     Case: 10-51191     Document: 00511643701         Page: 1     Date Filed: 10/25/2011




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

                                                                            FILED
                                                                         October 25, 2011
                                     No. 10-51191
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

DWAYNE CHARLES LOVE, also known as Dewayne Charles Love,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:10-CR-90-1


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Dwayne Charles Love appeals his jury-trial conviction for knowingly
transporting, or attempting to transport, an individual in interstate commerce,
with intent that the individual engage in prostitution and sexual activity for
which a person can be charged with a criminal offense, and aiding and abetting
the same, in violation of 18 U.S.C. §§ 2, 2421. Love contends only that the
district court reversibly erred by admitting extrinsic evidence of Love’s prior
involvement in prostitution.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-51191    Document: 00511643701      Page: 2   Date Filed: 10/25/2011

                                  No. 10-51191

      Under Federal Rule of Evidence 404(b), “[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” but is “admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident”. Our court reviews “the admission of Rule
404(b) evidence for an abuse of discretion with a heightened review in criminal
cases”. United States v. Olguin, 643 F.3d 384, 389 (5th Cir. 2011), petition for
cert. filed (Aug. 31, 2011) (No. 11-6184). (Regarding the admission of evidence,
reversible error occurs only if the court erred in admitting evidence and the error
affected a substantial right. FED. R. EVID. 103(a).)
      Love fails to show the extrinsic evidence was inadmissable under our
court’s two-prong standard, enunciated in United States v. Beechum, 582 F.2d
898, 911 (5th Cir. 1978) (en banc).      Under that standard, the court first
determines whether “the extrinsic evidence is relevant to an issue other than the
defendant’s character”. Id. Next, the court examines whether the evidence
possesses “probative value that is not substantially outweighed by its undue
prejudice”. Id. Love pleaded not guilty and adamantly contested his intent to
prostitute the individual, rendering the extrinsic evidence relevant to something
besides his character, and probative of intent.        Olguin, 643 F.3d at 389;
Beechum, 582 F.2d at 914. And although the Government offered other evidence
of Love’s intent—through testimony by police, the victim, and an expert witness,
the extrinsic evidence corroborated that testimony and, therefore, had
significant probative value. See United States v. Chavez, 119 F.3d 342, 347 (5th
Cir. 1997) (finding no abuse of discretion in admitting evidence of prior
conviction when the Government’s other evidence supporting conviction was
circumstantial or weak, and other Beechum factors were satisfied).
      Further, the “overall similarity” of the extrinsic evidence and the offense
charged was great. Beechum, 582 F.2d at 915. In both instances, Love was
apprehended with a young woman in a hotel room with a laptop computer, with

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                                 No. 10-51191

similar evidence that sexual activity had occurred. And, the extrinsic act
occurred near to when the charged offense occurred (about one year before).
Finally, the district court gave a limiting instruction before both the testimony
and when the jury deliberated.
      AFFIRMED.




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