* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 1 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 98-2116

v. (D.C. No. CR-97-103-JC) CRUZ BLANCO-RODRIGUEZ, (D. New Mex.) Defendant - Appellant.

ORDER AND JUDGMENT *

Before TACHA , McKAY , and MURPHY , Circuit Judges.

After examining the briefs and the appellate record , this panel has determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l argument. On July 16, 1997, a grand jury returned a second superseding indictment charging Defendant Cruz Blanco-Rodriguez with one c ount of conspiracy to bring1 Three coconspirators also were indicted on the same and additional

charges in the second superseding indictment. Mr. Roxer Acosta-Arzaga and Mr. Cesar Miranda-Rivas entered into plea agreements be fore Defendant’s trial. Mr. Jesus Vargas-Aragomez was a fugitive at the time of Defendant’s trial. Additionally, Mr. Ramon Rojo-Rodelas was arrested and indicted in a related case on two similar charges. Mr. Rojo pled guilty to bo th charges and testified against Defendant. -2- illegal immigrants into the United States for comme rcial advantage and private financial gain and aiding and abetting in the consp iracy in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. §§ 2 and 371; two counts of bringing in illegal immigrants and aiding and abetting in those efforts in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2; and two counts of transporting illegal immigrants in violation of 8 U.S.C. § 1324(a)(1)(A) (ii), (a)(1)(B)(i), and (a)(1)(A)(v)(II). 1 After a two-day trial ending on October 8, 1997, a jury convicted Defendant on all five counts, and the dis trict court sentenced Defendant to concurrent terms of thirty-six months’ imprisonm ent followed by three years’ supervised release. Defendant raises five argument s to appeal his conviction. We exercise jurisdiction pursuant to 28 U.S.C. § 1291. At approximately 6:00 p.m. on January 24, 1997, Coc onspirator Miranda, Mr. Rojo, and Mr. Leandro Rodriguez-Moreno guided agroup of about twelve Mexican nationals across the United States border i nto New Mexico. After walking for about ten hours and twenty-two miles, the group stopped a few hundred yards north of the intersection of Espejo and Crawford county roads and-3-

sat down in the desert bush on what was by then the early morning of January 25, 1997. Several people then left the group and walke d southwest a short distance to a trailer belonging to Defendant. Meanwhile, three United States border patrol agents were tracking with an infrared camera the mo vements of both the people who remained sitting in the bush and those who walk ed to the trailer. The agents observed several persons in and around the vehicles parked under the carport of the trailer and, shortly thereafter, saw a truck le ave the trailer. The truck headed north to the area where the remaining immigrants we re hiding. Several, but not all, of the immigrants climbed aboard the truck. T he truck then proceeded north toward Coconspirator Vargas’ house in Deming, New M exico, which was approximately twelve miles away. After seeing “a bunch of bodies” in the truck when it passed his location, R., Vol. III at 80, Border Patrol Agent Steve Dudyak stopped the truck. He found ten or eleven illegal immigrants in the truck and a rrested the driver, Mr. Rodriguez. The two other border patrol agents then apprehended the persons who were still sitting in the bush. One of the age nts then followed tracks from the location in the bush to Defendant’s trailer. W hile the agent was inspecting the tracks and looking around the trailer, Defendant stuck his head out of the trailer’s window and spoke to the agent. He admitted that on e person who had come asking for water was inside, and he essentially inv ited the agent inside to talk to-4-

that person. The agent went inside the trailer, fo und Coconspirator Miranda, and, upon discovering that he was an illegal immigrant, arrested him. On June 20, 1997, Agent Dudyak tracked a group of i ndividuals from a freight yard to a residence in Deming. Coconspirat or Vargas answered the door and admitted that six or seven Mexican nationals we re hiding in the bathroom. After these individuals were arrested, they indicat ed that Coconspirator Acosta was their guide. Defendant was arrested after he w as implicated by agent reports and statements from members of the groups that were arrested on January 25 and June 20, 1997.

