United States v. Trigg , 289 F. App'x 721 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 11, 2008
No. 07-10831
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JAVARY TREYMAYNE TRIGG
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:05-CR-12-ALL
Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Javary Treymayne Trigg was convicted by a jury of being a felon in
possession of a firearm (count one), possessing crack cocaine with an intent to
distribute (count two), and possessing a firearm in furtherance of a drug
trafficking crime (count three). The district court sentenced Trigg to 96 months
in prison on counts one and two, to run consecutively to a 60-month term of
imprisonment on count three. Trigg appeals his conviction and sentence,
arguing that (1) the district court erred in denying his motion to suppress; (2)
*
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should not be published and is not precedent except under the limited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.
No. 07-10831
the district court violated Rule 404(b) of the Federal Rules of Evidence when it
admitted into evidence Trigg’s prior conduct; (3) the district court erred in
instructing the jury regarding Trigg’s prior conduct; and (4) he is entitled to a
sentence reduction as a result of an amendment (Amendment 706) to the United
States Sentencing Guidelines. Trigg’s arguments are without merit, and his
conviction and sentence are affirmed for the following reasons.
Motion to Suppress
Trigg argues that the district court erred when it denied his motion to
suppress the evidence because the affidavit supporting the warrant that led to
his arrest was a “bare bones” affidavit. Trigg contends that the magistrate judge
was not presented with sufficient information to make an independent probable
cause determination.
If an affidavit is based on information supplied by a confidential
informant, this court examines the informant’s veracity and basis of knowledge
to determine if, in the “totality of the circumstances,” his information is credible.
See United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992); United States
v. McKnight, 953 F.2d 898, 904-05 (5th Cir. 1992). Officer Anderson’s assertion
that the informant had provided information in the past that proved to be true,
reliable, and correct sufficiently established the informant’s veracity. See
McKnight, 953 F.2d at 904-05; see also, Christian v. McKaskle, 731 F.2d 1196,
1200 (5th Cir. 1984). Additionally, Officer Anderson’s statement that the
informant personally observed Trigg possess cocaine at Trigg’s residence less
than 36 hours before Officer Anderson established that the informant had a
sufficient basis of knowledge. See e.g., Mack v. City of Abilene, 461 F.3d 547, 551
(5th Cir. 2006); United States v. Jackson, 818 F.2d 345, 349 (5th Cir. 1987).
Thus, the information contained in the affidavit was sufficient to support
a good-faith conclusion by an objectively reasonable officer that the affidavit on
which the warrant was based was adequate to establish probable cause. See
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Satterwhite, 980 F.2d at 320. The district court did not err when it denied
Trigg’s motion to suppress the evidence.
Rule 404(b) Evidence
A district court’s admission of Rule 404(b) evidence is reviewed under a
heightened abuse-of-discretion standard. United States v. Buchanan, 70 F.3d
818, 831 (5th Cir. 1995). “Evidence of other crimes, wrongs or acts . . . to prove
the character of a person in order to show action in conformity therewith” is
inadmissible. FED. R. EVID. 404(b). Such evidence “may, however, be admissible
for other purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.” Id. This court
reviews challenges to the admission of extrinsic evidence under Rule 404(b) with
reference to the Beechum two-prong test. United States v. Beechum, 582 F.2d
898, 911 (5th Cir. 1978) (en banc). First, the extrinsic evidence must be
“relevant to an issue other than the defendant’s character.” Id. Second, the
evidence must have probative value that is not substantially outweighed by
undue prejudice and must otherwise be admissible under Rule 403. Id.Trigg has failed to show that the extrinsic evidence was relevant only to
his character. See Beechum, 582 F.2d at 911. Rather, the evidence was
admissible under Fed. R. Evid. 404(b) because Trigg asserted a defense of a lack
of intent and knowledge, and the other-acts evidence was admitted for the
limited purpose of showing that Trigg had the intent to traffic drugs and that he
knew the drugs to be crack cocaine. See United States v. Gordon, 780 F.2d 1165,
1174 (5th Cir. 1986); United States v. Thomas, 348 F.3d 78, 86 (5th Cir. 2003).
Trigg has also failed to show that the probative value of the contested
evidence was outweighed by the danger of unfair prejudice. To the contrary, the
similarity of the extrinsic offenses and the charged offenses, the temporal
proximity of the extrinsic offenses and the charged offenses, and the district
court’s instruction that the evidence could be considered only with regard to
Trigg’s knowledge or intent satisfy the second prong of the Beechum test. See
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No. 07-10831
United States v. Bermea, 30 F.3d 1539, 1562 (5th Cir. 1994); United States v.
Hernandez-Guevara, 162 F.3d 863, 872 (5th Cir. 1998); United States v.
Brugman, 364 F.3d 613, 621 (5th Cir. 2004).
Jury Instruction
Trigg argues that the district court erred when it failed to give a limiting
instruction when the Rule 404(b) evidence was admitted. Trigg further argues
that the limiting instruction the court gave at the close of the evidence was
confusing and erroneous.
In reviewing jury instruction, we consider the charge as a whole, in view
of the crime charged in the indictment, the evidence presented, and the
arguments of counsel, to determine whether the jury understood the issues
presented. Mozeke v. Int’l Paper Co., 933 F.2d 1293, 1296 (5th Cir.1991). “The
test is whether the jury was misled in any way.” Id.Trigg’s argument regarding the timing of the instruction is without merit.
It is well settled that a limiting instruction need not be given when the evidence
is presented, and a trial judge’s instruction at the conclusion of trial is often
sufficient to remedy any possible prejudicial effect of Rule 404(b) evidence.
United States v. Walters, 351 F.3d 159, 167 n.5 (5th Cir. 2003).
Trigg’s argument regarding the confusing nature of the instruction is also
without merit. The record reflects that the district court used the limiting
instruction found in Fifth Circuit Pattern Jury Instruction 1.30. As such, the
charge was a correct statement of the law which clearly instructed the jurors as
to the principles of the law applicable to the factual issues confronting them.
United States v. Pompa, 434 F.3d 800, 805-06 (5th Cir. 2005). Accordingly, Trigg
has not established that the district court reversibly erred with respect to the
“similar acts” jury instruction.
Amendment 706
Trigg argues that he is entitled to resentencing pursuant to 18 U.S.C.
§ 3582(c)(2) because a recent amendment to the Sentencing Guidelines,
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No. 07-10831
Amendment 706, lowered the base offense levels applicable to crimes involving
cocaine base. If Trigg wishes to seek a sentence reduction based on the
amendment, such relief should be pursued in the district court in the first
instance pursuant to § 3582(c)(2). See U.S.S.G. § 1B1.10. We express no opinion
on the viability of such relief as it pertains to Trigg.
Accordingly, the judgment of the district court is AFFIRMED.
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