                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                       Revised October 16, 1998
                                                           September 25, 1998
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT               Charles R. Fulbruge III
                                                                 Clerk
                             ____________

                             No. 97-20517
                             ____________


          UNITED STATES OF AMERICA,


                                Plaintiff-Appellee,

          versus


          AARON MOREL LeBARON, also known as Jason Troy
          Barter, also known as Shawn Harvey Yates,


                                Defendant-Appellant.



          Appeal from the United States District Court
               For the Southern District of Texas



Before REYNALDO G. GARZA, HIGGINBOTHAM, and EMILIO M. GARZA,
Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

     Aaron Morel LeBaron appeals his convictions on one count of

conspiracy to obstruct religious beliefs, in violation of 18 U.S.C.

§§ 247 and 2, and two RICO counts, in violation of 18 U.S.C. §§ 1962

(c) and (d).       He contends that the district court improperly

admitted extrinsic evidence of bad acts under Federal Rule of

Evidence 404(b). He also appeals the denial of his post-conviction

motion to dismiss certain counts of the indictment, alleging
incorrect application of the rule of specialty.           We affirm.



                                     I

     Ervil LeBaron, Aaron’s father, founded the Church of the Blood

of the Lamb of God, a polygamous patriarchal religion.              According

to the Church doctrine, people who covenanted with the Church but

left or challenged Ervil, the “Great Grand Patriarch”, became “Sons

(or Daughters) of Perdition.”       To bring about the Kingdom of God on

earth, members believed they were obliged to kill each “Son of

Perdition” or risk damnation themselves.            Ervil wrote the Book of

the New Covenant of the Millennial Church of Jesus Christ, in which

he named Daniel Jordan, Ed Marston, Duane Chynoweth, and Mark

Chynoweth as “Sons of Perdition.”1

     After several leadership changes, Aaron became the Great Grand

Patriarch.    Aaron’s sister and wife, Cynthia LeBaron, testified

that Aaron taught about the Sons of Perdition.          Aaron held meetings

to plan for the execution of Jordan, who had established a church

in Colorado, because Jordan was “keeping the Kingdom of God from

progressing.”    To carry out his plan, Aaron and some siblings,

including    Cynthia,   came   to   stay     with    Jordan   and   professed

membership in Jordan’s church.           Heber LeBaron met Aaron near the

camp while Jordan was on a planned family hunting trip.                Heber

     1
          Before Ervil died, his followers split into two groups.
The group loyal to Ervil, including Aaron, went to Mexico. The
group that left Ervil’s Church included Daniel Jordan, Ed Marston,
Duane Chynoweth, and Mark Chynoweth.

                                    -2-
wanted to kill Jordan, and Aaron ordered him to do so.   Jordan was

shot and died at the camp.

     Later and in a separate incident, Aaron found guns in a truck

stolen by Church members.    He considered this to be “a sign from

God that it was time to kill” Ed, Duane, and Mark, “the Sons of

Perdition in Texas.”   Aaron instructed Cynthia to go to Houston to

take care of the Sons of Perdition, and gave her money to travel

there to meet Heber.   Aaron also ordered Heber by phone to carry

out their deaths, and “before [Heber] made any decisions about

things he would have to run it by Aaron so Aaron could approve.”

In Houston, Heber killed Mark in the office of Mark’s appliance

repair business.   To kill the three men simultaneously, Heber

assigned his siblings to kill Ed in Dallas and Duane in Houston.

Both men were killed as they went to make appliance repair pick-ups

for their respective appliance repair businesses.        Heber had

Duane’s eight-year-old daughter Jenny, who witnessed Duane’s death,

killed to eliminate her as a witness.        Cynthia, one of the

participants in the Texas murders, confessed her participation and

agreed to testify against Aaron in exchange for total immunity.

