United States v. Rodriguez-Soler , 773 F.3d 289 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1527
UNITED STATES OF AMERICA,
Appellee,
v.
FRANCISCO RODRÍGUEZ-SOLER, a/k/a FRANKIE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Thompson, Kayatta, and Barron,
Circuit Judges.
Jane Elizabeth Lee, for appellant.
John A. Mathews II, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
December 3, 2014
THOMPSON, Circuit Judge.
OVERVIEW
Francisco Rodríguez-Soler wants us to undo his conviction
for various drug and firearm charges. His appeal rises or falls
depending on whether the district judge slipped by admitting
pictures showing him with accused coconspirators and by allowing
police officers to testify about the pics. His appeal falls, for
reasons revealed below. And so when all is said and done, we
affirm.
READER ALERT
If our defendant were questioning the sufficiency of the
evidence against him, we would of course narrate the facts in the
light most flattering to the government. See, e.g., United States
v. Tum, 707 F.3d 68, 69 (1st Cir. 2013). But for cases like his —
ones with no sufficiency challenge, just plenty of evidentiary
issues — there is surprisingly no clear consensus on the subject.
Some opinions say that we can still retell the facts in the light
most favorable to the government. See, e.g., United States v.
Bunchan, 580 F.3d 66, 67, 71 (1st Cir. 2009); United States v.
Benedetti, 433 F.3d 111, 113, 116-18 (1st Cir. 2005); United States
v. Mercado, 412 F.3d 243, 245, 248-50 (1st Cir. 2005). Others say
that we ought to present the facts in a balanced way, without
favoring either side. See, e.g., United States v. Felton, 417 F.3d
97, 99, 100-02 (1st Cir. 2005); United States v. Bartelho, 129 F.3d
-2-
663, 667 n.1, 676-78 (1st Cir. 1997); United States v. Procopio, 88
F.3d 21, 23-24, 29-30 (1st Cir. 1996). As best we can tell, we are
the first panel to note this split. But whatever the exact
contours of our review, none of it matters here — for even using
the balanced-presentation approach (which is surely the better of
the two from a defendant's perspective), Rodríguez-Soler's appeal
still falters.
HOW THE CASE GOT HERE
A federal grand jury indicted Rodríguez-Soler for
conspiring to possess illegal drugs with intent to distribute
within 1,000 feet of a protected area,1 conspiring to possess a
firearm during and in relation to a drug-trafficking crime,2 and
possessing (or aiding and abetting the possession of) a firearm in
furtherance of a drug-trafficking crime.3 The government's theory
of guilt at trial was straightforward: Rodríguez-Soler served as
the right-hand man to Christian A. Figueroa-Alvardo, also known as
"Tatón" (which is what we will call him), who ran a drug point at
a public-housing complex. And the government offered much evidence
in the hopes of proving its case.
For example, some accused conspirators — having flipped
after getting caught — testified about how Rodríguez-Soler was "one
1
See 21 U.S.C. §§ 841(a)(1), 846, and 860.
2
See 18 U.S.C. §§ 924(c)(1)(A) and 924(o).
3
See 18 U.S.C. §§ 921(a)(3), 924(c)(1)(A), and 2.
-3-
of the bosses" at the drug point, supervising the conspiracy's
underlings and handling problems whenever the need arose, procuring
and preparing drugs for sale, carrying and using guns to protect
the conspiracy's turf, etc. And a number of police officers
testified about their investigation of the case, like how they had
set up video equipment in empty apartments to record what was going
on at the drug point and how they had given informants hidden
cameras to capture drug buys. One officer also explained how he
had found Rodríguez-Soler's cell phone at an area in the complex
where drug deals went down. The phone had a photo of Rodríguez-
Soler holding what appeared to be a rifle.
On top of that, the jury had before it two key categories
of exhibits (admitted through the officers' testimony). The first
involved surveillance videos, one of which showed Rodríguez-Soler
getting out of his car near the drug point and talking to
conspirators. The second involved two sets of photos.
