USA v. Sergio Ramos-Atondo

Filing

FILED OPINION (RONALD M. GOULD, JOHNNIE B. RAWLINSON and PAUL C. HUCK) AFFIRMED. Judge: RMG Authoring, Judge: JBR , Judge: PCH . FILED AND ENTERED JUDGMENT. [8818373] [12-50208, 12-50211, 12-50212, 12-50214]

Case: 12-50208

10/11/2013

ID: 8818373

DktEntry: 49-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SERGIO RAMOS-ATONDO,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

No. 12-50208
D.C. Nos.
8:11-cr-00087JST-7
8:11-cr-00088JST

No. 12-50211
D.C. No.
8:11-cr-00087JST-3

ALBERTO CORONA-VIDAL,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEANCARLO MARTINEZ,
Defendant-Appellant.

No. 12-50212
D.C. No.
8:11-cr-00087JST-4

Page: 1 of 20

Case: 12-50208

2

10/11/2013

ID: 8818373

DktEntry: 49-1

UNITED STATES V. RAMOS-ATONDO

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VICTOR RAMOS,
Defendant-Appellant.

No. 12-50214
D.C. No.
8:11-cr-00087JST-5
OPINION

Appeal from the United States District Court
for the Central District of California
Josephine Staton Tucker, District Judge, Presiding
Argued and Submitted
August 27, 2013—Pasadena, California
Filed October 11, 2013
Before: Ronald M. Gould and Johnnie B. Rawlinson,
Circuit Judges, and Paul C. Huck, District Judge.*
Opinion by Judge Gould

*

The Honorable Paul C. Huck, District Judge for the U.S. District Court
for the Southern District of Florida, sitting by designation.

Page: 2 of 20

Case: 12-50208

10/11/2013

ID: 8818373

DktEntry: 49-1

UNITED STATES V. RAMOS-ATONDO

Page: 3 of 20

3

SUMMARY**

Criminal Law
The panel affirmed four defendants’ convictions for
conspiracy to import marijuana and importation of marijuana.
The panel held that the district court did not abuse its
discretion by instructing the jury on a theory of deliberate
ignorance in the context of a conspiracy, and that the theory
of deliberate ignorance, which may be an alternative
argument to actual knowledge, need not be exclusive.
The panel rejected defendant Ramos’s contention that
there was insufficient evidence to support his conviction.
The panel concluded that the district court did not abuse
its discretion by admitting defendant Ramos-Atondo’s prior
alien smuggling conviction under Fed. R. Evid. 404(b) and
not excluding it under Fed. R. Evid. 403.

COUNSEL
David J. Zugman (argued), Burcham & Zugman, San Diego,
California; Robison D. Harley, Jr. (argued), Santa Ana,
California; Jennifer L. Coon, Law Office of Jennifer L. Coon,
San Diego, California; and H. Dean Steward, San Clemente,
California, for Defendants-Appellants.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Case: 12-50208

4

10/11/2013

ID: 8818373

DktEntry: 49-1

UNITED STATES V. RAMOS-ATONDO

Mark Remy Yohalem (argued), Office of the United States
Attorney, Los Angeles, California; Amanda Liskamm, Office
of the United States Attorney, Santa Ana, California, for
Plaintiff-Appellee.

OPINION
GOULD, Circuit Judge:
Defendants Sergio Ramos-Atondo, Alberto Corona-Vidal,
Jeancarlo Martinez, and Victor Ramos appeal from their
convictions for conspiring to import marijuana in violation of
21 U.S.C. § 963 and importation of marijuana in violation of
21 U.S.C. §§ 952 and 960.1 Defendants contend that the
district court abused its discretion by instructing the jury on
a theory of deliberate ignorance. Defendant Ramos contests
the sufficiency of the evidence to support his conviction and
the district court’s denial of his motion filed under Rule 29 of
the Federal Rules of Criminal Procedure. Defendant RamosAtondo contends that the district court abused its discretion
by admitting evidence of his prior alien smuggling conviction
under Rule 404(b) of the Federal Rules of Evidence. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I
In the early morning of April 4, 2011, Border Patrol
Agent Waller conducted surveillance of Calafia State Beach
in San Clemente, California, a spot where maritime
1

Ramos-Atondo was also convicted of being an illegal alien found in
the United States following deportation in violation of 8 U.S.C. § 1326(a).
He does not appeal that conviction or sentence.

