USA v. Mack Smith

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UNPUBLISHED OPINION FILED. [09-31077 Affirmed ] Judge: EGJ , Judge: EMG , Judge: CES Mandate pull date is 12/14/2010 for Appellant Mack Arthur Smith [09-31077]

USA v. Mack Smith Case: 09-31077

Document: 00511302656 Page: 1 Date Filed: 11/23/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-31077 S u m m a r y Calendar November 23, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. M A C K ARTHUR SMITH, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Middle District of Louisiana U S D C No. 3:07-CR-3-1

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* M a c k Arthur Smith appeals his jury conviction for possession of a m m u n it io n by a convicted felon. He argues that the district court abused its d is c r e t io n in admitting testimony that he sought to influence witnesses and to d is c o u r a g e them from providing testimony that inculpated him. Smith contends t h a t the extrinsic evidence had little or no probative value and that the probative v a lu e was substantially outweighed by the danger of unfair prejudice. He also

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 09-31077 Document: 00511302656 Page: 2 Date Filed: 11/23/2010 No. 09-31077 a s s e r t s that the extrinsic evidence should not have been admitted because the G o v e r n m e n t did not provide proper notice of its intent to use the evidence. T h is court uses a two-step inquiry to analyze the admissibility of extrinsic e v id e n c e under Federal Rule of Evidence 404(b): (1) the extrinsic evidence must b e relevant to an issue other than the defendant's character, and (2) the evidence m u s t possess probative value that is not substantially outweighed by its undue p r e ju d ic e and must meet the other requirements of Federal Rule of Evidence 4 0 3 . United States v. Mitchell, 484 F.3d 762, 774 (5th Cir. 2007) (citing United S ta te s v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978)). This court reviews the d is t r ic t court's decision to admit the extrinsic evidence under a heightened a b u s e -o f-d is c r e t io n standard. See Mitchell, 484 F.3d at 774. "Even if the district c o u r t abused its discretion in admitting the Rule 404(b) evidence, [this court] [d o e s ] not reverse if the error was harmless." Id. (citations omitted). Smith's efforts to influence witnesses and to discourage them from t e s t ify in g candidly were probative of his consciousness of guilt (i.e., that the w it n e s s e s ' truthful testimony would likely result in his conviction). See United S ta te s v. Rocha, 916 F.2d 219, 240-41 (5th Cir. 1990). Because the evidence was p r o b a t iv e of an issue other than Smith's character, it was admissible under Rule 4 0 4 (b ). See id. at 241. And under the circumstances of this case, it was

r e a s o n a b le for the district court to find that the danger of unfair prejudice did n o t substantially outweigh the probative value of the evidence. See id. Thus, t h e district court did not abuse its discretion in admitting extrinsic evidence c o n c e r n in g Smith's attempts to influence witnesses. See Rocha, 916 F.2d at 2 4 0 -4 1 . Even assuming the district court erred in admitting such evidence, that e r r o r was harmless in light of the overwhelming evidence supporting the jury's fin d in g of guilt. See Mitchell, 484 F.3d at 774. A F F IR M E D .

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