United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-3457

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United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Heather Maria Ceballos, *

*

Defendant-Appellant. *

*

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Submitted: April 15, 2010

Filed: May 13, 2010

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Before WOLLMAN, MURPHY, and SHEPHERD, Circuit Judges.

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MURPHY, Circuit Judge.

Heather Maria Ceballos was charged with two counts of aiding and abetting the

distribution of methamphetamine. She was convicted on both counts and sentenced

to five years on one count and one year to run concurrently on the other. Ceballos

appeals, arguing that the district court1

 abused its discretion in admitting evidence of

her prior uncharged drug transactions and erred in denying her motion for judgment

1

The Honorable Robert W. Pratt, Chief Judge, United States District Court for

the Southern District of Iowa.
of acquittal and her requests for safety valve credit, acceptance of responsibility, and

a mitigating role. We affirm.

Ceballos had a long, abusive relationship with Jesus Gomez San Juan, a

methamphetamine user and dealer. On two occasions in October 2007, law

enforcement officers used a confidential informant to purchase methamphetamine

from Gomez San Juan at the apartment he shared with Ceballos and their children. 

Ceballos acted as a translator during these transactions. She was initially charged,

along with Gomez San Juan and other codefendants, with conspiracy to distribute

methamphetamine. A superseding indictment subsequently charged Ceballos with

aiding and abetting the distribution of methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(C), and aiding and abetting the distribution of 50 grams or

more of a substance containing methamphetamine, in violation of id. § 841(a)(1) and

(b)(1)(B).

At trial Ceballos admitted having committed the offenses but set up a coercion

defense. She claimed that the two charged transactions were her only entanglement

in Gomez San Juan's drug dealing and that she had only participated out of fear that

he would harm her or their children. The jury rejected the defense and Ceballos was

convicted of both counts.

Ceballos's presentence investigation report recommended a guideline sentence

range of 63 to 78 months, based on a criminal history category I and offense level of

26. At sentencing Ceballos sought safety valve relief under 18 U.S.C. § 3553(f), as

well as guideline adjustments for a mitigating role and acceptance of responsibility. 

The district court concluded that Ceballos was not entitled to the safety valve because

she had not provided the government with complete information about the underlying

conspiracy and her involvement in it. Since Ceballos did not qualify for the safety

valve, the district court was compelled to impose the mandatory minimum sentence

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of five years under 21 U.S.C. § 841(b)(1)(B). It imposed a concurrent one year

sentence under § 841(b)(1)(C). Ceballos timely appealed.

Ceballos first argues that the district court abused its discretion by admitting

testimony concerning prior drug sales in which she had allegedly translated for Gomez

San Juan and others. This testimony was offered under Fed. R. Evid. 404(b) for the

purpose of rebutting Ceballos's coercion defense. The district court is afforded "broad

discretion" to admit such evidence, and we review its decision for abuse of discretion. 

United States v. Anthony, 537 F.3d 863, 865 (8th Cir. 2008).

In order for evidence of prior acts to be admissible under Rule 404(b), it must

be "(1) relevant to a material issue; (2) proved by a preponderance of the evidence; (3)

higher in probative value than in prejudicial effect; and (4) similar in kind and close

in time to the crime charged." Id. The prior sales in this case were similar in kind and

close in time to the charged transactions, and they were supported by sufficient proof. 

Cf. Llach v. United States, 739 F.2d 1322, 1327 (8th Cir. 1984) ("Direct testimony .

. . is sufficient to meet the clear and convincing standard.").

The 404(b) evidence was also relevant to Ceballos's defense. Numerous courts

have found that "404(b) evidence may be admitted to refute a duress defense." United

States v. Verduzco, 373 F.3d 1022, 1029 (9th Cir. 2004) (citing decisions of 5th, 10th,

and 11th Circuits); see also United States v. Dunkin, 438 F.3d 778, 780 (7th Cir.

2006). Ceballos nevertheless argues that the 404(b) evidence was irrelevant. She

maintains that the only issue for the jury was whether Gomez San Juan had, as

Ceballos claimed, subjected her to systematic abuse and control, and that the only

appropriate evidence to rebut her defense would therefore be evidence showing she

was not in fact abused. This argument misconstrues the nature of the defense.

In order to make out her duress defense, Ceballos had to prove that she had a

"a well-grounded fear of immediate death or serious bodily harm if the criminal act[s

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were] not done and no reasonable opportunity to avoid performing the act[s] without

facing that danger." United States v. Swanson, 9 F.3d 1354, 1359 (8th Cir. 1993)

(internal quotation marks omitted). The 404(b) evidence in this case bears on both

elements. Ceballos is correct that her involvement in prior drug sales is not

necessarily inconsistent with her claim of coercion but that does not mean it is

irrelevant, for the evidence is susceptible to more than one interpretation. A

reasonable juror could find that Ceballos's participation in multiple sales over time

rendered less credible her claim to have acted only because of threats of force. 

Moreover, even if Ceballos's participation in earlier transactions had been coerced, a

juror could infer that she had had reasonable opportunity in the intervening period to

extricate herself from the control of Gomez San Juan before participating in the

charged offenses. Such opportunity would defeat her coercion defense. See, e.g.,

United States v. Harper, 466 F.3d 634, 648 (8th Cir. 2006) ("A defendant cannot

invoke the defense of coercion if there existed an opportunity to avoid the act without

threat of harm or a reasonable and legal alternative to the commission of the crime.").