Page: 4 of 20

Case: 12-50208

10/11/2013

ID: 8818373

DktEntry: 49-1

UNITED STATES V. RAMOS-ATONDO

Page: 5 of 20

5

smuggling frequently occurred. Around 4:50 a.m., he spotted
a panga boat – an open-bow vessel commonly used for
smuggling – approaching the shore without running lights.
Using an infrared thermal device from his elevated position
on the cliff, Agent Waller could see two people on the boat
and what appeared to be several packages. The boat at first
approached the beach at a high rate of speed, but then stopped
fifty to seventy-five yards offshore for five to ten minutes.
Agent Waller observed Agent Carrell’s flashlight on the
beach, at which point the panga boat turned around and
headed out to the northwest. The panga boat was abandoned
a short distance away at the beach on Dana Point, where
border patrol agents recovered more than 740 pounds of
marijuana. Agent Carrell testified that he brandished a
flashlight before apprehending four men wearing tennis shoes
and dark clothing on the beach. He identified the men as
Ramos, Martinez, Corona-Vidal, and Ramiro Gallegos. None
possessed any identifying documents or cell phones. But
Agent Carrell recovered a room key for the San Clemente Inn
from Ramos. Ramos’s room at the San Clemente Inn
contained two wallets belonging to the men arrested on the
beach, and two cell phones. The room also contained a set of
car keys to a red Chevrolet Silverado that was parked next to
the room. Two participants in the charged smuggling
operation testified against Defendants at trial. Gallegos, who
had been arrested on the beach, testified against Ramos,
Corona-Vidal, and Martinez.
According to Gallegos, the red Silverado belonged to
Martinez, a childhood friend. Gallegos drove to San
Clemente a week after he got a job offer from an unknown
man outside of a liquor store in his hometown, San Diego. At
the time of the offer, Gallegos understood that the job had
something to do with marijuana. Gallegos expected to make

Case: 12-50208

6

10/11/2013

ID: 8818373

DktEntry: 49-1

UNITED STATES V. RAMOS-ATONDO

$4,000 to $8,000 for the job. The unknown man gave
Gallegos a black Motorola phone. Later that night, Gallegos
received a call on the phone with more instructions, including
directions to the San Clemente Inn. The man on the phone
told him to get two people to help, and that they should all
wear dark clothing. The man also told him that they were
going to unload packages off a panga boat and transfer them
into a car. Gallegos went over to Corona-Vidal’s house,
smoked marijuana with Corona-Vidal and Martinez, and told
them about the job unloading packages off a boat. He
specifically told them that the job involved marijuana, and
they agreed to help.
On April 3, 2011, Gallegos, Corona-Vidal, and Martinez
drove to the San Clemente Inn in Martinez’s red Silverado.
They smoked marijuana around the truck while they waited
in the parking lot. Gallegos testified that they were
approached by a man with glasses who introduced himself as
Victor Ramos. They went to Ramos’s hotel room, where
Gallegos saw Jonathan Peraza. Ramos then gave them
instructions for unloading the packages. Around 3:00 a.m.,
Ramos woke everyone up, and they got into Peraza’s black
Ford Explorer. They drove down the hill to the beach, where
they got out except for Peraza, who would stay on top of the
hill with the car. Gallegos said that after about five minutes
on the beach, they were arrested by border patrol agents.
Agent Muglia testified that he received a call about a panga
boat coming in, and that he searched for a “load vehicle” near
Calafia State Beach. He observed a black Ford Explorer in
the area, and followed it to a 7-Eleven. The driver, Peraza,
consented to a search, and they found a San Clemente Inn
parking pass.

