FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 August 26, 2004 

 THOMAS K. KAHN 

 CLERK

 Honorable Norman H. Stahl, United States Circuit Judge for the First Circuit, sitting by *

designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 03-10304

________________________

D. C. Docket No. 02-20378 CR-JAL

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RIGOBERTO CARRASCO, 

BIENVENITO JUAN RUIZ,

Defendants-Appellants.

________________________

Appeals from the United States District Court

for the Southern District of Florida

_________________________

(August 26, 2004)

Before BLACK, BARKETT and STAHL , Circuit Judges. *

PER CURIAM:
 Ruiz was charged with, and convicted by a jury of, attempt to possess five kilograms or 1

more of cocaine. The judgment, however, states that Ruiz was convicted of possession with

intent to distribute five kilograms or more of cocaine. Although Ruiz did not raise this issue, we

remand his case for the sole purpose of permitting the district court to amend the judgment

against him to reflect accurately the offenses of conviction.

2

After a jury trial, Appellant Rigoberto Carrasco was convicted of attempt to

possess with intent to distribute five kilograms or more of cocaine and sentenced

to 240 months’ imprisonment. Appellant Bienvenito Ruiz was convicted of

conspiracy to possess with intent to distribute five kilograms or more of cocaine

and attempt to possess with intent to distribute five kilograms or more of cocaine,1

and sentenced to life imprisonment. Appellants appeal their convictions and

sentences. We reverse Carrasco’s conviction, but affirm Ruiz’s conviction and

sentence except insofar as we remand for the district court to amend the judgment

to reflect accurately Ruiz’s offenses of conviction.

I. BACKGROUND

The charges against Appellant Carrasco and Appellant Ruiz stem from a

drug transaction set up by a confidential informant, Maria Nuñez. In cooperation

with the Drug Enforcement Agency (DEA), Nuñez contacted her brother-in-law,

codefendant Rodriguez, to propose the theft of 40 kilograms of cocaine from a

woman in Miami. Rodriguez eventually agreed, and the DEA arranged for a

warehouse to serve as the location for the robbery.
3

On April 17, 2002, Rodriguez and codefendant Ceballos met Nuñez at the

warehouse, where DEA agents arrested them. Rodriguez and Ceballos were

carrying weapons. 

Rodriguez immediately agreed to cooperate with law enforcement officials

by telephoning the individuals he planned to have sell the cocaine for him. 

Rodriguez called Appellant Carrasco, who congratulated Rodriguez. Rodriguez

asked Carrasco to pick up the drugs and bring money with him. Carrasco

responded that the money was squared away. Carrasco later arrived to meet

Rodriguez, and DEA agents arrested him. Carrasco waived his rights and said he

knew people in the drug business and would be able to assist the DEA. Carrasco

also stated he had gone to meet Rodriguez so he could “do work” for Rodriguez. 

Rodriguez also called codefendant Sierra and left a message for him. When

the DEA agents brought Rodriguez to prison, they gave Rodriguez’s cell phone to

Nuñez. Nuñez spoke to Sierra about the purported 40 kilograms of cocaine. 

Once, when Nuñez called Sierra, Appellant Ruiz answered the phone and

identified himself as “Juanito,” Sierra’s friend. After a few discussions with

Sierra, Nuñez arranged a meeting with him so Sierra could examine the cocaine. 

When asked by Nuñez whether he would be arriving at the meeting with Appellant

Ruiz only, Sierra responded in the affirmative. 
 Rodriguez testified at trial that he had asked Appellant Carrasco to participate in the 1

robbery, but Carrasco had declined and instead expressed an interest in selling the stolen cocaine.

4

Sierra and Appellant Ruiz arrived at the appointed time and place to meet

with Nuñez. Sierra and Ruiz got out of the car in which they had arrived and

talked with Nuñez outside. Nuñez discussed how much cocaine she had and,

when Sierra asked about the quality of the cocaine, Nuñez responded that it was

good. After Sierra stated the cocaine would sell, and Sierra and Appellant Ruiz

told Nuñez that no others were coming to the meeting, agents arrested Sierra and

Ruiz. 

