USA v. Jose Guerra

Filing

UNPUBLISHED OPINION FILED. [09-41200 Affirmed] Judge: JLW , Judge: RHB , Judge: FPB. Mandate pull date is 12/22/2010 for Appellant Jose Eli Guerra [09-41200]

USA v. Jose Guerra Case: 09-41200

Document: 00511308268 Page: 1 Date Filed: 12/01/2010

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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 . 09-41200 S u m m a r y Calendar December 1, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. J O S E ELI GUERRA, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 5:09-CR-46-1

B e fo r e WIENER, BARKSDALE, and BENAVIDES, Circuit Judges. P E R CURIAM:* J o s e Eli Guerra appeals his conviction for knowingly or intentionally p o s s e s s in g , with intent to distribute, less than 50 kilograms of marijuana, in v io la t io n of 18 U.S.C. § 2, and 21 U.S.C. §§ 851, 841(a)(1), 841(b)(1)(D). Guerra w a s arrested after United States Border Patrol Agents found 41.6 pounds of m a r iju a n a in the spare tire of the vehicle he was driving as the sole occupant. Guerra denied any knowledge of the marijuana in the spare tire.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-41200 Document: 00511308268 Page: 2 Date Filed: 12/01/2010 No. 09-41200 G u e r r a contends: the district court abused its discretion when, under F e d e r a l Rule of Evidence 404(b), it admitted, for the purpose of proving either h is knowledge of the marijuana in the spare tire or his intent to distribute the m a r iju a n a , evidence of his prior Texas felony-conviction for possession of m a r i j u a n a in excess of 50 pounds. See TEX. HEALTH & SAFETY CODE ANN. § 481.121. The circumstances of the prior offense were almost identical to the c h a r g e d offense, except, in the prior offense, the marijuana was found bundled in three suitcases in the vehicle's trunk. S u c h admission of evidence under Rule 404(b) is reviewed under a h e ig h t e n e d abuse-of-discretion standard. See United States v. McCall, 553 F.3d 8 2 1 , 827 (5th Cir. 2008), cert. denied, 129 S. Ct. 2018 (2009). "[E]vidence in c r im in a l trials must be strictly relevant to the particular offense charged." Id. (in t e r n a l quotation marks and citation omitted). " E v id e n c e of other crimes, wrongs, or acts is not admissible to prove the c h a r a c t e r of a person in order to show action in conformity therewith." F ED. R. EVID. 404(b). Such evidence may, however, be admissible to prove other m a t t e r s , such as intent or knowledge. Id. In determining the admissibility of e x t r in s ic evidence, we apply a two-step test, requiring the extrinsic-offense e v id e n c e : (1) be relevant to an issue other than the defendant's character; and (2 ) possess probative value not substantially outweighed by its undue prejudice a n d meet the requirements of Rule 403. United States v. Beechum, 582 F.2d 898, 9 1 1 (5th Cir. 1978) (en banc). If the evidence sought to be introduced is an e x t r in s ic offense, "its relevance is a function of its similarity to the offense c h a r g e d " . Id. T o determine the relevance of the extrinsic offense, it is not necessary to s h o w the physical elements of an extrinsic offense were similar to those of the c u r r e n t offense. Id. at 912 n.15. Rather, the extrinsic offense only needs to in v o lv e the same knowledge required for the charged offense. Id. Moreover, the

