United States v. Finley

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 26, 2007

Charles R. Fulbruge III
Clerk
No. 06-50160

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JACOB PIERCE FINLEY

Defendant - Appellant

Appeal from the United States District Court
for the Western District of Texas, Midland
No. 7:05-CR-170-2

Before KING, WIENER, and CLEMENT, Circuit Judges.

KING, Circuit Judge:

Defendant-appellant Jacob Pierce Finley appeals his

conviction on one count of aiding and abetting possession with

intent to distribute a controlled substance (methamphetamine) in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He argues,

inter alia, that the district court erred by not instructing the

jury as to simple possession of methamphetamine and by denying

his motion to suppress text messages and call records recovered

in a warrantless, post-arrest search of his cell phone. For the

reasons that follow, we AFFIRM.
 I. FACTUAL AND PROCEDURAL BACKGROUND

On August 19, 2005, officers with the Midland, Texas Police

Department (“MPD”), working in conjunction with the Drug

Enforcement Administration (“DEA”), conducted a controlled

purchase of methamphetamine from Mark Brown. Amy Stratton, a

cooperating source acting under the direction of the MPD, called

Brown to arrange a methamphetamine deal. Stratton and Brown

agreed that Stratton would purchase approximately six grams of

methamphetamine for $600. Brown requested that Stratton travel

to his residence to buy the narcotics, but at the direction of

the police Stratton informed Brown that she was at a truck stop

in Midland and that she had no transportation to get to Brown’s

home. Brown agreed to meet Stratton at the truck stop. The

police drove Stratton to the truck stop and gave her $600 in

marked bills.

Brown asked defendant-appellant Jacob Pierce Finley to drive

him to the truck stop, and Finley agreed to do so. Driving his

white Southwest Plumbing van——Southwest Plumbing was Finley’s

uncle’s company and was also Finley’s employer——Finley picked

Brown up at Brown’s residence and drove him to the truck stop.

Once they arrived, Stratton approached the van’s passenger side

where Brown was sitting. Stratton gave Brown the $600 in marked

bills, and Brown gave Stratton a cigarette package. Tucked

inside the clear wrapper surrounding the cigarette package was a

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plastic bag containing a white crystalline substance; laboratory

analysis of this substance later revealed that it was a 3.1-gram

mixture containing 1.4 grams of pure methamphetamine.

Finley then drove away from the truck stop; neither he nor

Brown ever exited the van while there. MPD officers waiting

nearby performed a traffic stop on the van approximately three to

five miles from the truck stop. Once Finley and Brown were

detained, the police searched the van and found the same marked

bills used in the transaction in a trash can located between the

driver’s and passenger’s seats.

The police also found two medicine bottles in the trash can,

one with an orange cap and the other with a white cap. In the

orange-capped bottle were five small plastic bags, two of which

contained a white crystalline substance; laboratory analysis of

this substance later revealed that in total it was a 2.6-gram

mixture that included 1.5 grams of pure methamphetamine. The

white-capped bottle had a label with the name “Finley” on it. In

this bottle were a small, homemade, glass smoking pipe with

methamphetamine residue in it and a small piece of straw that

could be used to snort methamphetamine. Also inside the bottle

was a plastic bag containing a white crystalline substance;

laboratory analysis of the substance revealed that it was 1.6

grams of dimethyl sulfone, a substance similar in appearance to

methamphetamine that methamphetamine dealers commonly use to

“cut” or add bulk to pure methamphetamine.

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 The police arrested Finley and Brown at the scene of the

traffic stop. They searched Finley’s person and seized a cell

phone that was located in his pocket. The phone belonged to

Southwest Plumbing and had been issued to Finley for work, but

Finley was permitted to use the phone for personal purposes as

well.

MPD officers transported Finley and Brown to Brown’s

residence, where other MPD officers and DEA agents were

conducting a search pursuant to a warrant.1 DEA Special Agent

Dean Cook and MPD Sergeant Russell interviewed Finley outside the

home. Finley admitted to some past cocaine and methamphetamine

use, including some methamphetamine he received from Brown three

days prior. He also admitted to getting his friends marijuana

from Brown on numerous occasions. But he denied any involvement

in the sale of methamphetamine to Stratton.

