IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 6, 2009
No. 07-11222
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LOUIS MOODY, also known as Youngsta; DETROIT HINES,
also known as Li’l Nut; DERRICK WOODARD,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Texas
Before SMITH and SOUTHWICK, Circuit Judges,
and ENGELHARDT, District Judge.*
JERRY E. SMITH, Circuit Judge:
Louis Moody, Detroit Hines, and Derrick Woodard were convicted of crimes
related to illegal drug sales. They appeal, and we affirm.
*
District judge for the Eastern District of Louisiana, sitting by designation.
I.
The defendants were involved in crack cocaine sales in the “Fish Bowl,”1 a
part of the Poly neighborhood located in east Fort Worth, Texas. The Fort Worth
Police Department (“FWPD”) had difficulty policing the Fish Bowl, which served
as a base for several drug dealers.
One of these was Holmes, who sold crack in Fort Worth from 2004 to 2006.
Initially, he worked for a drug partnership consisting of defendant Hines, his
brother Darryl Hines, and Michael Lewis. Holmes later started his own drug
business and partnered with Darryl and Detroit Hines. Woodard also sold drugs
for Holmes. Moody, at least on one known occasion, referred customers to Hines
and Holmes. All three defendantsSSas well as the other dealers in the Fish Bowl
SSwere members of the Five-Duce Crips, Four-Trey Crips, and a subset of the
Five-Duce Crips known as the Polywood Crips.
The FWPD started their investigation into the Fish Bowl drug ring with
the help of Michael Nunally, a former drug dealer turned confidential informant.
Working with FWPD Officer Teagan Broadwater, Nunally helped identify parti-
cipants. On one identification trip, Moody joined Nunally and Broadwater; Moo-
dy was unaware that Broadwater was a police officer or that Nunally was acting
as an informant. Broadwater asked Moody where he could buy crack, and Moody
told him to go to a house in the Poly neighborhood. At the house, Nunally and
Moody approached Holmes and told him they had a customer who wanted to pur-
chase “a hundred piece,” or roughly four grams of crack.
Because Moody vouched for Broadwater, Holmes agreed to the deal. Broad-
1
The area is called the Fish Bowl because of the layout of the streets, which strongly
resembles a bowl shape. There are only two roads in and out of the Fish Bowl, which were
monitored by lookouts. When Fort Worth police arrived to stop drug or weapons violations,
the lookouts alerted the neighborhood, making it hard to carry out successful arrests in that
part of town.
2
water gave Holmes $100, and Holmes gave Nunally the crack in exchange.
Broadwater gave Moody $10 for helping broker the sale.
Later, Broadwater and Nunally returned to the house to buy more drugs.
Nunally pointed out that “Lil’ Nut,” 2 was standing in front of the home. Nunally
attempted to set up a drug buy between Lil’ Nut and Broadwater, but Lil’ Nut de-
clined. Broadwater then gave Nunally $100 to complete the deal himself. Nun-
ally approached the house, gave Lil’ Nut the money, and went inside, where
Holmes gave him a baggie containing crack. After this drug buy, Broadwater
searched the FWPD mug shot files for the alias Lil’ Nut and discovered that that
alias belonged to Hines. Broadwater continued his investigation into the Fish
Bowl drug conspiracy, eventually cooperating with the FBI, specifically Special
Agent Coffindaffer. This began what became known as Operation Fish Bowl.
About five months later, FWPD Officer Martinez saw Hines “peel out” in
his car in a neighborhood north of the Fish Bowl. Martinez pursued Hines, who
threw a metal object out of his car during the pursuit. Hines crashed his car into
a wall and was arrested. Martinez later found the metal object Hines had
thrown, which was a handgun. Martinez did not inventory the car but had it
towed to the FWPD lot. Coffindaffer eventually heard that the police were stor-
ing Hines’s car, and he searched it without a warrant six days after the initial
chase, locating three cell phones, receipts, and bills.
Two months later, the FWPD issued a search warrant for the home of an-
other drug dealer, Calvin Smith. When the warrant was executed, Hines was in-
side Smith’s house. After surrounding the house, the FWPD told the occupants
to leave, but they refused. Eventually, the police fired tear gas into the house,
2
Broadwater later learned that “Lil’ Nut” is the nickname for Detroit Hines, who some-
times also goes by “Little Nut.” This nickname distinguished him from his brother, who was
referred to as “Big Nut.”