At trial, Appellant Carrasco testified on his own behalf and denied ever

dealing drugs with Rodriguez. Carrasco testified that when Rodriguez asked him

to take part in a drug deal, he refused. Carrasco testified that, after his 1

conversation with Rodriguez, he learned Rodriguez had been using drugs, and out

of concern he had contacted Rodriguez’s brother who said he had been looking for

Rodriguez for days. Carrasco further testified he went to meet Rodriguez on the

day of their arrests because he wanted to find Rodriguez and help him with his

drug problem.

In rebuttal, the Government presented evidence of Appellant Carrasco’s

prior involvement in the drug trade. More specifically, the Government presented
5

testimony from Ceballos that, in 1989 or 1990, Appellant Carrasco had a tire

business that served as a front for a drug operation. Ceballos further testified that

he (1) attended a meeting at the business about a drug ripoff, (2) purchased ounce

amounts of cocaine from Appellant Carrasco on at least twelve occasions, (3)

recalled seeing Appellant Carrasco adding cutting agents to drugs, and (4) could

recall at least three occasions on which he had seen Carrasco give money to

Rodriguez in amounts ranging from $2000 to almost $5000 for cocaine Rodriguez

had fronted to Carrasco. When Appellant Carrasco objected to Ceballos’s

testimony on Federal Rule of Evidence 404(b) notice grounds, the district court

overruled the objection. The district court initially stated Ceballos’s testimony

was rebuttal and therefore did not fall within Rule 404(b). The district court

subsequently ruled the generalized notice previously given by the Government

was sufficient to satisfy the Rule 404(b) notice requirement. At the close of the

Government’s rebuttal case, Carrasco moved to retake the stand to rebut

Ceballos’s testimony. The district court denied Carrasco’s motion.

Appellant Ruiz also testified on his own behalf at trial. He told the jury

that, on the day of his arrest, he had been with Sierra because Sierra was a Santeria

priest. Ruiz testified he was trying to make himself a saint in the Santeria religion. 

Ruiz further testified that he had accompanied Sierra to the meeting with Nuñez
6

because Sierra had asked him to go with him to help someone in trouble, not

because he intended to obtain drugs. Ruiz further testified that when he realized

something suspicious was going on, he attempted physically to distance himself

from Sierra and Nuñez. 

In rebuttal, the Government presented testimony from Ceballos regarding a

conversation he had with Appellant Ruiz in prison. Ceballos testified that

Appellant Ruiz said he had gone with Sierra to pick up the cocaine and had ended

up in a lot of trouble. Ceballos testified Appellant Ruiz said he was going to

attribute any statements he might have made while he was with Sierra to the

Santeria religion. 

The jury convicted Appellant Carrasco on the only charge against

him: attempt to possess with intent to distribute five kilograms or more of

cocaine. The jury convicted Appellant Ruiz on both counts against

him: conspiracy to possess with intent to distribute five kilograms or more of

cocaine and attempt to possess with intent to distribute five kilograms or more of

cocaine. Carrasco and Ruiz appeal their convictions and sentences.
7

II. DISCUSSION

A. Appellant Carrasco

Appellant Carrasco contends the district court should have granted a

mistrial when the Government presented testimony from Andres Ceballos

implicating Carrasco in specific prior acts of drug dealing without providing

notice as required under Federal Rule of Evidence 404(b). Carrasco further

contends the district court committed reversible error when it refused to permit

him to take the stand in surrebuttal to address Ceballos’s testimony.

We review the district court’s decisions as to the admissibility of evidence

for abuse of discretion. United States v. Perez-Tosta, 36 F.3d 1552, 1560 (11th

Cir. 1994) (citation omitted). 

