55 F.4th 651
8th Cir.2022Background
- In December 2017, a California group (including Heredia, aka “Mondo”) transported methamphetamine and black tar heroin to North Dakota; drugs were later removed from a Honda at the Schmoker residence.
- In May 2019 a woman who had been involved in the 2017 trip became a confidential informant (CI) and tipped law enforcement about Tabarez, Caccamise, and Heredia; searches yielded large quantities of methamphetamine and heroin.
- Heredia was charged in a three-count indictment (conspiracy and two possession-with-intent counts alleging 2018 or about 2018).
- Seven days before trial the Government disclosed the CI’s identity and that she would testify about the 2017 events and identify Heredia; Heredia moved in limine to exclude that testimony under Rules 402, 403, and 404(b) and for unfair surprise over a purported earlier identification as “Armondo Ybarra.”
- The district court denied the motion, admitting the CI’s testimony as relevant and not a prior bad act; it found the CI always referred to Heredia as “Mondo” and that any late disclosure did not cause unfair prejudice.
- A jury convicted Heredia on all counts; he appealed the evidentiary rulings. The sentence was 149 months’ imprisonment plus five years supervised release.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of CI’s testimony about December 2017 events (Rules 402/403/404(b)) | Heredia: 2017 events fall outside charged "in or about 2018," are prior bad acts, and late disclosure prejudiced him | Government: 2017 events are temporally close, directly probative of the conspiracy and explain CI’s knowledge; not 404(b); disclosure gave sufficient notice | Court: No abuse of discretion. Evidence relevant, not barred by 404(b), not unfairly prejudicial; any error harmless given other evidence |
| Admissibility of CI’s 2019 identification (Rule 403—surprise/misidentification) | Heredia: CI earlier identified “Armondo Ybarra,” so late correction to Heredia prevented adequate investigation and caused unfair prejudice | Government: CI always called him “Mondo”; “Ybarra” came from law enforcement/social media; corrected reports disclosed in discovery | Court: No abuse of discretion. District court correctly found no surprise; identification admissible; any error harmless |
Key Cases Cited
- United States v. Galloway, 917 F.3d 631 (8th Cir. 2019) (reciting facts in light most favorable to the jury’s verdict)
- United States v. Webster, 797 F.3d 531 (8th Cir. 2015) (standard for reviewing district court evidentiary rulings)
- United States v. King, 898 F.3d 797 (8th Cir. 2018) (broad district court discretion in conspiracy trials)
- United States v. Battle, 774 F.3d 504 (8th Cir. 2014) (distinguishing direct evidence of charged offense from Rule 404(b) evidence)
- United States v. Williams, 895 F.2d 1202 (8th Cir. 1990) (prior drug dealing evidence may be admissible)
- United States v. Williams, 95 F.3d 723 (8th Cir. 1996) (acts integral to the charged crime need not be excluded as uncharged criminal acts)
- United States v. Ferguson, 29 F.4th 998 (8th Cir. 2022) (pre-conspiracy transaction close in time and identical in nature is not unfairly prejudicial)
- United States v. Red Legs, 28 F.4th 931 (8th Cir. 2022) (harmless-error standard for evidentiary mistakes)