                      UNITED STATES COURT OF APPEALS
                           For the Fifth Circuit



                                  No. 00-40518



                          UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,


                                     VERSUS


                           ALFREDO LOERA-ROSALES,

                                                      Defendant-Appellant.




             Appeal from the United States District Court
                   For the Eastern District of Texas
                               (1:99-CR-126-1)
                                  June 21, 2001
Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

      Alfredo Loera-Rosales (“Appellant”) was convicted by a jury on

a one-count indictment for assaulting a correctional officer in

violation of 18 U.S.C. § 111.            Appellant seeks reversal of his

conviction     on   the   basis   that   the   district    court   erroneously

admitted evidence of his prior bad acts and that the evidence was

insufficient to support his conviction.           We affirm.

  *
   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opinion should not be published and is not precedent except under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.
                                   I.

     Appellant   was   charged   with   assaulting   Kenneth   Woods,   an

employee of the Federal Bureau of Prisons (“BOP”) in Beaumont,

Texas, on June 12, 1999.   Woods was the Appellant’s case manager at

the prison facility in which Appellant was housed.

     At approximately 10:00 a.m. on the morning of June 12, Woods

and another corrections officer, Timothy Sherman, conducted a

stand-up count of the inmates.     The inmates were required to stand

up so that they could be counted.

     During the count, Appellant approached Woods from behind,

placed him in a headlock, and punched him in the face several

times.    Woods was able to free himself and push Appellant against

a wall.     Sherman pressed the distress alarm on his radio and

proceeded to assist Woods.       Appellant stopped struggling when he

saw that Sherman was about to strike him.        Sherman then tackled

Appellant and restrained him.        Appellant then began crying and

stated that he was having a seizure.           According to Sherman,

Appellant’s “convulsions” consisted merely of Appellant’s hands

shaking.   Other officers handcuffed Appellant and he again stated

that he was having a seizure.      Medical attendants placed him on a

gurney and he was taken away.

     At trial, Appellant’s defense was that he was having a seizure

when he attacked Woods and thus, his actions were involuntary.

Appellant had reported a history of seizures.             At trial, he



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testified that in 1976, during a gang fight, he had been struck in

the head with a crowbar and that seven months after that, he began

having grand mal seizures.        According to Appellant, his seizures

were brought about whenever he had flashbacks of his gang activity.

     Appellant testified that he knew he was having a seizure when

he attacked Woods because he felt weak afterwards.            He claimed that

he did not remember striking Woods and that if he did, it was

unintentional.     His testimony was contradicted by Woods, Sherman,

and Nurse Charise Talbot, who had assisted Appellant on the day of

the incident. Each of these individuals testified that Appellant’s

behavior was not consistent with their experiences with individuals

experiencing a seizure.       Specifically, each testified that unlike

individuals whom they had observed in seizure, Appellant was fully

capable of speaking, walking, and forming a fist.

     Appellant conceded on cross-examination that he had never had

seizures during his prior incarceration at federal facilities in

California or Oklahoma.        Furthermore, he conceded that his head

injury occurred in 1988, not 1976 as he had previously testified.

     Prior    to   the   trial,   the   government     had   filed   a   notice,

pursuant to Rule 404(b) of the Federal Rules of Evidence, of its

intent to introduce evidence of other incidents in which Appellant

had threatened correctional officers.           The district court granted

Appellant’s    motion    in   limine    to   prevent   the   government    from

introducing such evidence under Rule 404(b).                 However, during

cross-examination of Appellant, the government questioned Appellant

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about these two prior instances of threats against officers.             The

government also questioned Appellant about a seizure he reported

having four days after the June 12 incident and his specific

request that the nurse “record the report in his file.”                  The

district court overruled Appellant’s objections to these matters.

The government, in response to Appellant’s objections, had argued

that the evidence was proper under Rule 608(b) as impeachment of

Appellant’s credibility.

     The jury convicted Appellant on January 9, 2000, and on May 3,

2000, the district court entered a judgment of conviction against

Appellant.      Appellant has timely appealed.

                                      II.

     As noted above, Appellant first contends that the district

court erred in admitting the evidence of his two prior threats

against corrections officers because they were inadmissible under

Rule 404(b) since neither involved the same intent or conduct

required for a violation of his count of conviction.             Simply put,

he claims that these incidents were simply not similar enough to

the incident for which he was charged to be relevant on the issue

of his intent on June 12.       In his view, the undue prejudicial value

of these incidents outweighed their probative value.

     Alternatively, Appellant argues that, save for the evidence of

his prior threats, the government failed to put forth sufficient

evidence   of    his   intent   to   commit   the   offense   charged.   The



                                       4
government responds that the evidence is more than sufficient to

support the jury’s verdict as several witnesses, including Woods,

Sherman, and Nurse Talbot testified that Appellant’s behavior was

inconsistent with that of one experiencing a grand mal seizure.

Also, Sherman testified that Appellant deliberately struck Woods in

the face and then claimed that he was having a seizure only after

being subdued.   Furthermore, there was no evidence that Appellant

had ever reported to prison officials or medical personnel that he

was experiencing seizures prior to June 12.

                                  III.

     We reverse a district court’s admission of extrinsic evidence

under Rule 404(b) “‘only upon a clear showing of an abuse of

discretion.’”    United States v. Guerrero, 169 F.3d 933, 943 (5th

Cir. 1999) (quoting United States v. Bailey, 111 F.3d 1229, 1233

(5th Cir. 1997)).      Additionally, a district court’s error in this

regard will not be reversed if the same is determined to be

harmless.   See United States v. Tomblin, 46 F.3d 1369, 1388 (5th

Cir. 1995) (error in allowing Rule 404(b) evidence does not warrant

reversal “because the jury would have returned a verdict of guilty

. . . even without the prejudicial testimony”).

     Regarding   the    sufficiency       of   the   evidence   to   support   a

conviction, as Appellant moved for a judgment of acquittal at the

close of the government’s case, the standard guiding our review of

the sufficiency of the evidence is “whether, considering all of the



                                      5
evidence in the light most favorable to the verdict, a reasonable

trier of fact could have found that the evidence established guilt

beyond a reasonable doubt.”     United States v. Mendoza, 226 F.3d

340, 343 (5th Cir. 2000).

     Mindful of the foregoing principles governing our review, we

conclude that the district court did not abuse its discretion in

allowing the government to introduce evidence regarding Appellant’s

prior threats against correctional officers.        Even were we to

conclude otherwise, any such error would be harmless in light of

the more than sufficient presentation of evidence to support the

jury’s verdict.   That is to say, notwithstanding the challenged

evidence, and in reviewing the entire body of evidence in the light

most favorable to the guilty verdict, we find that the government

presented sufficient independent evidence from which a reasonable

trier of fact could conclude that Appellant was guilty of the

charged offense beyond a reasonable doubt.         Specifically, the

government put on several witnesses, one of whom was a trained

medical professional with significant experience in dealing with

seizures, who testified that Appellant’s June 12 behavior was

inconsistent with his claim that he was undergoing a seizure.

Additionally,   Appellant’s   subsequent   “reported”   seizures   were

unsubstantiated by independent record evidence.         The jury could

easily have rejected Appellant’s contention that his actions were

involuntary by virtue of a seizure based upon this evidence.



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                                  IV.

     Based upon all of the foregoing considerations, we conclude

that the district court committed no reversible error. Accordingly

the judgment   of   conviction   entered   by   the   district   court   is

affirmed in all respects.

               AFFIRMED.




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