United States v. Jones

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30667
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TYLER JONES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 00-CR-116-1
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March 5, 2002
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Tyler Jones appeals his conviction following a jury trial
for conspiracy to possess with the intent to distribute and
aiding and abetting the possession with the intent to distribute
1.5 kilograms of cocaine base, in violation of 18 U.S.C. § 2 and
21 U.S.C. §§ 841(a)(1) and 846. He challenges the district
court’s admission into evidence certain testimony by a
cooperating codefendant, Darvel Ledet, to the effect that, one
month prior to the events giving rise to the indictment, he had
*
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that this opinion should not be published and is not precedent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. 01-30667
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purchased a small quantity of cocaine base from Ledet. Jones
argues that the evidence was improper under FED. R. EVID. 404(b).
Jones’ argument that the issue is reviewed for abuse of
discretion is incorrect. Because he has not demonstrated that he
timely objected to the evidence on the record, review is for
plain error only. See FED. R. EVID. 103(a)(1) and (d); United
States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994)(en banc);
United States v. Martinez, 962 F.2d 1161, 1165-66 (5th Cir.
1992). Under the plain-error standard, this court may correct
forfeited errors only when the appellant shows the following
factors: (1) there is an error, (2) that is clear and obvious,
and (3) that affects his substantial rights. United States v.
Olano, 507 U.S. 725, 732-735 (1993). If these factors are
established, the decision to correct the forfeited error is
within the sound discretion of the court, and the court will not
exercise that discretion unless the error seriously affects the
fairness, integrity, or public reputation of judicial
proceedings. Id. at 735-36.
Jones has not demonstrated any error, plain or otherwise, in
the admission of the challenged testimony. Ledet’s testimony
concerning the prior drug transaction was properly admitted as
intrinsic background information establishing the relationship
between Ledet and Jones. See United States v. Miranda, 248 F.3d
434, 440-41 (5th Cir.), cert. denied, 122 S. Ct. 410 (2001) and
S. Ct. , 2002 WL 13375 (Jan. 7, 2002) (No. 01-6430); United
States v. Wilson, 578 F.2d 67, 72 (5th Cir. 1978).
No. 01-30667
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Alternatively, even if extrinsic to the offense charged, the
evidence was properly admitted to demonstrate Jones’ intent,
plan, and knowledge. See FED. R. EVID. 404(b); United States v.
Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc); see also
United States v. Garcia Abrego, 141 F.3d 142, 175 (5th Cir.
1998). Although Jones urges that the evidence should have been
excluded because of its prejudicial effect, we note that “all
probative evidence is by its very nature prejudicial.” United
States v. Powers, 168 F.3d 741, 749 (5th Cir. 1999). Jones has
not demonstrated that the prejudicial effect substantially
outweighed the relevance of the evidence, as is required for
exclusion under FED. R. EVID. 403. See Beechum, 582 F.2d at 911.
The district court’s judgment is AFFIRMED.