During the questioning, an MPD officer handed Finley’s cell

phone to Special Agent Cook. Special Agent Cook searched through

the phone’s call records and text messages; several of the text

messages appeared to him to be related to narcotics use and

trafficking.2 After Special Agent Cook and Sergeant Russell

1
An MPD detective had already obtained the warrant based on
two prior August 2005 controlled methamphetamine transactions
between Brown and Stratton. Finley was not involved in either of
these previous transactions.
2
For example, an incoming text message stated, “Call Mark I
need a 50.” Special Agent Cook, who was qualified as an expert
in narcotics trafficking and in the investigation of narcotics,

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confronted Finley with some of the text messages, Finley averred

that most of the messages referred to marijuana, not

methamphetamine, and he admitted to distributing marijuana at

least once.

The grand jury charged Brown and Finley in a one-count

indictment with possession with intent to distribute

methamphetamine, aided and abetted by each other, in violation of

21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Brown pleaded “guilty”

pursuant to a plea agreement. Finley pleaded “not guilty” and

proceeded to a jury trial.

The government argued at trial that Finley knowingly drove

Brown to the truck stop so that Brown could sell methamphetamine

to Stratton and that Finley therefore aided and abetted Brown’s

possession with intent to distribute methamphetamine. Finley’s

defense was that, even though he in fact aided and abetted Brown,

he did not do so knowingly because he did not know that the

purpose of the trip to the truck stop was to sell

methamphetamine.

testified at trial that “50” probably refers to fifty dollars’
worth of some narcotic. Another incoming message asked, “So u
wanna get some frozen agua[?]” Special Agent Cook testified that
“frozen agua” likely referred to “ice,” a common term for
methamphetamine. And an outgoing text message asked, “Any chance
I could use ur digitals real quik[?]” Special Agent Cook
testified that “digitals” probably referred to digital scales,
which narcotics dealers commonly use to weigh their goods. There
were several other text messages seemingly related to narcotics
use and trafficking that were admitted into evidence and that
Special Agent Cook discussed at trial.

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 Brown testified that during the approximately six-month

period prior to his arrest, he was in daily contact with Finley.

Brown also testified that Finley had purchased methamphetamine

from him five to ten times and that Finley distributed some of

the methamphetamine he bought from Brown. Brown alleged that on

August 19, 2005, Finley contacted him to purchase

methamphetamine, that Brown told Finley he needed a ride to the

truck stop to drop off methamphetamine, and that Finley agreed to

give him a ride in exchange for a little extra methamphetamine.

According to Brown’s testimony, when Finley picked him up he gave

Finley 0.3 grams of methamphetamine, which included 0.1 extra

grams in exchange for the ride. On cross examination, Brown

acknowledged that after his arrest he told MPD officers, inter

alia, that he asked Finley to take him to the truck stop to

purchase cigarettes.

Finley testified that Brown asked him for a ride to get some

cigarettes and that he agreed to take him to the truck stop. He

averred that he had not known of the real purpose for the trip

until after the drug transaction had occurred.

The jury convicted Finley, and he now appeals.

II. LESSER-INCLUDED-OFFENSE INSTRUCTION

Finley first contends that the district court erred in

refusing his request for a lesser-included-offense instruction.

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Finley requested that the jury be permitted to consider, in

addition to possession with intent to distribute, the lesser

offense of simple possession of a controlled substance. The

district court denied Finley’s request.

A. Background

Rule 31(c)(1) of the Federal Rules of Criminal Procedure

provides that “[a] defendant may be found guilty of . . . an

offense necessarily included in the offense charged.” The

defendant is afforded this protection “to prevent juries from

improperly resolving their doubts in favor of conviction when one

or more of the elements of the charged offense remain unproven,

but the defendant seems plainly guilty of some offense.”

United States v. Harrison, 55 F.3d 163, 166 (5th Cir. 1995)

(quoting United States v. Browner, 889 F.2d 549, 551 (5th Cir.

1989)).