Set one showed Rodríguez-Soler with conspiracy members
outside a police station following Tatón's arrest on an unrelated
horse-theft charge. For simplicity we will call these pics the
"police-station photos." Rodríguez-Soler's lawyer did not object
when the judge admitted them, though he did object — unsuccessfully
— on relevance and prejudice grounds after an officer ID'd a few
persons in the pics and was about to say what he had seen one of
-4-
them "doing" at the housing project before.4 That officer later
testified without objection that those appearing with Rodríguez-
Soler in the police-station photos were under investigation for
"the criminality" occurring at the drug point. Later still another
officer testified without objection that Rodríguez-Soler went to
the station with "other persons" who "are also members" of Tatón's
"organization" to find out what had happened. And then a third
officer testified without objection that those who ended up outside
the station were not under arrest but had gone there to support
4
Here is what defense counsel, the prosecutor, and the judge
had to say about this:
[DEFENSE COUNSEL]: Judge, I am going to object to
this line of questioning on relevancy. First of all,
this picture has not been established to be in any way
connected with any kind of illegal activity relating to
this defendant.
Now we are going to talk about someone in the
picture who may have been doing other things and in a
derivative sense it is going to prejudice us. I don't
know where this is going.
[PROSECUTOR]: Your Honor, th[is] is a case of
conspiracy. And part of the evidence to prove conspiracy
is the fact that members of the conspiracy knew each
other.
[DEFENSE COUNSEL]: Judge, the only problem is this
picture has not been tied to this conspiracy. Whatever
happened that day has nothing to do with this conspiracy.
THE COURT: Here it is, this is the first evidence
that it comes in. I don't think you can establish a
conspiracy with a first breath of the first witness or
with the first photograph. But we have to have a
starting point. So overruled.
-5-
Tatón, "who was this group's leader." "I took a photograph of
them," the officer said, "and that was the first time that I had
seen him" — meaning Rodríguez-Soler.
The second set of pics showed Rodríguez-Soler with
conspiracy members after being pulled over for an unrelated traffic
violation near the drug point. Our defendant was the car's driver.
For clarity we will call these pics the "traffic-stop photos."
Rodríguez-Soler's lawyer voiced no objection when the judge
admitted these photos into evidence or when the officer testified
about them.
Undaunted, Rodríguez-Soler tried hard to poke holes in
the government's case. His lawyer, for starters, vigorously cross-
examined the cooperating witnesses about their motives for
testifying, touching on the agreements they had negotiated with
prosecutors and exploring their lives of crime. His attorney also
got the officers to admit to various things, including that one
cannot tell by looking at the cell-phone photo whether the rifle
was real or fake, that not everyone appearing in the surveillance
videos was a drug dealer, and that nothing shows the police found
drugs during the traffic stop. Rodríguez-Soler's witnesses
described him as a respectful, hardworking university student who
did not sell drugs and was always trying to improve himself. Even
Rodríguez-Soler took the stand, testifying that he lived at the
housing complex in a building near the drug point, that he had
-6-
parking near the drug point, that he owned no guns, that he had
known Tatón and other alleged conspirators for years but had no
clue that they were drug dealers, that the police found no drugs
during the traffic stop, and that he had nothing to do with the
drug point.
The jury found Rodríguez-Soler guilty on all counts. And
the judge sentenced him to concurrent 188-month prison terms on
counts 1 and 2, and a consecutive 60-month prison term on count 3.
Rodríguez-Soler appeals his conviction, criticizing the
judge for admitting both sets of photos and the related testimony
about his being with conspiracy members. All this evidence, he
says, is of a guilt-by-association character, suggesting that he
was a conspirator simply because he palled around with
conspirators. In a slight variation on this theme, he also
contends the evidence primed the jury to think that he was a "bad"
man because he hung out with horse thieves and was a traffic
violator — illegal doings (horse thievery and traffic infractions)
unrelated to the crimes that landed him in prison. And he
complains that the officers essentially told the jury that they had
snapped his photo as part of an investigation into the conspiracy
— which, his argument continues, conveyed to the jury that they
thought he was a conspiracy member too. So, reaching a crescendo,
he claims the evidence is irrelevant, prejudicial, and constitutes
-7-
forbidden other-acts evidence. See Fed. R. Evid. 401, 403, and
404. We think he is wrong, for reasons we now explain.
OUR ANALYSIS
(A)
The Standards of Review
Figuring out the applicable standards of review here is
tricky. Take the relevance and prejudice issues. The parties —
who agree on little else — both think Rodríguez-Soler protested
enough below to argue on appeal about the relevance and prejudice
of the police-station evidence (the photos and the testimony
concerning his being with conspirators). If true, that would
trigger abuse-of-discretion review — a famously-deferential
standard that requires a challenger to show that no rational person
could accept the judge's decision. See, e.g., United States v.
Maldonado, 708 F.3d 38, 42 (1st Cir. 2013); United States v.