3
which forced everyone outside. Inside they found an AR15 assault rifle, a hand-
gun, a glass pot with a fork in it,3 two boxes of ammunition, crack cocaine residue,
documents relating to Hines, and a rap song.
Hines, Woodard, Moody, and a variety of others swept up in Operation Fish
Bowl investigation were arrested and tried on drug-related charges. The three
defendants were found guilty and appeal their convictions or sentences.
II.
A.
Moody appeals his conviction of conspiracy and aiding and abetting, alleg-
ing that the court erred in not granting his motion for judgment of acquittal
based on insufficient evidence. “We review the district court’s denial of a motion
for judgment of acquittal de novo.” United States v. Klein, 543 F.3d 206, 212 (5th
Cir. 2008) (citation omitted), cert. denied, 129 S. Ct. 1384 (2009). “Our review for
sufficiency of the evidence following a conviction is narrow. We will affirm if a
rational trier of fact could have found that the evidence established the essential
elements of the offense beyond a reasonable doubt.” Id. (citation omitted). All
reasonable inferences are drawn in the light most favorable to the prosecution.
Id. “[O]ur standard of review does not change if the evidence that sustains the
conviction is circumstantial rather than direct.” United States v. Morgan, 505
F.3d 332, 341 (5th Cir. 2007) (citation omitted).
Moody was convicted, under 28 U.S.C. § 841, of aiding and abetting the dis-
tribution of cocaine. “To prove that a defendant aided and abetted, the Govern-
ment must prove that the . . . elements of the substantive offense occurred and
that the defendant associated with the criminal venture, purposefully partici-
3
The object, which had crack cocaine residue on it, was presumably used either to make
or to smoke crack.
4
pated in the criminal activity, and sought by his actions to make the venture suc-
ceed.” United States v. Jimenez, 509 F.3d 682, 689 (5th Cir. 2007) (citations omit-
ted), cert. denied, 128 S. Ct. 2924 (2008). “The essential elements of a violation
of Section 841(a)(1) [for cocaine distribution] include: (1) knowledge, (2) posses-
sion, and (3) intent to distribute [cocaine].” United States v. Patino-Prado, 533
F.3d 304, 309 (5th Cir.) (citation omitted), cert. denied, 129 S. Ct. 328 (2008). The
underlying offense occurred when Broadwater bought drugs from Holmes. Moody
knowingly directed customers to Holmes, an activity associating with the crimin-
al venture performed for the venture to succeed. Ample evidence exists for this
conviction.
There is also substantial evidence to support Moody’s conspiracy conviction.
To convict under 21 U.S.C. § 846, the government must prove “(1) the existence
of an agreement between two or more persons to violate the narcotics laws,
(2) that each alleged conspirator knew of the conspiracy and intended to join it,
and (3) that each alleged conspirator did participate in the conspiracy.” United
States v. Cantwell, 470 F.3d 1087, 1090 (5th Cir. 2006) (citation omitted).
Moody asserts, as a defense, that he was such a drug addict that he “could
not be trusted by anyone to distribute drugs,” because if he got them, “he smoked
them up himself.” Regardless of how drug addicted Moody was, however, Holmes
testified that Moody was a member of the Fish Bowl conspiracy. This testimony
alone is sufficient to support Moody’s conviction.
B.
Woodard was convicted, under 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A)
and (C), of conspiracy to sell crack. He alleges that the court erred in sentencing
when it found that a previous crime constituted a separate offense for sentencing
purposes. Sentencing guideline decisions are reviewed for abuse of discretion.
5
See United States v. Rowan, 530 F.3d 379, 381 (5th Cir. 2008). “Though we re-
view a sentence for abuse of discretion, we review the district court’s application
of the guidelines de novo and its findings of fact at sentencing for clear error.”
Klein, 543 F.3d at 213 (citation omitted). “An error in applying the guidelines is
a significant procedural error that constitutes an abuse of discretion.” Id. (cita-
tion omitted).
Under § 841, a defendant must be sentenced to a minimum of ten years for
cases, as here, involving fifty grams or more of cocaine; if he has a prior final drug
conviction, however, the minimum jumps to twenty years. Woodard was convict-
ed in 2001 in state court for felony drug possession; the court found that that
conviction involved drugs, so it enhanced the sentenced to 240 months. Woodard
argues that the prior conviction was part of the same conspiracy and therefore
cannot be used to enhance his sentence.