A defendant is entitled to a lesser-included-offense

instruction if (1) the elements of the lesser offense are a

subset of the elements of the charged offense and (2) the

evidence at trial is such that a jury could rationally find the

defendant guilty of the lesser offense yet acquit him of the

greater. Id. (quoting Browner, 889 F.2d at 550-51). “While a

defendant’s request for a lesser included offense charge should

be freely granted, there must be a rational basis for the lesser

charge and it cannot serve merely as ‘a device for [the]

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defendant to invoke the mercy-dispensing prerogative of the

jury.’” United States v. Collins, 690 F.2d 431, 438 (5th Cir.

1982) (quoting United States v. Sinclair, 444 F.2d 888, 890 (D.C.

Cir. 1971)).

A lesser-included-offense instruction “is not proper where,

on the evidence presented, the factual issues to be resolved by

the jury are the same as to both the lesser and greater

offenses.” Sansone v. United States, 380 U.S. 343, 349 (1965).

It is only proper where the additional element required for the

greater offense is actually in dispute. Id. Otherwise, the jury

would effectively be permitted “to determine the punishment to be

imposed, a duty Congress has traditionally left to the judge.”

Id. at 350 n.6.

B. Standard of Review

We review the district court’s determination on the first

prong of the above two-part test (whether the lesser offense is

included in the greater offense) de novo. See Harrison, 55 F.3d

at 167. We review the court’s determination on the second prong

(whether a jury could rationally acquit on the greater offense

yet convict on the lesser) for abuse of discretion. See id.

C. Analysis

Finley asserts that the first prong is satisfied because

simple possession of a controlled substance is a lesser included

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offense of possession with intent to distribute. He argues that

the second prong is satisfied because (1) a jury could rationally

have acquitted him of possession with intent to distribute had it

believed Finley’s testimony that he did not know the purpose of

the truck-stop trip and disbelieved Brown’s testimony to the

contrary and (2) a jury could also have rationally convicted him

of simple possession of methamphetamine if, based on the

methamphetamine found in the pill bottles, it had believed

Brown’s testimony that he gave Finley methamphetamine in the van

and disbelieved Finley’s testimony that none of the

methamphetamine in the van belonged to him.

We need not address Finley’s argument under the second prong

because he mistakenly assumes under the first prong that simple

possession of the methamphetamine in the pill bottle is a lesser

included offense of possession with intent to distribute the

methamphetamine in the cigarette package. It is not; they are

two separate, independent offenses.

“One offense is necessarily included in another if it is

impossible to commit the greater without also having committed

the lesser.” 3 CHARLES ALAN WRIGHT, NANCY J. KING, & SUSAN R. KLEIN,

FEDERAL PRACTICE AND PROCEDURE § 515 (3d ed. 2004). “This rule is an

application of the familiar Blockburger elements test, which the

[Supreme] Court has adopted to determine when offenses are the

‘same’ under the Double Jeopardy Clause.” Id.; see also Rutledge

v. United States, 517 U.S. 292, 297 (1996).

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 It is well established that, in the abstract, simple

possession of a controlled substance under 21 U.S.C. § 844(a) is

a lesser included offense of possession with intent to distribute

under 21 U.S.C. § 841(a)(1). United States v. Lucien, 61 F.3d

366, 372-74 (5th Cir. 1995). But under the Blockburger rule,

possession with intent to distribute and simple possession

constitute only one offense only where “the same act or

transaction constitutes a violation” of both § 841(a)(1) and

§ 844(a). Rutledge, 517 U.S. at 297 (emphasis added) (quoting

Blockburger v. United States, 284 U.S. 299, 304 (1932)). If,

however, the greater offense of possession with intent to

distribute and the lesser offense of simple possession arise out

of two separate acts, and not “the same act or transaction,” then

the lesser offense is not included in the greater. See

Blockburger, 284 U.S. at 301-03 (holding that two unlawful sales

of narcotics to the same purchaser on consecutive days

constituted two offenses, punishable separately).