     Based largely on Cynthia’s testimony, a grand jury returned a

fourteen count superseding indictment against Aaron.2    The United

     2
          The   fourteen-count    superseding indictment alleged
Conspiracy to Commit Murder for Consideration, in violation of 18
U.S.C. § 1952A (Count 1), Murder for Consideration, in violation of
18 U.S.C. §§ 1952A and 2 (Counts 2-4), Conspiracy to Tamper with a
Witness, in violation of 18 U.S.C. §§ 371 and 1512 (Count 5),
Tampering with a Witness, in violation of 18 U.S.C. §§

                                -3-
States requested extradition of Aaron, a Mexican citizen, pursuant

to the United States-Mexico Extradition Treaty.                 The Mexican

Government extradited Aaron, consenting to the prosecution of

certain   charges   outlined     in    the   Resolution    of   Extradition

(“Resolution”)   and   denying    consent    to   other   charges.3    When

prosecution proceeded on all fourteen counts, Aaron challenged the

district court’s jurisdiction over the charges to which Mexico had

withheld consent. After Mexico protested the trial of unauthorized

charges, the district court dismissed Counts 2 through 8, and 10

through 12.   The jury convicted Aaron of Counts 1, 9, 13, and 14.

The district court granted a post-verdict motion for acquittal on

Count 1 and sentenced Aaron on the remaining three.

                                      II

     Aaron argues for reversal of his convictions because the

district court admitted extrinsic evidence of Jordan’s murder at

trial in contravention of Federal Rule of Evidence 404(b).4              We


1512(a)(1)(C) and 2 (Count 6), Use of Firearm, in violation of 18
U.S.C. §§ 924(c)(1) and 2 (Counts 7-8), Conspiracy to Obstruct
Religious Beliefs, in violation of 18 U.S.C. §§ 247(a)(2) and 371
(Count 9), Obstruction of Religious Beliefs, in violation of 18
U.S.C. §§ 247 and 2 (Counts 10-12), and RICO violations, in
violation of 18 U.S.C. §§ 1962 (c) and (d) (Counts 13-14).
     3
          A formal extradition request must be accompanied by
supporting documents.    A district judge in Mexico will give a
judicial opinion to Mexico’s Ministry of Foreign Affairs concerning
the merits of the request. The outcome of this opinion is the
resolution whether to grant extradition.       The “Resolution of
Extradition” delineates for which charges extradition is granted.
     4
          FED. R. EVID. 404(b) provides, in part:


                                      -4-
review the district court’s decision to admit extrinsic evidence

under Rule 404(b) for abuse of discretion.           See United States v.

Chavez, 119 F.3d 342, 346 (5th Cir.)(per curiam), cert. denied, __

U.S. __, 118 S. Ct. 615, 139 L. Ed. 2d 500 (1997).            The district

court found that the evidence was relevant to show design, motive,

and   scheme,   and   that   its   relevance   and   need   outweighed   the

prejudice.

      In United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978)

(en banc), we interpreted Rule 404(b) to require a two-step test:

First, we must determine whether extrinsic offense evidence is

relevant to an issue other than the defendant’s character.         See id.

(stating standard for relevancy is established by Rule 401).

Second, the evidence must possess probative value that is not

substantially outweighed by its undue prejudice.            See id. at 913

(explaining second step is whether the evidence satisfies Rule

403).

      Beechum’s relevancy threshold is satisfied if evidence is

relevant to an issue other than propensity to commit the act, such

as intent, motive, or plan.           See FED. R. EVID. 404(b).          When

extrinsic evidence is offered to prove intent, the relevancy of


          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 of accident . . .


                                     -5-
such evidence is ascertained by comparing the state of mind in

perpetrating the different offenses.         See United States v. Gordon,

780 F.2d 1165, 1173 (5th Cir. 1986) (describing relevancy inquiry

for issue of intent).     Extrinsic evidence also may be relevant if

it indicates a comprehensive plan.      See United States v. West, 22

F.3d 586, 595 (5th Cir. 1994) (“The other crime is admitted to show

this larger goal rather than to show defendant’s propensity to

commit crimes.”)(citation omitted); United States v. Krezdon, 639

F.2d 1327, 1331 (5th Cir. Unit A Mar. 19, 1981)(explaining that

extrinsic evidence is admissible to raise inference of a larger

plan).