Polanco, 634 F.3d 39, 44-45 (1st Cir. 2011). One could quibble
with their shared view — after all, even Rodríguez-Soler concedes
his counsel "did not initially object to the introduction" of the
police-station photos; plus he says more here about relevance and
prejudice than he did below. But we will give him the benefit of
the doubt on this point. Cf. Polanco, 634 F.3d at 44 (commenting
that "[w]e need not wrestle" with the question of whether the
defendant "did enough to preserve" an issue because he still loses
using the pined-for abuse-of-discretion standard). Still, he
raised no relevance or prejudice objection below regarding the
-8-
traffic-stop evidence (the photos and the testimony about his being
with conspirators). So we review this matter only for plain error
— an oh-so demanding standard, requiring him to show "error,
plainness, prejudice to [him] and the threat of a miscarriage of
justice." See United States v. Jones, 748 F.3d 64, 69 (1st Cir.
2014) (alteration in original) (quoting United States v. Torres-
Rosario, 658 F.3d 110, 116 (1st Cir. 2011)).
As for the other-acts issue, Rodríguez-Soler never
objected to the police-station or the traffic-stop evidence on this
basis. And that means he must also run the gauntlet of plain-error
review to get anywhere with this argument.
Now on to Rodríguez-Soler's claims.
(B)
The Rule 401 Issue
Up first is the relevance issue. As Rodríguez-Soler
tells it, the police-station and traffic-stop evidence had nothing
to do with the charged conspiracy. Ergo, he says, the evidence was
irrelevant.
The problem for Rodríguez-Soler is that federal rules of
evidence set a very low bar for relevance. See, e.g., United
States v. Cotto-Aponte, 30 F.3d 4, 6 (1st Cir. 1994). Rule 401
says (emphasis ours) that if the evidence has "any tendency" to
make a material fact more or less likely, it is relevant. See
Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 76 (1st Cir. 2010)
(noting how "[t]he definition of relevance is quite expansive,"
-9-
which helps explain why "[a] relevancy-based argument is usually a
tough sell"). And the evidence here clears this modest bar with
ease, because it tends to show (at least to some degree) that
Rodríguez-Soler knew some of the conspirators while the conspiracy
was raging. Actually, it tends to show that he knew some of them
fairly well — well enough to (a) go with members to the station to
help the conspiracy's leader, who was there on an unrelated horse-
theft charge; and (b) drive members around before being stopped by
the police for an unrelated traffic infraction.
Now a conspiracy member need not know all his fellow
coconspirators. See, e.g., United States v. Rivera Calderón, 578
F.3d 78, 91 (1st Cir. 2009). But evidence tying one alleged member
to another or others certainly is relevant. See United States v.
Anello, 765 F.2d 253, 261 (1st Cir. 1985) (Breyer, J.) (explaining
that hand-written telephone messages between alleged conspirators
were relevant because they tended to prove that some of them knew
each other). And it matters not whether the evidence conclusively
ties Rodríguez-Soler to the charged crime. See, e.g., Rivera
Calderón, 578 F.3d at 97. "[M]ost convictions result from the
cumulation of bits of proof which, taken singly, would not be
enough in the mind of a fair minded person." United States v.
Pugliese, 153 F.2d 497, 500 (2d Cir. 1945) (L. Hand, J.). When it
comes to relevancy, then, what matters "is that each bit may have
enough rational connection with the issue to be considered a factor
-10-
contributing to an answer." Id.; see also Rivera Calderón, 578
F.3d at 97. And again, the fought-over evidence fits the bill.
Let us be perfectly clear. Merely hanging out with
criminals hardly suffices to prove participation in a conspiracy.
See, e.g., Polanco, 634 F.3d at 45; United States v. Benavente
Gomez, 921 F.2d 378, 381 (1st Cir. 1990). And nothing we say today
is intended to suggest anything to the contrary. But our focus,
once again, is on relevancy, not sufficiency. And because the
groused-about evidence moves the knowledge inquiry forward to some
degree, it is relevant — even though standing alone it is not
enough to convict him.
The bottom line is this. The relevancy requirement is
not very hard to meet. See, e.g., Polanco, 634 F.3d at 44. And it
is met here. So we reject Rodríguez-Soler's claim that the judge
abused his wide discretion in ruling the police-station evidence
relevant. And using the plain-error regime — a standard that is
not defendant-friendly, see, e.g., United States v. Williams, 717
F.3d 35, 42 (1st Cir. 2013) — we also reject his claim that the
judge should have deemed the traffic-stop evidence not relevant.