In United States v. Johnson, the defendant was convicted of

one count of possession of amphetamine in violation of § 844(a)

and a separate count of possession with intent to distribute

amphetamine in violation of § 841(a)(1) and 18 U.S.C. § 2. 977

F.2d 1360, 1373 (10th Cir. 1992). The defendant argued that his

multiple convictions for amphetamine possession violated the

Double Jeopardy Clause because they arose out of a single course

of conduct. Id. at 1371. But the court disagreed. The court

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acknowledged that “as to a single cache of drugs, simple

possession under § 844(a) is a lesser included offense of

possession with intent to distribute under § 841(a)(1).” Id. at

1373 (emphasis added) (citing Brown v. Ohio, 432 U.S. 161, 169

(1977); United States v. Burns, 624 F.2d 95 (10th Cir. 1980)).

But it reasoned that the situation in that case differed because

the amphetamine was found in two separate stashes and each stash

was intended for a different purpose or transaction; one stash

was intended for personal use and the other for distribution.

See id. at 1373-74. Each stash therefore constituted a different

criminal transaction. Id. at 1374.

We agree with Johnson’s rationale. Applying it to the facts

of this case, the methamphetamine in the cigarette package and

the methamphetamine in the pill bottle were two separate caches

of drugs; one was intended for distribution to Stratton at the

truck stop, and the other was intended for some other purpose.

Each stash therefore constituted a separate violation of the

narcotics laws.

The government chose to prosecute Finley for the violation

arising from the methamphetamine in the cigarette package only

and not the methamphetamine in the pill bottle.3 The lesser

3
We recognize that the indictment’s language was general;
it did not specifically refer to the methamphetamine in the
cigarette package and did not by its language exclude the drugs
in the pill bottle.

But the government’s theory of the case was that, by driving

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included offense of possession with intent to distribute the

methamphetamine in the cigarette package would be simple

possession of the same stash of methamphetamine. But Finley’s

Finley to the truck stop knowing that the purpose was for
methamphetamine distribution, Finley aided and abetted Brown’s
possession with intent to distribute the methamphetamine in the
cigarette package. And the arguments presented at trial made it
clear to both the jury and the judge that Finley was on trial for
the methamphetamine sold to Stratton and not for the
methamphetamine in the pill bottle.

For example, in his closing argument, Finley’s counsel told
the jury:

They’ve got to prove to you that Jacob
[Finley] in his mind knew what was going on
when Mark Brown delivered [the
methamphetamine].

. . . .

It’s not what is in the orange bottle.
There is no evidence of any intent to
distribute that. It’s what was given——sold to
Amy Stratton.

. . . .

Now, we know [Finley] is only accused of
this one delivery to Amy Stratton.

There is no evidence that the
methamphetamine in that orange prescription
bottle, the orange cap, involved intent to
distribute at all. There is no evidence of
that. Nor on the residue, the little tiny
traces, in the one with the white cap.

Counsel for the government did discuss the pill bottles found
in Finley’s van, but she did so only to demonstrate Finley’s
knowledge of Brown’s methamphetamine dealing and to question
Finley’s credibility. The government never asserted that the jury
could convict Finley on the basis of the methamphetamine in the
orange-capped pill bottle or that Finley intended to distribute
this methamphetamine.

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argument rests solely on the methamphetamine in the pill bottle;

he does not contend, nor did he before the trial court, that he

is entitled to a lesser-included-offense instruction on simple

possession of the methamphetamine in the cigarette package. Even

if he did, on the evidence presented at trial, a jury could not

rationally have convicted Finley of simple possession of this

cache of methamphetamine and yet have acquitted him of possession

with intent to distribute it. This is because the only issue at

trial was Finley’s knowledge of Brown’s plan——i.e., whether

Finley drove Brown to the truck stop knowing of Brown’s plan or

did so completely unwittingly.4 If Finley knew beforehand that

the purpose of the trip to the truck stop was to distribute

4
During her closing argument, counsel for the government
framed the issue as follows:

The only question in this case is: Did
the Defendant know what was going on on August
19th of 2005? That’s the only question for
you to decide because it is undisputed that he
participated in the possession with intent to
distribute on August 19th of 2005. The only
question is his knowledge. That’s what you
are going to have to decide.

Likewise, in his opening statement, Finley’s counsel
presented the issue as follows:

[W]hat is this case about? It’s about what
was in Jacob Finley’s mind . . . .

. . . Did he know beyond a reasonable
doubt that Mark Brown was about to deliver
methamphetamine to Amy Stratton, this lady,
this informant? Did he know a drug
transaction was about to occur?

