UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-30332
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DAVID JEROME FRANK,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Louisiana
(93-CR-20012)
October 2, 1996
Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges.
PER CURIAM:*
In this out-of-time appeal, David Jerome Frank challenges the
district court’s admission of certain evidence at the trial at
which he was convicted of several crimes relating to a drug ring in
and around Lake Charles, La. The evidence to which Frank objects
is testimony from a co-defendant, Darryl Levan, to the effect that
*
Local Rule 47.5 provides: "The publication of opinions that
merely decide particular cases on the basis of well-settled
principles of law imposes needless expense on the public and
burdens on the legal profession." Pursuant to this Rule, the Court
has determined that this opinion should not be published.
Levan had accompanied Frank on several trips to Texas to purchase
cocaine and that Levan had worked for Frank as a drug seller for
over two years. Frank contends that the introduction of the
evidence violated Federal Rule of Evidence 404(b). He urges us to
find that the district court abused its discretion in admitting
this evidence and that the error was prejudicial to him.
Naturally, the government disagrees.
We review the district court’s decision to admit evidence for
abuse of discretion. See, e.g., United States v. Cheramie, 51 F.3d
538, 540 (5th Cir. 1995). Were we to find an abuse of discretion,
we would not reverse Frank’s conviction unless Frank was prejudiced
by the lower court’s error. United States v. Palmer, 37 F.3d 1080,
1084 (5th Cir. 1994), cert. denied, 115 S. Ct. 1804 (1995). We
find that the district court’s decision to admit Levan’s testimony
was not an abuse of discretion and therefore AFFIRM his conviction.
Rule 404(b) of the Federal Rules of Evidence seeks to prevent
the admission of other crimes or bad acts of a criminal defendant,
unless they are relevant to considerations other than a defendant’s
propensity to commit crimes. In United States v. Beechum, 582 F.2d
898, 911 (5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920
(1979), we held that the determination of whether admission of
extrinsic-offense evidence is admissible under Rule 404(b) can be
boiled down to a two-part test. First, the evidence must be
relevant to an issue other than the defendant’s character. Second,
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the evidence must possess probative value that is not substantially
outweighed by its undue prejudice and must meet the other
requirements of Rule 403.
We find that the admission of Levan’s testimony satisfies the
Beechum test. Among the permissible purposes for this evidence
under Rule 404(b) is proof of knowledge or intent by the defendant.
We first find that the jury could reasonably find, from Levan’s
testimony, that Frank actually committed these extrinsic offenses.
See United States v. Ridlehuber, 11 F.3d 516, 522 (5th Cir. 1993)
(to be “relevant,” government must establish the “preliminary
fact[]” of occurrence of the other acts). We further find that
Levan’s testimony was relevant, as that word is defined in Rule
401, in establishing knowledge and intent. See United States v.
Williams, 957 F.2d 1238, 1243-45 (5th Cir. 1992) (extrinsic
evidence of engaging in similar crimes can be relevant to
establishing the defendant’s knowledge or intent to commit the
crime charged). See also Beechum, 582 F.2d at 911-12 & n.15. Step
one is satisfied. Step two, compliance with Rule 403, is also
satisfied as we find that its probative value is not substantially
outweighed by any unfair prejudice.
In light of the foregoing, Frank’s conviction is
AFFIRMED.
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