UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30270
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM ALLEN FITZGERALD,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Louisiana
(96-CR-50051)
November 7, 1997
Before POLITZ, Chief Judge, JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
William Allen Fitzgerald appeals his conviction and sentence for possession
with the intent to distribute methamphetamine and for aiding and abetting the
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
possession with intent to distribute methamphetamine.1 He contends that the
district court erred by: admitting evidence of his subsequent drug offense; denying
his motion for judgment of acquittal or new trial; giving an erroneous jury
instruction on aiding and abetting; and preventing his counsel from using a
summary chart during closing argument. For the reasons assigned, we affirm.
Background
A tractor-trailer rig occupied by Fitzgerald and codefendant, Joe David
Reynolds, was subjected to a routine stop at the Louisiana-Texas border. The
officers discovered that Reynolds, who then was operating the rig, was not the duty
driver and had a suspended driver’s license. Fitzgerald was asleep in the berth of
the truck. Reynolds and Fitzgerald agreed to a search which revealed marihuana
in Reynolds’ shaving kit behind the driver’s seat, marihuana and methamphetamine
in a small film canister in the truck console, and several ounces of
methamphetamine packaged in individually wrapped plastic bags in a black nylon
zippered camera bag on the passenger-side floorboard near the dash.
Fitzgerald and Reynolds were indicted for possession with intent to distribute
methamphetamine. A jury found Fitzgerald guilty and he was sentenced to 120
months imprisonment to be followed by a supervised release term of four years.
1
21 U.S.C. § 841(a)(1); 18 U.S.C. § 2.
2
He timely appealed.
Analysis
Fitzgerald contends that extrinsic crimes evidence admitted was relevant only
to prove his character and thus was inadmissible under Fed.R.Evid. 404(b).2 Four
months after his arrest for the instant offense, Fitzgerald was arrested in Oklahoma
for possession with intent to distribute marihuana and subsequently pleaded guilty
to same. The district court admitted evidence of that offense, concluding that the
similarities between the instant offense and the extrinsic offense were significant
and that the evidence was relevant to show intent and motive. Fitzgerald, however,
maintains that the evidence was admitted improperly because he did not put his
intent or motive at issue or, in the alternative, that the evidence was highly
prejudicial and should have been excluded.
The admission of evidence of extrinsic criminal acts will be reversed only
upon a clear showing of an abuse of discretion.3 Extrinsic evidence includes
2
“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show action in conformity therewith. It may, however, be admissible
for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b).
3
United States v. Broussard, 80 F.3d 1025 (5th Cir.), cert. denied, 117 S.Ct. 264
(1996).
3
offenses that occur before or after the offense charged.4 In determining whether to
admit this evidence the district court correctly applied the two-part Beechum test,5
determining that the evidence was relevant to show Fitzgerald’s intent, and
concluding that “because the defendant had unlawful intent in the extrinsic offense,
it is less likely that he had lawful intent in the present offense.” We perceive no
abuse of discretion in this ruling.
Fitzgerald next asserts that the district court erred by denying his motion for
judgment of acquittal or, alternatively, a new trial. On appeal we review all of the
evidence, and the reasonable inferences to be drawn therefrom, in the light most
favorable to the verdict, to determine if a rational trier-of-fact could have found
each element of the offense established beyond a reasonable doubt.6 The evidence
presented in this case was sufficient to support the verdict.
Fitzgerald challenges the jury instruction on aiding and abetting and the
sufficiency of the evidence offered in support thereof. In reviewing this claim we
must determine “whether the court’s charge, as a whole, is a correct statement of
4
United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc).
5
First, the court must determine if the extrinsic-offense evidence is relevant to an issue
other than the defendant’s character. If so, the evidence is admissible if its probative value
is substantially outweighed by its undue prejudice and meets the other requirements of
Fed.R.Evid. 403. Id.
6
United States v. Robertson, 110 F.3d 1023 (5th Cir. 1977).
4
the law and whether it clearly instructs jurors as to the principles of law applicable
to factual issues confronting them.”7 Our review of the record persuades that the
district court correctly instructed the jury on the law of aiding and abetting and that
the evidence offered in support of this charge was adequate and sufficient.
Finally, we find neither error nor abuse of discretion in the court’s ruling on
defense counsel’s use of the chart in closing argument.
The conviction and sentence are AFFIRMED.
7
United States v. Daniel, 957 F.2d 162 (5th Cir. 1992) (citation and internal quotation
omitted).
5