United States v. Moreno ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20829
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILSON MORENO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
H-97-CR-41-1
July 10, 2000
Before POLITZ, WIENER, and STEWART, Circuit Judges.
POLITZ, Circuit Judge:*
Wilson Moreno appeals his convictions by a jury of conspiracy to possess
cocaine with intent to distribute, aiding and abetting the possession of cocaine with
intent to distribute, and possession of a firearm by a felon. For the reasons assigned
*
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should not be published and is not precedent except under the limited circumstances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.
we affirm.
BACKGROUND
Moreno raises several issues on appeal. He first contends that the trial court
erred in denying his motion to suppress evidence of a firearm found in his vehicle
at the time of his arrest because the stop of the vehicle upon which his consent was
based violated his constitutional rights. He maintains that the police did not have
the requisite factual basis to make a Terry stop.1 Our review of the record
persuades otherwise.
It is now well established that the authorities may briefly detain pedestrians
and motorists, even without probable cause to arrest, provided they have a
reasonable suspicion that criminal activity is afoot.2 The record herein contains
abundant evidence of such, including evidence of an undercover agent and
confidential informant loading cocaine into a Suburban which is then driven into
a closed garage at Moreno’s house, subsequently joined by Moreno in his vehicle,
and then that vehicle being driven away by Moreno accompanied by the driver of
the Suburban. The district court did not err in concluding that the officers had the
requisite reasonable suspicion to stop Moreno’s vehicle.3 Moreno consented to the
subsequent search which uncovered the weapon at issue in the charge. Admission
of this evidence was not in error.
1
Terry v. Ohio, 392 U.S. 1 (1968).
2
Id.; United States v. Ibarra-Sanchez, 199 F.3d 753 (5th Cir. 1999).
3
Id. at 758-59.
2
Moreno next contends that the district court erred in admitting evidence of
a prior Texas felony conviction for possession of cocaine with intent to deliver, and
testimony about his involvement in a prior drug transaction with a prosecution
witness. As to the latter, he contends that the requisite notice was not given by the
government and, further, that same was inadmissible because his intent was not at
issue. Neither objection passes muster.
Rule 404(b) of the Federal Rules of Evidence requires the giving of notice
of intent to use evidence of prior offenses. The rule permits the court to excuse the
giving of this notice for good cause shown. The record herein reflects good cause.
It was not until very shortly before the witness testified that the witness informed
the government about the other drug transaction. In addition, the record reflects
another basis for the appropriate admission of this evidence. Rule 404(b) requires
the giving of notice if requested by the accused. Moreno’s earlier motion for notice
of extraneous offenses was struck by the district court for lack of compliance with
local rules. This motion was not refiled prior to trial. There accordingly was no
pending request for such notice.
Moreno erroneously contends that his intent was not at issue. His plea of not
guilty to the charges automatically accomplished this.4 He then submits that the
probative value of the government’s extrinsic evidence had to yield to its potential
for unfair prejudice. This claimed error is rejected, particularly in light of the
4
United States v. Broussard, 80 F.3d 1025 (5th Cir. 1996).
3
limiting instruction given by the district court.5
The challenge to the evidence relating to the former conviction falls of its
own weight. Moreno was charged with being a felon in possession of a firearm.
Evidence of the prior felony conviction was not only admissible, it was essential
to the proof required for that offense.
Finally, Moreno claims that his motion to sever the firearm count from the
other two counts should have been granted. We are not persuaded. The district
court denied the motion, noting that the weapons charge was derived out of the
same facts as the drug charges. Nothing more need be said herein; the prejudice
required to otherwise warrant severance has not been shown.6
The convictions and sentences are AFFIRMED.
5
United States v. Richards, 204 F.3d 177 (5th Cir. 2000).
6
Fed. R. Crim. P. 14; United States v. Ballis, 28 F.3d 1399 (5th Cir. 1994);
United States v. Park, 531 F.2d 754 (5th Cir. 1976).
4