I. Defendant first contends that there was a variance between the evidence presented at trial and the conspiracy charge allege d in the indictment and that this variance prejudiced his substantial rights. Specif ically, he claims that no independent evidence was presented to prove the exi stence of the charged conspiracy and that statements of alleged co-conspi rators were not admissible as proof of Defendant’s participation in the conspirac y. We review de novo questions of law concerning whether a variance exis ted and whether it substantially prejudiced the defendant. See United States v. Williamson , 53 F.3d 1500, 1512 (10th Cir.), cert. deniedsub nom. Dryden v. United States , 516 U.S.-5-

882 (1995). “A variance arises when the evidence adduced at tri al establishes facts different from those alleged in an indictment.” Du nn v. United States , 442 U.S. 100, 105 (1979); accordUnited States v. Ailsworth , 138 F.3d 843, 848 (10th Cir.), cert. denied , U.S. , 119 S. Ct. 221 (1998). However, a variance between the indictment and the proof constitutes re versible error only if it affects the defendant’s substantial rights grounded in the Fifth and Sixth Amendments.
See Berger v. United States , 295 U.S. 78, 82 (1935); Ailsworth , 138 F.3d at 848- 49. Applying these principles to this case, we compare the allegation of conspiracy contained in the indictment against the proof offered at trial. Count I of the second superseding indictment charged that b etween January 25 and June 20, 1997, Defendant knowingly and intentionally con spired with Coconspirators Miranda, Vargas, Acosta, and others to knowingly br ing illegal immigrants into the United States for commercial advantage and priv ate financial gain. The indictment also alleged that four overt acts were c ommitted in furtherance of the conspiracy. First, the indictment indicated that o n or about January 25, 1997, Coconspirator Miranda, Mr. Rojo, and Mr. Rodriguez guided a group of illegal immigrants into the United States on behalf of Coco nspirator Vargas. Second, the indictment stated that on or about January 25, 1997 , Defendant supplied a vehicle2 The second and third overt acts involved the incide nts on June 19 and 20,

1997, during which Coconspirator Acosta guided a gr oup of illegal aliens into the United States and Coconspirator Vargas kept illegal aliens at his home.

3 The record contains factual inconsistencies concern ing whether Mr. Rojo visited Defendant at his house in December 1996. B ecause this evidence is not critical to the government’s proof of conspiracy, w e do not address its effect on our analysis of whether a variance existed. -6- which Mr. Rodriguez used to transport the illegal i mmigrants. 2 At trial, the government presented proof that on January 25, 1997, Coconspirator Miranda, Mr. Rojo, and Mr. Rodriguez guided a group of illegal immigrants from Mexico into the United States. Mr. Rojo testified about this plan and stated that he was directed by Coconspirat or Vargas to walk from the border to Defendant’s house where he would pick up a vehicle. From there, he testified, he would use Defendant’s truck to transp ort the illegal immigrants to Coconspirator Vargas’ house in Deming, New Mexico. According to Mr. Rojo’s testimony, he arrived at Defendant’s trailer on Jan uary 25, 1997, between 4:00 a.m. and 6:00 a.m. Defendant then allowed Mr. Rojo to use the truck to transport the illegal aliens from the trailer to Deming. Mr. Rojo further testified that he had been to Defendant’s house in November 1996, 3 and he identified Defendant in the courtroom. Additionally, he testified that he had been paid for bringing illegal aliens to Coconspirator Vargas’ house, he knew Coconspirator Vargas paid Defendant for the use of his truck in transporting aliens, and he had seen Coconspirator Vargas pay Defendant at least once fo r that purpose. One of the4 To the extent that Defendant’s variance argument fo cuses on the

admissibility of the coconspirator’s testimony, we review this argument for plain error because Defendant did not object to this test imony at trial. See Fed. R. Crim. P. 52(b); United States v. Clifton , 127 F.3d 969, 970 (10th Cir. 1997). The district court did not err in allowing Mr. Rojo to testify to his personal knowledge of the events relating to the charges for which Def endant was indicted. Cf. United States v. McGuire , 27 F.3d 457, 462 (10th Cir. 1994) (recognizing “general rule that in a criminal case a jury may co nvict a defendant on the uncorroborated testimony of an accomplice”).