We uphold the use of the prior conviction to enhance, but on different
grounds.4 Our sister circuits have held that prior convictions for conduct in fur-
therance of a conspiracy can be used to enhance the statutory penalty for a later
arrest under the same conspiracy.5 We agree and also conclude that an earlier
conviction from the same conspiracy can be used to enhance mandatory mini-
mums. A defendant should not benefit in sentencing because he continued in a
criminal enterprise even after he was already arrested and convicted for the same
enterprise. “[T]he purpose of the mandatory minimum enhancement is to target
4
“[I]t is an elementary proposition, and the supporting cases too numerous to cite, that
this court may affirm the district court’s judgment on any grounds supported by the record.”
United States v. Dunigan, 555 F.3d 501, 508 n.12 (5th Cir. 2009) (citation omitted).
5
See, e.g., United States v. Hansley, 54 F.3d 709, 717 (11th Cir. 1995); United States
v. Garcia, 32 F.3d 1017, 1019 (7th Cir. 1994); United States v. Baker, 10 F.3d 1374, 1420 (9th
Cir. 1993), overruled on other grounds by Apprendi v. New Jersey, 530 U.S. 466 (2000); United
States v. Hughes, 924 F.2d 1354, 1362 (6th Cir. 1991).
6
recidivism . . ., [and] it is more appropriate to focus on the degree of criminal ac-
tivity that occurs after a defendant’s conviction for drug-related activity is final
rather than when the conspiracy began.” United States v. Garcia, 32 F.3d 1017,
1019-20 (7th Cir. 1994) (citation omitted). The court did not err in enhancing.
Woodard also alleges that the court erred in sentencing him based on the
presentence report (“PSR”) and its addendum. We review guideline decisions,
whether inside or outside the guideline range, for abuse of discretion. See Gall
v. United States, 128 S. Ct. 586, 597 (2007). “In performing that review, we are
‘first [to] ensure that the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the Guidelines range.’”
United States v. Williams, 517 F.3d 801, 808 (5th Cir. 2008) (citing Gall, 128 S.
Ct. at 597) (quotations and ellipses omitted). Findings of fact are reviewed for
plain error; legal conclusions, de novo. See United States v. Villanueva, 408 F.3d
193, 202 (5th Cir. 2005).
Woodard believes that the court should not have credited the statements
of Audrey Taylor in calculating drug quantity for sentencing purposes. Of the
177.85 grams of crack attributed to Woodard in the PSR, 168 grams came from
sales to Taylor. Woodard points to police information that indicates another deal-
er, Millard Payne, not Woodard, may have been involved in these sales. Taylor,
however, still testified that she was involved with Woodard during the drug sales.
Coffindaffer also provided a statement in the PSR’s addendum saying that Tay-
lor’s testimony was credible and that Payne was not involved in the sales. The
court ultimately relied on these statements in determining drug quantity.
Woodard bears the burden of showing that the information the court relied
on is materially untrue. See United States v. Ramirez, 367 F.3d 274, 277 (5th Cir.
2004). Also, the court’s decision is a finding of fact reviewed for plain error. See
Villanueva, 408 F.3d at 202. Although Woodard notes conflicting evidence, the
7
court did not commit plain error when it credited the other evidence presented.
Taylor and Coffindaffer’s statements provide ample support for the decision,6
which, with the PSR’s factual support, was not plain error.
C.
Hines was charged with, and convicted of, a variety of crimes relating to co-
caine and firearms possession.7 He alleges several errors. First, he claims the
court should have suppressed evidence found in his car after Coffindaffer
searched it. “When reviewing a ruling on a motion to suppress, the court reviews
questions of law de novo and findings of fact for clear error.” United States v. Val-
adez, 267 F.3d 395, 397 (5th Cir. 2001) (citation omitted). “We view the evidence
in the light most favorable to the party that prevailed in the district court.” Id.
(citation omitted).
We must examine whether Hines waived this issue. He did not raise it in
a pre-trial suppression hearing, but only during trial when his counsel realized
that Coffindaffer, and not Martinez, had searched the car. “[F]ailure to raise spe-
cific issues or arguments in pre-trial suppression proceedings operates as a waiv-
er of those issues or arguments for appeal.” United States v. Looney, 532 F.3d
392, 395 (5th Cir.) (emphasis and citation omitted), cert. denied, 129 S. Ct. 513
6
Woodard also objects that Taylor’s testimony involved hearsay. “[T]he district court
may consider any relevant evidence, including uncorroborated hearsay statements, if the infor-
mation has a ‘sufficient indicia of reliability to support its probable accuracy.’” United States
v. Slaughter, 238 F.3d 580, 585 (5th Cir. 2000) (citation omitted).