     Aaron contended during trial that he took no part in the

murders.   Aaron’s continual emphasis that he was in Mexico during

the murders   made   it   incumbent   upon    the   Government   to   elicit

evidence tying Aaron to these murders.           Aaron contends that the

plans were dissimilar because evidence of Aaron’s active role in

Jordan’s murder is dissimilar to his passive role in ordering the

Texas murders.   We find this argument unpersuasive.

     Jordan’s murder is relevant to establish similar intent and

plan. Aaron had the same reason for ordering both the Colorado and

Texas murders--as Great Grand Patriarch, he ordered Heber and other

Church members to kill the Sons of Perdition.          Jordan’s murder is

relevant to show a unifying scheme of killing the Sons of Perdition

to attain the Kingdom of God on earth.              See United States v.


                                  -6-
Anderson, 933 F.2d 1261, 1273 n.7 (5th Cir. 1991)(stating extrinsic

evidence insufficient to show plan if crimes are “planned” the same

way, but rather each crime must be a part of some overall scheme).

      The second Beechum step considers whether the probative value

is   substantially       outweighed    by    the    prejudicial      value.      The

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. It is the incremental probity

that is to be balanced against its potential for undue prejudice.”

Beechum,    582   F.2d    at   914   (emphasis      added);    see   id.    at   n.18

(agreeing that probative value is determined in reference to the

“necessity” for the extrinsic evidence).

      Extrinsic evidence is highly probative in a conspiracy case.

“In the context of a conspiracy case, the mere entry of a not

guilty plea sufficiently raises the issue of intent to justify the

admissibility of extrinsic offense evidence.” Gordon, 780 F.2d at

1174.    Aaron’s denial of guilt renders the evidence of Jordan’s

murder highly probative on the intent issue.

      The probative value is augmented if there is slight direct

evidence.      See Williams, 900 F.2d at 827 (“The very limited

evidence the government could adduce on the issues of knowledge and

intent     increases     the   incremental         probity    of   the     extrinsic

evidence.”).      The Government’s use of Jordan’s murder as a Son of

Perdition, by order of Aaron, was probative of Aaron’s similar


                                       -7-
intent, motive, and plan in killing Ed, Duane, and Mark.                    Aaron

argues, however, that the government wanted to use the extrinsic

evidence    because   its    case   rested    almost   wholly     on   Cynthia’s

testimony, a felon and perjurer.          However, the limited evidence on

the issue of Aaron’s intent in ordering the Texas murders, and

Aaron’s attack on Cynthia’s credibility, increases the incremental

probity of the extrinsic evidence.           See United States v. Henthorn,

815 F.2d 304, 308 (5th Cir. 1987) (finding probative value of

extrinsic offense evidence outweighed possible prejudice where

defendant pled not guilty and attacked credibility of witness).

      We also consider whether the prejudicial value of the evidence

substantially outweighed its probative value.            Aaron contends that

the emotional testimony of Jordan’s murder, presented at the start

of   the   government’s     case-in-chief,5     was    unfairly    prejudicial

because the jury may have been more likely to convict him for the

extrinsic   offense.        The   court   minimized    the   danger    of   undue



      5
          Part of Aaron’s argument on appeal is that prejudice
arises because the Government introduced the evidence at the start
of the case-in-chief.     However, the running objection to the
extrinsic evidence that Aaron made at trial did not go to the order
of proof. United States v. Williams, 604 F.2d 1102, 1113 n.5 (8th
Cir. 1979). Further, at trial the district court judge suggested
that the Government wait to offer the extrinsic evidence until
after the defendant had impeached Cynthia. Counsel responded “If
they’re going to bring it out, we’d just as soon they bring it out
now, Judge.” Based on this waiver, we cannot find that the trial
court abused its discretion to control the order of proof. See
Huddleston, at 690, 108 S. Ct. at 1501 (“The trial court has
traditionally exercised the broadest sort of discretion in
controlling the order of proof.”).

