IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-20440
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO TREVINO,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
USDC No. H-98-CR-407-1
_________________________________________________________________
August 15, 2000
Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
This appeal presents, primarily, a challenge to the district
court’s evidentiary rulings allowing the government to introduce
evidence of the defendant’s prior conduct under Federal Rule of
Evidence 404(b). Most of the evidence was admitted without error;
that which was error was harmless error. We therefore affirm.
I
The defendant, Roberto Trevino, was convicted of possession
with the intent to distribute more than five kilograms of cocaine
*
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this opinion should not be published and is not precedent except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.
in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A)(ii). On appeal,
Trevino does not seek to challenge the sufficiency of the evidence
supporting his conviction. Instead, he seeks review of the
district court’s rulings allowing the government to introduce
evidence under Federal Rule of Evidence 404(b). Specifically,
Trevino objects to the admission of the following:
(1) The testimony of Virgilio Aguilar regarding the
delivery of a box containing 10 kilograms of cocaine by
Trevino just weeks before his arrest for the subject
offense.1 To bolster this testimony, the government
offered the testimony of Houston Police Department Latent
Fingerprint Examiner Jimmy Schraub, regarding the
presence of Aguilar’s prints on the box, and the
testimony of Customs Service Special Agent Kenneth Crowe
regarding the interaction of Trevino and Aguilar on the
day in question. Specifically, Agent Crowe testified
that he observed Trevino in Aguilar’s company and that
the box of cocaine seized in connection with the
surveillance and investigation of the pair was delivered
to Aguilar by Trevino.
(2) The testimony of Eliazar Ozuna regarding his and
Trevino’s employment by Genaro and Lauro Torres, two
known drug kingpins, to traffic cocaine. Specifically,
Ozuna testified that he, Trevino, and a man named
“Simpson” jointly participated in a transaction involving
180 kilograms of cocaine in early 1996. The cocaine in
question had been smuggled in 55 gallon barrels.2
(3) The testimony of Houston Narcotics Investigator
Jimmy Bell regarding the circumstances giving rise to
1
The district court limited Aguilar’s testimony to the
incident of July 16, 1998.
2
Additionally, Trevino objects to the admissibility of
testimony from Ozuna regarding nine to eleven separate deliveries
and pick-ups made by Ozuna for the Torreses involving the
trafficking of cocaine concealed in vehicular gas tanks.
2
Trevino’s 1985 state conviction for trafficking
marijuana. Bell testified that Trevino had negotiated a
deal to deliver 600 pounds of marijuana to an undercover
officer. On June 4, 1985, Trevino delivered 153.9 pounds
of marijuana to the undercover officer. As a result of
his conduct, Trevino pled guilty to state drug
trafficking charges.
II
Federal Rule of Evidence 404(b) provides in relevant part:
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). We review the propriety of the admission of
extrinsic evidence under Federal Rule of Evidence 404(b) for abuse
of discretion. See United States v. Richards, 204 F.3d 177, 199
(5th Cir. 2000). In determining whether the court properly
admitted the evidence under 404(b), “the probative value of the
evidence, the need for the evidence by the government on the issue
of intent, and the court’s limiting instructions are all
considered.” Id.
In United States v. Beechum, 582 F.2d 898, 911 (5th Cir.
1978)(en banc), we established a two part test to determine whether
evidence of extraneous conduct should be admitted under 404(b).
First, the trial court must determine if the extrinsic evidence is
relevant to an issue other than the defendant’s character. See
Beechum, 582 F.2d at 911 (5th Cir. 1978). Second, the court must
3
engage in a Rule 403 balancing to determine if the probative value
of the evidence is not substantially outweighed by its prejudicial
effect. See id. In making this determination, the extrinsic
evidence must be excluded if it may lead a jury to convict the
accused based on his “bad character,” regardless of guilt. See
United States v. Carrillo, 981 F.2d 772, 774 (5th Cir. 1993).
III
Trevino raises two specific arguments regarding the admission
of the 404(b) evidence. First, Trevino argues that the district
court committed reversible error as a result of its failure to
conduct an on-the-record evaluation of each piece of 404(b)
evidence as required by Beechum. Second, Trevino argues that had
the district court properly applied the second prong of Beechum, it
would have determined that under a Federal Rule of Evidence 403,
the probative value of the evidence regarding his extraneous
conduct was substantially outweighed by its prejudicial effect.
While it is clear from a review of the record that the
district court did not conduct an on-the-record Beechum analysis
before it allowed the admission of the evidence regarding the
extraneous actions of Trevino,3 we find that any error that
resulted from the failure of the court to embark on such an
3
A review of the record reveals that the district court gave
the jury limiting instructions contemporaneously with the admission
of each piece of 404(b) evidence.
4
analysis is harmless. Trevino’s defense to the drug charges has
been from the outset that he did not know that the cocaine was
hidden in the truck’s gas tank. In essence, Trevino has asserted
that when he was stopped by the police it was purely accidental
that he was driving a truck that happened to be transporting over
40 kilos of cocaine concealed in the gas tank.
The 404(b) evidence introduced by the government regarding
Trevino’s role in the transporting of 10 kilos of cocaine just two
weeks before his arrest, and the evidence regarding his involvement
in the transporting of 180 kilos of cocaine for two known drug
kingpins in early 1996 is admissible under 404(b) to show intent
and lack of accident. Further, weighing the evidence under 403,
the probative value of this evidence of past drug transportation
and possession, in the light of Trevino’s persistent assertions
that he did not know the cocaine was hidden in the truck’s gas
tank, outweighs any unfairness of the prejudicial effect that he
may suffer as a result of the admission of this evidence.
Consequently, under Beechum, the evidence was admissible, and the
failure of the court to conduct an on-the-record 404(b) analysis is
harmless.
Finally, we turn to the admission of Trevino’s state court
conviction stemming from his involvement in the trafficking of 600
pounds of marijuana in 1985. We will assume that the district
5
court erred in admitting this evidence. Nevertheless, given the
admission of the other 404(b) evidence, and given overwhelming
weight of the evidence of his guilt, such error was harmless. See
United States v. Skipper, 74 F.3d 608, 612 (5th Cir. 1996)(citing
United States v. Scott, 678 F.2d 606, 612 (5th Cir. 1982)(stating
that when the trial court abuses its discretion in the admission of
evidence, such an error is reviewed under the harmless error
doctrine). Indeed, we conclude beyond a reasonable doubt that no
reasonable jury could have reached a different result regarding his
guilt, notwithstanding the admission of this conviction. See
United States v. Hare, 150 F.3d 419, 424 (5th Cir. 1998)(stating
that the erroneous admission of 404(b) evidence will be rendered
harmless if the overwhelming evidence points to the defendant’s
guilt); United States v. Cannon, 981 F.2d 785, 789 (5th Cir.
1993)(stating that “we test for harmless error by asking whether
the trier of fact would have found the defendant guilty beyond a
reasonable doubt with the contested evidence excluded”).4
4
Trevino also argues that the district court committed
reversible error when it allowed the government to redact portions
of witnesses’ statements before they were turned over to the
defense. The district court, after conducting an in camera review
of the full statements, denied Trevino’s motion to view redacted
portions of the statements, concluding that the redacted
information would be of little to no value to the defense, while
the dissemination of the redacted information could jeopardize an
ongoing criminal investigation. The district court did not err in
denying Trevino’s motion to view the redacted portions of these
statements. See United States v. Medel, 592 F.2d 1305, 1316-17
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IV
The judgment of the district court is
A F F I R M E D.
(5th Cir. 1979).
7