

3 Case: 11-41382 Document: 00512213617 Page: 3 Date Filed: 04/18/2013No. 11-41382

Assuming arguendo that Gonzalez’s immigration status—whether h e was in violation of the t erms of his visa—constitutes perm i ssible impeachment evidence, Cruz nevertheless fails to show t hat the a dmission of such evidence would have had a material effect on the outcome of his trial. We review alleged Brady violations de novo , but “we must proceed with deference to t he factual findings underlying the district court’s decision.” United States v. Brown , 6 50 F.3d 581, 589 ( 5th Cir. 2011) (citation omitted), cert. denied , 132 S. Ct. 1969 ( 2012). “To establish a Brady violation, the d e fendant must prove that (1) the prosecution suppre s s e d evidence, (2) it was favorable to the d e f e ndant, and ( 3) it was m aterial.” Id. at 587-88. “ There is no d i ffer e n c e between exculpatory and impeachment evidence for purposes of Brady

. . . but it must, s omehow, c reate a reasonable probability that t he r e sult of the proceeding w ould be d ifferent.” I d. at 588. “A ‘reasonabl e p r o b a bility’ exists when the government’s suppre s s ion of evidence ‘ undermines confidence in the outcome of the t rial.’ To prove a reasonable probability of a different result, the ‘likelih o o d o f a different result must be substantial, not just conceivable.’” I d. (citations omitted). At the o u t s et we note that w e have s erious d o ubts about whether the prosecution suppressed evidence in t he i nstant case. 2 But, even i f Gonzalez’s immigration status w as suppressed, t here is no likelihood of a different result. Gonzalez was called to testify for the limited purpose of corroborating Toledo’s testimony that Cruz had purchased the i nsurance for the van in Toledo’s name.

2 The d is trict court did not mak e a f ind ing that no evid ence had been s up pres s ed , but
w e note that the p ros ecutor inf orm ed def

ens e couns el that, ( 1) the w itnes s w ould be called , ( 2) he w as in the country p urs uant to a B1- B2 vis a, ( 3) the governm ent had hadis sues w ith his
s ocial security num ber, and ( 4) d ef ens e couns el could ques tion him bef ore he took the s tand

. D ef ens e couns el o p t e d n o t to ques tion G onzalez bef orehand and d id not inquire about his im m igration s tatus w hile he w as on the s tand

. I nd eed , couns el noted that she w as unaw are about the relevance of a B1- B2 vis a until af ter the trial. Whether the governm ent s up p res s ed evid ence und er thes e f acts certainly is ques tionable, but w e need not res olve the is s ue here.

4 Case: 11-41382 Document: 00512213617 Page: 4 Date Filed: 04/18/2013No. 11-41382

As such, his t estimony w as brief. C ruz’s argument in favor of m ateriality is that because Gonzalez c orroborated the testimony of Toledo—the key w itness whose credibility was central t o the trial—whether Gonzalez w as being given leniency

on his immigration violation in exchange for his testimony c o u ld have altered the jury’s determination of Toledo’s credibility. But, as the district court noted, Gonzalez w as a neutral witness with no preexisting personal relationship with eit h e r Cruz or Toledo. Although arguably conceivable that Gonzalez’s immigra t i o n s t a t u s c o u l d h av e affected the jury’s credibility determination, Cruz has failed to show that such limit e d impeachment evidence of a neutral, tangential witness was su b s t a n t i a l ly likely to produce a different result. No Bradyviolation occurred in this case. III. Next, w e turn to Cruz’s claim that t he district c o urt e rred in admitting evidence of his past d rug arrest in violation of Federal Rules of Evidence 403 and 404(b). “Where the p arty c hallenging the trial court’s evidentiary ruling makes a timely objection, we review t he ruling under an abuse o f discretion standard.” United States v. Sumlin , 4 89 F.3d 683, 688 (5th Cir. 2007). “In a criminal case, review o f t he l o wer court’s evidentiary r ulings is necessarily heightened.” I d. Rule 404(b) states: Other Crimes, Wrongs, or Acts.

. . . Evid e n c e of a crime, wrong, or other act is not admissible to p r ove a person’s c haracter in order to show that on a particular occasion the person acted in accordance with the c haracter.

