     Case: 15-40874      Document: 00513554432         Page: 1    Date Filed: 06/20/2016




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

                                    No. 15-40874                                    FILED
                                  Summary Calendar                              June 20, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RODOLFO CASARES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:14-CR-653-1


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       A jury convicted Rodolfo Casares of conspiracy to possess with intent to
distribute more than one kilogram of heroin, more than 500 grams of
methamphetamine, and more than five kilograms of cocaine; possession with
intent to distribute 1.96 kilograms of methamphetamine; and possession with
intent to distribute 2.98 kilograms of cocaine.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 15-40874

      On appeal, Casares argues that witness testimony that Casares bought
weapons and cars and paid people on behalf of the Zetas drug cartel was
extrinsic evidence, inadmissible under Federal Rule of Evidence 404(b).
Casares also argues that the district court erred in admitting cross-
examination testimony that the Zetas cartel had supplied the vehicle used in
the subject drug conspiracy.      He contends that the evidence was unduly
prejudicial under Federal Rule of Evidence 403.
      Because his objection in the district court was based on Rule 403,
Casares’s Rule 404(b) challenge to the witness testimony is subject to plain
error review only. See United States v. Ceballos, 789 F.3d 607, 617 (5th Cir.
2015). “To establish plain error, [Casares] has the burden of proving (1) an
error (2) that was ‘clear or obvious, rather than subject to reasonable dispute’
and (3) that affected [his] ‘substantial rights.’” See id. (quoting Puckett v.
United States, 556 U.S. 129, 135 (2009)). If he makes this showing, then the
court may correct the error but only if it seriously affects the fairness, integrity,
or public reputation of the proceedings. See id.
      Casares has not made the required showing. Even if this court were to
determine that the testimony about the Zetas cartel was extrinsic to the
charged offenses, Casares cannot show plain error. Pursuant to United States
v. Beechum, this court uses a two-pronged test to determine if Rule 404(b)
testimony was erroneously admitted. 582 F.2d 898, 911 (5th Cir. 1978) (en
banc). The court first asks whether the evidence is “relevant to an issue other
than the defendant’s character,” such as intent, knowledge, plan, pattern of
conduct, or motive. Id.; see Fed. R. Evid. 404(b)(2). If it is, the court next
examines whether the evidence possesses “probative value that is not
substantially outweighed by its undue prejudice.” Beechum, 582 F.2d at 911.




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                                 No. 15-40874

      Here, the testimony was relevant because it demonstrated that he
possessed the requisite knowledge and intent to participate in the drug
conspiracy. See United States v. Misher, 99 F.3d 664, 670 (5th Cir. 1996).
Moreover, the strength of the other evidence speaking to Casares’s unlawful
intent reduces the potential prejudice of the Zetas reference. See United States
v. Chavez, 119 F.3d 342, 346 (5th Cir. 1997). Consequently, Casares cannot
show plain error regarding the admission of the complained-of testimony. See
Beechum, 582 F.2d at 911; Puckett, 556 U.S. at 135. Relatedly, Casares also
cannot show plain error as to whether the district court should have sua sponte
issued a limiting instruction, as he cites to no law showing clear or obvious
error in that regard. See Puckett, 556 U.S. at 135.
      Casares’s Rule 403 claim is similarly unavailing. “In reviewing Rule 403
findings, [this court] give[s] ‘great deference to the [trial] court’s informed
judgment and will reverse only after a clear showing of prejudicial abuse of
discretion.”’ United States v. Peden, 961 F.2d 517, 521 (5th Cir. 1992) (quoting
United States v. Rocha, 916 F.2d 219, 241 (5th Cir. 1990)). As the Government
correctly notes, defense counsel’s own question invited the error that Casares
now challenges on appeal.      “The doctrine of invited error applies to this
situation; when injection of inadmissible evidence is attributable to the actions
of the defense, the defense cannot later object to such ‘invited error.’” United
States v. Delgado, 672 F.3d 320, 339 (5th Cir. 2012) (en banc). In addition,
even assuming the district court abused its discretion, any error was harmless.
United States v. Clark, 577 F.3d 273, 287 (5th Cir. 2009) (“Reversible error
occurs only when the admission of evidence substantially affects the rights of
a party” (quoting United States v. Crawley, 533 F.3d 349, 353 (5th Cir. 2008))).
Given the overwhelming circumstantial evidence presented at trial, any error




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                                No. 15-40874

in the admission of the complained-of testimony did not substantially affect
the verdict. See id.
      AFFIRMED.




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