Cf. generally Torres-Rivera v. O'Neill-Cancel, 406 F.3d 43, 53 (1st
Cir. 2005) (finding that a judge's action "was not abuse of
discretion and, thus, was not plain error"). Enough said on that.
-11-
(C)
The Rule 403 Issue
Of course even relevant evidence can be excluded if its
probative value is "substantially" overbalanced by other things,
like the danger of "unfair prejudice." That is what Rule 403 says.
Seizing on this rule, Rodríguez-Soler complains that the contested
evidence prejudiced him by inviting the jury to convict because of
guilt by association (suggesting conspirators flock together),
because he was a "bad" person (showing he cavorted with horse
rustlers and was a traffic offender), and because the officers said
they took his pics as they zeroed in on the drug-trafficking
conspiracy (implying he was in on the conspiracy too). These are
not easy arguments to win on. For one thing, he faces difficult
standards of review — abuse of discretion on some issues, plain
error on others. For another — as we have said time and again —
only in the rarest and most compelling cases "will we, from the
vista of a cold appellate record," reject a judge's on-the-scene
Rule 403 ruling. See DiRico v. City of Quincy, 404 F.3d 464, 468
(1st Cir. 2005) (parenthetically quoting United States v. Sabetta,
373 F.3d 75, 82-83 (1st Cir. 2004)).
(1)
Probative Worth
The same qualities that make the disputed evidence
relevant give it a probative value too. As we just said — though
we say it again, because the point cannot be emphasized enough —
-12-
"innocent association with those involved in illegal activities can
never form the sole basis for a conviction." United States v.
Ortiz, 966 F.2d 707, 713 (1st Cir. 1992). But — and it is a very
big "but" — "the existence of a close relationship between a
defendant and others involved in criminal activity can, as a part
of a larger package of proof, assist in supporting an inference of
involvement in illicit activity." Id. And the contested evidence
falls squarely within the latter category — i.e., the photos and
accompanying testimony suggest an "intimacy of association" that is
"a factor which, with others, [can] rather quickly add up to
circumstantial proof" of criminality. See id. at 714(parenthetically quoting United States v. Francomano, 554 F.2d 483,
487 (1st Cir. 1977)).
Hoping to downplay the evidence's probative worth,
Rodríguez-Soler tries to distinguish Ortiz away. The evidence
there, unlike here, involved the "defendant's association with
other conspirators or accomplices occurring at or near the scene of
the crime." Or so he argues. But his effort fails.
Ortiz involved a defendant named Nunez who drove with a
drug dealer to a drug deal involving a customer who was really an
undercover DEA agent. See 966 F.2d at 710-11. Things hit a snag,
because the dealer had packaged too much cocaine — a kilo rather
than the agreed-on half a kilo. Id. No worries, the dealer said.
He would go back to his house with Nunez and repackage the product.
-13-
Id. at 711. Nunez chimed in, seconding the dealer's plan. Id.The dealer later met up with the agent, this time with Nunez's
brother-in-law, defendant Ortiz, in tow and with a half a kilo bag
of cocaine in plain view. Id. at 711, 714. Ortiz did not say a
word as the deal went down. Id. at 713.
Affirming Ortiz's conviction for aiding and abetting a
drug-trafficking scheme, we thought it significant that he and
Nunez were brothers-in-law. Id. at 713. Then came the money quote
referenced above:
While innocent association with those involved
in illegal activities can never form the sole
basis for a conviction, the existence of a
close relationship between a defendant and
others involved in criminal activity can, as a
part of a larger package of proof, assist in
supporting an inference of involvement in
illicit activity.
Id. (citations omitted). Rodríguez-Soler reads this passage as
applying only to Ortiz and the dealer's ties — ties, he notes, that
put them together at the crime scene. But even a quick skim of
Ortiz confirms that this passage deals with Ortiz and Nunez's ties
— brothers-in-law who were never together at the crime scene.
Given this reality, Rodríguez-Soler's bid to minimize Ortiz's
effect on the probative-value question — by hinting that the case's
reach is limited to association evidence tied to the criminals'
presence "at or near" the crime scene — goes nowhere.
If more were needed — and we doubt that it is — United
States v. Vega Molina, 407 F.3d 511 (1st Cir. 2005), also throws
-14-
cold water on his effort to discount the evidence's probative
worth. There a quartet of criminals got arrested for running a
kidnapping-for-ransom scheme in Puerto Rico that resulted in the
kidnappee's death. Id. at 516-17. At trial one defendant
challenged the admission of photos of him with other codefendants.
