United States v. Enrique AbarcaUnited States v. Enrique Abarca
Aрpeal from United States District Court for the District of Nebraska - Lincoln
Submitted: November 16, 2022
Filed: March 2, 2023
Before BENTON, KELLY, and ERICKSON, Circuit Judges.
A jury convicted Enrique Steven Abarca of conspiracy to distribute 500 grams or more of methamphetamine with two prior serious drug felonies, in violation of
I.
Abarca believes the district court erred in admitting Rule 404(b) testimony from Michael Muhle, a man who was not involved in the charged conspiracy but began selling meth with Abarca three months after the conspiracy ended.
A.
Abarca asserts the court erred in introducing evidence from Muhle without properly noticing him under
Rule 404(b)(3) requires the government in a criminal case to:
(A) provide reasonable notice of аny such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;
(B) articulate in the nоtice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and
(C) do so in writing before trial—or in any form during trial if the court, for good cause, excuses lack of pretrial notice.
In 2020, Rule 404(b) was amended “principally to impose additional notice requirements on the prosecution.”
But under a plain error standard of review, the error did not affect Abarca‘s substantial rights. The evidence of his participation in the conspiracy was robust. And, as he concedes, many witnesses had already testified about his drug connections to California. Even if the “evidence was erroneously admitted, the errors did not affect [Abarca‘s] substantial rights as required by the plain-error standard because the evidence of his guilt was overwhelming.” Loomis, 954 F.3d at 1187.
B.
Abarca contends the court erred in admitting Muhle‘s testimony because it did not fall under any of the Rule 404(b) exceptions and was unduly prejudicial. This court reviews “evidence admitted under Rule 404(b) for an abuse of discretion, reversing only when the evidence clearly had no bearing on thе case and was introduced solely to prove the defendant‘s propensity to commit criminal acts.” DNRB, 895 F.3d at 1068 (internal quotation marks omitted). Under
Muhle‘s testimony met these requirements. It was relevant to a material issue and admissible to show Abarca‘s knowledge оf drug trafficking and his intent to participate in the alleged conspiracy. See
Abarca argues the testimony, particularly about him exchanging guns for drugs, was unduly prejudicial because it “changed a non-violent, аlleged conspiracy into a hyper-violent one.” But Muhle‘s testimony about guns was only one statement: “Well, at that time he told me that he was going to trаde guns for [meth].” And by the time Muhle testified, the jury had already heard testimony from two people about Abarca owning a handgun and pulling it out during a fight. The jury had also heard evidence about Abarca threatening his co-conspirators and their family members saying things like, “I‘m going to kill you, kill your mom, kill your kids. I know where your aunt lives at.” He told another witness that she was “never going to make it to court.” The court also gave a limiting instruction, telling the jury that Muhle‘s testimony “may be considered by you only for the purposes of intent, knowledge, absence of mistake on behalf of the defendant in this particular
II.
Abarca argues the evidence was insufficient to support the verdict. This court reviews the sufficiency of the evidence de novo, “viewing evidence in the light most favorable to the jury‘s verdict, resolving conflicts in the government‘s favor, and accepting all reasonable inferences that support the verdict.” United States v. Tillman, 765 F.3d 831, 833 (8th Cir. 2014). “A defendant challenging the sufficiency of the evidence in a conspiracy case has a heavy burden.” United States v. Mann, 701 F.3d 274, 296 (8th Cir. 2012). This court will reverse “only if no reasonable jury could have found” guilt “beyond a reasonable doubt.” Tillman, 765 F.3d at 833.
“To establish that a defendant conspired to distribute drugs, the gоvernment must show that there was an agreement to distribute drugs, that the defendant knew of the conspiracy, and that the defendant intentionally joined the сonspiracy.” United States v. Davis, 826 F.3d 1078, 1081 (8th Cir. 2016). Here, four cooperating witnesses and co-conspirators testified that Abarca brought and shipped meth into Nebraska for redistribution. They also testified he sent money to California through Wells Fargo and Walmart to buy meth. These witnesses corroborated each other. This court does not “reweigh or reexamine the credibility of witnesses on appeal.” United States v. Ferguson, 29 F.4th 998, 1003 (8th Cir. 2022). Their testimony was further corroborated by a package (intercepted by law enforcement) with about five pounds of meth; Postal Service records of packages sent; records of wire transfеrs sent to California; phone records; and records of drug sales kept by a cooperating witness. There was sufficient evidence to support the verdict.
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The judgment is affirmed.