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methamphetamine, then he is criminally liable for the greater

offense of possession with intent to distribute; if Finley did

not know this, then he is liable for neither the greater offense

of possession with intent to distribute nor the lesser offense of

simple possession. The additional element required for a

conviction on the greater offense——here, intent to distribute the

methamphetamine in the cigarette package——was not in dispute, and

Finley was therefore not entitled to an instruction on the lesser

offense. See Sansone, 380 U.S. at 349.

III. WARRANTLESS SEARCH OF CELL PHONE

Finley next contends that the call records and text messages

recovered during the search of his cell phone should have been

suppressed.

A. Standing

The government suggests that Finley lacks standing to

challenge the search of the cell phone. The government asserts

that Finley did not have a reasonable expectation of privacy in

the cell phone because it was a business phone issued to him by

his uncle’s business. We disagree.

In determining whether a defendant has a reasonable

expectation of privacy sufficient to contest the validity of a

search, we inquire “(1) whether the defendant is able to

establish an actual, subjective expectation of privacy with

respect to the place being searched or items being seized, and

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(2) whether that expectation of privacy is one which society

would recognize as reasonable.” United States v. Cardoza-

Hinojosa, 140 F.3d 610, 614 (5th Cir. 1998) (quoting United

States v. Kye Soo Lee, 898 F.2d 1034, 1037-38 (5th Cir. 1990)).

The factors we consider include

whether the defendant has a [property or]
possessory interest in the thing seized or the
place searched, whether he has a right to
exclude others from that place, whether he has
exhibited a subjective expectation of privacy
that it would remain free from governmental
intrusion, whether he took normal precautions
to maintain privacy[,] and whether he was
legitimately on the premises.

Id. at 615 (quoting United States v. Ibarra, 948 F.2d 903, 906

(5th Cir. 1991) (first alteration in original)).

The district court found that, although Finley’s employer

issued him the cell phone, Finley nonetheless maintained a

property interest in the phone, had a right to exclude others

from using the phone, exhibited a subjective expectation of

privacy in the phone, and took normal precautions to maintain his

privacy in the phone. We review these findings for clear error.

Id. at 613 (citing United States v. Kelley, 981 F.2d 1464, 1467

(5th Cir. 1993)). The district court also determined that Finley

had standing to contest the search. We review this conclusion de

novo. Id.

The government concedes that Finley had a possessory

interest in the cell phone and that his use of the phone weighs

in favor of his right to challenge the search. The sole basis

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for the government’s argument appears to be that Finley’s

employer, not Finley, had a property interest in the phone and

that Finley should have expected the employer to read the

messages on the phone after he returned it to the employer.5 But

a property interest in the item searched is only one factor in

the analysis, and lack thereof is not dispositive. See, e.g.,

Mancusi v. DeForte, 392 U.S. 364, 368 (1968) (“[C]apacity to

claim the protection of the [Fourth] Amendment depends not upon a

property right in the invaded place but upon whether the area was

one in which there was a reasonable expectation of freedom from

governmental intrusion.”); see also Cardoza-Hinojosa, 140 F.3d at

615 (“[N]o one of [the Ibarra] factors is necessarily

decisive . . . .”).

The district court did not clearly err in finding that

Finley had a right to exclude others from using the phone. That

Finley’s employer could have read the text messages once he

returned the phone does not imply that a person in Finley’s

position should not have reasonably expected to be free from

intrusion from both the government and the general public.

Further, the government stipulated that Finley’s employer

permitted him to use the phone for his own personal purposes.

And we see no error in the district court’s finding that Finley

5
Although the district court found that Finley had a
property interest in the phone, it appears that Finley’s interest
was possessory only and that his employer had the property
interest in the phone.

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took normal precautions to maintain his privacy in the phone,

despite the government’s protestation that the phone was not

password protected. In these circumstances, we conclude that

Finley had a reasonable expectation of privacy in the call

records and text messages on the cell phone and that he therefore

has standing to challenge the search.

B. Search Incident to Lawful Arrest

Although Finley has standing to challenge the retrieval of

the call records and text messages from his cell phone, we

conclude that the search was lawful. It is well settled that “in

the case of a lawful custodial arrest a full search of the person

is not only an exception to the warrant requirement of the Fourth

Amendment, but is also a ‘reasonable’ search under that

Amendment.” United States v. Robinson, 414 U.S. 218, 235 (1973).

