United States v. Dan Pizarro ( 2019 )

Case: 18-30201 Document: 00514863118 Page: 1 Date Filed: 03/07/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-30201 March 7, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAN PIZARRO, also known as Danny Pizarro,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:16-CR-63-1
Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
Dan Pizarro was convicted by a jury of conspiracy to distribute and
possess with intent to distribute 500 grams or more of methamphetamine and
a quantity of heroin. Because Pizarro had two prior felony drug convictions,
the district court sentenced him to life imprisonment and ten years of
supervised release.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 18-30201
According to Pizarro, the district court erred in admitting evidence of his
arrest at a train station in possession of ten pounds of marijuana and his
subsequent conviction for possession with intent to distribute marijuana
pursuant to Federal Rule of Evidence 404(b). Pizarro objected to the admission
of this evidence in the district court. Although this court generally reviews
evidentiary rulings for abuse of discretion, a heightened standard applies
where, as here, the evidence is admitted under Federal Rule of Evidence
404(b). See United States v. Wallace, 759 F.3d 486, 493 (5th Cir. 2014).
Federal Rule of Evidence 404(b) provides that evidence of a “crime,
wrong, or other act is not admissible to prove a person’s character in order to
show that on a particular occasion the person acted in accordance with the
character.” FED. R. EVID. 404(b). Such evidence may be admissible, however,
to prove “motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident.” Id. To determine whether such evidence
was properly admitted, this court first determines whether the extrinsic
offense evidence is relevant to an issue other than the defendant’s character;
second, the court determines whether the probative value is substantially
outweighed by undue prejudice. United States v. Gurrola, 898 F.3d 524, 537
(5th Cir. 2018) (citing United States v. Beechum, 582 F.2d 898, 911 (5th Cir.
1978) (en banc)). Because Pizarro pleaded not guilty to the instant offense,
the district court correctly determined that the first prong of the test was
satisfied. See, e.g., United States v. Cockrell, 587 F.3d 674, 679 (5th Cir. 2009).
Further, the district court did not abuse its discretion by determining
that the probative value of the evidence of Pizarro’s prior arrest and offense
was not substantially outweighed by the danger of unfair prejudice. See
Beechum, 582 F.2d at 914. This court has often “held that proof of prior drug
activities is more probative than prejudicial” in proving Rule 404(b) exceptions
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such as knowledge or intent. See United States v. Kinchen, 729 F.3d 466, 474
(5th Cir. 2013) (internal quotation marks and citation omitted). The prior
offense was similar to the instant offense as both involved the distribution of
controlled substances that Pizarro obtained from California sources. Although
the similarity of the offenses increased the prejudicial effect of the evidence, it
also made the evidence highly probative. See United States v. Juarez, 866 F.3d
622, 628 (5th Cir. 2017). The probative value is not diminished necessarily
because the prior offense involved a different controlled substance. See, e.g.,
Cockrell, 587 F.3d at 680; see also United States v. Booker, 334 F.3d 406, 412
(5th Cir. 2013) (finding no unfair prejudice from the admission of evidence of
seizure of 178 kilograms of marijuana to show intent in a crack cocaine
conspiracy). Further, the prior offense occurred only a few months before the
charged offense. See United States v. Garcia Mendoza, 587 F.3d 682, 689 (5th
Cir. 2009). In addition, the evidence corroborated the testimony of Pizarro’s
coconspirators, especially given the temporal proximity of the offenses and the
fact that both offenses involved a California source. See, e.g., Juarez, 866 F.3d
at 627. Moreover, the prior conviction was not of such a “heinous nature” that
it would “incite the jury to irrational decision by its force on human emotion,”
and therefore it was not likely that the jury felt a desire to punish Pizarro for
his prior conviction. See Beechum, 582 F.2d at 917. Finally, the district court
gave a limiting instruction, which greatly minimizes the danger of prejudice.
See Garcia Mendoza, 587 F.3d at 689. Therefore, the district court did not
abuse its discretion in admitting the evidence.
After completion of briefing, Pizarro filed pro se motions for appointment
of counsel, leave to file a supplemental brief, and for extraordinary relief.
Because he is represented by counsel and is not entitled to hybrid
representation, his motions are denied. See United States v. Long, 597 F.3d
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720, 724 (5th Cir. 2010); United States v. Villafranca, 844 F.3d 199, 199 (5th
Cir. 2016).
AFFIRMED; MOTIONS DENIED.
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