5 We do not address Defendant’s argument about Cocons pirator Miranda’s (continued...) -7- immigrants brought into the United States on January 24-25, 1997, testified that he paid $450 for Coconspirator Miranda to guide himinto the United States. This evidence supports reasonable inferences that D efendant willfully joined in the conspiracy to smuggle illegal aliens into the United States and that he was paid for his participation. Because the pro of at trial corresponded to the notice given Defendant by the charges in the indict ment, we conclude that no variance occurred. 4

II. Defendant also argues that we should reverse his co nviction for conspiracy because the district court admitted a coconspirator ’s guilty plea agreement into evidence without giving proper limiting instruction s. He asserts that the admission of Mr. Rojo’s guilty plea left the jury w ith the impression that Defendant must be guilty since Mr. Rojo pled guiltyto the conspiracy. 55 (...continued)

guilty plea because it was not the subject of testi mony and was not admitted into evidence. -8- The government called Mr. Rojo as a witness in its case-in-chief. In a separate but related case, Mr. Rojo pled guilty to two counts: conspiracy to bring and bringing illegal aliens into the United States on January 25, 1997, for commercial advantage and private financial gain. D uring direct examination, the government questioned Mr. Rojo about his guilty ple a, his relationship with the government, his sentencing, and whether he was test ifying truthfully. Defense counsel cross-examined Mr. Rojo about his guilty pl ea and attempted to impeach his credibility based on his obligation to testify and his relationship with the government. Defendant did not object to Mr. Rojo’s testimony or to the admission of the guilty plea agreement into evidenc e. Nor did he request a limiting instruction. Because Defendant’s failure to object or request a limiting instruction normally constitutes a waiver of those issues, we review only for plain
error. See Fed. R. Crim. P. 52(b); United States v. Pedraza , 27 F.3d 1515, 1525 (10th Cir.), cert. denied , 513 U.S. 941 (1994). To establish plain error, D efendant must show that a clear and obvious error affected h is substantial rights and seriously affected the integrity of his judicial pr oceedings. See Johnson v. United
States , 520 U.S. 461, 467 (1997) (citing United States v. Olano , 507 U.S. 725, 732 (1993)).-9-

It is well established that the guilt of a coconspi rator may not be used to establish the guilt of a defendant. See, e.g. , Pedraza , 27 F.3d at 1525; United
States v. Baez , 703 F.2d 453, 455 (10th Cir. 1983). Accordingly, a coconspirator’s “guilty plea may not be used as sub stantive evidence of a defendant’s guilt.” Baez , 703 F.2d at 455. “If the [coconspirator] testifi es, however, either the government or the defense may e licit evidence of a guilty plea for the jury to consider in assessing the [coconspi rator’s] credibility as a witness.” Id. “Instructions that specifically limit the use of a coconspirator’s guilty plea [to permissible purposes] should be given, and the fail ure to do so may rise to the level of plain error.” Pedraza , 27 F.3d at 1525; United States v. Austin , 786 F.2d 986, 991-92 (10th Cir. 1986) (applying relevant pri nciples to conclude that coconspirators’ prior convictions were used as subs tantive evidence of defendants’ guilt). To determine whether the failure to give a cautiona ry instruction constitutes plain error, we consider the following factors: (1 ) whether there was a proper purpose in introducing the guilty plea; (2) whetherthe guilty plea was improperly emphasized or used as evidence of substantive guilt ; (3) whether the alleged error was invited by defense counsel; (4) whether the fai lure to object could have been the result of tactical considerations; (5) whether a limiting instruction was given; and (6) whether, in light of all of the evidence, t he error was harmless beyond a-10-

