United States v. Cockrell

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
November 6, 2009

No. 08-41008 Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee
v.

JOHN MATTHEW COCKRELL,
Defendant - Appellant

Appeal from the United States District Court
for the Eastern District of Texas

Before KING, GARZA and HAYNES, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Appellant John Matthew Cockrell appeals his conviction for conspiracy to
possess with intent to distribute heroin resulting in serious bodily injury, in
violation of 21 U.S.C. § 846. Cockrell argues that the district court erred in
admitting certain evidence. For the following reasons, we AFFIRM.
I
In 2006, the Plano Police Department notified agents from the Federal
Bureau of Investigation High Drug Trafficking Area (“FBI”) of several Collin
County heroin-related overdoses, some of which were fatal. Law enforcement
identified Cockrell as a distributor in the Plano area. Based on the ensuing
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investigation, Cockrell was arrested and indicted for his participation in a
conspiracy to distribute heroin.
At trial, several co-conspirators testified that they purchased drugs from
Cockrell from 2005 through early 2007. One witness testified that she initially
purchased methamphetamine from Cockrell, but switched to heroin, purchasing
as often as two to three times per week. Witnesses testified that they saw heroin
packaged inside of balloons in Cockrell’s apartment and car and that he
distributed those balloons to customers and other dealers. Multiple witnesses
said they pooled money with Cockrell to purchase larger quantities of heroin for
personal use and distribution. Testimony also linked Cockrell to the non-fatal
overdoses of William Baca and Christopher Schubert. Both Baca and Schubert
testified that they overdosed on heroin supplied by Cockrell and they required
emergency medical treatment. Testimony of treating paramedics and
ambulance records corroborated Baca and Schubert’s testimony.
The government also successfully introduced evidence of Cockrell’s prior
drug crime conviction. He was indicted in 1999 for conspiracy to possess with
the intent to distribute heroin, but ultimately pleaded guilty to using a telephone
to facilitate a heroin trafficking crime. Cockrell was sentenced to 41 months’
imprisonment. The district court considered admissibility prior to the start of
trial. Cockrell argued that the prior conviction was inadmissible under F ED. R.
E VID. 404(b) because it was prior “bad act” evidence. The government argued
that the prior conviction showed intent to distribute drugs or absence of mistake.
Cockrell responded that because the prior conviction and the current charge
were very similar, they were highly prejudicial. The district court admitted the
evidence, finding that Cockrell’s not-guilty plea put his intent at issue and the
extraneous offense was temporally proximate, similar to the offense charged,
and relevant to show Cockrell’s intent or that he had not accidentally been swept
up in a heroin distribution scheme. The district court also noted that because

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much of the other evidence about Cockrell’s distribution activities would be
provided by indicted and unindicted co-conspirators, there was a need for the
government to offer other evidence from which intent could be inferred.
Immediately following the prior conviction testimony, the district court
instructed the jury on the limited extent to which they could consider the
evidence. In relevant part, the jury was instructed that:
The plea agreement and judgment))are not admissible and should
not be considered by you for the purpose of proving that Mr.
Cockrell committed what he’s accused of and what he’s on trial for
here. . . . If you find from other evidence that he committed that
offense, then you can consider the previous conviction for the
purpose of determining whether or not he knowingly conspired and
whether or not he possessed any heroin with the intent to distribute
it.

Near the end of the trial, the court decided that testimony about Cockrell’s
prior arrest and the discovery of 1.4 grams of methamphetamine in his car was
admissible. The arrest occurred in February 2007. While he was at the
Farmer’s Branch, Texas, Police Department, police officers observed Cockrell on
a telephone call that appeared to be a heroin transaction. One officer observed
Cockrell speaking on the phone and, while on speaker-phone, heard the
customer ask if Cockrell “would be able to pick up a quarter of brown,” a term
the officer knew to refer to heroin. After determining that Cockrell had
outstanding warrants, they arrested him. The officers found a syringe in
Cockrell’s pocket and a search of his vehicle turned up approximately 1.49 grams
of methamphetamine. Both officers testified that this amount of
methamphetamine was consistent with either distribution or personal use.
The district court admitted the evidence, citing two grounds. First, the
district court noted its belief that Cockrell’s course of conduct at Farmer’s
Branch, including his phone calls for what appeared to be a heroin deal, were
intrinsic to the overall conspiracy that Cockrell was charged with. The district