Finally, the prejudicial effect of the 404(b) evidence was relatively slight. 

Prejudice in this context means a "tendency to suggest decision on an improper basis." 

Fed. R. Evid. 403 advisory committee notes. The improper usage which Rule 404(b)

prohibits is introduction of evidence of a past offense "to prove the character of a

person in order to show action in conformity therewith," Fed. R. Evid. 404(b)—that

is, to persuade the fact finder that the defendant committed the charged offenses

because she "has a propensity to commit crimes," Dunkin, 438 F.3d at 780. Here,

Ceballos admitted having committed the charged offenses so there was no occasion

for the jury to infer that she must have done so because of her bad character or

criminal propensity. The only question for the jury was whether Ceballos acted under

duress. The probative value of the 404(b) evidence in respect to that question

outweighed the slight risk of unfair prejudice, and the district court therefore did not

abuse its discretion in admitting the evidence. See id. at 780–81; Verduzco, 373 F.3d

at 1030.

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The district court also did not err in denying Ceballos's motion for judgment of

acquittal. Viewed in the light most favorable to the verdict, United States v. Birdine,

515 F.3d 842, 844 (8th Cir. 2008), the evidence was sufficient to support the

conclusion that Ceballos failed to prove her coercion defense. The jury was entitled

to find that Ceballos's claim of duress was not credible. Evidence was presented

which called into question the veracity of her story. The district court noted in its

sentencing memorandum, for example, her "effortless[]" description in a recorded

phone call with the police informant of "how a drug debt led to the seizure of her

vehicle and . . . a search for an individual who was 'fronted' drugs, but who

subsequently absconded." This evidence undermined Ceballos's assertion that her

involvement in Gomez's drug dealing was limited and involuntary, and in light of it

a reasonable juror could have chosen not to credit her claim of duress. Even if the

jury credited Ceballos's claim to have acted under threat of force, it could have

concluded that she had opportunities to cease her involvement in Gomez San Juan's

drug dealing and still escape the harm he threatened. Such a finding would be fatal

to the duress defense.

Ceballos also argues that the district court erred in denying her request for

safety valve relief under 18 U.S.C. § 3553(f). The district court denied safety valve

treatment after concluding that Ceballos had failed to carry her burden of proving that

she had "truthfully provided to the Government all information and evidence [she had]

concerning the offense or offenses that were part of the same course of conduct or of

a common scheme or plan." United States v. Soto, 448 F.3d 993, 995 (8th Cir. 2006)

(quoting § 3553(f)(5)). Ceballos maintained in a proffer interview and at trial that her

involvement in Gomez San Juan's drug dealing was limited to the two charged

transactions. The district court found, however, that Ceballos had participated in drug

sales prior to the charged transactions and that she knew more than she disclosed

about the underlying conspiracy to which Gomez San Jan and other codefendants pled

guilty. We review the district court's finding for clear error. Id.

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Ceballos argues that the district court erred in concluding that she was obligated

to provide information about the underlying conspiracy as opposed to only the two

discrete acts with which she was charged. By its terms, however, § 3553(f) requires

disclosure of information about acts which formed "part of the same course of

conduct" as the offenses of conviction, § 3553(f)(5), and thus the court can require

information about "uncharged related conduct." United States v. Miller, 151 F.3d 957,

958 (9th Cir. 1998); see also United States v. Romo, 81 F.3d 84, 85–86 (8th Cir. 1996)

(safety valve relief denied where defendant did not disclose "the whole story about his

role in the distribution chain and his gang's involvement").

Next, Ceballos claims the district court erred in relying on 404(b) evidence in

determining whether she had been completely forthcoming with the government. This

argument is without merit. The Federal Rules of Evidence do not apply at sentencing. 

Fed. R. Evid. 1101(d)(3); United States v. Fleck, 413 F.3d 883, 894 (8th Cir. 2005). 

Evidence may be considered at sentencing so long as it has "sufficient indicia of

reliability." Id. To the extent Ceballos's argument attacks the reliability of what the

district court considered, it is unpersuasive. The district court examined the evidence

in detail, and its conclusion that Ceballos's involvement was more extensive than she

admitted was primarily based on her own testimony at trial and her comments in

recorded telephone conversations, as well as the "sheer implausibility of [her] claim

that the only two drug transactions she translated . . . were the two transactions that

the Government recorded." We will not second guess the district court's credibility

assessments. See United States v. West, 589 F.3d 936, 938 (8th Cir. 2009).

Ceballos concedes that absent safety valve relief, her guideline arguments are

moot. Regardless of her recommended guideline range, the five year sentence

Ceballos received is the shortest term allowed under 21 U.S.C. § 841(b)(1)(B). We

therefore need not consider her claims that she should have received credit for

acceptance of responsibility and a mitigating role.

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In sum, the district court did not abuse its discretion in admitting 404(b)

evidence for the purpose of rebutting Ceballos's coercion defense, nor did it err in

denying her motion for judgment of acquittal. It also did not clearly err in finding that

Ceballos failed to carry her burden of proving entitlement to safety valve relief. 

Accordingly, the judgment of the district court is affirmed.

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