United States v. De La Rosa

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 19, 2008
No. 07-50781
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CARLOS ANGEL DE LA ROSA
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:06-CR-204-2
Before HIGGINBOTHAM, STEWART and ELROD, Circuit Judges.
PER CURIAM:*
Following a jury trial, Carlos Angel De La Rosa was convicted of one count
of aiding and abetting the possession with intent to distribute cocaine and one
count of aiding and abetting the possession with intent to distribute marijuana,
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), (b)(1)(D), 846 and 18 U.S.C. § 2.
The district court sentenced De La Rosa to 120 months of imprisonment on each
count, with the sentences to run concurrently.
*
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should not be published and is not precedent except under the limited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. 07-50781
De La Rosa appeals his conviction, arguing that the district court erred in
admitting the testimony of a co-defendant over his objections pursuant to
FED. R. EVID. 404(b) and that the court abused its discretion in failing to give a
limiting instruction to the jury regarding this evidence. Federal Rule of
Evidence 404(b) applies only to extrinsic evidence and does not prohibit intrinsic
evidence. United States v. Yi, 460 F.3d 623, 632 (5th Cir. 2006).
We find no error in the district court’s finding that the evidence in
question was intrinsic. The evidence more clearly established the connection
between De La Rosa and his co-defendant and is “inextricably intertwined” with
both the charged offenses and the elements that the Government was required
to prove. See United States v. Miranda, 248 F.3d 434, 440-41 (5th Cir. 2001).
Consequently, Rule 404(b) is not implicated and consideration of the evidence’s
admissibility pursuant to Rule 404(b) is unnecessary. See id.Further, although this court has recognized that any prejudice from
admission of Rule 404(b) evidence can be minimized by a limiting instruction,
see United States v. Broussard, 80 F.3d 1025, 1040 (5th Cir. 1996), Rule 404(b)
was not implicated in this case. See Miranda, 248 F.3d at 440. Nevertheless,
the district court instructed the jury that it must consider only the crime
charged and could not consider any evidence of acts similar to those charged in
the indictment, but which were committed on other occasions, in deciding
whether the defendant committed the acts charged in the indictment other than
for the very limited purposes of determining whether the defendant had “the
state of mind or intent or knowledge necessary to commit the crime charged in
the indictment; or whether the defendant committed the acts for which he is on
trial by accident or mistake.” The denial of a requested instruction is not error
when its substance is implicit in the instructions given. United States v.
Ramirez, 963 F.2d 693, 705 (5th Cir. 1992).
The judgment of the district court is AFFIRMED.
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