reasonable doubt. See Pedraza , 27 F.3d at 1526; United States v. Paterson , 780 F.2d 883, 885 (10th Cir. 1986) (McKay, J., dissenti ng). In light of these factors, we conclude the districtcourt did not commit plain error in admitting the plea agreement of a coconspi rator. First, at least two permissible purposes existed for admitting Mr. Rojo ’s guilty plea: (1) to enable the jury to assess Mr. Rojo’s credibility in light of his relationship with the government, see Pedraza , 27 F.3d at 1525-26; and (2) to explain Mr. Rojo’s firsthand knowledge of Defendant’s participation inthe conspiracy to smuggle illegal aliens into the United States. See United States v. Gaev , 24 F.3d 473, 476 (3d Cir.), cert. denied , 513 U.S. 1015 (1994). With respect to the second factor, Defendant has no t identified any specific instance of improper use or emphasis, and our revie w of the record indicates that the government did not improperly emphasize the gui lty plea or attempt to use it as substantive evidence of Defendant’s guilt. In i ts opening statement, the government stated that the jury would hear from bor der patrol agents and from Mr. Rojo, and it outlined what it believed would be these witnesses’ testimony. In describing Mr. Rojo’s prospective testimony, the government scantily referred to the guilty plea. This reference was limited to the issue of Mr. Rojo’s credibility and was not improper. See United States v. Davis , 766 F.2d 1452, 1456 (10th Cir.), cert. denied , 474 U.S. 908 (1985). The government did not refe r-11-

to the guilty plea in its closing argument, and, in its closing rebuttal, it tangentially referred to the plea agreement only afterdefense counsel used Mr. Rojo’s guilty plea in her closing argument to cast doubt on Mr. Rojo’s veracity and credibility. Thus, our review of the second, t hird, and fourth factors indicates that the government introduced the coconspirator’s guilty plea agreement into evidence only after both parties had extensively qu estioned Mr. Rojo about the terms of the plea agreement and his purposes in tes tifying. “[A]lthough we cannot say the alleged error was invited by defense counsel or the result of a tactical consideration, counsel for [Defendant] was also responsible for eliciting” the substance of the guilty plea in her cross-exami nation of Mr. Rojo. Pedraza , 27 F.3d at 1526. Consequently, admitting a copy of the written plea agreement also did not prejudice Defendant when his counsel a lready had elicited the substance of the plea from Mr. Rojo upon cross-exam ination. See Davis , 766 F.2d at 1456. In light of the manner in which the guilty plea was utilized at trial, we do not think that the government’s references to the plea rise to the level of plain error. Compare Austin , 786 F.2d at 991 (finding plain error where prosecution repeatedly referred to codefendant’s gu ilty plea during opening and closing), withUnited States v. Peterman , 841 F.2d 1474, 1481 (10th Cir. 1988) (concluding there was no plain error where witness’ prior conviction was mentioned only during examination of witness), cert . denied , 488 U.S. 1004-12-

(1989), andDavis , 766 F.2d at 1455-57 (finding no plain error where defendant used guilty pleas to own advantage and government’s reference to pleas was limited to credibility issues). Moreover, the district court gave the jury an instr uction at the close of evidence which cautioned: “The fact that an accomp lice has entered a plea of guilty to the offense charged is not evidence in an d of itself of the guilt of any other person.” R., Vol. II at 206. While the cou rt did not give a limiting instruction to the jury at the time the plea agreem ent was admitted into evidence and did not use the specific words instructing the jury that the guilty plea itself could only be used to assess the witness’ credibili ty, we think that the court’s instruction at the close of evidence described here in tempered any prejudice which may have stemmed from the lack of other prope r instructions. The above instruction sufficiently informed the jury that the guilt of a coconspirator is not substantive evidence of the defendant’s guilt. Further, our conclusion is buttressed by the court’s instruction to the jury that it “should never convict a defendant upon the unsupported testimony of an alle ged accomplice unless [it] believe[s] that testimony beyond a reasonable doubt .” Id. This instruction goes to the heart of the jury’s competence and duty to a ssess the credibility of witnesses. Finally, in light of the record evidence and infere nces of Defendant’s guilt6 To the extent that Defendant raises a claim of inef fective assistance of counsel, such claims generally should be brought un der 28 U.S.C. § 2255. See United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995). However, because we have concluded that the admission of the plea agreement and the failure to give proper limiting instructions did no t amount to plain error, Defendant cannot show sufficient prejudice to estab lish an effective assistance of counsel claim under Strickland v. Washington , 466 U.S. 668 (1984). -13- in this case, we conclude that the absence of a lim iting instruction “‘did not have a substantial influence on the outcome of the trial nor does it leave [us] in grave doubt as to whether it had such effect.’” Pedraza , 27 F.3d at 1526 (citation omitted). Based on our review of the above factors , the court’s admission of the guilty plea agreement coupled with its failure to g ive an instruction that specifically limited the use of the coconspirator’s guilty plea to that of assessing his credibility did not result in plain error. 6

