United States v. Bory

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 15, 2008
No. 07-40401
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
GILBERTO BORY
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:05-CR-20-2
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Gilberto Bory appeals his jury trial convictions for conspiracy to possess
with intent to distribute more than 1000 kilograms of marijuana and possession
with intent to distribute more than 100 kilograms of marijuana. Bory argues
that the district court abused its discretion by allowing testimony regarding a
small quantity of cocaine and various other items consistent with cocaine
distribution that were found on his person or in his residence at the time of his
arrest, which occurred more than a year after the conspiracy allegedly ended.
*
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should not be published and is not precedent except under the limited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. 07-40401
A district court’s admission of FED. R. EVID. 404(b) evidence is reviewed
under a heightened abuse-of-discretion standard. United States v. Jackson, 339
F.3d 349, 357 (5th Cir. 2003). Extrinsic evidence admitted under Rule 404(b)
must be “relevant to an issue other than the defendant’s character” and must
have probative value that is not substantially outweighed by undue prejudice
and must otherwise be admissible under FED. R. EVID. 403. United States v.
Peterson, 244 F.3d 385, 392 (5th Cir. 2001).
Because Bory pleaded not guilty to a conspiracy charge, this evidence is
relevant to the issue of his intent. See United States v. Pompa, 434 F.3d 800,
805 (5th Cir. 2005); United States v. Broussard, 80 F.3d 1025, 1040 (5th Cir.
1996). In addition, any unfair prejudice does not substantially outweigh the
probative value of this evidence. We have held that “Rule 404(b) evidence is
particularly probative where the government has charged conspiracy.” United
States v. Gordon, 780 F.2d 1165, 1174 (5th Cir. 1986). In addition, the evidence
admitted was not highly prejudicial in the context of the trial. See United States
v. Fortenberry, 860 F.2d 628, 632 (5th Cir. 1988). Finally, any prejudice
resulting from the admission of this evidence was mitigated by the district
court’s limiting instructions. See United States v. Brugman, 364 F.3d 613, 621,
n.3 (5th Cir. 2004).
Accordingly, the district court did not abuse its discretion by admitting
testimony regarding the evidence seized at the time of Bory’s arrest.
AFFIRMED.
2