     Case: 09-31077 Document: 00511302656 Page: 1 Date Filed: 11/23/2010




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

                                                 FILED
                                                                         November 23, 2010
                                     No. 09-31077
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MACK ARTHUR SMITH,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                        for the Middle District of Louisiana
                               USDC No. 3:07-CR-3-1


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Mack Arthur Smith appeals his jury conviction for possession of
ammunition by a convicted felon. He argues that the district court abused its
discretion in admitting testimony that he sought to influence witnesses and to
discourage them from providing testimony that inculpated him. Smith contends
that the extrinsic evidence had little or no probative value and that the probative
value was substantially outweighed by the danger of unfair prejudice. He also



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-31077 Document: 00511302656 Page: 2 Date Filed: 11/23/2010

                                  No. 09-31077

asserts that the extrinsic evidence should not have been admitted because the
Government did not provide proper notice of its intent to use the evidence.
      This court uses a two-step inquiry to analyze the admissibility of extrinsic
evidence under Federal Rule of Evidence 404(b): (1) the extrinsic evidence must
be relevant to an issue other than the defendant’s character, and (2) the evidence
must possess probative value that is not substantially outweighed by its undue
prejudice and must meet the other requirements of Federal Rule of Evidence
403. United States v. Mitchell, 484 F.3d 762, 774 (5th Cir. 2007) (citing United
States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978)). This court reviews the
district court’s decision to admit the extrinsic evidence under a heightened
abuse-of-discretion standard. See Mitchell, 484 F.3d at 774. “Even if the district
court abused its discretion in admitting the Rule 404(b) evidence, [this court]
[does] not reverse if the error was harmless.” Id. (citations omitted).
      Smith’s efforts to influence witnesses and to discourage them from
testifying candidly were probative of his consciousness of guilt (i.e., that the
witnesses’ truthful testimony would likely result in his conviction). See United
States v. Rocha, 916 F.2d 219, 240-41 (5th Cir. 1990). Because the evidence was
probative of an issue other than Smith’s character, it was admissible under Rule
404(b).   See id. at 241.   And under the circumstances of this case, it was
reasonable for the district court to find that the danger of unfair prejudice did
not substantially outweigh the probative value of the evidence. See id. Thus,
the district court did not abuse its discretion in admitting extrinsic evidence
concerning Smith’s attempts to influence witnesses. See Rocha, 916 F.2d at
240-41. Even assuming the district court erred in admitting such evidence, that
error was harmless in light of the overwhelming evidence supporting the jury’s
finding of guilt. See Mitchell, 484 F.3d at 774.
      AFFIRMED.




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