                                      -8-
prejudice by instructing the jury, under Federal Rule of Evidence

105,6 to consider Jordan’s murder solely “to establish a plan or

scheme . . . as it relates to the crimes charged in the indictment”

and “for the very limited purpose of determining whether Mr.

LeBaron’s state of mind at the time alleged in the indictment in

this case was sufficient to establish a motive or intent to commit

the crimes alleged in the indictment.”           See Huddleston v. United

States, 485 U.S. 681, 691-92, 108 S. Ct. 1496, 1502, 99 L. Ed. 2d

771 (1988) (stating Rule 105 safeguards against undue prejudice);

United States v. White, 972 F.2d 590, 599 (5th Cir. 1992)(“[D]anger

of prejudice to the defendant is minimal so long as it is clear to

the jury that the extrinsic evidence is being introduced for the

sole purpose of showing intent.”); see generally FIFTH CIRCUIT

PATTERN JURY INSTRUCTIONS § 1.30, at 44-45 (West 1997) (similar

acts).

     Under Beechum, the evidence of Aaron’s direction to Heber to

kill Jordan is relevant to his intent and motive in the Texas

murders. Due to Aaron’s denial of guilt and challenge to Cynthia’s

testimony,   in    conjunction   with   the    district   court’s    limiting

instruction,      the   prejudicial    value   of   the   evidence    is   not


     6
          FED. R. EVID. 105 provides:

          When evidence which is admissible as to one party or for
one purpose         but not admissible as to another party or for
another purpose is       admitted, the court, upon request, shall
restrict the evidence to its       proper scope and instruct the
jury accordingly.

                                      -9-
substantially outweighed by its probative value.       We cannot say

that the district court abused its discretion in admitting the

evidence of Dan Jordan’s murder.

                                 III

     Aaron argues that the district court erred in denying his

motion to dismiss Counts 9 and either 13 or 14 under the doctrine

of specialty.   Under this doctrine, a “requisitioning state may

not, without the permission of the asylum state, try or punish the

fugitive for any crimes committed before the extradition except the

crimes for which he was extradited.”      United States v. Miro, 29

F.3d 194, 199 (5th Cir. 1994)(citation omitted).      The extradition

treaty between the United States and Mexico expressly includes the

doctrine: “A person extradited under the present Treaty shall not

be detained, tried or punished in the territory of the requesting

Party for an offense other than that for which extradition has been

granted . . . .” Extradition Treaty, May 4, 1978, [1979] United

States-United Mexican States, 31 U.S.T. 5059, 5071 (Extradition

Treaty).   We review de novo whether an extradition satisfies the

doctrine of specialty.    See United States v. Khan, 993 F.2d 1368,

1372 (9th Cir. 1993).

                                   A

     The   Resolution    acknowledged   that   the   United   States’s

extradition request had attached the superseding indictment, which




                                -10-
cited    fourteen   counts.7   The   Resolution    recharacterizes   the

fourteen counts in the indictment as eight charges:

     . . . a) two charges of the use of a firearm during the
     commission of a crime of violence, against that which is
     put forth in Title 18, Section 924 (C)(1) and(2) of the
     United States Code (U.S.C.); b) one charge of being involved
     in a fraudulent, influential, and corrupt organization, in
     violation of Title 18, Section 1962 of the U.S.C.; c) three
     charges of contracting murder-for-hire, violating Title 18,
     1952 (A) and (2) (Renumbered as Section 1958) of the U.S.C.;
     d) one charge of bribing a witness, in violation of Title 18,
     Section 1512 (A)(1)(C) and (2) of the U.S.C.; and e) criminal
     conspiracy to commit a homicide, violating Title 18, Section
     1952 (A) of the U.S.C.; . . .

