UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-51086
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGELA GONZALEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(98-CR-540)
October 18, 1999
Before REYNALDO G. GARZA, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Angela Gonzalez was convicted of importing
cocaine and possessing cocaine with intent to distribute, in
violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 841(a)(1). In
appealing her conviction, Appellant contends that (1) the evidence
was insufficient, and (2) the district court erred in denying her
motion for mistrial and in admitting evidence of her prior drug
conviction and prior drug use. Discerning no reversible error, we
*
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this opinion should not be published and is not precedent except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.
affirm.
I.
FACTS AND PROCEEDINGS
The record contains evidence of the following facts. At
approximately 6:15 p.m. on the day in question, Appellant returned
from Mexico to the United States at the Paso del Norte Bridge port
of entry in El Paso, Texas. She was the driver and sole occupant
of a 1992 Chevrolet Camaro owned by her father-in-law. In the
primary inspection line, Appellant encountered Inspector Herrera.
He testified that when he asked Appellant the standard questions,
she did not make eye contact with him, “seemed to be in a hurry,”
and stated that “she needed to get out of that inspection.”
Primarily because of the lack of eye contact, Herrera directed
Appellant to secondary inspection.
In secondary inspection, the vehicle underwent a thorough
inspection. A plastic bag was observed behind the front passenger
seat. The bag was found to contain a rolled up pair of jeans and
a shoe box in which there was a pair of old tennis shoes (the
inspector noted that Appellant was wearing a new pair of tennis
shoes). When the inspector “squeezed” the jeans, he felt an oval
object which he believed to be a hairbrush. When he “shook out”
the jeans, however, the object dropped out and was not a brush but
was a black-taped oval bundle, which the parties have stipulated
contained 128 grams of cocaine.
Appellant was then escorted to the “head house.” While
walking there, she inquired nervously about what was happening, and
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her hands began to shake.
On direct examination by the government, an agent testified
that Appellant had advised the officers that she had gone to
Juarez, Mexico that day to visit a relative and to shop for
clothing, including a pair of jeans. Shortly —— but not
immediately —— after that testimony, defense counsel objected to
it, asserting that the government had failed to disclose to the
defense Appellant’s alleged statement about purchasing jeans. The
court sustained the objection and instructed the jury to disregard
that agent’s testimony in its entirety.
The government introduced evidence that Appellant had
previously pled guilty to possessing marijuana with intent to
distribute. Over defense objection, the district court admitted
this evidence for the limited purpose of determining whether
Appellant had the requisite intent to commit the crimes charged.
The court gave appropriate limiting instructions to the jury.
When the government rested, the defense moved for a directed
verdict on the ground that there was insufficient evidence of
intent. The court denied the defense motion.
The defense called Appellant’s father-in-law who stated that
he owned a “compound” consisting of several homes in which his sons
and other relatives lived. He confirmed that at least two of his
sons had been involved in drug offenses. He stated that he kept a
number of vehicles on the premises (including the Camaro Appellant
was driving when she was stopped) which his relatives were free to
use. This witness noted that on the day of Appellant’s arrest the
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Camaro had been uncharacteristically parked outside the compound
rather than inside; and that he had not given Appellant express
permission to use the vehicle that day.
Appellant’s sister-in-law testified that Appellant did not
normally wear jeans. Appellant’s cousin testified that, on the day
of the arrest, Appellant had arrived at the cousin’s home in Juarez
at about 3:00 p.m., and had remained there with her, without
leaving, until about 5:30 p.m.
Appellant’s brother-in-law testified that he lived in the
compound, that it had been raided for drugs approximately six
times. He stated that the vehicle driven by Appellant was also
driven by others living at the compound.
Appellant testified in her own defense. She stated that she
did not know the cocaine was in the vehicle. She acknowledged that
she was on probation for a state drug offense and that she was not
allowed to leave the United States without her probation officer’s
permission, which she had not obtained before going to Juarez. She
attributed her nervousness at the port of entry to fear that the
inspectors would arrest her for not having obtained such permission
and to her anxiety to get home before her father-in-law returned.
She further testified that the jeans found in the vehicle did not
belong to her and were not even her size. The government produced
no contrary evidence about the jeans but, for the purpose of
establishing motive, was given permission to question Appellant
concerning her prior drug use. Appellant testified she had never
used cocaine. When pressed by government counsel concerning three
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or four occasions on which she had tested positive for cocaine use
while on probation, she stated that she had tried it once and that
this accounted for those positive tests.
