     Case: 15-41197       Document: 00513627873         Page: 1     Date Filed: 08/08/2016




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

                                     No. 15-41197                                  FILED
                                   Summary Calendar                           August 8, 2016
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ROSA MARIA MELENDEZ-JIMENEZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:15-CR-168-1


Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       In May 2015, a jury convicted Rosa Maria Melendez-Jimenez of
attempted exportation of defense articles from the United States, in violation
of 22 U.S.C. § 2778(b)(2) and (c), 22 C.F.R. § 121.1, and 18 U.S.C. § 2. The
district court sentenced Melendez to, inter alia, 78 months’ imprisonment. In
challenging her conviction, Melendez asserts the court erred in: admitting
extrinsic evidence, under Federal Rule of Evidence 404(b), of her prior


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 15-41197

involvement in transporting ammunition from the United States to Mexico;
and granting the government’s motion, after it rested, to reopen the evidence
and present additional testimony.
      Regarding the extrinsic-evidence issue, a district court has “considerable
discretion” in admitting such evidence, and our review for abuse of discretion
is, therefore, “highly deferential”. United States v. Anderson, 976 F.2d 927,
929 (5th Cir. 1992) (internal quotation marks omitted). For extrinsic evidence
to be admissible, it must: be “relevant to an issue other than the defendant’s
character”; and “possess probative value that is not substantially outweighed
by its undue prejudice and . . . meet the other requirements of rule 403”. United
States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc).
      Melendez contends the extrinsic evidence does not satisfy the first
Beechum prong, because her uncharged prior conduct lacks similarity to her
offense conduct. This assertion fails. Both occasions in which Melendez was
involved in transporting ammunition into Mexico share several similarities,
including, inter alia:    Melendez’ meeting Pedro Ramirez-Aguirre (who
presented the challenged testimony at trial) at a grocery store in Brownsville,
Texas; her instructing Ramirez to walk across the bridge to Mexico with
similarly-sized bags loaded on a cart or dolly; her enlisting her son-in-law’s
help to load the bags; and her use of a white pickup truck.
      For the second Beechum prong, the court mitigated any undue prejudice
by: giving a limiting instruction prior to Ramirez’ testimony; reminding the
jury it could only consider the evidence for the limited purposes of knowledge
and intent to commit the charged offense; and including that same instruction
in the jury charge. E.g., United States v. McCall, 553 F.3d 821, 829 (5th Cir.
2008). Accordingly, Melendez fails to show the court abused its discretion in
admitting the challenged evidence.



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                                 No. 15-41197

      For the claim the court abused its discretion in granting the
government’s motion, after it rested, to reopen the evidence, the decision to do
so “lies within the sound discretion of the district court”. United States v.
Walker, 772 F.2d 1172, 1177 (5th Cir. 1985) (internal quotation marks and
alteration omitted). “In exercising [that] discretion, the court must consider
the timeliness of the motion, the character of the testimony, and the effect of
the granting of the motion.” Id. (quoting United States v. Thetford, 676 F.2d
170, 182 (5th Cir. 1982).    “The party moving to reopen should provide a
reasonable explanation for failure to present the evidence in its case-in-chief.”
Id. (quoting Thetford, 676 F.2d at 182).
      The challenged testimony, by a Customs and Border Patrol Agent,
concerned Melendez’ border-crossing history. Melendez avers the court failed
to conduct an analysis of all three of the above prongs: the timeliness of the
motion; the character of the testimony; and the effect of granting the motion.
The court, however, considered the character of the testimony and the effect of
granting the motion, and discussed those concerns with the parties. Although
it did not address the motion’s timeliness, this factor weighs in favor of the
court’s exercise of its discretion because: the government moved to reopen the
morning after it rested its case; the defense had not yet presented evidence;
and the jury had not been charged or begun its deliberations. See United States
v. Ard, 544 F.2d 225, 226–27 (5th Cir. 1976).
      Finally, Melendez asserts the government offered no explanation for why
it did not elicit the challenged testimony in its case-in-chief. Although Walker
instructs that the moving party should offer an explanation for the motion to
reopen, the failure to do so is not fatal. See Walker, 772 F.2d at 1177. The
Agent had been designated as a witness and another Agent had testified a
border-crossing history for Melendez had been conducted. In any event, any



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                                 No. 15-41197

assumed error is harmless in the light of the other ample evidence of Melendez’
guilt. E.g., McCall, 553 F.3d at 829.
      AFFIRMED.




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