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court further ruled that even if not intrinsic, the evidence of methamphetamine
possession in a distributable quantity was relevant and admissible under F ED.
R. E VID. 404(b) to show Cockrell’s intent to distribute heroin under the
conspiracy charge. The district court rejected Cockrell’s arguments that the
prejudice outweighed the probative value. Cockrell requested a jury instruction,
and immediately following the officers’ testimony, the district court gave an
instruction similar to the one regarding the heroin conviction.
The jury found Cockrell guilty. The district court sentenced Cockrell to
imprisonment for a term of 380 months to be followed by five years of supervised
release. The court imposed a $100 special assessment, but no fine. Cockrell
timely appealed his conviction.
II
Cockrell argues that the district court erred in admitting evidence of the
prior heroin conviction and the methamphetamine arrest. This court reviews
the admission of evidence under Rule 404(b) for abuse of discretion. United
States v. Walters, 351 F.3d 159, 165 (5th Cir. 2003). Although this review is
“necessarily heightened” in criminal cases, United States v. Anderson, 933 F.2d
1261, 1268 (5th Cir. 1991), abuse of discretion is only reversible if a defendant
can demonstrate prejudice, United States v. Coleman, 78 F.3d 154, 156 (5th Cir.
1996).
Rule 404(b) provides that:
Evidence 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 . . . .

Under United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978), this circuit
applies a two-pronged analysis for the admissibility of evidence under Rule
404(b). First, the evidence of “other crimes, wrongs, or acts” must be relevant

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to an issue other than the defendant’s character. Id. The standard of relevancy
under Rule 401 applies to the first prong of the analysis. United States v. Percel,
553 F.3d 903, 911–12 (5th Cir. 2008). The relevance of extrinsic act evidence “is
a function of its similarity to the offense charged.” Beechum, 582 F.3d at 911.
Second, the evidence must possess probative value that is not
substantially outweighed by its undue prejudice. Percel, 553 F.3d at 912. In
weighing the probative value and unfair prejudice, this court must make a
“commonsense assessment of all the circumstances surrounding the extrinsic
offense.” Beechum, 582 F.3d at 914. Probative value “must be determined with
regard to the extent to which the defendant’s unlawful intent is established by
other evidence, stipulation, or inference.” Id. Other factors to be considered
include “the overall similarity of the extrinsic and charged offenses, and the
amount of time that separates the extrinsic and charged offenses” as well as any
limiting instructions. United States v. Richards, 204 F.3d 177, 199–201 (5th Cir.
2000) (citation omitted).
Where, as here, a defendant enters a plea of not guilty in a conspiracy
case, the first prong of the Beechum test is satisfied. United States v. Broussard,
80 F.3d 1025, 1040 (5th Cir. 1996). “The mere entry of a not guilty plea in a
conspiracy case raises the issue of intent sufficiently to justify the admissibility
of extrinsic offense evidence.” Id.; United States v. Parziale, 947 F.2d 123, 129
(5th Cir. 1991), cert. denied, 503 U.S. 946 (1992). In other words, where the
prior offense involved the same intent required to prove the charged offense, that
prior offense is relevant and we are required only to consider whether the
requirements of Rule 403 are met under Beechum’s second prong. Broussard,
80 F.3d at 1040.

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A
The evidence of the prior offense included documents and testimony that
showed that Cockrell was previously indicted for conspiracy to posses with intent
to distribute heroin, substantially the same crime charged here, except that it
did not include the bodily harm element. Evidence was also introduced of
Cockrell’s plea deal for use of a telephone to conduct narcotics transactions. This
evidence was relevant to show intent because both the extrinsic offense and the
charged offense involved an intent to distribute.1 See Beechum, 582 F.2d at 911.
The district court found the prior conviction similar because it involved use
of a telephone to facilitate distribution, and the charged offense required the
government to prove intent to distribute. Cockrell contends that admission of
his prior drug conviction was “for the same offense for which [he] was on trial”
and therefore the prejudicial effect was great. While Cockrell correctly notes
that “the more closely the extrinsic offense resembles the charged offense, the
greater the prejudice to the defendant,” id. at 915 n.20, it simply does not follow
that such similarity requires exclusion of the evidence. Indeed, as we stated in
Beechum, “the judge must consider the danger of undue prejudice” and the “test
is whether the probative value of the evidence is substantially outweighed by its
unfair prejudice.” Id. (emphasis added). Rule 403 “would seem to require
exclusion only in those instances where the trial judge believes that there is a
genuine risk that the emotions of the jury will be excited to irrational behavior,
and that this risk is disproportionate to the probative value of the offered

1
As noted above, because the intent is the same, we need not address Beechum’s first
prong. See Broussard, 80 F.3d at 1040. “Where the issue . . . 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 perpetration of [both offenses]. . . . [B]ecause
the defendant had unlawful intent in the extrinsic offense, it is less likely that he had lawful
intent in the present offense.” Beechum, 582 F.2d at 911. Even were there some question as
to the relevance of the evidence to show intent, Cockrell has arguably waived it because his
brief appears to raise only the second prong under Beechum.