Id. at 530. The pics were of them at a Connecticut hotel about a
month after the crimes occurred, not of them at or near the Puerto
Rico crime scenes, and not of them doing any acts related to the
crimes of conviction (nothing in the opinion suggests otherwise).
See id. Yet we did not back away from Ortiz. Instead we doubled
down, saying, "[w]e have held before, and today reaffirm, that 'the
existence of a close relationship between a defendant and others
involved in criminal activity can, as part of a larger package of
proof, assist in supporting an inference of involvement in illicit
activity.'" Id. (quoting Ortiz, 966 F.2d at 713). And we okayed
the photos' admission because they showed "that the appellants had
an intimate relationship with one another." Id. Again, that
devastates Rodríguez-Soler's attempt to recast Ortiz as requiring
evidence of a "defendant's association" with others "at or near"
the crime scene.
(2)
Unfair Prejudice
As for prejudice, we do not deny that the contested
evidence of his hanging with conspirators is prejudicial. But
almost all evidence is meant to be prejudicial (by helping one side
-15-
and hurting the other) — why else would a party present it? See,
e.g., United States v. DiRosa, 761 F.3d 144, 153 (1st Cir. 2014).
It is only unfairly prejudicial evidence that is a no-no. See id.And we see nothing unfair about the jury's weighing this evidence
for the limited purpose of figuring out whether Rodríguez-Soler
knew some of the conspirators — certainly we cannot say that the
evidence's probative value is "substantially" outbalanced by the
risk of "unfair prejudice."
Wait a minute, says Rodríguez-Soler: The photos and
testimony raised the specter of unfair prejudice because a jury
could think that he was a "bad" guy since he ran with horse thieves
(based on the police-station evidence) and disobeyed traffic laws
(based on the traffic-stop evidence) — activities (horse thievery
and traffic violations), he stresses, having nothing to do with the
alleged drug conspiracy. Call us unpersuaded.
Again, and at the risk of being overly repetitive, the
police-station evidence speaks volumes about the strength of
Rodríguez-Soler's ties to Tatón — showing as it does not only that
he knew Tatón but also that he was loyal to him; hence his presence
at the show-of-support gathering in front of the station when Tatón
got collared on the separate horse-theft charge. And try as we
might, we can spy no convincing sign that the judge misused his
considerable discretion in concluding that the evidence's
probativeness is not substantially outmatched by the threat of
-16-
unfair prejudice. See United States v. Adams, 375 F.3d 108, 111
(1st Cir. 2004) (explaining that we "normally overturn[]" a judge's
calibration of the probative-value/prejudicial-force scales "only
where [his] judgment is egregiously wrong").
Turning then to the traffic-stop evidence, we doubt that
seeing someone pulled over for a traffic offense could have much of
an impact on the jury. That traffic stops are part of everyday
life — even for law-abiding citizens — is hardly a news flash. And
importantly, the link between being a traffic violator and being a
drug conspirator is super attenuated at best. Given there is
little indication of unfair prejudice substantially outweighing
this evidence's probative value, Rodríguez-Soler cannot show that
the judge erred — let alone plainly erred — here.
That leaves his beef with the officers' testimony that
they took the police-station pics as part of their investigation
into the drug conspiracy — testimony that he says essentially
fingered him as a coconspirator too and so smacks of guilt by
association.5 Though he gets points for creativity, his argument
does not persuade.
As we see it, the testimony helped explain why and how
the police had the photos in the first place — and also how an
5
Parts of Rodríguez-Soler's brief talk broadly about
"photographs and the testimony," like he is attacking both the
police-station evidence and the traffic-stop evidence. But the
testimony he points to only involves the police-station photos.
-17-
officer first saw Rodríguez-Soler. No doubt, what they said may
have prejudiced him in the sense that it fit hand-in-glove with the
government's theory of the case. But he has not convinced us that
the testimony caused substantial unfair prejudice to him. In
certain circumstances officers can — consistent with Rule 403 — get
into the nitty-gritty of their past drug deals with drug defendants
to explain how they met, see United States v. Doe, 741 F.3d 217,
228-32 (1st Cir. 2013), which seems a lot more damning than simply
pointing out that a defendant was with other persons being
investigated for "criminality," as happened here. And even if the
judge's call was "debatable," admitting the evidence was not an
"egregious" wrong. See Adams, 375 F.3d at 113. What is more, even
if we found a Rule 403 violation, we would stamp the error harmless
given the evidence connecting Rodríguez-Soler to the conspiracy.
