UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-40518
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ALFREDO LOERA-ROSALES,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
(1:99-CR-126-1)
June 21, 2001
Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Alfredo Loera-Rosales (“Appellant”) was convicted by a jury on
a one-count indictment for assaulting a correctional officer in
violation of 18 U.S.C. § 111. Appellant seeks reversal of his
conviction on the basis that the district court erroneously
admitted evidence of his prior bad acts and that the evidence was
insufficient to support his conviction. We affirm.
*
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opinion should not be published and is not precedent except under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.
I.
Appellant was charged with assaulting Kenneth Woods, an
employee of the Federal Bureau of Prisons (“BOP”) in Beaumont,
Texas, on June 12, 1999. Woods was the Appellant’s case manager at
the prison facility in which Appellant was housed.
At approximately 10:00 a.m. on the morning of June 12, Woods
and another corrections officer, Timothy Sherman, conducted a
stand-up count of the inmates. The inmates were required to stand
up so that they could be counted.
During the count, Appellant approached Woods from behind,
placed him in a headlock, and punched him in the face several
times. Woods was able to free himself and push Appellant against
a wall. Sherman pressed the distress alarm on his radio and
proceeded to assist Woods. Appellant stopped struggling when he
saw that Sherman was about to strike him. Sherman then tackled
Appellant and restrained him. Appellant then began crying and
stated that he was having a seizure. According to Sherman,
Appellant’s “convulsions” consisted merely of Appellant’s hands
shaking. Other officers handcuffed Appellant and he again stated
that he was having a seizure. Medical attendants placed him on a
gurney and he was taken away.
At trial, Appellant’s defense was that he was having a seizure
when he attacked Woods and thus, his actions were involuntary.
Appellant had reported a history of seizures. At trial, he
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testified that in 1976, during a gang fight, he had been struck in
the head with a crowbar and that seven months after that, he began
having grand mal seizures. According to Appellant, his seizures
were brought about whenever he had flashbacks of his gang activity.
Appellant testified that he knew he was having a seizure when
he attacked Woods because he felt weak afterwards. He claimed that
he did not remember striking Woods and that if he did, it was
unintentional. His testimony was contradicted by Woods, Sherman,
and Nurse Charise Talbot, who had assisted Appellant on the day of
the incident. Each of these individuals testified that Appellant’s
behavior was not consistent with their experiences with individuals
experiencing a seizure. Specifically, each testified that unlike
individuals whom they had observed in seizure, Appellant was fully
capable of speaking, walking, and forming a fist.
Appellant conceded on cross-examination that he had never had
seizures during his prior incarceration at federal facilities in
California or Oklahoma. Furthermore, he conceded that his head
injury occurred in 1988, not 1976 as he had previously testified.
Prior to the trial, the government had filed a notice,
pursuant to Rule 404(b) of the Federal Rules of Evidence, of its
intent to introduce evidence of other incidents in which Appellant
had threatened correctional officers. The district court granted
Appellant’s motion in limine to prevent the government from
introducing such evidence under Rule 404(b). However, during
cross-examination of Appellant, the government questioned Appellant
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about these two prior instances of threats against officers. The
government also questioned Appellant about a seizure he reported
having four days after the June 12 incident and his specific
request that the nurse “record the report in his file.” The
district court overruled Appellant’s objections to these matters.
The government, in response to Appellant’s objections, had argued
that the evidence was proper under Rule 608(b) as impeachment of
Appellant’s credibility.
The jury convicted Appellant on January 9, 2000, and on May 3,
2000, the district court entered a judgment of conviction against
Appellant. Appellant has timely appealed.
II.
As noted above, Appellant first contends that the district
court erred in admitting the evidence of his two prior threats
against corrections officers because they were inadmissible under
Rule 404(b) since neither involved the same intent or conduct
required for a violation of his count of conviction. Simply put,
he claims that these incidents were simply not similar enough to
the incident for which he was charged to be relevant on the issue
of his intent on June 12. In his view, the undue prejudicial value
of these incidents outweighed their probative value.
Alternatively, Appellant argues that, save for the evidence of
his prior threats, the government failed to put forth sufficient
evidence of his intent to commit the offense charged. The
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government responds that the evidence is more than sufficient to
support the jury’s verdict as several witnesses, including Woods,
Sherman, and Nurse Talbot testified that Appellant’s behavior was
inconsistent with that of one experiencing a grand mal seizure.
Also, Sherman testified that Appellant deliberately struck Woods in
the face and then claimed that he was having a seizure only after
being subdued. Furthermore, there was no evidence that Appellant
had ever reported to prison officials or medical personnel that he
was experiencing seizures prior to June 12.
III.
We reverse a district court’s admission of extrinsic evidence
under Rule 404(b) “‘only upon a clear showing of an abuse of
discretion.’” United States v. Guerrero, 169 F.3d 933, 943 (5th
Cir. 1999) (quoting United States v. Bailey, 111 F.3d 1229, 1233
(5th Cir. 1997)). Additionally, a district court’s error in this
regard will not be reversed if the same is determined to be
harmless. See United States v. Tomblin, 46 F.3d 1369, 1388 (5th
Cir. 1995) (error in allowing Rule 404(b) evidence does not warrant
reversal “because the jury would have returned a verdict of guilty
. . . even without the prejudicial testimony”).
Regarding the sufficiency of the evidence to support a
conviction, as Appellant moved for a judgment of acquittal at the
close of the government’s case, the standard guiding our review of
the sufficiency of the evidence is “whether, considering all of the
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evidence in the light most favorable to the verdict, a reasonable
trier of fact could have found that the evidence established guilt
beyond a reasonable doubt.” United States v. Mendoza, 226 F.3d
340, 343 (5th Cir. 2000).
Mindful of the foregoing principles governing our review, we
conclude that the district court did not abuse its discretion in
allowing the government to introduce evidence regarding Appellant’s
prior threats against correctional officers. Even were we to
conclude otherwise, any such error would be harmless in light of
the more than sufficient presentation of evidence to support the
jury’s verdict. That is to say, notwithstanding the challenged
evidence, and in reviewing the entire body of evidence in the light
most favorable to the guilty verdict, we find that the government
presented sufficient independent evidence from which a reasonable
trier of fact could conclude that Appellant was guilty of the
charged offense beyond a reasonable doubt. Specifically, the
government put on several witnesses, one of whom was a trained
medical professional with significant experience in dealing with
seizures, who testified that Appellant’s June 12 behavior was
inconsistent with his claim that he was undergoing a seizure.
Additionally, Appellant’s subsequent “reported” seizures were
unsubstantiated by independent record evidence. The jury could
easily have rejected Appellant’s contention that his actions were
involuntary by virtue of a seizure based upon this evidence.
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IV.
Based upon all of the foregoing considerations, we conclude
that the district court committed no reversible error. Accordingly
the judgment of conviction entered by the district court is
affirmed in all respects.
AFFIRMED.
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