Federal Rule of Evidence 404(b) provides:

(b) Other Crimes, Wrongs, or Acts.—Evidence of other

crimes, wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity therewith. It may,

however, be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence

of mistake or accident, provided that upon request by the accused, the

prosecution in a criminal case shall provide reasonable notice in

advance of trial, or during trial if the court excuses pretrial notice on

good cause shown, of the general nature of any such evidence it

intends to introduce at trial.
 Neither party referenced the standing discovery order in its brief, but in reviewing the 2

record we noticed the standing discovery order signed by the magistrate judge regarding the case

against Carrasco states the “Government shall advise the defendant(s) of its intention to

introduce during its case in chief proof of evidence, pursuant to Rule 404(b), Federal Rules of

Evidence.” We respectfully suggest all such discovery orders be modified to reflect the

requirements of Rule 404(b). 

8

The rule requires “the prosecution to provide notice, regardless of how it intends

to use the extrinsic act evidence at trial, i.e., during its case-in-chief, for

impeachment, or for possible rebuttal.” Fed. R. Evid. 404(b) advisory committee’s

note to 1991 amendments. Thus, the Government was required to provide notice

of the prior bad acts to which Ceballos testified in rebuttal.2

Moreover, although the Advisory Committee Notes discuss Rule 404(b) as

containing a “generalized notice provision,” the prosecution still must “apprise the

defense of the general nature of the evidence of extrinsic acts.” Id. The

Government initially gave notice that it might use the fact of Appellant Carrasco’s

May 1994 arrest and subsequent conviction for drug and firearms offenses. The

Government subsequently gave notice that it might introduce evidence of two

additional prior bad acts: (1) an instance (at an unspecified time) when Rodriguez

fronted marijuana for sale to Appellant Carrasco, who eventually paid between

$3000 and $4000 to Rodriguez for the drugs; and (2) an instance (again at an

unspecified time) when codefendant Rodriguez, Appellant Carrasco, and another
 We also note there is no allegation that this evidence was newly discovered by the 3

Government during the course of trial.

9

individual stole foreign currency from an office building in Miami and sold it for

$3000 in United States currency. 

In ruling admissible the evidence pertaining to Appellant Carrasco’s past

dealings with Rodriguez, including “evidence of past narcotics dealings where

Rodriguez ‘fronted’ drugs to Carrasco for distribution,” the district court held the

evidence to be inextricably intertwined with the Government’s proof of the

charged offenses and therefore outside the realm of Rule 404(b). Arguably,

Ceballos’s testimony regarding transactions between Appellant Carrasco and

Rodriguez might be encompassed by the district court’s inextricably intertwined

ruling. The Government does not, however, point to any notice it gave to

Appellant Carrasco that it might introduce evidence of drug dealings between

Ceballos and Carrasco, or of Carrasco’s alleged operation of a tire business as a

front for drug operations. We therefore find the district court’s admission of that 3

evidence was in error under Rule 404(b). We next must consider whether that

error was harmless. See Perez-Tosta, 36 F.3d at 1562 n.9 (11th Cir. 1994).

The policy behind the Rule 404(b) notice requirement is “to reduce surprise

and promote early resolution on the issue of admissibility.” Fed. R. Evid. 404(b)
 Because we reverse Appellant Carrasco’s conviction on this ground, we do not consider 4

his other arguments on appeal.

10

advisory committee’s note to 1991 amendments. Carrasco’s defense at trial was

that he had gone to meet Rodriguez because he was concerned about Rodriguez’s

recurrent drug problem. Moreover, in testifying, Carrasco minimized his prior

narcotics involvement. 

The testimony regarding Carrasco’s narcotics involvement, of which the

Government failed to give the required Rule 404(b) notice, went to the heart of

Carrasco’s defense, his intent. The Government’s failure to provide the required

Rule 404(b) notice therefore prejudiced Carrasco’s ability to defend himself. The

prejudice to Carrasco was compounded by the fact that the district court did not

permit Carrasco to reopen his case to address Ceballos’s testimony. Moreover, by

its own admission in a filing with the district court, the Government did “not have

overwhelming evidence of Carrasco’s intent to commit his charged offense.” 