III. As noted above, Mr. Rojo testified at Defendant’s trial pursuant to a plea agreement. Defendant contends that Mr. Rojo’s test imony was inadmissible and reversible error because it was obtained in violati on of 18 U.S.C. § 201(c)(2). This argument essentially parallels the argument re cently pursued by the defendant in United States v. Singleton , 144 F.3d 1343 (10th Cir. 1998), reh’g en banc granted and opinion vacated , and rejected by a majority of this court on rehearing en banc. See United States v. Singleton , F.3d , 1999 WL 64697 The record contains factual inconsistencies about w hether Mr. Rojo was

present at Defendant’s house in December 1996. Mr. Rojo testified that he had not been to Defendant’s house in December 1996 and that his statement made at the time of his arrest to border patrol agents thathe had been to Defendant’s house in December 1996 was incorrect. Nevertheless , because we do not think that this testimony would have had any serious impa ct on the fairness, integrity, or public reputation of the proceedings, we do not consider it in our analysis of the propriety of other Rule 404(b) evidence. -14- (10th Cir. Jan. 8, 1999). Accordingly, the Singlet onen banc decision precludes Defendant’s argument that testimony given in exchan ge for leniency violates 18 U.S.C. § 201(c)(2).

IV. Defendant also argues that the district court erred in admitting under Federal Rule of Evidence 404(b) the following testi mony: Agent Adrian Aizpuru’s testimony regarding the September 1996 se izure of illegal immigrants from Defendant’s home and Mr. Rojo’s testimony thathe previously had been to Defendant’s house in November 1996 and that Defendant himself had taken illegal aliens to Deming in his truck in the past. 7Because Defendant failed to object to the admission of this testimony at trial, we review only for plain error.
See Fed. R. Crim. P. 52(b); Fed. R. Evid. 103(a); Unit ed States v. Mendoza-Salgado , 964 F.2d 993, 1008 (10th Cir. 1992). As we notedabove, plain error exists when an error has seriously affe cted the fairness, integrity, or-15-

public reputation of judicial proceedings. See Johnson , 520 U.S. at 467. Federal Rule of Evidence 404(b) prohibits the admi ssion of “[e]vidence of other crimes, wrongs or acts . . . to prove the cha racter of the person in order to show action in conformity therewith.” However, suc h evidence may “be admissible for other purposes, such as proof of mot ive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed. R. Evid. 404(b). To determine if the admission of Rule 404(b) evidence was proper, we apply a four-part test. See United States v. Hill , 60 F.3d 672, 676 (10th Cir.), cert. denied , 516 U.S. 970 (1995). We examine whether (1) the evidence was offered for a proper purpose under Rul e 404(b); (2) the evidence was relevant under Rule 401; (3) the probative valu e of the evidence was not substantially outweighed by its potential for unfai r prejudice under Rule 403; and (4) the district court gave the jury proper limitin g instructions upon request. See id. (citing Huddleston v. United States , 485 U.S. 681, 691-92 (1988)). In discussing the jury instructions in this case, the district court stated that the testimony at issue was admissible for purposes of establishing knowledge, intent, or absence of mistake or accident. We agre e with this assessment. Mr. Rojo’s testimony that he had visited Defendant’s ho use previously and that Defendant had himself taken illegal immigrants in h is car to Deming was relevant and admissible to show Defendant’s intent, knowledg e, plan, and preparation with-16-

