                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________            FILED
                                                    U.S. COURT OF APPEALS
                                 No. 10-15281         ELEVENTH CIRCUIT
                             Non-Argument Calendar    SEPTEMBER 8, 2011
                           ________________________        JOHN LEY
                                                            CLERK
                  D.C. Docket No. 4:10-cr-00010-HLM-WEJ-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

MARK HOWELL SPARKS,

                                                              Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                               (September 8, 2011)

Before EDMONDSON, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

      After a jury trial, Mark Sparks appeals his convictions for trafficking in

motor vehicles with altered vehicle identification numbers (“VIN”), in violation of
18 U.S.C. § 2321, tampering with an informant, in violation of 18 U.S.C.

§ 1512(b)(3), and obstruction of justice, in violation of 18 U.S.C. § 1505. After

review, we affirm.

              I. WITNESS SOUDER’S TESTIMONY AT TRIAL

      On appeal, Sparks argues that the district court abused its discretion in

admitting the testimony of Jason Souder that he stole vehicles for Sparks and

delivered them to Sparks at various locations, knowing Sparks was going to alter

the VIN numbers and resell the vehicles. Sparks contends Souder’s testimony was

inadmissible under Federal Rules of Evidence 404(b) and 403 as unduly

prejudicial evidence of other crimes.

      Under Rule 404(b), “[e]vidence of other crimes, wrongs, or acts” is

inadmissible to show the defendant’s bad character, but may be admitted for other

purposes. Fed. R. Evid. 404(b). However, “evidence of criminal activity other

than the charged offense is not extrinsic under Rule 404(b) if it is (1) an uncharged

offense which arose out of the same transaction or series of transactions as the

charged offense, (2) necessary to complete the story of the crime, or (3)

inextricably intertwined with the evidence regarding the charged offense.” United

States v. Wright, 392 F.3d 1269, 1276 (11th Cir. 2004) (quotation marks and

brackets omitted). “In such a situation, because the evidence is intrinsic, not

                                          2
extrinsic, we do not engage in a Rule 404(b) analysis. United States v. Church,

955 F.2d 688, 700 (11th Cir. 1992). Rather, this evidence is properly admitted if it

is “linked in time and circumstances with the charged crime, or forms an integral

and natural part of an account of the crime, or is necessary to complete the story of

the crime for the jury,” United States v. Williford, 764 F.2d 1493, 1499 (11th Cir.

1985), and passes the Rule 403 balancing test, which provides that even intrinsic

evidence “may be excluded if its probative value is substantially outweighed by

the danger of unfair prejudice.” Fed. R. Evid. 403.1

       Here, we find no abuse of discretion. The district court denied Sparks’s

motion in limine and admitted Souder’s testimony as intrinsic evidence relating to

Count One of Sparks’s indictment, which charged Sparks with operating a chop

shop. The district court stated:

       [T]he specific thing that [Souder] testified was that he stole four
       vehicles on the same day and delivered them to an uncle’s property at
       Felton and he got paid for them, three specifically, he got paid for them
       shortly before he went to jail in December of 2005. It’s clear that this
       is not 404(b) evidence. All of this is evidence that is relevant to the
       chop-shop charge in Count One of the indictment, so I’ll overrule your
       motion.




       1
         We review the district court’s ruling on the admissibility of evidence for abuse of
discretion. United States v. Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005).

                                                 3
The statutory definition of a chop shop requires the receipt of unlawfully obtained

vehicles to alter or remove their identities, including VINs, and then sell or

distribute the vehicles. See 18 U.S.C. § 2322(b).2 Souder’s testimony went

directly to the element of whether Sparks received stolen cars and altered or

removed VINs from those stolen vehicles after receiving them, both elements of

the chop shop charge. Souder’s testimony was thus relevant to two elements of a

charged offense.