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evidence.” Id. Moreover, “[a] bald assertion that the probative value of extrinsic
offense evidence was substantially outweighed by its prejudicial effect does not
show an abuse of discretion by the district court.” United States v. Bermea, 30
F.3d 1539, 1562 (5th Cir. 1994). Cockrell has made nothing more than just such
a bald assertion. We previously have found that the probative value of prior
drug conspiracy convictions is not substantially outweighed by unfair prejudice.
See, e.g., United States v. Booker, 334 F.3d 406, 412 (5th Cir. 2003) (finding no
unfair prejudice from admission of evidence of seizure of 178 kilograms of
marijuana to show intent in a crack cocaine conspiracy); Broussard, 80 F.3d at
1040 (finding no unfair prejudice from admission of “conviction for possession of
fifty to 200 pounds of marijuana” with intent to distribute to show intent to
distribute cocaine); United States v. Harris, 932 F.2d 1529, 1534 (5th Cir. 1991)
(finding no unfair prejudice from admission of evidence of prior
methamphetamine manufacturing activities to show intent in conspiracy to
manufacture methamphetamine case). Cockrell’s prior conviction in 2000 was
temporally proximate to the current offense for which Cockrell was arrested in
2007. “Although remoteness of the extrinsic acts evidence may weaken its
probative value, the age of the prior conviction does not bar its use under Rule
404.” Broussard, 80 F.3d at 1040 (finding no prejudice from admission of prior
conviction that was more than 10 years before the charged offense); see also
United States v. Chavez, 119 F.3d 342, 346 (5th Cir. 1997) (finding no abuse of
discretion in the admission of a 15-year-old conviction). Nor was the evidence
of the prior offense of a “heinous nature” such as would incite a jury to an
irrational decision on the charges before it. See Beechum, 582 F.3d at 917.
Lastly, the district court gave extensive and immediate limiting instructions
following the admission of the prior offense testimony. See id.; Broussard, 80
F.3d at 1040 (finding that any prejudice was minimized by limiting instruction

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given immediately after extrinsic offenses offered into evidence). Accordingly,
we find no abuse of discretion.
B
Cockrell also complains about the admission of testimony regarding his
arrest at the Farmer’s Branch police station. The officers testified that they
observed Cockrell conducting what appeared to be a heroin transaction on his
cell phone while at that station. They arrested Cockrell on unrelated
outstanding warrants, and the search incident to arrest turned up a syringe and
1.4 grams of methamphetamine, a quantity sufficient to be for personal use or
distribution. They discovered no other drug paraphernalia or indicia of drug
dealing activities. Initially, the district court was inclined to exclude this
evidence because it believed that when Cockrell was arrested, his participation
in the conspiracy was over. The court thought the evidence would be duplicative
and unnecessary. However, it reconsidered when the government clarified that
the conspiracy was still ongoing at the time of, and after, the arrest. The
government argued that the evidence was intrinsic to the ongoing conspiracy
and therefore admissible. It also argued that it needed this testimony because
Cockrell had shown through cross-examination of the government’s witnesses
that no drugs had ever actually been seized from Cockrell. The district court
initially ruled that “evidence of the discovery of the methamphetamine and
everything that went on at the Farmer’s Branch Police Department is intrinsic
to this overall conspiracy.” The district court further ruled that even if not
intrinsic, evidence of methamphetamine possession in distributable quantity was
relevant and admissible under F ED. R. E VID. 404(b) to show intent to distribute.
The district court rejected Cockrell’s argument that the prejudice outweighed the
probative value because the government had no evidence of heroin discovered in
Cockrell’s possession and needed to be able to counter the defense that no heroin
was ever found in Cockrell’s possession. Following the government’s