Police officers are not constrained to search only for weapons or

instruments of escape on the arrestee’s person; they may also,

without any additional justification, look for evidence of the

arrestee’s crime on his person in order to preserve it for use at

trial. See id. at 233-34. The permissible scope of a search

incident to a lawful arrest extends to containers found on the

arrestee’s person. United States v. Johnson, 846 F.2d 279, 282

(5th Cir. 1988) (per curiam); see also New York v. Belton, 453

U.S. 454, 460-61 (1981) (holding that police may search

containers, whether open or closed, located within arrestee’s

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reach); Robinson, 414 U.S. at 223-24 (upholding search of closed

cigarette package on arrestee’s person).

Finley concedes that the officers’ post-arrest seizure of

his cell phone from his pocket was lawful, but he argues that,

since a cell phone is analogous to a closed container,6 the

police had no authority to examine the phone’s contents without a

warrant. He relies on Walter v. United States, 447 U.S. 649

(1980), for this proposition. Walter, however, is inapposite

because in that case no exception to the warrant requirement

applied, see id. at 657, whereas here no warrant was required

since the search was conducted pursuant to a valid custodial

arrest, see Robinson, 414 U.S. at 235. Special Agent Cook was

therefore permitted to search Finley’s cell phone pursuant to his

arrest.7 Cf. United States v. Ortiz, 84 F.3d 977, 984 (7th Cir.

6
Finley cites United States v. Chan, 830 F. Supp. 531, 534
(N.D. Cal. 1993) (analogizing numbers in pager’s memory to
contents of closed container). Although Finley relies on this
case, the Chan court concluded that police officers may, incident
to the defendant’s arrest, retrieve numbers from the memory of a
pager seized from the defendant’s person. See id. at 535-36.
7
The fact that the search took place after the police
transported Finley to Brown’s residence does not alter our
conclusion. Cf. United States v. Edwards, 415 U.S. 800, 803
(1974) (“[S]earches and seizures that could be made on the spot
at the time of arrest may legally be conducted later when the
accused arrives at the place of detention.”). In general, as
long as the administrative processes incident to the arrest and
custody have not been completed, a search of effects seized from
the defendant’s person is still incident to the defendant’s
arrest. United States v. Ruigomez, 702 F.2d 61, 66 (5th Cir.
1983) (citing Edwards, 415 U.S. at 804). Although the police had
moved Finley, the search was still substantially contemporaneous
with his arrest and was therefore permissible.

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1996) (upholding retrieval of information from pager as search

incident to arrest). The district court correctly denied

Finley’s motion to suppress8 the call records and text messages

retrieved from his cell phone.

IV. FINLEY’S POST-ARREST INTERVIEW

A. Police Statements Challenging Finley’s Truthfulness

Finley contends that the district court abused its

discretion by denying his request for a limiting instruction

regarding a witness’s comment on his veracity.

1. Background

During the course of Finley’s post-arrest interview at

Brown’s residence, Finley initially denied that he had ever

Likewise, United States v. Chadwick, 433 U.S. 1 (1977) is
inapplicable. Chadwick held that,

[o]nce law enforcement officers have reduced
luggage or other personal property not
immediately associated with the person of the
arrestee to their exclusive control, and there
is no longer any danger that the arrestee
might gain access to the property to seize a
weapon or destroy evidence, a search of that
property is no longer an incident of the
arrest.

433 U.S. at 15 (emphasis added). Finley’s cell phone does not
fit into the category of “property not immediately associated
with [his] person” because it was on his person at the time of
his arrest.
8
Although Finley initially advanced his arguments in a
motion in limine, the district court treated the motion as a
motion to suppress, and Finley orally moved to suppress the
contents of the cell phone at the pretrial conference.

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distributed methamphetamine. Special Agent Cook and Sergeant

Russell confronted Finley with a text message on his phone that

read, “Call Mark I need a 50.” Finley told them that “50”

referred to an ounce (fifty dollars’ worth) of marijuana, not

methamphetamine. Special Agent Cook and Sergeant Russell

challenged Finley’s assertion that an ounce of marijuana costs

fifty dollars. The following exchange then occurred:

Sgt Russell: I’ll tell you what, you better
start telling the truth.