Page: 6 of 20

Case: 12-50208

10/11/2013

ID: 8818373

DktEntry: 49-1

UNITED STATES V. RAMOS-ATONDO

Page: 7 of 20

7

Border patrol agents found Ramos-Atondo hiding in a
public restroom near the abandoned panga boat around 12:30
p.m. on April 4, 2011. Dordier Lizarraga-Lizarraga was also
apprehended in the restroom. Both men were covered with
sand that stuck to their clothes as if they had been wet.
Lizarraga-Lizarraga testified against Ramos-Atondo,
stating that Ramos-Atondo contacted him in March 2011 to
help bring six bales of marijuana into the United States.
Lizarraga-Lizarraga agreed and met Ramos-Atondo in
Rosarito, Mexico, where the loaded panga boat was waiting.
They used a pre-programmed GPS navigation system to guide
the boat to the United States. Lizarraga-Lizarraga also
testified that when he and Ramos-Atondo saw lights on
Calafia State Beach, they went to another beach, abandoned
the boat, and hid in a nearby public bathroom.
Defendants presented no evidence at trial. Defendants’
apparent strategy was to cast doubt on the credibility of the
government’s witnesses, especially cooperating witnesses
Gallegos and Lizarraga-Lizarraga.
The defense also
contended that Defendants did not have the requisite
knowledge that they were involved in a drug smuggling
operation because the panga boat could have been carrying
illegal aliens rather than narcotics.
II
Defendants challenge the district court’s decision to give
a deliberate ignorance instruction to the jury. We review a
district court’s decision to give a deliberate ignorance
instruction for abuse of discretion. United States v. Heredia,
483 F.3d 913, 922 (9th Cir. 2007) (en banc). When we
review for abuse of discretion, we “first . . . consider whether

Case: 12-50208

8

10/11/2013

ID: 8818373

DktEntry: 49-1

UNITED STATES V. RAMOS-ATONDO

the district court identified the correct legal standard . . . then
. . . determine whether the district court’s findings of fact, and
its application of those findings of fact to the correct legal
standard, were illogical, implausible, or without support in
inferences that may be drawn from facts in the record.”
United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009)
(en banc).
The prosecution proposed a deliberate ignorance
instruction taken from Ninth Circuit Criminal Model Jury
Instruction 5.7. Defendants filed a joint objection to the
instruction, contending that it was “argumentative, confusing,
misleading, and not rationally supported by the facts of the
case.” The district court ruled that the deliberate ignorance
instruction was appropriate because the jury could find
deliberate ignorance if it rejected the government’s actual
knowledge argument. The district court gave the following
instruction to the jury:
You may find that a defendant acted
knowingly if you find beyond a reasonable
doubt that the defendant:
1. was aware of a high probability that drugs
were in the panga-style boat, and
2. deliberately avoided learning the truth.
You may not find such knowledge, however,
if you find that the defendant actually
believed that no drugs were in the panga-style
boat, or if you find that the defendant was
simply careless.

Page: 8 of 20

Case: 12-50208

10/11/2013

ID: 8818373

DktEntry: 49-1

UNITED STATES V. RAMOS-ATONDO

Page: 9 of 20

9

We recognized the validity of a deliberate ignorance
instruction in United States v. Jewell, 532 F.2d 697, 700, 704
(9th Cir. 1976) (en banc). We clarified that a district court
may give a deliberate ignorance instruction if it determines
that a jury could rationally find deliberate ignorance, even if
the jury had rejected the government’s evidence of actual
knowledge. Heredia, 483 F.3d at 922. Deliberate ignorance
involves “(1) a subjective belief that there is a high
probability a fact exists and (2) deliberate actions taken to
avoid learning the truth.” United States v. Yi, 704 F.3d 800,
804 (9th Cir. 2013). In determining the applicability of the
jury instruction, “the district court must view the evidence in
the light most favorable to the party requesting it.” Id.
Defendants contend that the district court should not have
given the instruction because the government did not advance
a deliberate ignorance theory at trial or mention deliberate
ignorance in its closing argument. We disagree. It is true
that most of the government’s evidence focused on
Defendants’ actual knowledge that the boat contained
marijuana. But at trial, Defendants maintained that they
could have believed this was an alien smuggling operation
and did not know that the boat contained a controlled
substance. To be convicted under 21 U.S.C. § 952, a person
must knowingly import a controlled substance. Defendants
contended that they could not be convicted of this offense if
they believed that the boat contained illegal aliens. Because
the Defendants disputed their actual knowledge, the
government was “entitled to instructions supporting all
rational inferences the jury might draw from the evidence.”
Heredia, 483 F.3d at 923. If the jury believed Defendants’
position that they did not have actual knowledge, then the
government’s evidence could still support the inference that
Defendants knew that there was a high probability that drugs

