USA v. Gomez-Montiel

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff,
v.
Case No. 5:25-cv-05041-MIS
JUAN GOMEZ MONTIEL,
Defendant.
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO INTRODUCE
EVIDENCE OF BAD ACTS UNDER RULE 404(B)
THIS MATTER is before the Court on the Government’s Notice of Intent to Introduce
Evidence of Bad Acts Under Rule 404(b) (“Notice”), ECF No. 20, filed on January 1, 2026.
Defendant did not file a response to the Notice but registered an objection at the Pretrial
Conference. See Clerk’s Min. for Hr’g of May 11, 2026 at 3, ECF No. 75. The Court therefore
considers the Notice as a Motion to Introduce Evidence of Bad Acts. Upon review of the Parties’
submissions, the record, and the relevant law, the Court will grant in part and deny in part the
Government’s motion.
The Government intends to introduce four acts under Federal Rule of Evidence (Rule)
404(b) to prove Defendant’s intent, knowledge, plan, and lack of mistake or accident: (1) evidence
of an attempted sale of cocaine to an undercover agent (UC) by Defendant; (2) evidence of an
attempt by the Defendant to hire the UC to transport aliens; (3) Defendant’s introduction of
previous co-defendant Jorge Valdez-China to alien smuggling; and (4) the arrest of previous co-
defendant Michelle Martinez for bringing alien smuggling proceeds through the Port of Entry in
El Paso, Texas. Notice at 2-3, ECF No. 20.
The Court first addresses act one, then acts two and three together, then act four.
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I. Act One
As to act one, the Government agreed in the Pretrial Conference not to mention the
attempted drug purchase. Tr. of Hr’g of May 11, 2026 at 133:3-11.1 Instead, at trial the
Government will say only that the UC and Defendant met through his undercover capacity before
Defendant attempted to hire the UC to transport aliens. Id. Since that eliminates the bad act, there
is no need to make a Rule 404(b) finding regarding the drug purchase.
II. Acts Two and Three
As to acts two and three, the Court finds they do not implicate Rule 404(b) because they
are “intrinsic” to the conspiracy and are therefore independently admissible under Tenth Circuit
precedent. “Rule 404(b) only applies to evidence of acts extrinsic to the crime charged.” United
States v. Lambert, 995 F.2d 1006, 1007 (10th Cir. 1993) (citation omitted). Whereas an act
“committed in furtherance of the charged conspiracy [is] part of the act charged.” United States v.
Garcia Abrego, 141 F.3d 142, 175 (5th Cir. 1998) (citation omitted). “Evidence of such acts is
therefore intrinsic and simply does not implicate the requirements of 404(b).” United States v.
Green, 175 F.3d 822, 831 (10th Cir. 1999) (citing Garcia Abrego, 141 F.3d at 175; United States
v. Badru, 97 F.3d 1471, 1475 (D.C.Cir.1996)). A conspiratorial act is intrinsic when “two
conspiracies involve[] the same people . . . same offenses, and similar time periods” despite the
two conspiracies not occurring at the same time. United States v. Robles, 434 F. App’x 736, 740
(10th Cir. 2011) (holding prior marijuana distribution by the same defendants was intrinsic to the
charged marijuana distribution); see also United States v. Portillo-Quezada, 469 F.3d 1345, 1353-
54 (10th Cir. 2006) (uncharged murder intrinsic to conspiracy to distribute methamphetamine
1 The Court’s citations to the transcript of the hearing refers to the court reporter’s original, unedited
version. Any final transcript may contain slightly different page and/or line numbers.
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because murder showed the defendant’s willingness to use violence to ensure conspiracy’s
success); Green, 175 F.3d at 831 (threat to co-conspirator to collect drug-profits was intrinsic to
conspiracy to distribute crack cocaine).
Here, Defendant’s attempt to hire the UC to transport aliens and his involvement of Jorge
Valdez-China in smuggling operations are intrinsic to the charged conspiracy to transport aliens.
Hiring transporters is part of Defendant’s alleged actions in moving persons from Mexico to the
United States in the same way that threats and use of violence to collect profits are part of drug
distribution. See Portillo-Quezada, 469 F.3d at 1353-54; Green, 175 F.3d at 831. And working
with Mr. Valdez-China to smuggle other persons, including bringing him “human smuggling
proceeds,” is intrinsic to the charged conspiracy in the same way that prior marijuana distribution
is intrinsic to subsequent marijuana distribution. See Robles, 434 F. App’x at 740.
Even if, however, the two acts are not intrinsic to the charged conspiracy, they are both
permissible under Rule 404(b). Rule 404(b) requires a four-part test:
(1) evidence of other crimes, wrongs, or acts must be introduced for a proper
purpose; (2) the evidence must be relevant; (3) the court must make a Rule 403
determination whether the probative value of the similar acts is substantially
outweighed by its potential for unfair prejudice; and (4) the court, upon request,
must instruct the jury that the evidence of similar acts is to be considered only for
the limited purpose for which it was admitted.
United States v. Diaz, 679 F.3d 1183, 1190 (10th Cir. 2012) (citation omitted).
First, “[e]vidence is offered for a proper purpose if it is utilized for any of the ‘other
purposes’ enumerated in Rule 404(b).” United States v. Davis, 636 F.3d 1281, 1298 (10th Cir.
2011). Here, the Government intends to introduce acts two and three for the purpose of proving
Defendant’s “intent, knowledge, plan, and lack of mistake or accident” in transporting aliens
including unaccompanied minors. Notice at 6, ECF No. 20. As these reasons are among the
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enumerated other purposes in Rule 404(b)(2), the Court finds acts two and three are offered for a
proper purpose.
