IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10711
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RANDY HIETMAN, also known as Sealed dft. 4;
JOSEPH LESTER MIXON, also known as Sealed dft. 12,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Texas
(3:95-CR-160-G)
August 4, 1997
Before WISDOM, BENAVIDES and STEWART, Circuit Judges.
PER CURIAM:*
Randy Hietman1 and Joseph Lester Mixon appeal their convictions for conspiracy to
manufacture, to possess with the intent to distribute, and to distribute methamphetamine in
violation of 21 U.S.C.§ 846. Mixon argues that the district court abused its discretion by
allowing evidence that should have been excluded under Federal Rules of Evidence 404(b) and
by failing to give a limiting instruction on extrinsic evidence. Both Mixon and Hietman also
*
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 R. 47.5, the court has determined that this opinion should not be published and is not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.
1
Hietman asserts that his name has been misspelled throughout the litigation. His name is
William Randolph Heitman. Hietman brief. 2 n.1.
argue that the district court abused its discretion by overruling their objection to a testifying
witness’ statement that he passed a polygraph test and whether the curative instruction given
by the district court was sufficient.
I.
On June 1, 1996, a federal grand jury returned an indictment charging Hietman, Mixon
and twelve other individuals with conspiracy to manufacture, possess with intent to distribute,
and distribute methamphetamine in violation of 21 U.S.C. § 846.1 The indictment covered the
period of Spring 1990 through approximately February 6, 1995. Hietman and Mixon pleaded
not guilty to the charges. The case proceeded to trial before a jury, where the defendants were
found guilty on the conspiracy count. During the trial, several government witnesses were
codefendants who pleaded guilty to conspiracy or another charge, or were unindicted
coconspirators. Most of these witnesses testified to engaging in drug transactions with
Hietman or Mixon, or of being aware of their drug activities. The essence of the codefendants’
testimony was that on several occasions Hietman and/or Mixon would either purchase or sell
methamphetamine. The government witness who supplied most of the damaging evidence
against Hietman and who also implicated Mixon was Lloyd “Popaw” Shipley, a reputed drug
“kingpin” who supplied Hietman with most of the illegal drugs.
II.
Mixon argues that the district court abused its discretion in admitting certain testimony
that should have been excluded under Rule 404(b). Rule 404(b) prohibits the introduction of
1
The indictment also charged Lloyd David Shipley, Tracy Joseph Wagner, Carol Smothermon, Barbara
Wilson, Jerry S. Holbrook, Leslie Gene Payne, Troy Dean Compton, Melissa Avery, Curtis Ballard, Dan
Ballard, Richard Cleveland, and Cecil Lanford. A second count in the indictment charged Shipley, Wagner,
Holbrook, and Payne with carrying and using a firearm during a drug trafficking.
2
evidence o f prior bad acts or crimes in order to show action in conformity therewith.
Nevertheless, such evidence may be admissible under the Rule if “the evidence is relevant to
an issue other than the defendant’s character and if . . . its probative value is not substantially
outweighed by its prejudicial impact.” United States v. Ridlehuber, 11 F.3d 516, 522 (5th Cir.
1993). Rule 404(b) does not, however, apply to intrinsic evidence. Id. at 521. “[E]vidence is
‘intrinsic’ when the evidence of the other act and the evidence of the crime charged are
‘inextricably intertwined’ or both acts are part of a ‘single criminal episode’ or the other acts
were ‘necessary preliminaries’ to the crime charged.” United States v. Williams, 900 F.3d 823,
828 (5th Cir. 1990) (citations omitted).
We review a district court’s evidentiary rulings for an abuse of discretion. United States
v. White, 972 F.2d 590, 598 (5th Cir. 1992). The evidence at issue is: (1) codefendant Troy
Compton’s testimony concerning his drug transactions with Mixon when Compton was
associated with codefendant Dwight Harrell, a two-or-three-month period occurring before
Compton obtained methamphetamine from Hietman; (2) codefendant Curtis Ballard’s
testimony concerning his drug transaction with Mixon’s unidentified girlfriend; and (3) Police
Detective Jeff Hull’s testimony concerning two undercover drug buys he transacted with Mixon
during the time of the conspiracy as alleged in the indictment. The district court admitted this
evidence, without a limiting instruction, because it concluded that the evidence was intrinsic
to, or inextricably intertwined with, the charged offense of conspiracy. Moreover, because the
court concluded the evidence was intrinsic rather than extrinsic evidence, a limiting instruction
on extrinsic evidence was not necessary. After careful consideration, we conclude that the
testimony concerned intrinsic evidence. The acts testified to were all within the time period of
the conspiracy, were specifically alleged in the indictment, and included members of the
3
conspiracy. This was sufficient to show that the acts were “inextricably intertwined” with the
crimes charged. Thus we hold that the district court did not abuse its discretion when it
admitted the disputed testimony into evidence as intrinsic, rather than extrinsic evidence.
Ridlehuber, 11 F.3d at 521-22
III.
Next, Hietman’s and Mixon’s argument that the district court erred by overruling their
objections to Shipley’s statement that he “passed a polygraph test” is also without merit. First,
assuming without deciding that the admission of Shipley’s statement was in error, the statement
was not evidence that went to guilt or innocence of the defendants, but rather went to the
testifying witnesses’ credibility. Shipley was a person who had supplied drugs to Hietman1, but
who, at the time he made the challenged statement, was not testifying as a witness to the
defendants’ role in the crimes for which they were convicted. Rather, he was testifying about
a murder that the government was attempting to tie into the drug conspiracy, but for which
neither of the defendants had been charged wit h committing. Second, the district court
instructed the jury the following day to limit any consideration of Shipley’s polygraph statement
to the issue of his credibility only, and if the statement did not help them in determining
Shipley’s credibility, the statement should be disregarded. Considering the tangential relevance
of the murder to the defendants’ charges and the plethora of evidence adduced against them,
we find that this instruction was sufficient to prevent any prejudice.
Hence, we find Shipley’s statement harmless when viewed against the backdrop of
Shipley’s undisputed role as the “kingpin” of a drug distribution ring and the tangential
1
Some of the drugs Shipley supplied to Hietman were eventually sold to Mixon.
4
relevance of his statement to the issues in the case. See FED. R. CRIM. P. 52(a). Moreover, in
light of all the evidence adduced at trial, Hietman and Mixon have failed to show how the
statement affected their substantial rights. Id. We therefore hold that the district court did not
abuse its discretion in allowing the testimony.
IV.
Having determined that the district court did not abuse its discretion, we AFFIRM.
AFFIRMED.
5