7
Specifically, he was found guilty of six counts: (1) conspiracy to possess with intent
to distribute more than fifty grams of [cocaine] in violation of 21 U.S.C. §§ 846 and 841(a)(1)
and (b)(1)(A); (2) distribution of cocaine base and aiding and abetting in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2; (3) felon in possession of a firearm in commerce in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a); (4) unlawful possession of a firearm in further-
ance of a drug trafficking crime in violation of 18 U.S.C. § 924(c); (5) another count of felon in
possession of a firearm in commerce; and (6) another count of possession with intent to distrib-
ute cocaine base.
8
(2008).
For two reasons, Hines has not waived the issue for appeal. First, the gov-
ernment never argued that he waived the issue, so the government has waived
its potential waiver argument.8 Second, in advance of trial the government mis-
stated which police officer had searched Hines’s car, information that was neces-
sary for the pre-trial suppression motion. After defense counsel recognized that
error, the court held a full suppression hearing outside the jury’s presence.
Therefore, because Hines did not have all the necessary information, and the is-
sue was eventually fully litigated, the suppression issue was not waived.
Hines contends that the search of his car was unreasonable because there
was no “nexus” between the reasons for his arrest and the search that would sup-
port the warrantless search. He relies on Preston v. United States, 376 U.S. 364
(1964), and Cooper v. California, 386 U.S. 58 (1967), which held that “for a war-
rantless search of an automobile under police control to be lawful it must be
closely related to the reason for the arrest and the reason the car is in custody.”
Williams v. United States, 412 F.2d 729, 735 (5th Cir. 1969). Hines believes the
search of his vehicle was not “closely related” to his arrest, so it was illegal.
The precedent Hines cites is no longer the governing authority for these
searches. Beginning with Chambers v. Maroney, 399 U.S. 42 (1970), and continu-
ing with Texas v. White, 423 U.S. 67 (1975), and Michigan v. Thomas, 458 U.S.
259 (1982), the nexus requirement was lessened and finally removed. In United
States v. Johns, 469 U.S. 478 (1985), the modern rule was stated:
A vehicle lawfully in police custody may be searched on the basis of
probable cause to believe that it contains contraband, and there is no
8
See United States v. Bonilla-Mungia, 422 F.3d 316, 319 (5th Cir. 2005) (discussing
government waiver of waiver argument because it raised it only in supplemental briefing);
United States v. Beckham, 968 F.2d 47, 54 n.5 (D.C. Cir. 1992) (noting government waiver of
waiver issue because of government’s failure to brief the issue).
9
requirement of exigent circumstances to justify such a warrantless
search . . . . The Court of Appeals concluded that [United States v.
Ross, 456 U.S. 789 (1982)] allows warrantless searches . . . only if the
search occurs ‘immediately’ as part of the vehicle inspection or ‘soon
thereafter.’ Neither Ross nor our other vehicle search cases suggest
any such limitation.
Id. at 484 (citations omitted). “[T]he rationale of Chambers and its progeny
is . . . that, given the scope of the initial intrusion caused by seizure of an auto-
mobile, there is no constitutional difference between the proper search on the
highway and the later search at the station.” United States v. Shaw, 701 F.2d
367, 379 (5th Cir. 1983).9
Chambers and its progeny have overruled Preston and Cooper, and the
search of Hines’s car was legal. Because Martinez had probable cause to search
the car after Hines fled from police, Coffindaffer too had probable cause to search
it six days later for unrelated reasons and without a warrant.
Hines next argues that the court erred in denying his suppression motion
for evidence found during the police search of 2816 Sara Jane Lane. In his brief,
however, Hines admits that he was not an owner or renter of the house and rec-
ognizes that he has no standing to challenge the search. He is correct; Rakas v.
Illinois, 439 U.S. 128, 134 (1978), held that “[a] person who is aggrieved by an il-
legal search and seizure only through the introduction of damaging evidence se-
cured by a search of a third person’s . . . property has not had any of his Fourth
Amendment rights infringed.”
Hines, however, asserts that Brendlin v. California, 551 U.S. 249, 127 S.
