1Rule 404(b) provides that 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.”

Rule 403 allows the court to exclude relevant evidence “if

its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.”

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

United States of America

v. No. 05-cr-112-01/02-JD

Opinion No. 2006 DNH 122

Carlos Soto-Garcia

Luis Ortiz-Lara

O R D E R

Defendant Carlos Soto-Garcia moved to exclude evidence of

other crimes pursuant to Rules 404(b) and 403 of the Federal

Rules of Evidence.1 In that motion, he also argued that the

evidence should be excluded because the government’s late

disclosure of its intent to offer Rule 404(b) evidence did not

comply with the Local Rules. See LCrR 16.1(e) (providing that

the government must disclose “the general nature of any evidence

that it intends to introduce pursuant to Fed. R. Evid. 404(b)” at

least seven days before trial). At a hearing on October 17,

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2006, the court denied Soto-Garcia’s motion to exclude evidence

on the grounds of a LCrR 16.1(e) violation and instead granted

the defendants a continuance to review late disclosed evidence,

including the evidence of “other crimes” that was the subject of

Soto-Garcia’s Rule 404(b) motion. The court now rules on the

admissibility of the challenged evidence under Fed. R. Evid.

404(b).

The grand jury indictment charges Soto-Garcia and his codefendant, Luis Ortiz-Lara, with knowingly, intentionally, and

unlawfully conspiring with others to possess with intent to

distribute cocaine during the period from February 2005 to April

4, 2005. The indictment describes three overt acts, including

that, on April 4, 2005, the defendants traveled to a hotel in

Salem, New Hampshire, for the purpose of negotiating the purchase

of approximately 15 kilograms of cocaine. On that same day,

Soto-Garcia’s residence in Lawrence, Massachusetts, was searched

by authorities pursuant to a warrant. The police found

quantities of powder cocaine, crack cocaine, and heroin in a

hidden compartment in Soto-Garcia’s master bedroom. They also

discovered scales and plastic bags. 

Soto-Garcia argues that the evidence acquired in this search

should be excluded under Rule 404(b) because it is evidence of

“other crimes” and can be offered for no other purpose than to

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prove Soto-Garcia’s propensity for committing drug crimes. 

Additionally, Soto-Garcia argues that the above evidence should

be excluded under Rule 403 because its probative value is

substantially outweighed by the danger of unfair prejudice. The

government objects, arguing that the evidence collected in the

search is not evidence of “other crimes” but is evidence of the

crime charged, because it was found in the residence of one of

the defendants during the temporal period of the alleged

conspiracy.

The court agrees with the government. “Rule 404(b), by its

very terms, excludes only extrinsic evidence -- evidence of other

crimes, wrongs, or acts -- whose probative value exclusively

depends upon a forbidden inference of criminal propensity.” 

United States v. Manning, 79 F.3d 212, 218 (1st Cir. 1996)

(internal quotation marks omitted) (emphasis added). The

evidence of the quantities of cocaine and other drugs, as well as

scales and plastic bags, seized during the time period of the

alleged conspiracy, is circumstantial evidence of the crime

charged -- conspiring to possess cocaine with intent to

distribute. See id. (upholding the admission of drug

paraphernalia because it was “intrinsic to the crime of

possession with intent to distribute”); United States v. Tutiven,

40 F.3d 1, 5 (1st Cir. 1994) (holding, in a case concerning the

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4

possession of stolen vehicles, that the defendant’s possession of

tools suited for altering vehicle identification numbers,

constituted “intrinsic circumstantial evidence directly probative

of” the crimes charged) (emphasis in original).

Moreover, even if the court were to consider the above

evidence to be “other crimes” evidence, it would fall under some

of the Rule 404(b) exceptions to exclusion. See Fed. R. Evid.

404(b) (permitting the admission of “other crimes” evidence for

the purpose of establishing “motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident”). The existence of drugs and devices consistent with

drug distribution at Soto-Garcia’s residence is probative of his

knowledge and intent, and perhaps of plan and preparation. See

Manning, 79 F.3d at 218. 

The court further declines to exclude the evidence under

Rule 403. As explained above, the evidence seized in the search

is highly probative of the crime charged and of course it is

prejudicial. However, Soto-Garcia has failed to justify his

assertion that the probative value of this evidence is

“substantially outweighed by the danger of unfair prejudice.” 

Fed. R. Evid. 403. 

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5

Conclusion

 For the foregoing reasons, Soto-Garcia’s motion to exclude

pursuant to Fed. R. Evid. 404(b) (document no. 48) is denied.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

October 24, 2006

cc: Robert B. Carmel-Montes, Esquire

Donald A. Feith, Esquire

Tmothy M. Harrington, Esquire

Michael J. Sheehan, Esquire

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