The Resolution later stated that:

     The extradition of Aaron . . . is granted . . . for the
     following charges: one charge of being involved in a
     fraudulent, influential, and corrupt organization and criminal
     conspiracy to commit homicide. . . . Extradition is not
     granted for the charges of:     two charges of the use of a
     firearm during the commission of a crime of violence, three
     charges of contracting murder-for-hire and one charge of
     bribing a witness . . .


The different descriptions of the counts in the indictment and

the charges in the Resolution created confusion regarding the

counts on which Aaron could be prosecuted.        At the request of the

United States for detailed specification of the counts to which

Mexico had consented, Mexico sent an explanatory diplomatic note

that stated, in pertinent part:

     The first point of resolution of said Order authorizes the
     processing of [the defendant] . . . for the following
     charges:
     1.   One charge for being involved in a fraudulent,
          influential and corrupt corporation, in violation of

     7
         See supra note 2.

                                 -11-
          Section 1962(c) and (d) of Title 18 of the United
          States Code.
     2.   Conspiracy to commit murder, in violation of Sections
          247 and 1952 A of Title 18 of the United States Code.

Based on this note, the district court granted the Government’s

motion to dismiss Counts 2-8 and 10-12.   Aaron subsequently was

convicted on Counts 1 (Conspiracy to Commit Murder for

Consideration), 9 (Conspiracy to Obstruct Religious Beliefs), 13

(RICO conspiracy), and 14 (substantive RICO); the court later

ordered acquittal on Count 1.

     Aaron moved post-verdict to dismiss for want of jurisdiction

Counts 9 and either 13 or 14, contending that Mexico authorized

conspiracy to commit homicide (Count 1) and only one RICO Count

(Count 13 or 14).   The district court, persuaded that the note

referred to the statutory section numbers for Counts 1, 9, 13 and

14, denied this motion.

                                 B

     Whether Aaron has standing to raise the doctrine of

specialty is an undecided issue in this circuit.    See United

States v. Kaufman, 858 F.2d 994, 1009 n.5 (5th Cir.1988)

(declining to address standing issue), reh’g denied, 874 F.2d

242, 243 (5th Cir. 1989) (per curiam).    We need not decide this

issue because, even assuming arguendo that Aaron has standing to

challenge jurisdiction, we find that prosecution on the four

counts did not violate the doctrine.

     Initially, we find that the Resolution may seem ambiguous.

                                -12-
The charges listed in the Resolution do not directly correlate to

the numbered counts in the superseding indictment.    Accordingly,

we consider whether Aaron was prosecuted for additional counts or

offenses beyond those for which he was extradited.

     In Fiocconi v. Attorney General of United States, 462 F.2d

475, 481 (2d Cir. 1972), the defendants challenged the court’s

jurisdiction to try them on a superseding indictment that added

offenses subsequent to the ones for which they were extradited.

The Second Circuit explained that the doctrine of specialty

operates to prevent extradictees from indiscriminate prosecution,

particularly for political crimes.    See id.   “[I]n the absence of

any affirmative protest from [the sending country],” the Second

Circuit did “not believe that Government would regard the

prosecution of [the defendants] for subsequent offenses of the

same character as the crime for which they were extradited as a

breach of faith by the United States.”    Id.

     The Ninth Circuit has reached the same conclusion.    In

United States v. Andonian, 29 F.3d 1432, 1435 (9th Cir. 1994), a

grand jury returned a superseding indictment after the defendants

were extradited.   The defendants argued that trial on the

superseding indictment violated the doctrine of specialty because

the indictment that formed the basis for the extradition had

contained fewer counts.   The court rejected this argument because

“[t]he superseding indictment altered neither the nature of the


                               -13-
scheme alleged nor the particular offenses alleged.”    Id. at

1437.