Finley: I’m telling the truth, sir.

Sgt Russell: No you[’re] not.

SA Cook: No you[’re] not telling us the
truth.

A recording of the interview and a transcript of the recording

were admitted at trial.

At the charge conference, Finley requested that the court

instruct the jury to disregard Special Agent Cook’s and Sergeant

Russell’s comments about Finley’s veracity. The district court

denied Finley’s request, reasoning that the officers were simply

trying to get the most accurate statement possible from their

interview of Finley and that the statements were not being

offered to bolster the evidence or to accuse Finley at trial.

2. Standard of Review

We review a properly preserved challenge to jury

instructions for abuse of discretion. United States v. Daniels,

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281 F.3d 168, 183 (5th Cir. 2002) (citing United States v. Huynh,

246 F.3d 734, 738 (5th Cir. 2001)). But when the issue was not

properly raised before the district court, our review is for

plain error. Id. (citing United States v. Caucci, 635 F.2d 441,

447 (5th Cir. Unit B Jan. 1981)).

At the time the recording and transcript were admitted into

evidence, Finley did not object on the basis that the statements

improperly permitted one witness to opine on the veracity of

another. The government argues that our review is consequently

for plain error only. But Finley did request later at the charge

conference that the jury be instructed to disregard any comments

about Finley’s veracity. We need not resolve, however, whether

Finley preserved his argument because, as we explain below, even

under an abuse-of-discretion standard we discern no reversible

error.

3. Analysis

Relying on United States v. Freitag, Finley maintains that a

limiting instruction was necessary because the transcript of the

interview involved a witness discussing the veracity of the

accused. See 230 F.3d 1019, 1024 (7th Cir. 2000) (“Because

credibility questions are for the jury, it is improper to ask one

witness to comment on the veracity of the testimony of another

witness.” (citing United States v. Cole, 41 F.3d 303, 308 (7th

Cir. 1994); United States v. Sullivan, 85 F.3d 743, 749-50 (1st

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Cir. 1996))). Finley also relies on United States v. Dotson, 799

F.2d 189 (5th Cir. 1986), which discusses the propriety of

offering opinion evidence to impeach the credibility of a witness

at trial. But these cases are inapposite because the challenge

to Finley’s truthfulness occurred in a pretrial interview, not at

trial during a witness’s testimony.9

The district court did not abuse its discretion by denying

Finley’s request to instruct the jury to disregard Special Agent

Cook’s and Sergeant Russell’s remarks. Special Agent Cook and

Sergeant Russell certainly accused Finley of being untruthful,

but it was done in the context of police questioning, and the

jury was permitted to hear the comments in their context. The

jury would certainly have understood that the officers

investigating Finley would not have believed him, and the jury

would not have afforded those officers’ remarks in the context of

the interview any more weight than they would have afforded the

fact that the government also disbelieved him and decided to

prosecute him. Cf. Dubria v. Smith, 224 F.3d 995, 1001-02 & n.2

(9th Cir. 2000) (en banc) (concluding in habeas review that trial

court did not err by refusing to redact portions of a tape and

transcript wherein a detective, inter alia, made statements of

disbelief of the defendant’s story in the context of pretrial

9
Special Agent Cook testified at trial, but he did not
opine on the witness stand that Finley was untruthful. Sergeant
Russell did not testify.

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police questioning because the questions and comments placed the

defendant’s answers in context, there was nothing in the

detective’s statements that suggested evidence or theories of the

case that were not presented at trial, and the jury would give

the statements “no more weight than they would the fact [the

defendant] was charged by the prosecutor with murder or that the

prosecutor clearly also disbelieved [the defendant]”).10

B. Rule 404(b) Evidence

1. Background

Finley finally contends that the district court erred by

admitting evidence of his prior drug use and distribution.