See United States v. Dunbar, 553 F.3d 48, 49 (1st Cir. 2009)
(explaining that "[t]he essential inquiry in harmless error review
is whether the improperly admitted evidence likely affected the
outcome of [the] trial" (internal quotation marks omitted)); see
also Adams, 375 F.3d at 113 (similar). Recall the cooperating
witnesses' testimony about how he was Tatón's right-hand guy, how
he was one of the bosses, how he carried guns because of turf wars,
etc. Sure these turncoats had reasons to fabricate their stories
to curry favor with the government. But his lawyer brought this
-18-
out on cross.6 And the jury was free to credit their testimony
anyway. See United States v. McElroy, 587 F.3d 73, 86-87 (1st Cir.
2009). Consequently this facet of his Rule 403 argument does not
require reversal either.
Two groups of issues down, one to go.
(D)
The Rule 404 Issue
Shifting to his other-acts argument, Rodríguez-Soler
calls the police-station and traffic-stop evidence inadmissible
"extrinsic" evidence of his "associating" with conspiracy members
in a way "not intrinsic" to the crime charged. "Extrinsic" and
"intrinsic" evidence — these are concepts associated with Rule 404.
See, e.g., United States v. Green, 698 F.3d 48, 55 (1st Cir. 2012).
So even though he never cites Rule 404 in his briefs, he is
essentially arguing that the judge should have banned the evidence
on Rule 404 grounds. To put his argument into perspective, we
offer a quick primer on Rule 404.
As everyone in the field knows, Rule 404 bans evidence of
a person's other crimes, wrongs, or acts to show a propensity to
act in a particular way. See Fed. R. Evid. 404(b)(1). But the
evidence may be admitted for "other purposes," like to show
6
The judge also focused the jury's attention on the potential
problems with cooperating-witness testimony. "[Y]ou should
consider the testimony of these individuals with particular
caution," the judge told the jurors, because "[t]hey may have had
reasons to make up stories or exaggerate what others did . . . to
help themselves."
-19-
"motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident," id. 404(b)(2)
— a list that is illustrative, not exhaustive, see United States v.
Landry, 631 F.3d 597, 602 (1st Cir. 2011). Basically, then, the
rule is a rule of inclusion, since only one purpose is banned and
a bunch are permitted, see United States v. Zeuli, 725 F.2d 813,
816 (1st Cir. 1984) — though naturally we cannot allow the
exceptions to devour the rule, see United States v. Varoudakis, 233
F.3d 113, 125 n.11 (1st Cir. 2000).
By covering only evidence of a person's "other crimes,
wrongs, or acts," the rule draws a line between prior acts that are
part of the charged crime and those that are not. United States v.
Bowie, 232 F.3d 923, 927 (D.C. Cir. 2000). Like other courts, see
id., we call evidence of the charged crime "intrinsic" and evidence
of "other" crimes "extrinsic," see United States v. Shea, 159 F.3d
37, 39 (1st Cir. 1998). Assuming, as the parties do, that the
police-station and traffic-stop evidence is extrinsic to the
charged conspiracy, we must consider whether the evidence is
relevant (other than to prove propensity) to an issue in the case
— and, if yes, whether the danger of unfair prejudice substantially
outweighs the evidence's probative value. See, e.g., Landry, 631
F.3d at 602; see also Zeuli, 725 F.2d at 816 (noting that if the
Rule 404(b) evidence is relevant to something other than
-20-
propensity, "it is admissible, subject only to the rarely invoked
limitations of Rule 403").
Having set the stage, we can make quick work of
Rodríguez-Soler's argument. As we said above, the contested
evidence is relevant to show that he knew some of the conspirators,
a non-propensity purpose. See generally United States v. Flores
Perez, 849 F.2d 1, 4 (1st Cir. 1988) (explaining that when the
other-acts evidence "is introduced to show knowledge, motive, or
intent, the Rule 404(b) exceptions to the prohibition against
character evidence have been construed broadly"). And as we also
said above, the balance between probative worth and prejudicial
impact tilts in favor of letting the evidence in. It follows,
then, that Rodríguez-Soler's Rule 404 theory cannot pass the plain-
error test. And that is that.
FINAL WORDS
Our work over, we affirm Rodríguez-Soler's conviction.
-21-