United States v. Oliveros ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 8, 2003
Charles R. Fulbruge III
Clerk
No. 02-41426
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY NORMAN OLIVEROS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-193-ALL
Before GARWOOD, EMILIO M. GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Larry Normal Oliveros appeals his conviction after a jury
trial for transporting an alien within the United States in
violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (a)(1)(A)(v)(II).
Oliveros contends that the district court erred by admitting
evidence of his prior conviction for aiding and abetting an
undocumented alien to attempt to elude examination by Border Patrol
*
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opinion should not be published and is not precedent except under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.
agents in violation of 8 U.S.C. § 1325(a). He asserts that this
evidence was only marginally relevant and that its probative value
was substantially outweighed by the danger of unfair prejudice.
See FED. R. EVID. 404(b).
The evidence at trial established that the alien Oliveros was
accused of transporting was concealed in the truck of his vehicle.
Thus, evidence of his knowledge and intent were at issue. Indeed,
counsel for Oliveros acknowledged, before evidence of the prior
conviction was admitted, that Oliveros’s intent would be at issue.
Moreover, there is no question but that Oliveros’s prior conviction
was relevant to these issues; the extrinsic offense required the
same intent as the charged offense. See United States v. McMahon,
592 F.2d 871, 873 (5th Cir. 1979) (holding that aiding and abetting
an alien to elude examination requires the same culpable mental
state as the offense of transporting aliens). We also agree that
the incremental probative value of the evidence was not
substantially outweighed by the potential for unfair prejudice.
The extrinsic offense was similar to the charged offense, and was
clearly proximate in time, a conviction for the extrinsic offense
having been obtained only four months prior to the commission of
the charged offense. See id. at 873-74. The introduction of the
extrinsic offense did not carry significant danger of unfair
prejudice. Oliveros’s prior conviction was not heinous in nature
and was not of a type “likely to incite the jury to an irrational
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decision.” Id. at 876. Finally, we conclude that any prejudicial
effect of the extrinsic offense evidence was minimized by the
district court’s limiting instruction, an instruction that
Oliveros’s counsel had previously requested. Id. at 873, 876.
Accordingly, the district court did not abuse its discretion in
admitting evidence of Oliveros’s prior conviction. See United
States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc).
AFFIRMED.
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