United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-3827

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Juan Marquez-Alvarado, *

*

Appellant. *

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Submitted: May 15, 2007

Filed: September 6, 2007

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Before LOKEN, Chief Judge, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.

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WOLLMAN, Circuit Judge.

Juan Marquez-Alvarado appeals from his conviction for, inter alia, conspiracy

to distribute marijuana in violation of 21 U.S.C. § 841(b)(1)(B). We affirm.

I.

Prior to the start of the charged conspiracy, Marquez-Alvarado, a friend of a

drug dealer named Callacho, was present when Callacho sold cocaine and marijuana

to Derek Thompson on three occasions in late 1998 or early 1999. Although

Marquez-Alvarado did not take money or directly deal drugs in those instances, he

intervened by speaking with Callacho in Spanish as Thompson haggled with Callacho
1

Although Thompson observed the conversations, he does not speak Spanish

and could not understand what was said.

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over the price of marijuana. Thereafter, Callacho acceded to Thompson’s price

demands.1

 After the arrest of certain members of Callacho’s operation, Coplin Dunn

began dealing marijuana and cocaine to Thompson instead. In 2000 or 2001,

Marquez-Alvarado was also present at approximately three transactions between

Thompson and Dunn. 

The charged conspiracy extended from the summer of 2001 to April 19, 2004,

during which time Marquez-Alvarado operated as a supplier of marijuana to a number

of co-conspirators who distributed it. He was responsible for the introduction of large

quantities of marijuana into Iowa hidden in cement statues and furniture, which he had

delivered to the home of Long Ly (Long), Bao Ly (Bao), or other conspiracy members

with whom he dealt. Long, Bao, Theodore Tuon, and Tommy Le would then break

open the delivered containers with a sledgehammer and distribute amongst themselves

the marijuana that they needed, with Marquez-Alvarado retaining any undistributed

marijuana. Once they sold their respective shares, Long would frequently collect the

pooled proceeds and pay Marquez-Alvarado in one lump sum. Marquez-Alvarado

dealt more than 2000 pounds of marijuana in this fashion over the course of the

conspiracy. Each of the members testified to their involvement in, and understanding

of, the arrangement. Additionally, Tuon was captured on videotape selling marijuana

obtained from Marquez-Alvarado to undercover officers, and both Tuon’s girlfriend

and Marquez-Alvarado’s wife provided testimony corroborating details expressed by

co-conspirators. 

Marquez-Alvarado was charged with, among other things, conspiring to

distribute marijuana. Over Marquez-Alvarado’s objection, the jury heard testimony

concerning Marquez-Alvarado’s presence at Thompson’s cocaine and marijuana drug

purchases prior to the commencement of the charged drug conspiracy as well as
2

The Honorable Ronald E. Longstaff, United States District Judge for the

Southern District of Iowa.

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testimony concerning Marquez-Alvarado’s trips to Kansas City to purchase cocaine.

The jury found Marquez-Alvarado guilty, and the district court2

 imposed a sentencing

enhancement for Marquez-Alvarado’s role as a leader or organizer of the conspiracy

pursuant to the United States Sentencing Guidelines Manual (U.S.S.G.) § 3B1.1(a).

II.

Marquez-Alvarado contends that the district court erred by allowing the jury to

hear testimony regarding unrelated and prejudicial cocaine transactions that took place

prior to and during the charged marijuana conspiracy. He also contends that he should

not have received a sentencing role enhancement. 

A. 

We review for abuse of discretion rulings pertaining to the admission of

evidence over a party’s objection. United States v. Abdul-Aziz, 486 F.3d 471, 475

(8th Cir. 2007) (citation omitted). Federal Rule of Evidence 404(b) prohibits the

introduction of evidence of a defendant’s prior bad acts for use as character or

propensity evidence, but permits the admission of such evidence for other purposes

related to the charged crime, such as for “proof of motive, opportunity, intent,

preparation, plan, knowledge, or absence of mistake or accident . . . .” To be

admissible under this rule, the evidence must “(1) be relevant to a material issue raised

at trial, (2) be similar in kind and close in time to the crime charged, (3) be supported

by sufficient evidence to support a finding by a jury that the defendant committed the

other act, and (4) not have a prejudicial value that substantially outweighs its

probative value.” United States v. Johnson, 439 F.3d 947, 952 (8th Cir. 2006)

(citation omitted). We will reverse a decision to admit evidence under Rule 404(b)
3

The marijuana was consistently surrounded by brown tape in peculiarly thin,

flat packages.

4

In return for their accompanying Marquez-Alvarado on each respective trip,

Marquez-Alvarado offered Tuon money and Long a discounted price on the cocaine

purchased in Kansas City.

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only where evidence of wrongdoing “‘clearly had no bearing on the case and was

introduced solely to prove the defendant’s propensity’ to engage in criminal

misconduct.” Id. (quoting United States v. Brown, 148 F.3d 1003, 1009 (8th Cir.

1998)).

The evidence pertaining to Marquez-Alvarado’s involvement in Thompson’s

cocaine and marijuana deals prior to the charged conspiracy and the evidence

concerning the trips to Kansas City with Tuon and Long to purchase cocaine during

the conspiracy is relevant because it assisted in demonstrating that Marquez-Alvarado

had the necessary knowledge and intent to pursue the marijuana conspiracy.