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Case: 09-41200 Document: 00511308268 Page: 3 Date Filed: 12/01/2010 No. 09-41200 G ov ern m en t must offer sufficient proof demonstrating defendant committed the e x t r in s ic offense. Id. at 913. B o t h Guerra's prior offense and charged offense required proof of k n o w le d g e . See TEX. HEALTH & SAFETY CODE ANN. § 481.121; Long v. State, 532 S .W .2 d 591, 594 (Tex. Crim. App. 1976); 21 U.S.C. § 841(a)(1); United States v. S k ip p e r , 74 F.3d 608, 611 (5th Cir. 1996) ("To establish a violation of 21 U.S.C. § 841(a)(1), `the government must prove knowing possession of the contraband w it h intent to distribute.'"). Knowing possession may be proven by either direct o r circumstantial evidence. Skipper, 74 F.3d at 611. Absent direct proof of k n o w le d g e , "evidence must affirmatively link the [accused] to the contraband in s u c h a manner that a reasonable inference arises that [he] knew of its e x is t e n c e ." Long, 532 S.W.2d at 594; see also Skipper, 74 F.3d at 611 (finding r e a s o n a b le inference Skipper knowingly possessed contraband where Skipper w a s owner and driver of vehicle, and contraband seen coming from driver's side o f vehicle). Such an inference may arise if the accused was in the exclusive p o s s e s s io n of the place where the contraband is found. See Long, 532 S.W.2d at 5 9 4 ; Skipper, 74 F.3d at 611; see also Ortiz v. State, 930 S.W.2d 849, 853 (Tex. A p p . 1996). T h e district court did not abuse its discretion in finding the extrinsico ffe n s e evidence was relevant to the issue of Guerrra's knowledge. First, the j u r y could reasonably have found Guerra committed the Texas offense of p o s s e s s io n of marijuana, based on the uncontradicted testimony offered at the t r ia l for the instant offense. See Beechum, 582 F.2d at 913. Second, because k n o w in g possession is required for both the prior and charged offenses, the prior o ffe n s e is relevant to the issue of Defendant's knowledge for the current crime. See id. The second step of Beechum's analysis involves balancing the Rule 403 fa c to r s : evidence may be excluded if its probative value is substantially

o u tw e ig h e d by the danger of unfair prejudice, confusion of the issues, misleading 3

Case: 09-41200 Document: 00511308268 Page: 4 Date Filed: 12/01/2010 No. 09-41200 t h e jury, or by considerations of undue delay, waste of time, or presentation of c u m u la t iv e evidence. FED. R. EVID. 403. The amount of time that has elapsed b e tw e e n the previous offense and the present charge, and the overall similarity o f the two acts, may affect the probative value of the extrinsic evidence. Beechum, 582 F.2d at 915. Additionally, the risk of unfair prejudice is

s u b s t a n t ia lly lowered by a district court's limiting instruction. United States v. C r a w le y , 533 F.3d 349, 355 (5th Cir. 2008). T h e district court did not abuse its discretion in finding the Rule 403 b a la n c in g favored admission of evidence of the prior Texas offense. The prior o ffe n s e was committed in 1995; however, the length of time between the two o ffe n s e s is only one factor considered in our Rule 403 balancing test. See United S ta te s v. Chavez, 119 F.3d 342, 346-47 (5th Cir. 1997) (upholding admission of fift e e n -y e a r -o ld prior conviction to show intent). Though evidence of the prior T e x a s offense posed some threat of prejudice, Rule 403 sets a high standard for e x c lu s io n ; evidence is excluded only if "the trial judge believes that there is a g e n u in e risk that the emotions of the jury will be excited to irrational behavior, a n d that this risk is disproportionate to the probative value of the offered e v id e n c e " . Beechum, 582 F.2d at 915 n.20 (internal quotation marks and citation o m it t e d ). The district judge did not find such risk here. Additionally, in an attempt to minimize the chance of unfair prejudice, the d is t r ic t court gave two separate limiting instructions: one immediately before t h e Government introduced the prior conviction, and one before the jury began d e lib e ra tin g . Both instructions delineated the limited purposes for which

e v id e n c e of the prior conviction was relevant. If any risk of unfair prejudice r e m a in e d after delivery of the court's instructions with regard to the knowledge e le m e n t , it did not substantially outweigh the probative value of the prior c o n v ic t io n . See Crawley, 533 F.3d at 355. F in a l l y , there is no merit to Guerra's contention the district court n e g le c t e d on-the-record consideration of the issue of the prejudice potentially 4

Case: 09-41200 Document: 00511308268 Page: 5 Date Filed: 12/01/2010 No. 09-41200 c a u s e d by admitting evidence of the Texas offense. The court addressed the is s u e on the record more than once. A F F IR M E D .

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