       Even if the evidence were not intrinsic evidence, it would not have been

excluded under Rule 404(b). Souder’s testimony was evidence of an uncharged

offense arising out of the same series of transactions as a charged offense (the

chop shop charge) and was inextricably intertwined with the evidence of that

charged offense.

       Furthermore, Sparks has failed to show how the risk of unfair prejudice

from Souder’s testimony substantially outweighed its probative value. Sparks



       2
        Specifically, a “chop shop” is defined as:
       any building, lot, facility, or other structure or premise where one or more persons
       engage in receiving, concealing, destroying, disassembling, dismantling,
       reassembling, or storing any passenger motor vehicle or passenger motor vehicle part
       which has been unlawfully obtained in order to alter . . . or remove the identity,
       including the vehicle identification number or derivative thereof, of such vehicle or
       vehicle part and to distribute, sell, or dispose of such vehicle or vehicle part in
       interstate or foreign commerce.
18 U.S.C. § 2322(b).

                                                 4
argues that the evidence lacked probative value because (1) the events Souder

testified about were too remote to the charged offense, and (2) Souder was not a

credible witness.

      Count One charged Sparks with operating a chop shop beginning on an

unknown date and continuing until October 7, 2009. Souder testified that he had

stolen numerous vehicles at Sparks’s request. The earliest date Souder gave was

2000, when he said he delivered a stolen truck to Sparks and stayed to help Sparks

remove the windshield and the VIN. Souder claimed to have stolen 10 to 15

trucks for Sparks in 2005, including the last, before Souder was incarcerated in

December. Thus, the events Souder described occurred contemporaneously with

the charged chop shop offense. Furthermore, the jury was entitled to believe

Souder despite potential problems with his credibility, and Souder’s testimony, if

credited (which it appears it was not), would have been highly probative of

whether, during the charged period, Sparks had received stolen vehicles from

Souder to alter or remove their VINs and then sell them. Therefore, the admission

of Souder’s testimony as intrinsic evidence was not an abuse of discretion and thus

not error.

                            II. HARMLESS ERROR




                                         5
       Finally, even assuming arguendo that the admission of Souder’s testimony

was error, that error was harmless. Even if evidence was admitted in error, that

error will be disregarded where the error was harmless. See Fed. R. Crim. P. 52(a)

(providing that any error “that does not affect substantial rights must be

disregarded”). An error is harmless “if there is no reasonable probability that the

evidence complained of might have contributed to the conviction.” United States

v. Turner, 871 F.2d 1574, 1581-82 (11th Cir. 1989) (quotation marks omitted). A

split verdict shows that a jury properly considered evidence and was not confused

or improperly influenced by Rule 404(b) evidence. United States v. McNair, 605

F.3d 1152, 1205 (11th Cir. 2010), cert. denied, 131 S. Ct. 1600 (2011). The

government must carry the burden of showing that any error was harmless. United

States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).

       In this case, Souder’s testimony related to Count One, the chop shop charge,

on which the jury returned a verdict of not guilty. Souder had no knowledge of

the relevant events relating to the trafficking offense (Count Two) and gave no

testimony concerning the tampering and obstruction offenses (Counts Five and

Six), the three counts for which the jury found Sparks guilty.3 The jury’s split


       3
       Counts Two, Five and Six, upon which Sparks was convicted, arose out of Sparks’s
involvement with a man named Robert Cates. Sparks confessed to investigators that he
purchased a stolen pewter-colored Chevrolet pickup truck from Cates, removed the VIN from

                                             6
verdict tends to show the jury properly considered all the evidence. And, there is

no indication that Souder’s testimony, even if admitted in error as to Count One,

had any effect on the guilty verdicts in Counts Two, Five and Six.

       AFFIRMED.




another totaled truck and affixed it to the stolen pewter-colored truck. Then, according to the
government’s evidence, Sparks, who was a local police officer, repeatedly tipped Cates off
during the investigation, told Cates to lie to investigators and warned others who had bought
stolen vehicles from Cates to get rid of them. Souder testified that he did not even know Cates.

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