     These cases suggest that the doctrine of specialty is

concerned primarily with prosecution for different substantive

offenses than those for which consent has been given, and not

prosecution for additional or separate counts of the same

offense.    The appropriate test for a violation of specialty “is

‘whether the extraditing country would consider the acts for

which the defendant was prosecuted as independent from those for

which he was extradited.’”    Id. at 1435 (citations omitted).

        Moreover, we do not believe Mexico would consider the acts

for which Aaron was prosecuted to be independent from those for

which he was extradited.    Aaron maintains that the difference in

descriptions of the counts in the indictment and the charges in

the Resolution is significant.    We should not assume that the

extraditing country is cognizant of the Federal Rules of Criminal

Procedure on charging a criminal indictment, and Aaron has

produced no evidence that “one charge” in Mexico has the same

meaning as “one count” in the United States.

     The Resolution described the RICO counts as “one charge of

being involved in a fraudulent, influential, and corrupt

organization, in violation of Title 18, Section 1962 of the

U.S.C.,” and Mexico consented to extradition on this basis.      The

Resolution also described “criminal conspiracy to commit a


                                 -14-
homicide, violating Title 18, Section 1952 (A),” to which Mexico

also consented.   For the remaining charges described in the

Resolution, Mexico expressly withheld its consent.       The words

that Mexico used later in the Resolution to give or withhold

consent clearly correlate with the specific words it used earlier

in the Resolution to articulate the charges.

     This correlation suggests that the use of the singular word

“one” in Mexico’s Resolution does not limit prosecution from

“two” RICO counts to “one.”   The Resolution referred to the two

RICO counts in the indictment as one charge when initially

describing those charges.   Mexico’s consent to the “one” RICO

charge in the Resolution can be understood as consent for both

RICO counts in the indictment.    Indeed, Mexico expressed its full

consent for prosecution of the RICO offenses, as Mexico had

described them in the Resolution.       This interpretation is

bolstered by the fact that, in response to the United States’s

request for clarification, Mexico’s explanatory letters

specifically referenced §§ 1962 (c) and (d), which were the

statutory basis for Counts 13 and 14.       Mexico never expressed

opposition to prosecution under any portion of § 1962.      Based on

Mexico’s authorization for the RICO charges in the Resolution,

its citation of the statutory predicates for Counts 13 and 14,

and its failure to object to trial on both counts, we find that

Mexico would not consider the RICO acts for which Aaron was


                                 -15-
prosecuted to be independent of the RICO acts for which he was

extradited.

     Similarly, we must determine whether Mexico’s consent to

prosecute “criminal conspiracy to commit homicide” authorized

prosecution on Count 9, conspiracy to obstruct religious beliefs.

In the explanatory letter, Mexico specifically authorized

prosecution under § 247, which appears only in Count 9.     Like

Counts 13 and 14, never has Mexico expressly objected to

prosecution for Count 9.   Aaron contends that license to

prosecute “conspiracy to commit murder” does not license

prosecution for conspiracy to obstruct religious beliefs.     We

previously found in United States v. Barlow, 41 F.3d 935, 943

(5th Cir. 1994)(per curiam), that “the plain language of § 247

manifests Congress’ specific intent to make criminal, inter alia,

the conduct at issue here:   the killing of Ed, Mark, and Duane

for the sole reason that they chose to exercise their right to

extricate themselves from the beliefs, practices, and fellowship

of the Church.”   For these reasons, we find that Mexico would not

consider Aaron’s conviction for conspiracy to obstruct religious

beliefs to be an offense so separate from the one for which he

was extradited as to be a breach of faith by the United States.

See Fiocconi, 462 F.2d at 481.

                                  IV

     In summary, the district court properly admitted the


                                 -16-
extrinsic evidence of bad acts under Rule 404(b).   Additionally,

we find no violation of the doctrine of specialty, and thus the

district court had jurisdiction to try the defendant for Counts

9, 13, and 14.   Accordingly, Aaron’s convictions are AFFIRMED.




                               -17-
