United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
February 6, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-40483
consolidated w/ 06-40530
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GERMAN MARTINEZ-ROSAS,
Defendant-Appellant.
Appeals from the United States District Court for the
Southern District of Texas, Corpus Christi
2:05-CR-681-ALL
Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.
PER CURIAM:*
German Martinez-Rosas, a Mexican national, was charged with
one count of illegal reentry following deportation, in violation of
8 U.S.C. § 1326. At a short jury trial, Martinez-Rosas testified
that he believed, albeit mistakenly, that he had a right to be in
the country. He maintained that a former employer had provided him
with the necessary paperwork and a social security number, but he
*
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this opinion should not be published and is not precedent except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.
was unable to provide evidence of either one. The government
introduced evidence showing that Martinez-Rosas had been convicted
of illegal reentry on two previous occasions. After deliberating,
the jury found Martinez-Rosas guilty. At sentencing, the district
judge found that Martinez-Rosas, by way of his new conviction, had
violated the terms of a previous sentence, and revoked his
supervised release from the prior case. Martinez-Rosas now raises
two main arguments on appeal.1 First, he argues that evidence of
his prior convictions was improperly admitted character evidence,
or, alternatively, that the district judge should have given a
detailed limiting instruction. Second, he argues that, because his
new conviction is invalid, the revocation of his supervised release
was also invalid.
Martinez-Rosas did not object to the introduction of his prior
criminal history at trial, so we review it for plain error only.
See United States v. Hernandez-Guevara, 162 F.3d 863, 870 (5th Cir.
1998). We will correct forfeited errors when the appellant shows
(1) that there was an error, (2) that it was clear or obvious, and
(3) that the error affected substantial rights, meaning that it
must be prejudicial and affect the outcome of the district court
1
Mr. Martinez-Rosas also includes a third argument, that the
enhancement provisions of 8 U.S.C. § 1326(b) are unconstitutional.
He rightly concedes, however, that this argument is presently
foreclosed by the Supreme Court’s decision in Almendarez-Torres v.
United States, 523 U.S. 224 (1998). He raises it here solely to
preserve possible review should the Court later revisit that
opinion. Accordingly, we do not consider it further.
2
proceeding. Id. (citing United States v. Olano, 507 U.S. 725,
731–35 (1993)). Also, because plain error review is discretionary
rather than mandatory, we “should correct a plain error affecting
substantial rights only if the error ‘seriously affects the
fairness, integrity or public reputation of judicial proceedings.’”
Id. at 870 (quoting Olano, 507 U.S. at 736).
Against this backdrop, we find Martinez-Rosas’ arguments
unavailing. It is beyond doubt that extrinsic evidence of this
sort is not admissible to prove the defendant’s bad character and
action consistent with that character, but it may be introduced for
the limited purpose of proving motive, opportunity, intent,
preparation, plan, knowledge, or absence of mistake or accident.
See FED. R. EVID. 404(b); see also Hernandez-Guevara, 162 F.3d at
870. We have said that Rule 404(b) calls for a two-step test.
United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en
banc). “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 rule 403.” Id.
In this case, the evidence was admissible to prove the
defendant’s knowledge and the absence of any mistake. The defense
theory was that Martinez-Rosas believed that he had a right to be
in the country, and the defendant himself testified to that effect.
3
That claim is naturally undermined by evidence that he had been
convicted of illegal reentry on two previous occasions, both of
which apparently occurred after the defendant purportedly received
a social security number and other documentation. Along those same
lines, the government elicited testimony from the defendant that he
had been previously deported to Mexico and warned by an immigration
officer not to return to the United States without applying for
permission. Our review of the record satisfies us that the
evidence of Mr. Martinez-Rosas’ past convictions was introduced for
an appropriate purpose pursuant to Rule 404(b), and not as
substantive proof of his guilt.
We are similarly satisfied that the evidence is more probative
than prejudicial, as required by Rule 404(b) and our opinion in
Beechum. 582 F.2d at 911. Martinez-Rosas never objected on Rule
404(b) grounds, so the district court did not conduct an on-the-
record Beechum hearing, nor was it required to do so sua sponte.
United States v. Greenwood, 974 F.2d 1449, 1462 n.8 (5th Cir.
1992). As a result, there is nothing in the record that reveals
that court’s view of the evidence. However, for the reasons set
forth above, we are satisfied that the admission of the evidence
was proper, and certainly not plain error.
Finally, Martinez-Rosas argues that the district court failed
to give a proper limiting instruction on the purpose for which his
prior convictions were admitted. Here again the defendant failed
4
to object to the court’s instruction or to request an alternative.
The court did tell the jury that the defendant was “not on trial
for any act, conduct or offense not alleged in the indictment.” We
have previously expressed our view that this instruction is not
ideal, but it does not constitute plain error. See United States
v. Prati, 861 F.2d 82, 86–87 (5th Cir. 1988). As we said in Prati,
the district court “should have cautioned the jury to consider the
extrinsic act/offense evidence only as it related to the
defendant’s [knowledge],” but we do not believe the omission of the
specific instruction is plain error in this case. Id. We note, as
we did in Prati, that the district court “carefully instructed the
jury concerning the crimes charged in the indictment, the elements
of those crimes and what the jury must find to convict the
defendant on each count.” Id. In addition, the government
presented other evidence showing that Martinez-Rosas was in fact an
alien who had been deported and returned without permission.
Accordingly, we cannot say that the error, if any, was so severe
and prejudicial as to affect the fairness, integrity or public
reputation of judicial proceedings.
Because we affirm Martinez-Rosas’ conviction, we find no error
in the district judge’s decision to revoke the defendant’s
supervised release on the basis of that conviction.
The defendant’s conviction and the revocation of his
supervised release are AFFIRMED.
5
6