     Case: 10-40005 Document: 00511296437 Page: 1 Date Filed: 11/17/2010




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

                                                 FILED
                                                                         November 17, 2010
                                     No. 10-40005
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

JUAN DIEGO SANTIAGO, JR.,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 1:09-CR-641-1


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Juan Diego Santiago, Jr., appeals his jury-trial convictions for conspiring
to bring in and transport an illegal alien, within the United States, and
transporting an illegal alien, within the United States, for private financial gain.
At trial, the district court permitted the Government to offer evidence, pursuant
to Federal Rule of Evidence 404(b), of Santiago’s prior conviction for aiding and
abetting undocumented aliens, as proof of his intent to commit the charged
crimes. His prior offense was nearly identical to the crimes of conviction. For

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40005 Document: 00511296437 Page: 2 Date Filed: 11/17/2010

                                   No. 10-40005

all offenses, Santiago transported undocumented aliens in a vehicle not
registered to Santiago, and explained to Border Patrol Agents that he was
unaware of their undocumented status and picked them up at a service station
because they needed a ride. Santiago contends: the district court erred in
admitting the prior-crime evidence because its probative value was substantially
outweighed by the danger of unfair prejudice under Federal Rule of Evidence
403.
        Because Santiago made a timely objection to the district court’s
evidentiary ruling, we review for abuse of discretion. A Rule 404(b) ruling is
subject to heightened review, requiring the evidence be strictly relevant to the
particular offense charged. See United States v. Hernandez-Guevara, 162 F.3d
863, 869 (5th Cir. 1998); see also United States v. Buchanan, 70 F.3d 818, 831
(5th Cir. 1995).
        Rule 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”. F ED. R. E VID. 404(b). “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 . . . .” Id. In assessing the
admissibility of evidence under Rule 404(b), we ask whether: (1) the extrinsic-
offense evidence is relevant to an issue other than Santiago’s character; and (2)
the probative value of the evidence is not substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury. See United
States v. Hernandez-Guevara, 162 F.3d 863, 870 (5th Cir. 1998) (citing United
States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc)).
        Applying this two-step inquiry, the prior-crime evidence was highly
relevant to an issue other than Santiago’s character; it tended to show he
possessed the requisite intent for the crime charged. The only other evidence
regarding Santiago’s intent to transport illegal aliens was the testimony of the
woman he transported, who initially testified Santiago had no knowledge of her

                                         2
    Case: 10-40005 Document: 00511296437 Page: 3 Date Filed: 11/17/2010

                                 No. 10-40005

undocumented status. Because of the lack of evidence available to establish
Santiago’s unlawful intent, and the degree of similarity between the charged and
extrinsic offenses, the extrinsic-offense evidence was highly probative of
Santiago’s intent. See United States v. McMahon, 592 F.2d 871, 875 (5th Cir.
1979).
      As to the second prong, the probative value of the extrinsic-offense
evidence was not substantially outweighed by any unfair prejudice. The prior
offense was not of a heinous nature, and it did not constitute cumulative
evidence, confuse the issues, mislead the jury, or cause undue delay. See id. at
876. Moreover, any danger of unfair prejudice was minimized by the district
court’s appropriate limiting instruction to the jury. See id.
      AFFIRMED.




                                        3