We conclude the Government’s failure to provide the required Rule 404(b)

notice was not harmless and reverse Carrasco’s conviction and remand to the

district court for further proceedings.4
11

B. Appellant Ruiz

Appellant Ruiz contends the district court erred in refusing to give his

proposed attempt instruction. At trial, Ruiz adopted Appellant Carrasco’s

argument and requested the district court give the following instruction as to the

attempt charge against him:

An attempt requires proof that the defendant was acting with

the state of mind required for the commission of the offense and was

engaged in conduct that constitutes a substantial step toward

commission of the crime. To prove an illegal attempt, the

government must show that the defendant had a specific intent to

engage in criminal conduct when he took a substantial step toward

commission of the offense.

To find that a substantial step was taken, you must determine

that the defendant’s objective acts mark the defendant’s conduct as

criminal so that the defendant’s acts as a whole strongly corroborate

the required culpability; they must not be equivocal. A substantial

step toward completion of a criminal offense, as required to show

attempt, is something more than mere preparation, but less than the

last act necessary before the actual commission of the substantive

crime. The act must be of such a nature that a reasonable observer

viewing it in context could conclude beyond a reasonable doubt that

it was undertaken in accordance with a design to violate the law.

(Footnotes omitted). The district court refused to give the proposed instruction,

and gave the following instruction instead:

For you to find the defendants guilty of attempting to possess

cocaine with the intent to distribute, you must be convinced that the

government has proved each of the following facts beyond a

reasonable doubt.
12

First: That the defendant intended to possess cocaine with the

intent to distribute it and[,]

Second: That the defendant did an act constituting a

substantial step towards the commission of that crime which strongly

corroborates the defendant’s criminal intent.

The defendant’s acts taken as a whole must strongly

corroborate the required culpability, they must not be equivocal.

We review a district court’s refusal to give a requested jury instruction for

abuse of discretion. United States v. Futrell, 209 F.3d 1286, 1288 (11th Cir. 2000)

(citation omitted). A district court’s refusal to give a requested instruction is

reversible error if “(1) the requested instruction was a correct statement of the law,

(2) its subject matter was not substantially covered by other instructions, and

(3) its subject matter dealt with an issue in the trial court that was so important that

failure to give it seriously impaired the defendant’s ability to defend himself.” 

United States v. Paradies, 98 F.3d 1266, 1286 (11th Cir. 1996) (citation omitted).

The only substantive difference between the proposed instruction and the

instruction the district court gave to the jury is that the proposed instruction

included a definition of a substantial step as “something more than mere

preparation, but less than the last act necessary before the actual commission of

the substantive crime.” Given the nature of Appellant Ruiz’s defense at trial, there
 After carefully considering the other arguments raised by Appellant Ruiz on appeal, we 5

conclude they are without merit and do not discuss them. See 11th Cir. R. 36-1.

13

was no reversible error because the district court’s refusal to give the requested

instruction did not seriously impair Appellant Ruiz’s ability to defend himself. 

Appellant Ruiz went at the appointed time to the appointed meeting place

for the drug transactions. There can be no doubt that, taken with the requisite

intent, this conduct constituted more than the mere preparation to which the

proposed jury instruction refers. Ruiz’s defense at trial essentially was that he did

not take that action with the requisite intent. For example, Ruiz testified he went

with Sierra to meet Nuñez only because Sierra had asked him to accompany him to

help someone, not because he intended to obtain drugs to sell. He further testified

that when he realized something suspicious was going on, he attempted physically

to distance himself from Sierra and Nuñez. Upon consideration of the nature of

Ruiz’s defense, we conclude the district court’s refusal to give the requested

attempt instruction was not reversible error.5

III. CONCLUSION

We reverse Appellant Carrasco’s conviction. The Government’s failure to

give Rule 404(b) notice of Carrasco’s prior bad acts as to which it introduced

evidence at trial was not harmless. We find no error, however, with respect to
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Appellant Ruiz, and affirm his convictions and sentence except insofar as we

remand to the district court to amend the judgment to reflect accurately Ruiz’s

offenses of conviction.

REVERSED IN PART, AFFIRMED IN PART, and REMANDED.