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presentation of this evidence, Cockrell asked for an instruction if the evidence
was being admitted under Rule 404(b), rather than as intrinsic evidence.
Having heard the evidence, the district court stated that the telephonic heroin
transaction was intrinsic, but the methamphetamine was 404(b) evidence. It
granted Cockrell’s request, and immediately following the testimony, gave an
instruction similar to the one given regarding the heroin conviction.
Cockrell appears to challenge the admission of this evidence under both
prongs of the Beechum test. He contends that the evidence was not relevant for
any permissible purpose because it showed only that he was in possession of
methamphetamine in a personal-use quantity, which is not relevant to whether
he possessed heroin, a different drug, with an intent to distribute. Cockrell also
contends that admission of the evidence was unfairly prejudicial and, coupled
with admission of the prior heroin conviction, compounded the prejudicial effect.
Cockrell’s not-guilty plea put his intent sufficiently at issue to justify
admission of extrinsic evidence. Broussard, 80 F.3d at 1040. Cockrell
nonetheless raises the question whether this evidence was relevant to show
intent at all. We find that it was. The evidence showed that Cockrell appeared
to be making arrangements for a heroin sale, not just that he possessed
methamphetamine.2 Both the evidence of the apparent heroin sale and the

2
The district court’s comments that the government needed evidence of the
methamphetamine possession because no heroin was actually found in Cockrell’s possession
are problematic. Specifically, the district court stated: “[G]iven the fact that the government
doesn’t have . . . any heroin that was discovered on Mr. Cockrell, I think that the government
still has some need there to counter the defense that . . . no heroin was ever found on Mr.
Cockrell.” This would appear to be precisely the impermissible purpose for which the evidence
cannot be used. The jury is not allowed to infer from evidence of possession of one drug that
the defendant must have also possessed some other drug. Although this reasoning gives us
pause, that statement was outside the hearing of the jury, and the jury was properly
instructed as to how it could consider this evidence. Moreover, the methamphetamine
evidence was not just evidence of drug possession, but evidence of drug possession of a
distributable quantity. A jury could properly infer an intent to distribute from evidence of
possession of one drug in a distributable quantity.

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evidence of methamphetamine possession were relevant to show that Cockrell
had the requisite intent for the crime charged))to possess heroin with an intent
to distribute. Ignoring the testimony of both officers, Cockrell states that the
quantity possessed was an amount sufficient for personal use. Presumably he
wishes us to find that the only intent that could be inferred is an intent to use
the drug, not to distribute. But the evidence was clear: 1.4 grams of
methamphetamine was consistent with either personal use or distribution.
Thus, one could reasonably infer an intent to possess the drug with an intent to
distribute))the same intent that is charged in the current offense. Moreover,
it is acceptable to infer such intent even where the prior offense drug is different
from the drug charged in the current offense. See, e.g., Booker, 334 F.3d at 412
(admitting evidence of marijuana offense to show intent in crack cocaine
conspiracy); Broussard, 80 F.3d at 1040 (admitting evidence of marijuana offense
to show intent in cocaine conspiracy).
We also find that the probative value of this evidence was not
substantially outweighed by any unfair prejudice. The evidence regarding the
telephone drug transaction and the distributable quantity of methamphetamine
were contemporaneous with the heroin conspiracy with which Cockrell was
charged. Moreover, the district court gave proper limiting instructions
immediately following the testimony and again in the jury charge before
deliberations. Although the jury could infer Cockrell’s intent through the
testimony of a number of witnesses who purchased or received drugs from
Cockrell, the government needed corroborative evidence of that intent. Most of
the witnesses were indicted and unindicted co-conspirators, many of whom
received immunity or plea agreements, a fact that the defense used to repeatedly
attack credibility. Given Cockrell’s choice to defend in this manner, it was not
an abuse of discretion to admit testimony regarding the events at the Farmer’s
Branch police station for the purposes of showing intent and to support any

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inference of intent that might be drawn from other testimony. See United States
v. Buchanan, 70 F.3d 818, 831 (5th Cir. 1996) (finding probity of extrinsic offense
evidence enhanced where defense attacked witness credibility); United States v.
Henthorn, 815 F.2d 304, 308 (5th Cir. 1987) (finding admission of past offense
evidence proper where defendant attacked credibility of government’s
witnesses). Finally, we note that even if this evidence were duplicative and
unnecessary, Cockrell would be entitled to no relief because he has made
absolutely no showing of prejudice. Coleman, 78 F.3d at 156.
III
For the foregoing reasons, we AFFIRM.

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