Case: 12-50208

10

10/11/2013

ID: 8818373

DktEntry: 49-1

UNITED STATES V. RAMOS-ATONDO

were on the boat but deliberately chose not to confirm that
suspicion.
To show deliberate ignorance, a defendant must have a
subjective belief that there is a high probability that a fact
exists. Yi, 704 F.3d at 804. There is ample evidence to
support the inference that all Defendants were aware of a high
probability that the boat had on it marijuana or another
controlled substance rather than illegal aliens. Gallegos
testified that he told both Corona-Vidal and Martinez that he
had been solicited to do a job involving marijuana. He also
testified that at the San Clemente Inn, Ramos explained the
plan for unloading the “packages” from the boat to Gallegos,
Corona-Vidal, and Martinez. Gallegos explained that he,
Corona-Vidal, Martinez, and Ramos went down to the beach
with the plan to take packages off the boat and put them in a
car. Lizarraga-Lizarraga testified that Ramos-Atondo told
him that they would be transporting marijuana, that the panga
boat contained several packages, and that the boat traveled by
a pre-programmed GPS at night from Mexico to the United
States. The jury heard evidence that Ramos-Atondo had a
prior conviction for alien smuggling from Mexico to the
United States, so there is a high probability that he would
understand that this trip with a skeleton crew on the panga
boat differed from his previous smuggling experience when
there were more than fifteen alien passengers aboard the
panga boat.
The record also supports the inference that Defendants
engaged in a deliberate act to avoid learning the truth. See Yi,
704 F.3d at 805. “A deliberate action is one that is
intentional; premeditated; fully considered.” Heredia,
483 F.3d at 920 (internal quotation marks and citation
omitted). A failure to investigate can be a deliberate action.

Page: 10 of 20

Case: 12-50208

10/11/2013

ID: 8818373

DktEntry: 49-1

UNITED STATES V. RAMOS-ATONDO

Page: 11 of 20

11

Id. If the jury believed that Defendants did not know that
they were involved in a drug smuggling operation, the jury
could have inferred that Defendants’ lack of knowledge
resulted from their failure to investigate. See United States v.
McAllister, 747 F.2d 1273, 1276 (9th Cir. 1984). The jury
could have inferred that Corona-Vidal, Martinez, and Ramos
deliberately chose not to ask why they were going to unload
packages at the beach in the dark, wearing dark clothing,
without any identification or possessions. The jury could
have inferred that Ramos-Atondo chose not to examine the
packages on the boat, or ask why he was taking a boat full of
packages from Mexico to a beach in the United States in the
dark using a pre-programmed GPS.
Defendants also contend that the district court erred by
giving the deliberate ignorance instruction because it is
impossible to conspire to be deliberately ignorant. This
argument lacks merit. We have previously upheld a
defendant’s conviction for conspiracy to possess marijuana
after concluding that the district court did not err by giving a
deliberate ignorance instruction. United States v. Nicholson,
677 F.2d 706, 710 (9th Cir. 1982) (“The circumstances
surrounding the investment opportunity presented to
[defendant] would have put any reasonable person on notice
that there was a ‘high probability’ that the undisclosed
venture was illegal.”). We said that “[t]he Jewell standard
eliminates the need to establish such positive knowledge to
obtain a conspiracy conviction.” Id. at 711.
The district court has discretion to refuse to give a
deliberate ignorance instruction where the jury may become
confused or where a defendant only disputes identity.
Heredia, 483 F.3d at 924. The government focused on and
stressed its proof of Defendants’ actual knowledge. But no

Case: 12-50208

12

10/11/2013

ID: 8818373

DktEntry: 49-1

UNITED STATES V. RAMOS-ATONDO

established principle of law declares that the deliberate
ignorance instruction cannot be given unless deliberate
ignorance is the main thrust of the government’s case-in-chief
or closing argument. The law indeed is to the contrary. See
id. at 923 (“A party may present alternative factual theories,
and is entitled to instructions supporting all rational
inferences the jury might draw from the evidence.”). The
jury could rationally have drawn from the evidence presented,
depending on how credible they deemed Gallegos’s
testimony in relation to the other evidence presented, that
Defendants, collectively, were deliberately ignorant that the
object of the smuggling operation was marijuana.
We hold that if the factual predicates of a deliberate
ignorance instruction are present, it is not error to give such
an instruction. And the theory of deliberate ignorance need
not be exclusive, it may be an argument alternative to actual
knowledge. Viewing the evidence in the light most favorable
to the party requesting the instruction, here the government,
the district court’s decision to give the deliberate ignorance
instruction to the jury was not “illogical, implausible, or
without support in inferences that may be drawn from facts in
the record.” See Hinkson, 585 F.3d at 1251.
III
Defendant Ramos contends that the district court erred in
denying his motion for judgment of acquittal under Rule 29
of the Federal Rules of Criminal Procedure. Ramos
maintains that the government’s evidence was insufficient: In
support of that contention, he argues that he made no
incriminating statement, that he was not identified in court by
Gallegos, that the government only demonstrated that he was
present on the beach, and that the government did not prove

