Submitted: April 7, 2017
from United States District Court for the Southern District
of Iowa - Des Moines
COLLOTON and BENTON, Circuit Judges, and GERRARD,  District
BENTON, Circuit Judge.
Emilio Caceres Canales (Caceres) was convicted of
distributing methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C). The district
court sentenced him to 48 months'
imprisonment. Having jurisdiction under 28 U.S.C. §
1291, this court affirms.
2015, a confidential informant told police that Caceres was
distributing meth for an operation headquartered in an auto
shop where he worked. At the direction of law enforcement,
the CI arranged a controlled purchase from Caceres. On May
28, the CI and an Iowa Narcotics Enforcement Agent picked up
Caceres, drove him to get meth from the auto shop, and
purchased it from him.
was indicted for conspiring to distribute meth and
distributing it. He pled not guilty. Before trial, he moved
to admit evidence related to an entrapment defense. The
evidence was of two threats by the CI-one before May 28, and
one after. In the first, the CI allegedly demanded Caceres
distribute drugs for him. When Caceres refused, the CI shot
at him twice. In the second, the CI and his friend allegedly
shot at Caceres because they believed he was involved in a
robbery of the friend. The government conceded that evidence
of the first threat was admissible. It moved to exclude
evidence of the second. After a hearing, the district court
ruled admissible the evidence of the first threat. It
excluded evidence of the second threat, but allowed Caceres
to question the CI and his friend about the robbery in order
to show bias and motive for testifying against him.
and his friend testified against Caceres at trial. Caceres
introduced evidence of the CI's first threat against him.
He did not question the CI or his friend about the robbery. A
jury found Caceres guilty of distributing meth, but not
guilty of conspiring to distribute it. He moved for a new
trial, asserting the district court erred in not admitting
evidence of the second threat. The district court denied the
motion. He appeals.
court reviews evidentiary rulings for abuse of discretion.
United States v. Battle, 774 F.3d 504, 511 (8th Cir.
2014). Caceres argues the district court erred in excluding
evidence of the second threat under Federal Rule of Evidence
404(b). "To be admissible under 404(b), evidence
must" first be "relevant to a material issue."
United States v. Golding, 833 F.3d 914, 917 (8th
Cir. 2016). Caceres believes the second threat was relevant
to: (1) his entrapment defense; and (2) the bias and motive
of the CI and his friend for testifying against him.
entrapment defense has two elements: "(1) the Government
induced the crime, and (2) the defendant was not predisposed
to engage in the conduct." United States v.
Bugh, 701 F.3d 888, 893 (8th Cir. 2012). At trial,
Caceres alleged the CI engaged in a "systematic pattern
of coercive conduct" to induce him to sell drugs. He
contends the second threat shows this pattern, proving he was
pressured into distributing meth. But the second threat was
after the distribution, and thus, could not have induced it.
See United States v. Kendrick, 423 F.3d 803, 807
(8th Cir. 2005) ("Entrapment exists where the evidence
establishes that the government agent originated the criminal
design, the agent implanted in the mind of an innocent person
the disposition to commit the offense, and the defendant then
committed the criminal act at the urging of the government
agent.") (internal quotation marks omitted).
relies on United States v. McClure, 546 F.2d 670
(5th Cir. 1977) to argue the second threat was admissible.
There, the Fifth Circuit upheld admission of threats made
after the crimes charged because they were evidence of a
"systematic campaign of threats and intimidation."
McClure, 546 F.2d at 672-73. McClure is not
binding on this court. See Reiter v. Honeywell,
Inc., 104 F.3d 1071, 1073 (8th Cir. 1997). Regardless,
it would not control here. There, the threats were all
intended to coerce the defendant into selling heroin.
McClure, 546 F.2d at 672-73 (informant showed
defendant a gun and said he would be "'very
dead' if he failed to produce narcotics within
twenty-four hours"). Here, Caceres admits the second
threat was not intended to pressure him into drug
On or about June 11, 2015, [the CI], [the friend], Kevin and
Oscar Antonio Amaya Silva aka "Wilson" approached
[Caceres] at an apartment building located on Bell Avenue.
[The CI] had a gun in his pocket and threatened [Caceres].
[The CI] accused [Caceres] of stealing [the friend's] gun
and wallet. [The CI] was in the passenger seat. ...