. . . This evidence may b e admissible for another purpose, such as proving m otive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. “Rule 4 04(b) only applies to limit the a dmissibility of evidence of extrinsic acts.” Sumlin , 489 F.3d a t 6 89. “First, it must be determined that t he e xtrinsic evidence is relevant to an i s sue other than the defendant’s character. Second,

5 Case: 11-41382 Document: 00512213617 Page: 5 Date Filed: 04/18/2013No. 11-41382

the evidence must possess probative value that is not substantially outweighed by its undue prejudice and m ust m eet the other requirements o f R ule 403.” United States v. Beechum , 582 F.2d 898, 911 (5th Cir. 1978) (en banc); see also United States v. Heard , 709 F.3d 413, 429-30 (5th Cir. 2013) (citing Beechum ). Cruz timely objected to the district court’s admission of the evidence; we thus r e v i e w for a n abuse of discretion. Officer Norvell t estified about Cruz’s 1998 arrest, where he w as charged with possession with intent to deliver “50 to 225 grams of c ocaine.” Although Cruz pled to a lesser offense, the evidence was undisputed that approximate l y t hree pounds of cocaine was found hidden i n a speaker box in the trunk of t h e c a r that Cruz w as driving. The district court found that evidence of the prior offense went to Cruz’s intent or knowledge. Cruz a rgued at trial, and again on appeal, that t h e evidence was highly prejudicial, dissimilar from the e v ents at issue in the instant case, and too remote to be p robat i v e because it occurred 13 years earlier when Cruz was a juvenile. Although the evidence arguably i s p r ejudicial, the district court did not abuse its discretion in admitting the officer’s testimony. First, the evidence is relevant despite the difference in t h e t y p e o f drug d i s c o v e r ed. See F E D

. R. E V I D

. 401 ( “Evidence is relevant if

. . . i t has an y ten d e n c y t o m a ke a fact m ore or less probable than it would be without the evidence; and

. . . the f

act is of consequence in determining the action.”). The act of concealing more than 50 k ilograms of marijuana in hidden compartments in

a passenger van certai n l y is similar to C ruz’s earlier arrest involving cocaine surreptitiously hidden in a speaker b ox i n t h e t r unk of a c ar. A s such, the district c ourt did no t abuse its discretion i n concluding that t he prior act was relevant to Cruz’s knowledge and intent in the instant c ase. See United States

v. Pompa , 434 F.3d 800, 805 (5th Cir. 2005) (“In a drug-trafficking case, the issue

6 Case: 11-41382 Document: 00512213617 Page: 6 Date Filed: 04/18/2013No. 11-41382

of intent is always material.”). 3 Second, t he district court d i d not abuse its discretion in finding that the probative v alue was “not substantially outweighed by its undue prejudice.” Beechum , 582 F.2d a t 911. In assessing probative value and the risk o f undue p rejudice, courts “make a ‘ commonsense assessment of all the circumstances surrounding the extrinsic offense.’” United States v. Cockrell , 587 F.3d 674, 678 (5th Cir. 2009) (citation omitted). And, “Rule 403 ‘would seem to require exclusion only in those instances where the trial judge believes that there is g e n u ine risk that the emotions of the jury will be excited t o irrational behavior, and t hat this risk is disproportionate to the probative val u e o f the offered evidence.’” Id. at 679 ( q u o t i n g Beechum , 582 F.2d a t 915 n.20). In this
case, the district c ourt carefully weighed the e vidence and gave the j ury multiple limiting instructions designed to reduce the potential for unfair prejudice. We thus conclude t hat the district c o urt committed no error in admitting Officer Norvell’s testimony. IV. For the foregoing reasons, the judgment of the district court is AFFIRMED.

3 Ad d itionally, and contrary to Cruz’s argum ent, the tim e g ap betw een th e e a r l i e r arres t and the ins tant of

f ens e is not a p er se bar to its relevance or p robative value. U ni ted Sta tes v . Cockrel l , 587 F. 3d 674, 680 (5th C ir. 2009) ( “Although rem otenes s o f t h e e x t r i n s ic acts evid ence m ay w eak en its p robative value, the age of the p rior conviction d oes not bar its us e und er R u l e 4 0 4

. ” ( quoting U ni ted Sta tes v . B roussa rd , 80 F. 3d 1025, 1040 ( 5th Cir. 1996) ) ( internal quotation m ark s om itted ) )

. 7 Case: 11-41382 Document: 00512213617 Page: 7 Date Filed: 04/18/2013