Ct. 2400 (2007), overrules this precedent. Here, he is not correct. The Court in
Brendlin did not change the Fourth Amendment test that was used in Rakas but
9
See also United States v. McSween, 53 F.3d 684, 689 (5th Cir. 1995) (“If probable cause
justified a warrantless search on the roadside, it likewise justified one at the station after the
car was impounded” (citation omitted).).
10
instead restated that “in view of all of the circumstances surrounding the inci-
dent, a reasonable person would have believed that he was not free to leave.”
Brendlin, 551 U.S. at ___, 127 S. Ct. at 2405 (quoting United States v. Menden-
hall, 446 U.S. 544, 554 (1980)). The Court applied this test to the passenger of
a car and found that the passenger was “seized” under the Fourth Amendment.
551 U.S. at ___, 127 S. Ct. at 2406-07. Because Brendlin does not explicitly over-
rule Rakas, and there is no change in the basic Fourth Amendment analysis that
led to Rakas, Hines is incorrect in his belief that he can challenge the warrant de-
spite not owning, renting, or living in the home that was searched.
Hines challenges Broadwater’s out-of-court identification of Hines and the
denial of his motion to suppress that evidence. When reviewing a motion to sup-
press an eyewitness identification, “we accept the district court’s findings of fact
unless they are clearly erroneous, but we review de novo the court’s ultimate con-
clusion of the constitutionality of the law enforcement action.” United States v.
Guidry, 406 F.3d 314, 319 (5th Cir. 2005) (citation omitted). Whether an identi-
fication is constitutionally admissible is a mixed question of fact and law. Id.
Hines contends that Broadwater’s out-of-court identification was too sug-
gestive and therefore inadmissible. “The Due Process Clause protects against the
use of evidence obtained from impermissibly suggestive identification proce-
dures.” Id. (citation omitted). “The admissibility of identification evidence is gov-
erned by a two-step test: First, we determine whether the identification proce-
dure was impermissively suggestive, and second, we ask whether the procedure
posed a ‘very substantial likelihood of irreparable misidentification.’” Id. (citation
omitted). If we answer both questions in the affirmative, the identification is in-
admissible. Id. (citation omitted). This is known as the Brathwaite test, after
Manson v. Brathwaite, 432 U.S. 98 (1977).
Without deciding whether Broadwater’s identification was impermissibly
11
suggestive,10 we conclude that it easily passes the second Brathwaite prong, be-
cause it did not pose a “very substantial likelihood of irreparable misidentifica-
tion.” Guidry, 406 F.3d at 319 (citation omitted).
The Supreme Court has identified several factors to help determine
the likelihood of misidentification: (1) the opportunity of the witness
to view the criminal at the crime scene; (2) the witness’s degree of at-
tention; (3) the accuracy of the witness’s prior description of the crim-
inal; (4) the level of certainty demonstrated by the witness at the
confrontation; and (5) the length of time between the crime and the
confrontation.
Coleman, 456 F.3d at 544 (citing Neil v. Biggers, 409 U.S. 188, 199-200 (1972);
Livingston v. Johnson, 107 F.3d 297, 310-11 (5th Cir. 1997)).
Four of the five factors suggest that there was not a high likelihood of mis-
identification. Broadwater had an excellent “ opportunity . . . to view the crim-
inal at the crime scene;” he testified that he had a unhindered view of Hines dur-
ing the drug sale and that the sale took place no further from him than the dis-
tance from the witness stand to counsel’s table. Second, Broadwater’s attention
was focused solely on the drug buy, which was the primary activity taking place
at the time. Third, Broadwater expressed no uncertainty regarding his identifi-
cation of Hines’s mug shot; it is notable that although Broadwater was open with
defense counsel about several other misidentifications that took place during the
Fish Bowl operation, he never wavered in his identification of Hines. Finally,
Broadwater testified that his identification was made only a day or two after the
drug deal, which is far shorter than the length of time we have considered to be
appropriate in other cases.11
10
This court can determine whether an out-of-court identification meets the second
Brathwaite prong without first determining whether it satisfies the first prong. See Coleman
v. Quarterman, 456 F.3d 537, 544 (5th Cir. 2006).
11
See, e.g., Coleman, 456 F.3d at 544 (allowing identification under this prong nine days
12
These four factors confirm that there is not a substantial likelihood of mis-
identification from Broadwater’s mug shot viewing. Hines cannot rely on the
third factorSSthe accuracy of the witness’s prior description of the criminalSSbe-
cause there is no testimony regarding Broadwater’s description of Hines before
his mug shot search. Thus, Broadwater’s identification passes not just one but
both of the Brathwaite prongs, and Hines’s motion to suppress was therefore
properly denied.