Second, whether evidence is relevant depends on the “similarity of the uncharged act to the
charged conduct and the temporal proximity of the two acts.” United States v. Cardinas Garcia,
596 F.3d 788, 797-98 (10th Cir. 2010). Here Defendant’s two uncharged acts are like the charged
act, since they are part of alien smuggling operations and the charge conduct is alien smuggling.
And both acts are temporally proximate, having occurred within one year of the charged conduct.
See Notice at 7, ECF No. 20. Because Defendant’s acts were similar and temporally proximate,
they are relevant.
Third, the Court must make a Rule 403 determination to determine if the “probative value
of the similar acts is substantially outweighed by its potential for unfair prejudice.” Diaz, 679 F.3d
at 1190. “Evidence is excluded under Rule 403 if the district court determines that ‘its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.’” United States v. Tan, 254 F.3d 1204, 1211 (10th Cir. 2001) (citing Fed.
R. Evid. 403). “Unfair prejudice in the Rule 403 context ‘means an undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an emotional one.’” Id. (citing
Fed. R. Evid. 403 advisory committee’s note). “[E]xclusion of evidence under Rule 403 that is
otherwise admissible under the other rules ‘is an extraordinary remedy and should be used
sparingly.’” Id. (citation omitted).
Here, the conduct in acts two and three is not prejudicial. The conduct in acts two and three
is within the bound of behavior expected by alien smugglers and is relatively benign behavior at
that, consisting of recruiting an employee and working with another person who has a similar
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common goal. The behavior in the acts has no emotionally shocking aspects that might be
considered prejudicial, like acts of extreme violence. See Notice at 2, ECF No. 20. As the behavior
is not prejudicial, it does not outweigh the probative value of the evidence and is admissible under
Rule 403.
Finally, the Court will, if requested, issue appropriate jury instructions if the Government
submits acts two and three as Rule 404(b) evidence of bad acts. Diaz, 679 F.3d at 1190.
III. Act Four
As to act four, the Court finds that it cannot be used to prove “intent, knowledge, plan, and
lack of mistake or accident” on the part of the Defendant because it is not relevant and is more
prejudicial than probative.
The Government submits act four for a proper purpose: proving Defendant’s “intent,
knowledge, plan, and lack of mistake or accident” in transporting aliens including unaccompanied
minors. Notice at 6, ECF No. 20.
Michelle Martinez’s arrest for transporting proceedings of human smuggling, however, is
irrelevant because act four is not tied to Defendant. While the conduct is temporally proximate,
see id. at 7, and moving proceeds is part of alien smuggling operations, the Government’s position
is that it involves Defendant only because Ms. Martinez and Defendant were charged in the
previous conspiracy and Defendant had a photo of Ms. Martinez’s identification in his phone, see
id. at 2.
A plain reading of Rule 404(b) indicates that the crime, wrong, or act does not have to be
committed by the person in question since “[e]vidence of any other crime, wrong, or act”
encompasses any act outside of the one in question—no matter the actor. See United States v.
Massey, 48 F.3d 1560, 1571 & n.11 (10th Cir. 1995) (discussing FRE 404(b) and the defendant’s
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objection to evidence of his previous co-workers’ crimes). Hence Michelle Martinez’s act, being
arrested for transporting illegal proceeds, is eligible. But the act must still be tied to the person in
question. This is indicated both by Rule 404(b)’s prohibition on using the act to show “the person
acted in accordance with the [person’s] character” and the requirement that the act proves “motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident
[on the part of the person].” Thus, if a crime, wrong, or act has no bearing on the person, it is not
admissible under FRE 404(b).
Here, the Government wishes to include the bad act of a previous co-conspirator without
providing evidence that the bad act is connected to Defendant. See Notice at 2, ECF No. 20. At
most the Government shows Ms. Martinez, presumably known to Defendant based on the presence
of a picture of her identification in his phone, Notice at 2, ECF No. 20, committed a bad act one
might associate with the crime for which Defendant is charged, i.e., moving smuggling proceeds
between the United States and Mexico, id. Unless the Government can link the act to Defendant
in some way beyond both persons having been charged in a previous conspiracy, then the bad act
of a known associate is irrelevant. 2
Third, under Rule 403, act four is more prejudicial than probative. As explained above, act
four is not probative of Defendant’s charged conduct because it is not sufficiently tied to
Defendant. Furthermore, it is prejudicial because it attempts to show guilt by association by tying
Defendant to the bad behavior of a known associate. See Massey, 48 F.3d at 1571 n.11.
2 If the Government has further evidence showing a link between Defendant and Ms. Martinez’s
arrest, the Court will consider permitting the introduction of act four under Rule 404(b) at trial. The Government shall
introduce such evidence outside the presence of the jury.
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As act four is not a permissible bad act under Rule 404(b), part four of the Rule 404(b) test
is irrelevant. See Diaz, 679 F.3d at 1190. The Government cannot introduce act four under Rule
404(b).
IV. Conclusion
As the Government no longer intends to submit act one and act four is not a permissible
bad act under Rule 404(b), the Government is permitted only to submit acts two and three as bad
acts under Rule 404(b) as evidence of Defendant’s intent, knowledge, plan, and lack of mistake or
accident in transporting aliens.
For the foregoing reasons, IT IS HEREBY ORDERED that Defendant’s Notice of Intent
to Introduce Evidence of Bad Acts Under Rule 404(b), ECF No. 20, is GRANTED IN PART and
DENIED IN PART.
………………………………………….
MARGARET STRICKLAND
UNITED STATES DISTRICT JUDGE
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