Page: 12 of 20

Case: 12-50208

10/11/2013

ID: 8818373

DktEntry: 49-1

UNITED STATES V. RAMOS-ATONDO

Page: 13 of 20

13

that Ramos knew that there were drugs in the panga boat.
The government, to the contrary, argues that the evidence was
sufficient for the jury to believe that Ramos knew, or was
willfully ignorant, of the fact that the smugglers were
unloading narcotics. Ramos misunderstands the sufficiency
of evidence standard. We construe the evidence “in the light
most favorable to the prosecution . . . then determine whether
any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United
States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en
banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 61 L.Ed.2d 560 (1979)). We are persuaded
that the government has the better argument under the
standard set forth in Jackson v. Virginia.
Ramos argues that his “mere presence” on the beach is
insufficient for a conviction for conspiracy or importation,
both of which require knowledge. In support, Ramos relies
on Gallegos’s inability to identify Ramos in court. This
argument lacks merit. Gallegos testified that he did not know
Ramos, and had only met him on April 3, 2011 at the San
Clemente Inn; however, Gallegos did correctly identify
Ramos as the only one wearing glasses on the beach.
Moreover, Ramos’s identity is not in question, as border
patrol agents identified him as one of the men arrested on the
beach.
Ramos also cites Gallegos’s lack of credibility, including
his lies to border patrol agents upon arrest, and how Gallegos
had been smoking marijuana all day on April 3, 2011. These
assertions were raised at trial and rejected by the jury. We
will not assume the function of the jury to make credibility
determinations. See Nevils, 598 F.3d at 1170 (“We cannot
second-guess the jury’s credibility assessments; rather, ‘under

Case: 12-50208

14

10/11/2013

ID: 8818373

DktEntry: 49-1

UNITED STATES V. RAMOS-ATONDO

Jackson, the assessment of the credibility of witnesses is
generally beyond the scope of review.’”) (quoting Schlup v.
Delo, 513 U.S. 298, 330, 115 S. Ct. 851, 130 L.Ed.2d 808
(1995)). The jury had the opportunity to weigh Gallegos’s
use of marijuana and any other credibility factors in their
assessment of his testimony.
We view the testimony of the border patrol agents and
Gallegos in a light most favorable to the prosecution, as
required by Jackson. We conclude that a rational jury could
believe Gallegos’s testimony, conclude that it was consonant
with that of the border patrol agents, and conclude beyond a
reasonable doubt that Ramos knew, or was deliberately
ignorant of, the objective of importing marijuana. See Nevils,
598 F.3d at 1169. The district court correctly denied Ramos’s
Rule 29 motion.
IV
Defendant-Appellant Sergio Ramos-Atondo contends that
the district court abused its discretion when it admitted
Ramos-Atondo’s prior conviction for alien smuggling under
Rule 404(b) of the Federal Rules of Evidence. The
government to the contrary contends that Ramos-Atondo
waived his right to challenge the admission of his prior
conviction because he stipulated to its introduction. Absent
waiver, the government maintains that the district court did
not err because Ramos-Atondo’s alien smuggling conviction
was relevant to prove his knowledge, intent, common plan or
scheme, and absence of mistake in his participation in a
conspiracy to smuggle marijuana. We review a district
court’s admission of evidence for abuse of discretion. United
States v. Rizk, 660 F.3d 1125, 1130 (9th Cir. 2011). Although
we reject the government’s waiver argument, and address the

