[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 28, 2008
No. 08-10620 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-20325-CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ERNESTO PORTILLO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 28, 2008)
Before ANDERSON, HULL and WILSON, Circuit Judges.
PER CURIAM:
Jose Ernesto Portillo appeals his convictions for knowingly conspiring to
defraud the United States by fraudulently obtaining a commercial driver’s license
without first properly qualifying under federal standards, in violation of 18 U.S.C.
§ 371, and causing an identification document to be produced without lawful
authority, in violation of 18 U.S.C. §§ 1028(a)(1), (c)(3)(A), and 2. On appeal,
Portillo challenges the district court’s denial of his motion in limine, which
allowed the government to introduce evidence of its witness’s participation in the
same criminal conduct for which Portillo was charged. Upon review of the record,
and consideration of the briefs of the parties, we find no reversible error.
A district court’s decision regarding the admissibility of evidence is
reviewed for an abuse of discretion. United States v. Desero, 518 F.3d 1250, 1254
(11th Cir. 2008). Federal Rule of Evidence 404(b) states that “[e]vidence 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).
“Evidence of criminal activity other than the charged offense is not extrinsic under
Rule 404(b) if it is . . . inextricably intertwined with the evidence regarding the
charged offense.” United States v. Ramsdale, 61 F.3d 825, 829 (11th Cir. 1995)
(quoting United States v. Veltmann, 6 F.3d 1483, 1498 (11th Cir.1993)). Evidence
2
is “inextricably intertwined” when it
pertain[s] to the chain of events explaining the context, motive and
set-up of the crime, [and] is properly admitted if linked in time and
circumstances with the charged crime, or forms an integral and natural
part of an account of the crime, or is necessary to complete the story
of the crime for the jury.
United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998) (internal quotation
marks omitted).
The district court did not abuse its discretion in admitting testimony of a
witness who was involved in the same criminal transaction as Portillo because it
was necessary to complete the story of the crime and was inextricably intertwined
with the evidence regarding the offense. The witness testified that he was arrested
for and pled guilty to illegally obtaining a commercial driver’s license. He stated
that, on the day of the offense, he arrived at the Department of Motor Vehicles
facility and saw Portillo sitting in his cousin’s automobile. The witness further
testified that he, along with Portillo and two others, was escorted into the facility to
obtain a commercial driver’s license and that Portillo was in front of him in line
inside. After obtaining the license, the witness paid $700 to his cousin, in whose
car Portillo had been sitting when the witness arrived.
This testimony was inextricably intertwined with evidence regarding the
charged offense because it put Portillo at the scene of the offense, linked him to a
3
co-conspirator, and established his participation in the offense. Accordingly, we
affirm.
AFFIRMED.
4