Marquez-Alvarado’s presence at some of Thompson’s deals with Callacho and Dunn

suggests that Marquez-Alvarado may have been laying the groundwork for the future

conspiracy. Because the packaging of the marijuana that Thompson purchased from

Callacho and Dunn shared unique characteristics that were also present in the

packaging of the marijuana that Marquez-Alvarado supplied to the conspiracy, a jury

could find that Marquez-Alvarado supplied marijuana between 1998 and 2001 and

therefore had the expertise, knowledge, and resources to supply the conspiracy with

marijuana from 2001 onwards.3

 Furthermore, his trips with Tuon and Long to Kansas

City, in addition to demonstrating that Marquez-Alvarado knew and had relationships

with out-of-state drug dealers, also demonstrated the nature of the drug-related

business relationship between Marquez-Alvarado and his two traveling companions.4

The trips additionally provided evidence demonstrating Marquez-Alvarado’s

familiarity with techniques relating to the clandestine transportation of drug-related
5

Tuon testified that Marquez-Alvarado concealed the cocaine in the bumper of

their vehicle.

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contraband between states.5

 This is of particular relevance to the marijuana

conspiracy because Marquez-Alvarado was responsible for coordinating the

movement of marijuana into Iowa. These events all occurred either during, or within

a reasonable temporal proximity of, the charged conspiracy. See United States v.

Love, 419 F.3d 825, 828 (8th Cir. 2005) (“Proximity in time is one factor in

determining the relevance of a prior drug conviction, but the standard is

reasonableness, not an absolute number of years.”). That they involved a different

drug – cocaine – is not determinative; as the transactions with Thompson demonstrate,

cocaine and marijuana were frequently dealt concurrently to the same individuals.

See Llach v. United States, 739 F.2d 1322, 1327 (8th Cir. 1984) (permitting evidence

of methamphetamine and marijuana transactions even though defendant was charged

with cocaine distribution because the individuals involved in the cocaine transactions

also dealt in the other drugs); cf. United States v. Cook, 454 F.3d 938, 941 (8th Cir.

2006) (holding that the evidence of a prior drug offense involving marijuana was

erroneously admitted in a cocaine distribution case because, in relevant part, the prior

offense of possession was functionally dissimilar to the charged offense of

distribution). The direct testimony about Marquez-Alvarado’s involvement in the

prior acts sufficed to support a jury finding concerning them. Llach, 739 F.2d at 1327.

Finally, Marquez-Alvarado has not demonstrated that the prejudicial impact of the

challenged evidence outweighed its probative value. We conclude, therefore, that the

district court did not abuse its discretion by admitting the challenged evidence.

B.

We review for clear error the district court’s findings regarding a role

enhancement under the sentencing guidelines. See United States v. White, 241 F.3d

1015, 1024 (8th Cir. 2001). The sentencing guidelines provide for an upward
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adjustment of four levels if the defendant was an organizer or leader of a criminal

activity that involved five or more participants. U.S.S.G. § 3B1.1(a) (2002).

Marquez-Alvarado does not contest the involvement of five or more individuals.

Instead, he contends that his own involvement was that of a supplier who distributed

marijuana at arms’ length and who did not organize, lead, or otherwise direct the

conspiracy. We do not agree.

When determining whether a defendant is an organizer or leader, the court

should consider factors including

the defendant’s exercise of decision making authority, the nature of the

defendant’s participation in the commission of the offense, the

recruitment of accomplices, the claimed right to a larger share of the

fruits of the crime, the degree to which the defendant participated in

planning or organizing the offense, the nature and scope of the illegal

activity, and the degree of control and authority the defendant exercised

over others.

United States v. Mickle, 464 F.3d 804, 807 (8th Cir. 2006), cert. denied, 127 S. Ct.

1308 (2007) (citations omitted). 

Although it is true that “one’s status as a distributor of narcotics would not,

standing alone, transform one into a manager or supervisor,” United States v.

Plancarte-Vazquez, 450 F.3d 848, 853 (8th Cir. 2006), there is sufficient evidence to

support the district court’s determination that Marquez-Alvarado’s influence extended

beyond that of a distributor. Marquez-Alvarado determined the timing and size of the

marijuana shipments and allowed a cyclical arrangement whereby those who received

his marijuana had time to sell their respective shares before paying him and repeating

the delivery process. Perhaps most significantly, Marquez-Alvarado did not simply

sell marijuana to the co-conspirators in marketable form, but instead made them

responsible for extracting it from the furniture and statues that he had used to smuggle

the drug into Iowa. Finally, the evidence suggests that Marquez-Alvarado exerted
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direct control over an individual named Carlos, who delivered the furniture and statues

at the behest of Marquez-Alvarado, sometimes collected payments for MarquezAlvarado, occasionally assisted in breaking down the furniture or statues, and carted

off the remnants of the broken containers once the marijuana had been removed.

Given these circumstances, the district court did not err in imposing the role

enhancement.

The judgment is affirmed.

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