During Finley’s interview with Special Agent Cook and Sergeant

Russell, Finley admitted that he had used methamphetamine he

received from Brown on two prior occasions: once in high school11

and once three days prior to his arrest. He also admitted to

cocaine use once in high school. He admitted to getting his

10
Finley mischaracterizes Dubria’s analysis. He asserts
that the statements were permissible in that case only because
the error was cured by the judge’s limiting instructions. But
the Dubria court did not rely on the limiting instructions as the
basis for its holding. Instead, after concluding that there was
no error, the court stated that “even if” it was error to admit
the tapes and transcripts without redacting the detective’s
accusatory statements, any error was cured by the limiting
instructions. 224 F.3d at 1002.
11
Finley was at least a year out of high school.

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friends marijuana from Brown so many times that he “couldn’t

count,” and he said that on one of those occasions, two to three

weeks earlier, the bag from Brown that was supposed to contain

entirely marijuana had some small shards of methamphetamine in

the bottom. Finley objected to the inclusion of these statements

in the recording and transcript of his interview. Additionally,

Brown testified that during the approximately six months prior to

his arrest, he had sold Finley methamphetamine five to ten times

and that Finley had distributed some of this methamphetamine;

Finley objected to this testimony as well. The district court

overruled Finley’s objections, concluding that the evidence was

admissible under Rule 404(b) of the Federal Rules of Evidence,

although the court did give the jury a limiting instruction prior

to the recording of the interview being played for the jury and

again in the jury charge.

2. Standard of Review

We review a district court’s decision to admit Rule 404(b)

evidence in a criminal case under a heightened abuse-of-

discretion standard. United States v. Jackson, 339 F.3d 349, 354

(5th Cir. 2003) (citing United States v. Wisenbaker, 14 F.3d

1022, 1028 (5th Cir. 1994)). Even if the district court abused

its discretion, reversal is not proper if the error was harmless.

Id. (citing United States v. Torres, 114 F.3d 520, 526 (5th Cir.

1997)).

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 3. Analysis

Evidence of other crimes, wrongs, or acts is admissible “as

proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” FED. R.

EVID. 404(b). We analyze the admissibility of evidence under

Rule 404(b) in a two-step inquiry. “First, it must be determined

that the extrinsic offense evidence is relevant to an issue other

than the defendant’s character. Second, the evidence must

possess probative value that is not substantially outweighed by

its undue prejudice and must meet the other requirements of

[R]ule 403.” United States v. Beechum, 582 F.2d 898, 911 (5th

Cir. 1978) (en banc).

Evidence of Finley’s past methamphetamine purchases from

Brown and his past distributions of narcotics were relevant to

show Finley’s motive and intent. The central issue at trial was

whether Finley intended to aid and abet Brown’s methamphetamine

distribution to Stratton by driving Brown to the truck stop.

Finley’s recent assistance in Brown’s distribution of narcotics

was relevant to show Finley’s intent to assist him on the day of

the sale at the truck stop. And evidence of Finley’s recent use

of methamphetamine he bought or received from Brown was relevant

to show Finley’s motive——i.e., he agreed to drive Brown to the

truck stop in exchange for extra methamphetamine. Moreover, the

district court did not err by concluding that any undue prejudice

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did not substantially outweigh the evidence’s probative value.

The district court may, however, have abused its discretion

by admitting evidence of Finley’s cocaine and methamphetamine use

while he was in high school. Cf. United States v. McDonald, 905

F.2d 871, 875 (5th Cir. 1990) (concluding that evidence of

defendant’s past speed and cocaine use was not admissible to show

defendant’s knowledge that his car contained marijuana); United

States v. Jimenez, 613 F.2d 1373, 1376 (5th Cir. 1980) (reviewing

a conviction for heroin distribution and concluding that undue

prejudice substantially outweighed probative value of evidence of

cocaine possession one year later).

But we conclude on these facts that any error was harmless.

There was more than sufficient proof of Finley’s guilt absent

this evidence, and any harm was minimized by the court’s two

admonishments to the jury to consider the evidence for very

limited purposes only. See United States v. Taylor, 210 F.3d

311, 318 (5th Cir. 2000) (“[P]rejudicial effect [of Rule 404(b)

evidence] may be minimized by a proper jury instruction.”).

V. CONCLUSION

For the foregoing reasons, Finley’s conviction is AFFIRMED.

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