                                                     [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            SEPT 27, 2006
                             No. 06-10989                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 05-14026-CR-DLG

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

TONY JAY SAUNDERS,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                          (September 27, 2006)

Before TJOFLAT, DUBINA and FAY, Circuit Judges.

PER CURIAM:
       Tony Jay Saunders appeals his convictions following a jury trial for

possession with the intent to distribute cocaine base, cocaine hydrochloride, and

marijuana, 21 U.S.C. § 841(a)(1). On appeal, Saunders argues that the district

court abused its discretion by admitting evidence of his uncharged conduct relating

to a drug sale because (1) the uncharged conduct was not “inextricably

intertwined” with the charged conduct because it occurred on a different day; (2) it

was intended to portray Saunders as a drug dealer; (3) it was overwhelmingly

prejudicial; and (4) the government did not provide the required notice under

Fed.R.Evid. 404(b). For the reasons set forth more fully below, we affirm

Saunders’s convictions.

       At Saunders’s trial, Deputy Paul McNesky testified regarding Saunders’s

charged and uncharged conduct. Regarding the uncharged-conduct events,

McNesky testified that he took an individual named Lynn Hayes into custody on

the evening of April 6, 2005, after Hayes sold crack cocaine to a confidential

informant (“CI”). McNesky told Hayes that he would not charge him for selling

cocaine if Hayes would assist in apprehending “a drug dealer larger than himself.”

That same evening, Hayes contacted Saunders, arranged to purchase crack cocaine

from Saunders at the residence of Saunders’s girlfriend, and completed the drug

buy.



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      McNesky then testified regarding the charged-conduct events, another drug

buy that took place the following day. McNesky, who had obtained a search

warrant for the residence of Saunders’s girlfriend, explained that the plan was to

have Hayes meet Saunders at that residence to purchase crack, and, when officers

knew that Saunders was there, they would execute the search warrant. However,

Hayes did not remain at the residence with Saunders, and instead, Hayes and

Saunders drove away, and were stopped by police. The police found crack cocaine

in the car, and Saunders admitted that it was his. After Saunders was arrested,

police executed a search warrant on Saunders’s girlfriend’s residence and seized

cocaine, marijuana, and digital scales. At trial, Saunders objected to the

introduction of McNesky’s testimony regarding the uncharged drug sale that took

place on April 6, 2005.

      We “review a district court’s evidentiary rulings for abuse of discretion.”

United States v. Fortenberry, 971 F.2d 717, 721 (11th Cir. 1992). A district court’s

ruling on the admission of evidence will be upheld “if the admission was proper on

any ground[;] it is of no consequence that the trial court may have given the wrong

reason for its admission.” United States v. Cardenas, 895 F.2d 1338, 1345 (11th

Cir. 1990). We review preserved evidentiary objections for harmless error. United

States v. Church, 955 F.2d 688, 700 (11th Cir. 1992).



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        Rule 404(b) provides 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 . . . .” Fed.R.Evid.

404(b). The admissibility of Rule 404(b) evidence is governed by the following

test:

        First, the evidence must be relevant to an issue other than the
        defendant’s character; Second, the act must be established by
        sufficient proof to permit a jury finding that the defendant committed
        the extrinsic act; Third, the probative value of the evidence must not
        be substantially outweighed by its undue prejudice, and the evidence
        must meet the other requirements of Rule 403.

United States v. Matthews, 431 F.3d 1296, 1310-11 (11th Cir. 2005), pet. for cert.

filed, (Apr. 24, 2006) (No. 05-1355) (quoting United States v. Delgado, 56 F.3d

1357, 1365 (11th Cir. 1995)). “A similarity between the other act and a charged

offense will make the other offense highly probative with regard to a defendant’s

intent in the charged offense.” United States v. Ramirez, 426 F.3d 1344, 1354

(11th Cir. 2005). In determining whether the prejudice part of the test is satisfied,

we consider “the differences between the charged and extrinsic offenses, their

temporal remoteness, and the government’s need for the evidence to prove intent.”

United States v. Diaz-Lizaraza, 981 F.2d 1216, 1225 (11th Cir. 1993).

        Evidence is intrinsic, and not governed by Rule 404(b), if it is “(1) an

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uncharged offense which arose out of the same transaction or series of transactions

as the charged offense, (2) necessary to complete the story of the crime, or

(3) inextricably intertwined with the evidence regarding the charged offense.”