Finally, Hines argues that the court erred when it admitted evidence about
his prior drug arrests under Federal Rule of Evidence 404(b). “This court reviews
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. Mitchell, 484 F.3d
762, 774 (5th Cir.) (citation omitted), cert. denied, 128 S. Ct. 297 (2007), and cert.
denied, 128 S. Ct. 869 (2008). If this court were to find error, it would review for
harmless error. Id. (citation omitted). Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity there-
with. 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, provided that upon re-
quest by the accused, the prosecution in a criminal case shall provide
reasonable notice in advance of trial, or during trial if the court ex-
cuses pretrial notice on good cause shown, of the general nature of
any such evidence it intends to introduce at trial.
FED . R. EVID . 404(b).
The government offered testimony about Hines’s prior drug arrests over
Hines’s objection. Hines also offered to stipulate to the arrests, but the govern-
ment declined.12 Three different police officers testified about arresting Hines for
after initial viewing of defendant).
12
Hines admits, correctly, that the government does not have to accept the stipulation.
13
crack possession. “This Court employs a two-prong test to examine the admissi-
bility of extrinsic evidence under Rule 404(b). First, the Court must determine
whether the extrinsic evidence is relevant to an issue other than the defendant’s
character . . . . Second the evidence must possess probative value that is not sub-
stantially outweighed by its undue prejudice . . . .” Morgan, 505 F.3d at 339-40
(citations and internal quotations omitted).
The government argues that the evidence was relevant for the first prong
because it was admitted to show identity and intent rather than character. In-
tent is material to drug possession and trafficking prosecutions, see United States
v. Thomas, 348 F.3d 78, 86 (5th Cir. 2003), and intent can serve as grounds for
rule 404(b) evidence, see Morgan, 505 F.3d at 339. Also, “[w]here the issue ad-
dressed is the defendant’s intent to commit the offense charged, the relevancy of
the extrinsic offense derives from the defendant’s indulging himself in the same
state of mind in the perpetration of both the extrinsic and charged offenses.”
United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc). Hines was
arrested with crack and charged with intent to distribute that crack; intent is, by
definition, material to this charge and makes the evidence relevant under rule
404(b).
The government also contends that the evidence was needed to prove
Hines’s identity. During trial, Hines’s counsel noted that Broadwater was the
only officer who could identify Hines selling drugs, suggesting that Hines’s iden-
tity was in question. Thus, the arrests were also relevant to confirm identity.
Because the evidence was relevant for identity and intent, it is admissible
See United States v. Spletzer, 535 F.2d 950, 955 (5th Cir. 1976) (“It is true that as a general
rule a party may not preclude his adversary’s proof by an admission or offer to stipulate.”).
“Nonetheless, this principle, like all rules of evidence, is subject to the provision that where
the probative value of relevant evidence is substantially outweighed by its potential for unfair
prejudice, it should be excluded.” Id. at 955-56.
14
under rule 404(b) so long as it “possesses probative value that is not substantially
outweighed by its undue prejudice.” Morgan, 505 F.3d at 339-40. The court did
not abuse its discretion in finding that the testimony’s probative value was not
substantially outweighed by its prejudicial impact.
First, as rule 404(b)’s language plainly states, the prejudice must substan-
tially outweigh the probative value; this is a difficult standard to overcome. Next,
the court put a limiting instruction on the testimony. Limiting instructions,
where applied contemporaneously and properly, should, except in the most ex-
treme instances, prevent the prejudice of testimony from substantially outweigh-
ing the probative value of the statement.13 Finally, the offenses Hines was
charged with were more serious than the drug arrests the officers testified about;
this again limits the prejudicial impact of the rule 404(b) evidence.14 The conflu-
ence of these factors, together with the probative value of the intent and identity
evidence, mandates that this testimony be admitted under rule 404(b).
AFFIRMED.
13
See United States v. Adair, 436 F.3d 520, 527 (5th Cir. 2006) (“We also conclude that
Agent Tyson’s testimony had little opportunity of creating unfair prejudice because . . . the dis-
trict court mitigated any prejudicial effect by giving the jury a limiting instruction.”); Thomas,
348 F.3d at 86 (stating that prejudicial impact is reduced by limiting statement).
14
See id.
15