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

                                                                   FILED
                                                                 February 1, 2008
                                No. 06-10933
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

ALFRED WILLIAM BRYANT

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 7:05-CR-20-1


Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Alfred William Bryant appeals his jury trial conviction of conspiracy to
possess with intent to distribute crack cocaine, possession with intent to
distribute crack cocaine and aiding and abetting, possession of a firearm in the
furtherance of a drug trafficking crime and aiding and abetting, and being a
felon in possession of a firearm. Bryant contends that the district court abused
its discretion by admitting evidence under FED. R. EVID. 404(b) regarding: (1) the
facts surrounding Bryant’s January 13, 2003, arrest for manufacture/delivery of

      *
      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should not be published and is not precedent except under the limited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.
                                  No. 06-10933

a controlled substance, and (2) the facts surrounding Bryant’s May 12, 2004,
arrest for possession of a controlled substance. Bryant’s defense was that he
lacked the intent to participate in a drug trafficking crime, i.e., that “he was in
the wrong place at the wrong time.”
      A district court's admission of Rule 404(b) evidence is reviewed under a
heightened abuse-of-discretion standard. United States v. Buchanan, 70 F.3d
818, 831 (5th Cir. 1995). “Evidence of other crimes, wrongs or acts . . . to prove
the character of a person in order to show action in conformity therewith” is
inadmissible. FED. R. EVID. 404(b). Such evidence “may, however, be admissible
for other purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.” Id. This court
reviews challenges to the admission of extrinsic evidence under Rule 404(b) with
reference to the Beechum two-prong test. United States v. Beechum, 582 F.2d
898, 911 (5th Cir. 1978) (en banc). First, the extrinsic evidence must be
“relevant to an issue other than the defendant’s character.” Id. Second, the
evidence must have probative value that is not substantially outweighed by
undue prejudice and must otherwise be admissible under Rule 403. Id.
      Bryant argues that the extrinsic evidence regarding his arrests should
have been excluded under United States v. Sumlin, 489 F.3d 683 (5th Cir. 2007)
because it was unreliable for the following reasons: (1) the crack cocaine
recovered in 2003 and 2004 was never proved to be crack cocaine, and (2) the
Government never indicted him as a result of his 2003 and 2004 arrests.
      The nature of the extrinsic evidence admitted in the instant case is clearly
distinguishable from that admitted in Sumlin. In the instant case, Bryant was
targeted in search warrants as a suspected drug trafficker. The police officers
involved in each search testified that in their experience, the evidence they
recovered -- several firearms, over $23,000 in cash, cocaine (which field-tested
positive as cocaine), and drug paraphernalia -- indicated that drugs were being
sold from the houses they searched. Thus, the evidence regarding Bryant’s 2003

                                        2
                                 No. 06-10933

and 2004 arrests was sufficient, under a preponderance of the evidence
standard, to prove that Bryant committed the extrinsic offenses. See United
States v. Duffant, 314 F.3d 203, 209 (5th Cir. 2002); United States v. McCarty,
36 F.3d 1349, 1353 (5th Cir. 1994).
      Bryant has likewise failed to show that extrinsic evidence was relevant
only to his character. See Beechum, 582 F.2d at 911. Rather, the evidence was
admissible under FED. R. EVID. 404(b) because Bryant asserted a defense of a
lack of intent, and the other-acts evidence was admitted for the limited purpose
of showing that Bryant had the intent to conspire to traffic drugs and to traffic
drugs. See United States v. Gordon, 780 F.2d 1165, 1174 (5th Cir. 1986); United
States v. Thomas, 348 F.3d 78, 86 (5th Cir. 2003).
      Bryant has also failed to show that the probative value of the contested
evidence was outweighed by the danger of unfair prejudice. To the contrary, the
similarity of the extrinsic offenses and the charged offenses, the temporal
proximity of the extrinsic offenses and the charged offenses, and the district
court's instruction that the evidence could be considered only with regard to
Bryant’s intent or state of mind satisfy the second prong of the Beechum test.
See United States v. Bermea, 30 F.3d 1539, 1562 (5th Cir. 1994); United States
v. Hernandez-Guevara, 162 F.3d 863, 872 (5th Cir. 1998); United States v.
Brugman, 364 F.3d 613, 621 (5th Cir. 2004).
      AFFIRMED.




                                       3