respect to the charged conspiracy and to reveal that Mr. Rojo knew Defendant. Likewise, the agent’s testimony about arresting ill egal immigrants at Defendant’s house in September 1996 was offered and relevant to show intent and knowledge that the aims of the conspiracy were illegal. Nota bly, the events to which these witnesses testified occurred during the four months preceding the dates of the conspiracy charged in the indictment. We think the evidence of prior acts is sufficiently close in time to the crime charged. C f. United States v. Temple , 862 F.2d 821, 823-24 (10th Cir. 1988) (holding that in charged conspiracy spanning from February 9 to March 1, 1987, substantially sim ilar incident in 1983 was not too remote to be admissible under Rule 404(b), but two incidents nearer in time should have been excluded because they were prejudi cial and too tenuously related to the conspiracy). Additionally, we do not believe that the impact of this testimony was unfairly prejudicial. Although the district court did not analyze the evidence under Rule 403 because it was not presented with th e opportunity to do so, the effect of the testimony in question is not so preju dicial as to require reversal. Moreover, any possible prejudicial impact of this t estimony is diminished in light of Defendant’s own testimony admitting that he allo wed illegal immigrants to come into his home on prior occasions, his testimony that he knew Mr. Rojo, and Mr. Rojo’s in-court identification of Defendant.-17-

In the final analysis, the record indicates that, a lthough the trial judge and counsel for both parties referred to this Rule 404( b) evidence in their discussions on the jury instructions, Defendant did not requestan instruction limiting the uses of this evidence. Thus, the court did not err in f ailing to give such an instruction.
See Fed. R. Evid. 105; Huddleston , 485 U.S. at 691-92 (stating that a trial court shall give an instruction limiting the use of Rule 404(b) evidence upon the defendant’s request); United States v. Herndon , 982 F.2d 1411, 1416 (10th Cir. 1992) (same). Our review of these factors leads us to conclude that the admission of this evidence did not constitute plain error.

V. Finally, Defendant appeals the district court’s den ial of his motion for judgment of acquittal, arguing that the evidence wa s insufficient to support the jury’s conviction of him for conspiracy and the fou r underlying substantive charges. To support his claim, Defendant states th at “the record does not contain sufficient []or ample evidence from which the jury could conclude” that Defendant was guilty of the five crimes charged in the indictment. Appellant’s Br. at 39. In making this argument, Defendant face s a high hurdle: In reviewing the sufficiency of the evidence to support a jury v erdict, we review the record de novo and ask only whether, viewing the evidence andthe reasonable inferences to-18-

be drawn therefrom in the light most favorable to t he government, a reasonable jury could find the defendant guilty beyond a reaso nable doubt. See United States
v. Janusz , 135 F.3d 1319, 1323 (10th Cir. 1998); United Stat es v. Voss , 82 F.3d 1521, 1524-25 (10th Cir.), cert. denied , U.S. , 117 S. Ct. 226 (1996). Viewed in the light most favorable to the government, the evidence and the reasonable inferences therefrom–including the testi mony of the border patrol agents, Mr. Rojo, and Defendant–show that Defendant(1) knew of and agreed to the plan to smuggle illegal immigrants into the Uni ted States; (2) knew that it was illegal to bring in, transport, harbor, or help imm igrants unlawfully entering the United States; (3) willingly participated in the sc heme and furthered the charged conspiracy by supplying his truck to Mr. Rojo to tr ansport the immigrants from the trail near his house to Deming, New Mexico, on January 25, 1997; (4) was or would be paid by Mr. Vargas for his role in the con spiracy; and (5) knew and acted interdependently with at least three of the a lleged coconspirators, namely Mr. Vargas, Mr. Rojo, and Mr. Miranda. Consequentl y, we conclude that a reasonable jury could find beyond a reasonable doub t that Defendant was guilty of the crimes for which he was charged and convicted. The district court did not err in denying the motion for judgment of acquittal.-19-

Defendant’s convictions are AFFIRMED

.

Entered for the Court Monroe G. McKay Circuit Judge