United States v. Flores

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
February 9, 2007
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 04-11414
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTHA FLORES,
Defendant-Appellant.
On Appeal from the United States District Court
for the Northern District of Texas
D.C. No. 3:03-CR-188-N
_______________________________________________________
Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appellant Martha Flores appeals her conviction on one count of conspiring to
distribute cocaine. Flores challenges (1) the district court’s decision to admit
evidence of her mid-trial arrest; and (2) the reasonableness of her sentence. We
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
affirm for the following reasons:
1. At trial, the district court admitted evidence of Flores’s mid-trial arrest
for selling cocaine to an undercover officer. Flores argues that the prejudicial effect
of this evidence outweighed any probative value, and thus the district court erred in
admitting the evidence. See FED. R. EVID. 403 & 404(b).
Under our precedent, evidence of an extrinsic act is admissible if, first, the
evidence is relevant to an issue other than the defendant’s character, and second, if
the evidence’s prejudicial effect does not substantially outweigh its probative value.
United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc). Although
acts admissible under Fed. R. Evid. 404(b) generally occur prior to the charged
crime, evidence of subsequent acts may also be admitted. United States v. Osum,
943 F.2d 1394, 1404 n.7 (5th Cir. 1991). We review for abuse of discretion a
district court’s decision to introduce evidence of extrinsic acts. United States v.
Gonzalez, 76 F.3d 1339, 1347 (5th Cir. 1996).
First, Flores’s act in selling cocaine to the undercover officer was relevant to
her intent to commit the charged crime. In a drug-trafficking case, a not-guilty plea
raises the question of intent and justifies the admission of evidence under Fed. R.
Evid. 404(b). United States v. Pompa, 434 F.3d 800, 805 (5th Cir. 2005); see also
United States v. Roberts, 619 F.2d 379, 382-83 (5th Cir. 1980) (not-guilty plea
2
raises the issue of intent in a conspiracy case). “Subsequent acts evidence is
particularly relevant when intent is at issue.” United States v. Mares, 441 F.3d
1152, 1157 (10th Cir. 2006). Here, Flores pleaded not guilty to a conspiracy
charge, and her extrinsic act was particularly probative. Her drug sale was almost
indistinguishable from the charged crime, occurred only a year after the end of the
conspiracy alleged in the indictment, and was directly relevant as to whether she had
intentionally participated in the conspiracy. See United States v. Sykes, 977 F.2d
1242, 1246 (8th Cir. 1992) (evidence of subsequent drug possession in conspiracy
case admissible to show knowledge and intent when the subsequent act was
“virtually identical” to the charged crime and took place eight months later).
Second, the prejudicial effect of the evidence did not substantially outweigh
its probative value. See United States v. Beechum, 582 F.2d 898, 911 (5th Cir.
1978) (en banc). The district court carefully gave the jury two limiting instructions
in order to minimize the potential prejudicial effect of the evidence. These
instructions (the second of which closely tracked the Fifth Circuit’s pattern jury
charge) made it clear that the jury was not to use Flores’s arrest as proof that “the
defendant committed the acts charged in the indictment,” but only for “other, very
limited purposes” such as mistake or intent. Although Flores contends that these
instructions were confusing, they were sufficiently clear. Therefore, the district
3
court acted within its discretion in admitting proof of Flores’s extrinsic act.
2. We have held that “[t]he sentencing judge is entitled to find by a
preponderance of the evidence all the facts relevant to the determination of a
Guideline sentencing range. . . .” United States v. Mares, 402 F.3d 511, 519 (5th
Cir. 2005). As the district court properly determined Flores’s Guidelines range and
sentenced her within that range, we find Flores’s sentence reasonable. See id.AFFIRMED.
4