The defense rested and unsuccessfully moved for judgment of
acquittal.
II.
ANALYSIS
A. Admission of evidence of prior drug offense and of prior drug
use.
Appellant contends that the district court abused its
discretion by admitting evidence of her prior conviction for
possession of marijuana with intent to distribute and of her prior
drug use. She contends that the probative value of that evidence
was outweighed by its potential prejudice. We note, however, that
Appellant placed her intent at issue when she testified that she
did not know the drugs were in the vehicle.
We review the district court’s decision to admit evidence
under Rule 404(b) for abuse of discretion. We have established a
two-part test to determine admissibility under that rule. See
United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en
banc). The evidence must be relevant to an issue other than the
defendant’s character and must possess probative value which is not
outweighed by undue prejudice. United States v. Bentley-Smith, 2
F.3d 1368, 1377 and n. 11 (5th Cir. 1993).
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The evidence of the prior drug conviction was properly
admitted. Appellant’s state of mind was at issue. The court gave
the jury two detailed limiting instructions, one immediately after
the evidence of the prior offense was admitted and the other at the
completion of the testimonial phase of the trial. We conclude that
the admission of this testimony was not an abuse of discretion.
Admission of evidence of prior drug use, albeit only after getting
the court’s permission to question the Appellant about such use, is
more problematical. We have held that, when possession with intent
to distribute drugs is charged, it is error to allow, over
appropriate objection, evidence of past drug use for the purpose of
establishing guilty knowledge. United States v. McDonald, 905 F.2d
871, 875 (5th Cir. 1995). Similar to the argument made in
McDonald, the government here claims that the evidence of prior
drug use was probative of motive and knowledge. But we stated in
McDonald that “. . . there is a large leap from evidence that [the
defendant] in the past used cocaine and speed to an inference that
he therefore likely knew his car contained marijuana that day. The
leap is too large.” McDonald, 905 F.2d at 875. Under Rule 404(b)
there must be a similarity of the extrinsic act to the offense
charged. United States v. Gordon, 780 F.2d 1165, 1173 (5th Cir.
1986). That nexus is missing here.
Nevertheless, errors in the admission of evidence are harmless
unless they affect a defendant’s substantial rights. McDonald, 905
F.2d at 876. We have found such error to be harmless when the rest
of the evidence is so strong that, even without the evidence of
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prior drug use, a rational juror could convict. As discussed below
in connection with the sufficiency of the evidence, that is the
case here. As we conclude that the admission of evidence of drug
use was harmless, any error in admitting it is not reversible.
B. Sufficiency of the evidence.
Appellant contends that the evidence was insufficient to
establish her intent, and thus insufficient to support her
conviction. We review to determine whether any reasonable trier of
fact could have found that the evidence established guilt beyond a
reasonable doubt, see United States v. Martinez, 975 F.2d 159, 160-
61 (5th Cir. 1992), viewing the evidence in the light most
favorable to the jury’s verdict. United States v. Resio-Trejo, 45
F.3d 907, 910 (5th Cir. 1995). We resolve credibility
determinations and reasonable inferences in favor of the verdict.
Id. at 911.
The government’s case was entirely circumstantial. The
primary evidence pointing to guilt was Appellant’s demeanor at the
inspection station and her prior drug offense, together with her
sole possession of the automobile in which the drugs were found at
the time of her arrest. Additional evidence consisted of two other
family members being involved with drugs, the compound in which
Appellant lived having been frequently raided for drugs, and the
fact that Appellant was wearing new shoes while the old shoes were
in the same container as the drugs. Even though this evidence is
not overwhelming, it is sufficient to sustain the jury’s verdict
even without reference to the evidence of prior drug use.
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C. Evidence of an incriminating statement not previously
disclosed.
Appellant contends that the government attorney committed
prosecutorial misconduct by eliciting an incriminating statement
that Appellant allegedly made to a government inspector, as that
statement had not been previously disclosed. Defense counsel made
a belated objection, asking that the witness’s statement be
stricken in its entirety. That objection was sustained and the
appropriate instruction was granted. Appellant’s argument that,
despite having won the point at trial, the court should have
dismissed the case “as a sanction against the Government” is
unavailing.
III.
CONCLUSION
For the reasons set forth above, Appellant’s conviction is
AFFIRMED.
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