Page: 14 of 20

Case: 12-50208

10/11/2013

ID: 8818373

DktEntry: 49-1

UNITED STATES V. RAMOS-ATONDO

Page: 15 of 20

15

propriety of admission of the alien smuggling conviction on
its merits, we conclude there was not error under the
applicable rules of evidence, and we affirm.
A
Considering Ramos-Atondo’s motion in limine to exclude
the alien smuggling conviction, the district court found that
evidence of Ramos-Atondo’s alien smuggling conviction was
not too remote in time because it occurred within the last two
years. The district court further found that Ramos-Atondo
committed the act since he pleaded guilty to the offense, and
that cross-border alien smuggling using a panga boat was
sufficiently similar to the marijuana smuggling charge here.
In its opposition to Ramos-Atondo’s motion, the government
urged that the prior alien smuggling conviction was relevant
to Ramos-Atondo’s knowledge and that it showed that his
actions were intentional. At the evidentiary hearing, the
district court asked the government further to address whether
the prior conviction tended to prove a material point. The
government responded that the prior alien smuggling
conviction would show that Ramos-Atondo had a plan, and
that the use of a panga boat to smuggle is a common scheme
that he uses. The government also offered the conviction as
evidence that Ramos-Atondo’s presence on the panga boat
was not a mistake. The district court admitted the prior
conviction under Rule 404(b) of the Federal Rules of
Evidence, determining that with a limiting instruction, the
evidence was not unfairly prejudicial under Rule 403 of the
Federal Rules of Evidence, because prejudice did not
outweigh probative value.
At trial, the government called two border patrol agents
to testify regarding Ramos-Atondo’s prior conviction. Agent

Case: 12-50208

16

10/11/2013

ID: 8818373

DktEntry: 49-1

UNITED STATES V. RAMOS-ATONDO

Swaine testified that he conducted surveillance on an alien
smuggling operation involving 15–20 people and a panga
boat, on July 17, 2009. Agent Martinez testified that he
interviewed Ramos-Atondo on July 17, 2009, and that
Ramos-Atondo said that his role was to load the gasoline on
the boat and change nozzles on the gas can during the trip.
The record contained the following stipulation:
Plaintiff United States of America . . . and
Defendant Sergio Ramos-Atondo . . . hereby
stipulate to the following: On November 16,
2009, Defendant Sergio Ramos-Atondo
pleaded guilty to a single-count information
charging him with a violation of Title 8,
United States Code Section 1324(A)(1)(A)(II)
and (B)(2) for bringing in illegal aliens and
aiding and abetting in the United States
District Court in the Southern District of
California.
In her closing argument, the prosecutor referred to RamosAtondo’s smuggling history. The prosecutor said that
Ramos-Atondo admitted to being part of the boat crew in a
prior smuggling event, and that this participation
demonstrates his intent, motive, plan, and knowledge of how
to conduct panga-boat smuggling from Mexico into the
United States.
We are not persuaded that Ramos-Atondo waived
objection to the introduction of his prior smuggling
conviction or the facts underlying that conviction. First, the
language of the stipulation is narrow. It refers only to
Ramos-Atondo’s guilty plea. Second, the stipulation in our
view does not mean more than that if the conviction is

Page: 16 of 20

Case: 12-50208

10/11/2013

ID: 8818373

DktEntry: 49-1

UNITED STATES V. RAMOS-ATONDO

Page: 17 of 20

17

admitted, this identifies the prior crime. In the totality of
circumstances here, we conclude that Ramos-Atondo did not
waive his objection to the admission and use of his prior alien
smuggling conviction based on his narrow stipulation about
his prior guilty plea. We do not think that this record shows
an intentional relinquishment of Ramos-Atondo’s right to
challenge the admission of evidence. We conclude that there
was no waiver, and so the propriety of admitting this prior
crime in evidence should be addressed by us on the merits.
B
Prior crimes are not admissible to show propensity or bad
character, but they may be admissible to show “motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Fed. R. Evid.
404(b). We employ a four-part test to determine the
admissibility of Rule 404(b) evidence:
Such evidence may be admitted if: (1) the
evidence tends to prove a material point; (2)
the other act is not too remote in time; (3) the
evidence is sufficient to support a finding that
defendant committed the other act; and (4) (in
certain cases) the act is similar to the offense
charged.
United States v. Bailey, 696 F.3d 794, 799 (9th Cir. 2012).
To show relevance under the first prong, “the government
must articulate precisely the evidential hypothesis by which
a fact of consequence may be inferred from the other acts
evidence.” United States v. Mayans, 17 F.3d 1174, 1181 (9th
Cir. 1994) (internal quotation marks and citations omitted).
Where the defendant’s knowledge is contested, we have

