     Case: 10-50855     Document: 00511548304         Page: 1     Date Filed: 07/22/2011




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

                                                                            FILED
                                                                            July 22, 2011
                                     No. 10-50855
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ARLANA DORIS MOORE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:09-CR-260-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Arlana Doris Moore appeals her conviction under 21 U.S.C. § 846 for
conspiracy to manufacture 50 grams or more of methamphetamine and to
possess pseudoephedrine with intent to manufacture methamphetamine. Moore
was sentenced to imprisonment for life. She contends that the district court
erred in admitting evidence that she had been convicted in 1990 of possession
of methamphetamine.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-50855   Document: 00511548304       Page: 2   Date Filed: 07/22/2011

                                  No. 10-50855

      Federal Rule of Evidence 404(b) precludes the admission of “[e]vidence of
other crimes, wrongs, or acts . . . to prove the character of a person in order to
show action in conformity therewith,” but the rule recognizes that such evidence
“may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” For such evidence to be admissible, a court must first
determine “that the extrinsic offense evidence is relevant to an issue other than
the defendant’s character.” United States v. Beechum, 582 F.2d 898, 911 (5th
Cir. 1978) (en banc). “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. We review the admission of Rule 404(b) evidence
for abuse of discretion. United States v. Cockrell, 587 F.3d 674, 678 (5th Cir.
2009).
      In this case, defense counsel asserted during the opening statement that
Moore was simply “swept up into this case.” Accordingly, the evidence of her
1990 conviction fell within Rule 404(b)’s allowance for evidence probative of
“knowledge . . . or absence of mistake or accident.” FED. R. EVID. 404(b); see
United States v. Jackson, 339 F.3d 349, 355 (5th Cir. 2003) (examining the
defense’s theory of the case as presented in its opening statement when
evaluating the admissibility of extrinsic offense evidence under Rule 404(b)).
      Although Moore contends that she was harmed because the evidence of her
prior conviction amounted to propensity evidence, especially in light of
differences between prior conviction and the charged offense and the age of the
prior conviction, we have emphasized that the test under the second prong of
Beechum “is whether the probative value of the evidence is substantially
outweighed by its unfair prejudice.”        Cockrell, 587 F.3d at 678 (internal
quotation marks and citation omitted).            Moore’s prior conviction for
methamphetamine possession was probative of her knowledge of the drug. See
United States v. Lindell, 881 F.2d 1313, 1319 (5th Cir. 1989). The age of an

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                                 No. 10-50855

extrinsic offense does not serve as a per se bar to admission, see United States
v. Broussard, 80 F.3d 1025, 1040 (5th Cir. 1996), and we have upheld the
introduction of a nearly 18-year-old prior conviction.        United States v.
Hernandez, 162 F.3d 863, 872-73 (5th Cir. 1998)). By comparison, Moore’s prior
conviction occurred about 16 years before the alleged beginning of the conspiracy
in 2006. Moore’s not guilty plea and her attack on the credibility of the alleged
co-conspirators who testified against her “enhances the probity of the prior
offense evidence by placing [her] intent and state of mind at issue.” United
States v. Buchanan, 70 F.3d 818, 831 (5th Cir. 1995). Moreover, the district
court gave two appropriate limiting instructions regarding the 1990 conviction,
including one immediately after its admission into evidence. See Cockrell, 587
F.3d at 680. Thus, Moore has failed to show that the district court abused its
discretion in admitting the evidence. See id. at 678.
      AFFIRMED.




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