              Case: 12-16256     Date Filed: 10/09/2013    Page: 1 of 7


                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-16256
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 3:12-cr-00096-RBD-MCR-1

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                       versus

WILLIAM ARTHUR VANHOLTEN,

                                                               Defendant-Appellant.

                           ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                 (October 9, 2013)

Before HULL, MARTIN and JORDAN, Circuit Judges.

PER CURIAM:

      William Vanholten appeals his conviction for possession and aiding and

abetting possession of cocaine with intent to distribute, in violation of 21 U.S.C.
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§841(a)(1) and (b)(1)(A). At trial, the government attempted to show that

Vanholten had been caught at a traffic stop in a scheme to transport cocaine by car.

Specifically, Vanholten enlisted the help of an unsuspecting driver, who was never

told that her purpose in driving from Jacksonville to Miami and back was to move

ten kilograms of cocaine. He also drove the route with her in tandem. On appeal,

Vanholten first argues that the district court erred in admitting evidence of his prior

drug conviction pursuant to Fed. R. Crim. P. 404(b). He further argues that the

district erred in denying his untimely motion to suppress evidence from a traffic

stop.

                                 I. Prior Conviction

        Vanholten argues that evidence of his prior 2006 conviction for possession

with intent to distribute cocaine was improperly admitted. The prior conviction,

also the result of a traffic stop, was introduced pursuant to Federal Rule of

Evidence 404(b), “to prove intent, knowledge, identity, and/or absence of mistake

or accident” as to the indicted offense. Vanholten argues that the prejudicial effect

of such evidence outweighed its minimal probative value where the offenses were

six years apart and where the 2006 offense involved only 250 grams of cocaine and

the 2012 offense involved 10 kilograms.

        We review a district court’s Rule 404(b) rulings for an abuse of discretion.

United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir. 2005). If an


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evidentiary ruling is based on an erroneous view of the law, however, it constitutes

an abuse of discretion per se. Id.

      Federal Rule of Evidence 404(b) prohibits the admission of evidence of a

person’s crimes or other wrongful acts “to prove a person’s character in order to

show that on a particular occasion the person acted in accordance with the

character.” However, such evidence may be admitted for other purposes, such as

“proving motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). Rule 404(b)

evidence must pass a three-part test to be admissible against a defendant:

      First, the evidence must be relevant to an issue other than the
      defendant’s character. Second, as part of the relevance analysis, there
      must be sufficient proof so that a jury could find that the defendant
      committed the extrinsic act. Third, the evidence must possess
      probative value that is not substantially outweighed by its undue
      prejudice[.]

United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003) (quotation marks

omitted).

      The third part of this test—whether the probative value of the evidence is

substantially outweighed by undue prejudice—“lies within the sound discretion of

the district judge and calls for a common sense assessment of all the circumstances

surrounding the extrinsic offense . . . .” Id. at 1282 (quotation marks omitted).

Circumstances relevant to this analysis include “prosecutorial need, overall

similarity between the extrinsic act and the charged offense, as well as temporal
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remoteness.” Id. (quotation marks omitted). We have declined to adopt a bright-

line rule as to temporal remoteness because “decisions as to impermissible

remoteness are so fact-specific that a generally applicable litmus test would be of

dubious value.” United States v. Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005)

(quotation marks omitted). Accordingly, a defendant “bears a heavy burden in

demonstrating an abuse of the court’s broad discretion in determining if an

extrinsic offense is too remote to be probative.” Id. (quotation marks omitted). In

other circumstances, we have concluded that a conviction for drug trafficking

“only six years prior to the beginning of the conspiracy charged at trial” was

properly admissible to prove intent. United States v. Brown, 587 F.3d 1082, 1091

(11th Cir. 2009).

      The district court did not abuse its discretion in admitting evidence of

Vanholten’s prior drug conviction. Vanholten concedes that his not guilty plea

placed his intent at issue and that the prior conviction constituted sufficient proof

of the prior bad act, thereby satisfying the first two prongs of admissibility.

      The third prong—that the evidence’s probative value outweighs the risk of

unfair prejudice—was met as well. First, the offenses were similar, as both

involved Vanholten being found with large sums of cash during traffic stops. See

Jernigan, 341 F.3d at 1282. Second, the prior conviction was probative of

Vanholten’s knowledge and intent to transport and distribute cocaine. See id.


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Indeed, testimony at trial established that Vanholten had remarked upon arrest for

the 2006 conviction, “I lost my job, now I guess I have to keep selling drugs so I

get rich.” Third, we have in other cases found that six years is not too long to

dissipate the probative value under 404(b) of a prior conviction. See, e.g., Brown,

587 F.3d at 1091; United States v. Matthews, 431 F.3d 1296, 1312 (11th Cir. 2005)

(eight years not too remote). Finally, the district court mitigated any potential

prejudice to Vanholten by giving a limiting instruction. On this record, the district

court did not abuse its discretion by introducing evidence of the prior conviction.

                         II. Untimely Motion to Suppress

      Vanholten also argues that the district court abused its discretion when it

denied his admittedly late motion to suppress evidence from the traffic stop as

untimely. Specifically, Vanholten argues that he established good cause for the

delay because the government did not provide him the requested video footage for

the traffic stop until after the district court’s suppression motion filing deadline.

      We review a denial of a motion to suppress on grounds of untimeliness for

abuse of discretion. United States v. Smith, 918 F.2d 1501, 1509 (11th Cir. 1990).

Pursuant to the Federal Rules of Criminal Procedure, a motion to suppress must be

brought prior to trial. Fed. R. Crim. P. 12(b)(3)(C). The district court may set a

deadline for the parties to make pretrial motions, and failure to bring a motion to




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suppress prior to the court’s deadline, in the absence of good cause, constitutes

waiver. Id. at 12(c), (e).

        The harmless error doctrine applies to violations of the Fourth Amendment.

United States v. Khoury, 901 F.2d 948, 960 (11th Cir. 1990). In applying the

doctrine, we ask “whether there is a reasonable possibility that the evidence

complained of might have contributed to the conviction.” Id. (quotation marks

omitted). “If the jury might have relied on the unconstitutional evidence in

reaching its verdict, then the error was harmful unless the other evidence of guilt

was so overwhelming that the defendant suffered no prejudice from the admitted

evidence.” Id.

        The district court did not abuse its discretion in denying Vanholten’s

untimely motion to suppress. He failed to show good cause for his delay in filing.

In neither his generic suppression motion nor in open court did Vanholten ever

explain what information he needed from the video tape to file a proper

suppression motion that he did not already know from being present at the traffic

stop.

        Even assuming the district court did abuse its discretion, any resulting error

was harmless. The only evidence gained from the stop in particular was that

Vanholten was carrying a large sum of cash and a cell phone. Given the other

evidence proffered by the government, including Vanholten’s tandem driving with


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the car carrying the cocaine; testimony of the other driver; video evidence of

Vanholten placing bags in the car; and evidence from a DEA tracking device, there

is not a reasonable probability that the traffic stop evidence tilted the scale to a

conviction. See Khoury, 901 F.2d at 960. For these reasons, we affirm as to this

issue.

                                     III. Conclusion

         Vanholten’s conviction is

         AFFIRMED.




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