United States v. McLean, 138 F.3d 1398, 1403 (11th Cir.1998). We have also

stated that

          [e]vidence, not part of the crime charged but pertaining to the
          chain of events explaining the context, motive and set-up of the
          crime, is properly admitted if [it is] 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.

Id. (quoting United States v. Wilford, 764 F.2d 1493, 1499 (11th Cir. 1985)).

       If the evidence is extrinsic Rule 404(b) evidence, “the prosecution in a

criminal case shall provide reasonable notice in advance of trial, or during trial if

the court excuses 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). However, if the

evidence is intrinsic, it is not subject to the notice requirement of Fed.R.Evid.

404(b). United States v. Leavitt, 878 F.2d 1329, 1339 (11th Cir. 1989).

       According to Federal Rule of Evidence 403, which applies to intrinsic and

extrinsic evidence, a district court may exclude “relevant evidence . . . if its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by consideration of undue delay,

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waste of time, or needless presentation of cumulative evidence.” Fed. R. Evid.

403. The risk of undue prejudice can be reduced by a district court’s limiting

instruction. Ramirez, 426 F.3d at 1354.

      The district court did not abuse its discretion by admitting Deputy

McNesky’s testimony regarding the April 6, 2005, drug sale. Although the court

admitted the testimony under Rule 404(b), we may still determine if it was

admissible on other grounds. See Cardenas, 895 F.2d at 1345. Taken in the

context of McNesky’s entire testimony regarding Saunders’s arrest, such evidence

fairly can be characterized as “inextricably intertwined” with the government’s

case because it related to the chain of events immediately preceding the traffic stop

in which cocaine was found, explained why Saunders got into Hayes’s vehicle on

April 7, and why Saunders attempted to deliver cocaine to Hayes on April 7. See

McLean, 138 F.3d at 1403. Moreover, the admission of such evidence cannot

fairly be characterized as unduly prejudicial to Saunders because the court gave the

jury a limiting instruction regarding the evidence. See Ramirez, 426 F.3d at 1354.

Finally, because the evidence was not extrinsic, the government was not bound by

Rule 404(b) to notify the defendant of its intent to introduce it. See Leavitt, 878

F.2d at 1339 (11th Cir. 1989).

      Even assuming that the evidence of the April 6, 2005, drug sale constituted



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Rule 404(b) extrinsic evidence, the district court did not abuse its discretion in

admitting it because the uncharged drug evidence also satisfies our three-part test.

First, the evidence is relevant to an issue other than Saunders’s character, namely,

his intent to sell the drugs. Saunders made intent a material issue when he pleaded

not guilty. See United States v. Zapata, 139 F.3d 1355, 1358 (11th Cir. 1998)

(holding that “[a] defendant who enters a not guilty plea makes intent a material

issue which imposes a substantial burden on the government to prove intent, which

it may prove by qualifying Rule 404(b) evidence absent affirmative steps by the

defendant to remove intent as an issue.”). Second, there was sufficient proof to

permit a jury finding that Saunders sold Hayes crack on April 6, 2005, because

McNesky testified that it was a controlled drug sale, and Hayes’s testimony

regarding the sale was consistent with McNesky’s testimony. Third, the probative

value and government’s need for this evidence substantially outweighed any unfair

prejudice. The evidence had significant probative value because the charged and

uncharged offenses were identical and separated by only one day. See

Diaz-Lizaraza, 981 F.2d at 1225. The government’s need for the evidence was

strong because without hearing evidence of the April 6, drug sale, the jury might

have concluded that Hayes planted the drugs in his vehicle in an attempt to avoid

prosecution given that McNesky took Hayes into custody on April 6, after Hayes



                                           7
sold drugs to a CI, and McNesky offered Hayes immunity if he assisted in

apprehending a large-scale drug seller.

      Finally, although the government did not inform Saunders’s of its intent to

introduce testimony about the April 6, 2005, drug sale, Saunders has failed to show

that he was prejudiced because the government disclosed the evidence before trial

at the suppression hearing and through the search warrant affidavit. Therefore,

Saunders had adequate time to prepare his defense. Accordingly, we affirm

Saunders’s convictions.

      AFFIRMED.




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