                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                       F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                                                                       November 4, 2005
                          FOR THE FIFTH CIRCUIT
                                                                  Charles R. Fulbruge III
                                                                          Clerk

                                No. 04-10884



                         United States of America
                                             Plaintiff-Appellee,

                                   versus

                               Alfredo Porter
                                                  Defendant-Appellant.




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


                     (U.S.D.C. No. 3:03-cr-00327-1)

Before REAVLEY, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

      This appeal arises from defendant-appellant Alfredo Porter’s

conviction of (1) conspiracy to distribute and possess with intent

to   distribute    PCP   and   marijuana;   (2)    possession     of    PCP   and

marijuana with intent to distribute; (3) using, carrying, and

possessing a firearm in furtherance of drug trafficking; and (4)

possession of a firearm by a convicted felon.           Porter argues that

the district court abused its discretion by admitting evidence of


      *
        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that this opinion should not be published and is not precedent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.
a prior drug arrest under Federal Rule of Evidence 404(b).                             We

affirm.

                                            I

       On March 24, 2003, Dallas police officer Michael Mata, using

binoculars, observed several individuals selling drugs out of a

house located at 2625 Jennings Avenue, Dallas, Texas.                             After

approximately twenty-five minutes of observation, Mata approached

the house and, through the screen door, observed Porter at a table

counting       stacks   of    money,      with     distributable       quantities      of

marijuana, PCP, other drugs, a handgun, and a scale nearby.                       After

Mata    identified      himself      as    a     member   of    the    Dallas    police

department, Porter flipped the table over and fled out the backdoor

of the residence.        As Mata gathered evidence at the house, other

officers pursued Porter and, shortly thereafter, Officer Steven

Moore apprehended him.

       Prior    to   trial,    the   government       notified        Porter    that   it

intended   to     introduce     evidence,        pursuant      to   Federal     Rule   of

Evidence 404(b), that Porter had been arrested for a similar

offense on March 3, 2003, in Duncanville, Texas.                       Porter filed a

motion in limine seeking to exclude evidence of the Duncanville

arrest.    After a hearing, the district court overruled Porter’s

motion and allowed the government to introduce the evidence.

       The Duncanville arrest occurred on March 3, 2003, three weeks

before the charged incident.                There, Porter was riding in the



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backseat of a car pulled over for a traffic violation by Ralph

Woods, an officer with the Duncanville police department.                  The

driver of the car had several outstanding warrants and was placed

under arrest.      After Porter was asked to exit the vehicle, he took

a cooler in his possession and stashed it on the back dash of the

car.       Subsequently, Officer Woods searched the cooler and found

distributable amounts of marijuana, methamphetamine, and ecstasy.

When Woods attempted to place Porter under arrest, Porter fled on

foot.

       Porter    pled   not   guilty   to   all   four   counts.   After   the

government put on evidence establishing the above facts, Porter

presented three witnesses that testified that Porter was not a drug

dealer operating out of the Jennings Avenue residence.               Rather,

each witness testified that Porter had arrived at the house shortly

before the police raid in order to purchase drugs.             The jury found

Porter guilty on all four counts, and he was sentenced to a total

term of imprisonment of 117 months and to a five-year term of

supervised release.       Porter filed a timely notice of appeal.

                                       II

       We review the district court’s decision to admit evidence

pursuant to Federal Rule of Evidence 404(b) for an abuse of

discretion.1     Rule 404(b) excludes evidence of a defendant’s prior


       1
      United States v. Jackson, 339 F.3d 349, 354 (5th Cir.
2003); United States v. Anderson, 933 F.2d 1261, 1267-68 (5th
Cir. 1991). In Anderson, this Court noted that although review

                                        3
crimes, wrongs, or acts, when offered to prove that his conduct in

the charged offense was in conformity therewith.2               Rule 404(b)

allows evidence of prior bad acts, however, when offered for “other

purposes,   such     as    proof   of       motive,   opportunity,   intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident . . . .”3

