United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-2482

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United States of America, *

*

Plaintiff-Appellant, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Pedro Arellano-Garcia, *

* [UNPUBLISHED]

Defendant-Appellee. *

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Submitted: December 14, 2004

Filed: January 24, 2005

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Before WOLLMAN, LAY, and COLLOTON, Circuit Judges.

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PER CURIAM.

Somsock Senlouangrat (Sock) and Daosadeth Keophounsouk (Dao) were

indicted in September of 2003 on a charge of conspiracy to distribute 500 grams of

methamphetamine. They admitted involvement in the conspiracy, and agreed to

cooperate with the police in an investigation of their source for narcotics, Defendant

Pedro Arellano-Garcia (Pedro). Sock was released on pretrial supervision and

absconded; he remains a fugitive. Dao pled guilty and cooperated with law

enforcement, which led to the arrest of Pedro. Pedro and Dao were placed in the

same prison in Fort Dodge, Iowa. 
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While in prison, Pedro wrote several notes to Dao. The note at issue in this

case was given to the Government by Dao, and reads as follows:

My cusin name Agustin Leal Sanchez. If Sock do not want to change

his story. It’s OK, my people are going to take care of Sock, I give

another chance to Sock and he do not get it. We now where he live on

Phonix and Fresno. But you can change what you say, because cops

need two people, whit one people they have no case. But you need to

help me and I can help you, today my attorney are going to come, and

I going to tell him, what is the best way to do this. So you whant to help

me. Belive, we have to work together on this problem or you wants to

stay 15 years on jail., I tell you, we can take you out on 2 years. Tell me

if you whant to help me. Thank you friend. And I sorry about Sock, he

get the roong way.

Pedro filed a motion in limine arguing, inter alia, that admission of the note into

evidence was unfairly prejudicial under Rule 403 of the Federal Rules of Evidence.

The Government argued that the note was admissible as relevant evidence of Pedro’s

knowledge of the conspiracy, participation in the conspiracy, and consciousness of

his own guilt. 

The district court refused to admit the note into evidence. Although it

recognized that threatening notes such as the one written by Pedro are generally

admissible as relevant evidence of a defendant’s consciousness of guilt, knowledge,

and participation, it found that admitting Pedro’s note could lead the jury to wrongly

believe that Sock’s unavailability was in some way caused by Pedro or his agents.

The district court found that this inference would create an unfair prejudice that

substantially outweighed the note’s probative value. 

It is well-established that “evidence of death threats against witnesses or other

parties cooperating with the government is generally admissible against a criminal

defendant to show consciousness of guilt of the crime charged.” United States v.
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DeAngelo, 13 F.3d 1228, 1231-32 (8th Cir. 1994); see also United States v. Nunn,

940 F.2d 1128, 1131 (8th Cir. 1991) (“As a threat made to a potential informant, the

conversation was relevant evidence of [defendant’s] knowledge of and participation

in the conspiracy.”). Although it may be true that admission of the note into evidence

would have been less prejudicial to Pedro if Sock was available at trial, the district

court placed too much emphasis on Sock’s absence. We cannot say that Sock’s

absence is enough to demonstrate that the note’s prejudicial effect substantially

outweighed its probative value. 

We have found that death threats are admissible as relevant evidence of

consciousness of guilt, knowledge, and participation in circumstances where the

nature of the threat was far more severe, and thus more prejudicial, than the note

written by Pedro. United States v. Montana-Gudino, 309 F.3d 501, 505 (8th Cir.

2002) (allowing the admission of a telephone threat to harm the children of the

witness); United States v. Madrigal, 152 F.3d 777, 780 (8th Cir. 1998) (admitting

evidence of the defendant’s threat to have the witness’s “whole family taken out”).

The note at issue was highly probative of Pedro’s knowledge of the

conspiracy, participation in the conspiracy, and consciousness of his own guilt.

“[T]he greater degree of probativeness possessed by the evidence, the greater the

showing of unfair prejudice that will be required to exclude the evidence.” United

States v. Noland, 960 F.2d 1384, 1387 (8th Cir. 1992). We find that the probative

value of Pedro’s note was not sufficiently counterbalanced by the risk of unfair

prejudice resulting from Sock’s absence. Therefore, the district court abused its

discretion and the note was admissible as evidence of Pedro’s guilt.

Accordingly, the evidentiary ruling of the district court is reversed and the case

is remanded.

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