                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 August 23, 2006
                               No. 05-13530                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                     D. C. Docket No. 04-20447-CR-CMA

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

DERICK R. FRYE,

                                                             Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                               (August 23, 2006)

Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.

PER CURIAM:

     A Southern District of Florida jury convicted appellant of violating 18
U.S.C. § 922(a)(6) by making a false written statement to a federally-licensed

firearm dealer, Daddy’s Cash and Pawn (“Daddy’s”), on July 8, 2002, in

attempting to purchase a handgun. After the district court imposed sentence, 36

months incarceration, he lodged this appeal, challenging his conviction.

      Appellant seeks the vacation of his conviction and the entry of a judgment of

acquittal on the ground that the evidence was insufficient to support a jury finding

that on July 8, 2002, Daddy’s possessed the requisite federal firearms license.

Alternatively, he seeks a new trial on the ground that the district court abused its

discretion in admitting under Fed. R. Evid. 404(b) a subsequent similar act – the

possession of a short-barreled shotgun for which he was convicted – to

demonstrate his intent to commit the charged offense. We affirm.

      We need not tarry long in disposing of appellant’s first contention. Daddy’s

owner, Jorge Sagarra, testified that the store had a federal firearms license at the

time appellant made the allegedly false statement on the ATF form. ATF agent

Jamie Morales stated that Daddy’s was a federally-licensed firearms dealer.

Sagarra’s and Morales’s testimony provided a sufficient predicate for the jury’s

finding that Daddy’s was a licensed dealer. We turn, therefore, to the Rule 404(b)

evidence.

      On June 22, 2002, a little over two weeks before he committed the §



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922(a)(6) offense at Daddy’s, appellant acquiesced in a state court’s entry of a

“Domestic Violence Stay Away Order” which obligated him to remain at least 500

feet from his wife until further order of the court. The order also required that he

“not use, possess, or carry a firearm, gun, weapon or ammunition.”

      On July 8, 2002, appellant went to Daddy’s, accompanied by his wife (they

had apparently reconciled), and told Sagarra that he and his wife were seeking “his

and her” handguns. After they selected the handguns – she picked out a .25 caliber

pistol; he selected a larger caliber Smith & Wesson revolver – Sagarra handed

appellant AFT form 4473. Without seeking any assistance, appellant filled out the

form, including question 12(H) which asked whether the buyer was subject to a

domestic violence restraining order and stated that one subject to such an order was

ineligible to purchase a firearm. Appellant answered the question in the negative.

      On receiving the form from appellant, Sagarra told him that he would

complete the sale following a background check. Appellant gave Sagarra a Florida

identification document, and Sagarra contacted the Florida Department of Law

Enforcement (“FDLE”). The FDLE told him to delay the transaction, and he

informed appellant that the matter would take between 10 minutes and a full day to

be resolved. Appellant in turn gave Sagarra a $100 deposit and said he would

return the next day. Later the same day, July 8, the FDLE disapproved the sale.



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When appellant returned to the store on July 9, Sagarra told him that the sale had

been blocked and gave him a form with which he could appeal the FDLE’s

decision. Appellant did not appeal.

      On July 18, 2002, ten days after this aborted firearms purchase, officers of

the local police department were summoned in the early morning hours to the

home of Tenirique Clark. On arrival, Ms. Clark told them that appellant had been

there and was armed with a sawed-off shotgun. Then, after she phoned the police,

he departed the scene, leaving the shotgun under a nearby tree.

      Appellant was apprehended later in the day and conceded that he had

possessed the weapon, a .12 gauge shotgun with a shortened barrel and modified

handle, and acknowledged that the domestic violence restraining order was still in

effect. He later pled guilty in state court to possessing a sawed-off shotgun and to

perpetrating domestic violence.

      ATF agent Morales subsequently arrested appellant for making a false

statement in response to question 12(H) on the ATF form at Daddy’s. Appellant

admitted filling out the form and answering the question as he did. On July 2,

2004, a grand jury returned the indictment in this case.