     Our review is governed by the two-part test established in

United States v. Beechum.      First, the evidence must be relevant to

an issue other than the defendant’s character; second, the evidence

must possess probative value which is not outweighed by the risk of

unfair prejudice.4        Here, Porter concedes that, by pleading not

guilty to a charge of conspiracy, he placed his intent, knowledge,

and absence of mistake at issue.5           Thus, Porter’s argument focuses

on the second-part of the Beechum analysis: the prejudicial effect

of the Duncanville arrest.




was deferential, in criminal trials, it is “necessarily
heightened.” Anderson, 933 F.2d at 1267-68.
     2
      FED. R. EVID. 404(b).
     3
      Id.
     4
      United States v. Beechum, 582 F.2d 898, 911 (1978) (en
banc).
     5
      United States v. Booker, 334 F.3d 406, 411 (5th Cir.           2003);
see also United States v. Wilwright, 56 F.3d 586, 589 (5th           Cir.
1995) (recognizing that intent is especially at issue when           “the
defendant contends that he was merely present at the scene           of the
crime”).

                                        4
     Porter argues that evidence of the Duncanville arrest is

unnecessary to establish (1) his presence at the Jennings Avenue

residence, (2) his guilt, since witnesses directly observed him

selling narcotics and possessing firearms, and (3) his involvement

in a conspiracy, since witnesses directly observed him acting with

another in the drug trafficking enterprise.                 In short, Porter

argues   that    extrinsic     evidence    of    the   Duncanville      arrest    is

unnecessary      given   the    “strong”        case   against    him    and     the

government’s “direct and persuasive evidence.”

     Given these admissions, it is hard to see how the district

court’s decision to admit evidence of the Duncanville arrest, even

if incorrect, was not harmless error.6             Regardless, we reject each

of Porter’s arguments.

     Porter’s first two arguments are similar.                    First, Porter

argues that admitting the Duncanville arrest was unnecessary to

establish Porter’s presence at the drug house because “witnesses”

testified that Porter was at the location.              Second, Porter argues

that admitting the Duncanville arrest was unnecessary to establish

Porter’s guilt of the crimes charged since “witnesses” directly

observed   him    selling    narcotics     and    possessing     firearms.     Both

arguments are lacking.       Considering the need for the evidence,7 the

     6
      See United States v. Edwards, 303 F.3d 606, 623 (5th Cir.
2002) (recognizing that erroneous admission of evidence does not
warrant reversal when it amounts to harmless error).
     7
      See United States v. Jackson, 339 F.3d 349, 354-57 (5th
Cir. 2003).

                                      5
government presented a single witness, Officer Mata, that could

place Porter at the heart of the criminal conduct.         Moreover,

Porter placed his intent at issue, arguing that he was present at

the Jennings Avenue residence only as a drug buyer, not as a drug

seller.8   Second, the offenses are somewhat similar.   Both involved

possession of distributable amounts of drugs, including marijuana.

Finally, the offenses occurred only three weeks apart.

     Porter’s final argument is that since the government had the

eyewitness testimony of Officer Mata that identified Porter and his

co-conspirator, Randy Anthony, at the Jennings Avenue residence,

extraneous evidence was not necessary to establish a conspiracy to

sell drugs. Porter is perhaps correct in this contention, although

it does not affect our decision.      The extrinsic evidence of the

Duncanville arrest did not implicate Porter in a conspiracy with

Randy Anthony.   Porter was in a car with several individuals, none

of which was Anthony.    None of the circumstances surrounding the

Duncanville arrest suggests that Porter had or was conspiring to

sell drugs with any other individual. However, for reasons already

discussed, evidence of the Duncanville arrest is relevant to

establish Porter’s intent and identity at the time of the events

occurring at the Jennings Avenue residence.

     Finally, any prejudicial effect of the Duncanville arrest was

mitigated by the limiting instruction provided by the district


     8
      See Wilwright, 56 F.3d at 589.

                                  6
court.9   Therefore, the district court did not abuse its discretion

in admitting the evidence.

                                 III

     We reject Porter’s challenge to his conviction.   Accordingly,

the judgement of the district court is AFFIRMED.




     9
      See United States v. Taylor, 210 F.3d 311, 318 (5th Cir.
2000).

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