     Case: 10-40165 Document: 00511340334 Page: 1 Date Filed: 01/05/2011




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

                                                 FILED
                                                                           January 5, 2011
                                     No. 10-40165
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DIONICIO MALDONADO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:09-CR-264-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Dionicio Maldonado appeals his conviction for possession with intent to
distribute more than 1,000 kilograms of marijuana. See 21 U.S.C. § 841. He
argues (1) that the district court abused its discretion in admitting the testimony
of Jose Torres and the corresponding wage records over an objection to relevance
and (2) that the district court abused its discretion in admitting the wage records
over a hearsay objection.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40165 Document: 00511340334 Page: 2 Date Filed: 01/05/2011

                                  No. 10-40165

      The wage records and Torres’s corresponding testimony were relevant to
show that Maldonado was not employed on the date he purchased his truck for
more than $26,000 and that there was no evidence of any employment around
that time. See F ED. R. E VID. 401. In fact, the social security number provided
by Maldonado for the wage records search belonged to an individual with a
different name. Maldonado’s lack of employment and his possession of a large
amount of cash to purchase the truck are among the circumstances from which
the jury could have inferred his guilty knowledge of the $4.5 million of
marijuana he possessed. See, e.g., United States v. Ortega-Reina, 148 F.3d 540,
544 (5th Cir. 1998). When viewed together with the bogus bill of lading (with
nonexistent pickup and drop-off points) and no record of calls from “Chato,” the
person who allegedly hired Maldonado to drive the load of what was supposed
to be ceramic tile, the evidence was relevant to show Maldonado’s complicity in
the offense. F ED. R. E VID. 401; see United States v. Villarreal, 324 F.3d 319, 324
(5th Cir. 2003). Maldonado has not shown that the danger of unfair prejudice
outweighed the probative value of the evidence. See F ED. R. E VID. 401, 403.
      The wage records did not constitute hearsay under F ED. R. E VID. 801
because they fell within the business records exception to the hearsay rule. F ED.
R. E VID. 803(6). Torres’s testimony indicated that it was the regular practice of
the Texas Workforce Commission to collect and keep wage records in its daily
course of business and that he was familiar with those records and how to search
them for an individual’s wage history. This testimony indicated that the wage
records were reliable and that a proper foundation was laid for their
introduction. See United States v. Brown, 553 F.3d 768, 792 (5th Cir. 2008);
United States v. Wells, 262 F.3d 455, 462 (5th Cir. 2001).
      Maldonado has not shown that the trial court based its evidentiary rulings
on an erroneous view of the law or on a clearly erroneous assessment of the
evidence. See United States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008).
He has therefore failed to show that the district court abused its discretion in

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                                No. 10-40165

admitting Torres’s testimony and the wage records.    See United States v.
Jimenez Lopez, 873 F.2d 769, 771 (5th Cir. 1989).
     AFFIRMED.




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