      Prior to trial, the Government filed a notice of its intent to rely on Rule

404(b) evidence – specifically, appellant’s possession of the sawed-off shotgun on



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July 18, 2002, and subsequent conviction – to demonstrate appellant’s intent to

possess a firearm on July 8, 2002, by answering falsely question 12(H) on the ATF

form. The Government anticipated that appellant would defend the false statement

charge by claiming that he did not know that he was a “prohibited” person.

Appellant responded to the Government’s notice by moving in limine to have the

Rule 404(b) evidence excluded. The court denied his motion, concluding that the

evidence was probative of his motive to lie on the ATF form and of the absence of

mistake or accident.

      We review properly preserved challenges to trial court rulings on admission

of evidence for abuse of discretion. United States v. Jiminez, 224 F.3d 1243, 1249

(11th Cir.2000). A court abuses its discretion when its decision "rests upon a

clearly erroneous finding of fact, an errant conclusion of law, or an improper

application of law to fact." United States v. Baker, 432 F.3d 1189, 1202 (11th Cir.

2005), cert denied, Pless v. United States, 126 S.Ct. 1809 (2006).

      Evidence showing "any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would [otherwise] be" is "[r]elevant evidence," and "[a]ll relevant evidence is

[generally] admissible" at trial. Fed. R. Evid. 401, 402. Even if evidence is

relevant, though, it "may be excluded if its probative value is substantially



                                           5
outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury." Fed. R. Evid. 403. This rule is, however, an “extraordinary

remedy. . . which should be used sparingly since it permits the trial court to

exclude concededly probative evidence.” United States v. Wright, 392 F.3d 1269,

1276 (11th Cir. 2004), cert. denied, 544 U.S. 968 (2005). Rule 404(b) prohibits all

evidence of "crimes, wrongs, or acts" to prove that a person is of a character that

would commit the crime charged, but it permits such evidence to prove, among

other things, motive, intent, or absence of mistake or accident. Baker, 432 F.3d at

1204.

        We apply a three-part test for determining the admissibility of evidence

under Rule 404(b). First, the evidence must be relevant to an issue other than the

defendant’s character. Second, the evidence must be sufficient to support a finding

that the defendant actually committed the extrinsic act. Third, the probative value

of the evidence must not be substantially outweighed by the risk of unfair

prejudice. United States v. Calderon, 127 F.3d 1314, 1330 (11th Cir. 1997),

modified on other grounds, United States v. Toler, 144 F.3d 1423 (11th Cir. 2003).

        As for the first prong, evidence of extrinsic offenses may be admissible to

show motive. Baker, 432 F.3d at 1204. Overall similarity between the charged

crime and the extrinsic offense is not required when the offense is introduced to



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show motive. United States v. Beechum, 582 F.2d 898, 912 n. 15 (5th Cir. 1978)

(en banc). The second prong of this test is met if a jury could find by a

preponderance of the evidence that the defendant committed the uncharged

misconduct. United States v. Hooshmand, 931 F.2d 725, 736 (11th Cir. 1991). As

for the third prong, a limiting instruction to the jury by the district court can

mitigate any unfair prejudice that the introduction of the evidence caused.

Calderon, 127 F.3d at 1333.

      We find no abuse of discretion in the admission of the Rule 404(b) evidence

at issue. First, the evidence was relevant to appellant’s argument that he did not

understand the ATF form. The court correctly allowed the Government to

introduce his state court conviction for possession of the short-barreled shotgun to

show his motive for falsely answering question 12(H) on the ATF form and that he

did not make a mistake in doing so. Second, the Government carried its burden of

proving that appellant was convicted of the possession offense by introducing the

conviction documents. Third, the Government sufficiently showed that the

probative value of that conviction outweighed its potential prejudice. The

Government used the Rule 404(b) evidence for the limited purposes of showing

motive, i.e., he wanted to possess a gun, and absence of mistake, i.e., he knew he

was barred from possessing a gun. This evidence was probative because appellant



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would not have pled guilty to the shotgun charge if he had not known that the

protective order made it illegal for him to possess a gun. Lastly, the court provided

a limiting instruction as to the use of the Rule 404(b) evidence.

      AFFIRMED.




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