Case: 12-50208

18

10/11/2013

ID: 8818373

DktEntry: 49-1

UNITED STATES V. RAMOS-ATONDO

“emphasized that the government must prove a logical
connection between the knowledge gained as a result of the
commission of the prior act and the knowledge at issue in the
charged act.” Id. at 1181–82. Even if relevant, Rule 404(b)
evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.
See Fed. R. Evid. 403; United States v. Flores-Blanco,
623 F.3d 912, 919 (9th Cir. 2010).
Ramos-Atondo contends that the government did not
show a clear connection between the prior conviction for
alien smuggling and the marijuana smuggling charges. We
disagree. The alien smuggling conviction was relevant
evidence for several reasons. First, it demonstrated RamosAtondo’s knowledge of cross-border smuggling procedures,
including managing the gas and engine on a panga-style boat
as it made its way from Mexico to the United States in the
middle of the night. That Ramos-Atondo had previous
experience in handling the gas and engine during a smuggling
run tends to prove a material point, that Ramos-Atondo was
not merely present on the boat with no knowledge of the
underlying smuggling operation.
Second, the prior
conviction further tends to prove the material point that
Ramos-Atondo would understand the difference between
smuggling aliens and smuggling marijuana, which goes to his
knowledge, plan, and intent to smuggle narcotics. See
Flores-Blanco, 623 F.3d at 919–20 (“[T]he prior acts were
sufficiently similar to the present offense to show
[defendant’s] knowledge of the present smuggling scheme
and his intent and plan to participate in it.”). Third, the
conviction was also relevant to show a modus operandi of
smuggling involving use of open panga boats that were to be
unloaded on a dark beach in early morning hours. See United

Page: 18 of 20

Case: 12-50208

10/11/2013

ID: 8818373

DktEntry: 49-1

UNITED STATES V. RAMOS-ATONDO

Page: 19 of 20

19

States v. Ramirez-Jiminez, 967 F.2d 1321, 1326 (9th Cir.
1992).
The alien smuggling conviction was not a prior bad act
offered to show bad character of Ramos-Atondo. Rather, it
was relevant evidence tending to show that what RamosAtondo did in this case was illegal, that he was participating
in drug smuggling. Even if a district court permissibly could
have decided otherwise and excluded the evidence, we
conclude that the district court did not abuse its discretion in
admitting Ramos-Atondo’s prior alien smuggling conviction
under Rule 404(b) of the Federal Rules of Evidence. As
explained above, there were several logical theories that made
the evidence relevant and supported the conclusion that the
probative value of the evidence was not outweighed by
prejudice from it.
Ramos-Atondo possibly suffered some practical prejudice
as a result of admitting evidence of his prior smuggling
crime, in the sense that any evidence that tends to show guilt
admitted against a defendant charged with crime may cause
prejudice because the relevant evidence of guilt increases the
likelihood of a conviction. But because of the probative
value of the evidence, it was not unfair prejudice that would
warrant exclusion under Rule 403 of the Federal Rules of
Evidence. See Flores-Blanco, 623 F.3d at 920 (“The
evidence was probative of [defendant’s] knowledge and
intent and not of the type that would provoke an unfairly
prejudicial emotional response [from the jury].”). Further,
any such practical prejudice was minimized by the district
court’s careful limiting instruction to the jury. Id. We
conclude that the district court did not abuse its discretion by
admitting Ramos-Atondo’s prior alien smuggling conviction

Case: 12-50208

20

10/11/2013

ID: 8818373

DktEntry: 49-1

UNITED STATES V. RAMOS-ATONDO

under Rule 404(b) and not excluding it under Rule 403 of the
Federal Rules of Evidence.
V
The district court did not abuse its discretion by
instructing the jury on a theory of deliberate ignorance in the
context of a conspiracy to import marijuana, did not err in
denying Ramos’s Rule 29 motion, and did not abuse its
discretion by admitting evidence of Ramos-Atondo’s prior
alien smuggling conviction under Rule 404(b) of the Federal
Rules of Evidence.
AFFIRMED.

Page: 20 of 20