     Case: 09-41200 Document: 00511308268 Page: 1 Date Filed: 12/01/2010




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

                                                 FILED
                                                                          December 1, 2010
                                     No. 09-41200
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

JOSE ELI GUERRA,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 5:09-CR-46-1


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Jose Eli Guerra appeals his conviction for knowingly or intentionally
possessing, with intent to distribute, less than 50 kilograms of marijuana, in
violation of 18 U.S.C. § 2, and 21 U.S.C. §§ 851, 841(a)(1), 841(b)(1)(D). Guerra
was arrested after United States Border Patrol Agents found 41.6 pounds of
marijuana in the spare tire of the vehicle he was driving as the sole occupant.
Guerra denied any knowledge of the marijuana in the spare tire.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-41200

      Guerra contends: the district court abused its discretion when, under
Federal Rule of Evidence 404(b), it admitted, for the purpose of proving either
his knowledge of the marijuana in the spare tire or his intent to distribute the
marijuana, evidence of his prior Texas felony-conviction for possession of
marijuana in excess of 50 pounds. See T EX. H EALTH & S AFETY C ODE A NN.
§ 481.121. The circumstances of the prior offense were almost identical to the
charged offense, except, in the prior offense, the marijuana was found bundled
in three suitcases in the vehicle’s trunk.
      Such admission of evidence under Rule 404(b) is reviewed under a
heightened abuse-of-discretion standard. See United States v. McCall, 553 F.3d
821, 827 (5th Cir. 2008), cert. denied, 129 S. Ct. 2018 (2009). “[E]vidence in
criminal trials must be strictly relevant to the particular offense charged.” Id.
(internal quotation marks and citation omitted).
      “Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.”
F ED. R. E VID. 404(b). Such evidence may, however, be admissible to prove other
matters, such as intent or knowledge. Id. In determining the admissibility of
extrinsic evidence, we apply a two-step test, requiring the extrinsic-offense
evidence: (1) be relevant to an issue other than the defendant’s character; and
(2) possess probative value not substantially outweighed by its undue prejudice
and meet the requirements of Rule 403. United States v. Beechum, 582 F.2d 898,
911 (5th Cir. 1978) (en banc). If the evidence sought to be introduced is an
extrinsic offense, “its relevance is a function of its similarity to the offense
charged”. Id.
      To determine the relevance of the extrinsic offense, it is not necessary to
show the physical elements of an extrinsic offense were similar to those of the
current offense. Id. at 912 n.15. Rather, the extrinsic offense only needs to
involve the same knowledge required for the charged offense. Id. Moreover, the



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Government must offer sufficient proof demonstrating defendant committed the
extrinsic offense. Id. at 913.
      Both Guerra’s prior offense and charged offense required proof of
knowledge. See T EX. H EALTH & S AFETY C ODE A NN. § 481.121; Long v. State, 532
S.W.2d 591, 594 (Tex. Crim. App. 1976); 21 U.S.C. § 841(a)(1); United States v.
Skipper, 74 F.3d 608, 611 (5th Cir. 1996) (“To establish a violation of 21 U.S.C.
§ 841(a)(1), ‘the government must prove knowing possession of the contraband
with intent to distribute.’”). Knowing possession may be proven by either direct
or circumstantial evidence. Skipper, 74 F.3d at 611. Absent direct proof of
knowledge, “evidence must affirmatively link the [accused] to the contraband in
such a manner that a reasonable inference arises that [he] knew of its
existence.” Long, 532 S.W.2d at 594; see also Skipper, 74 F.3d at 611 (finding
reasonable inference Skipper knowingly possessed contraband where Skipper
was owner and driver of vehicle, and contraband seen coming from driver’s side
of vehicle). Such an inference may arise if the accused was in the exclusive
possession of the place where the contraband is found. See Long, 532 S.W.2d at
594; Skipper, 74 F.3d at 611; see also Ortiz v. State, 930 S.W.2d 849, 853 (Tex.
App. 1996).
      The district court did not abuse its discretion in finding the extrinsic-
offense evidence was relevant to the issue of Guerrra’s knowledge. First, the
jury could reasonably have found Guerra committed the Texas offense of
possession of marijuana, based on the uncontradicted testimony offered at the
trial for the instant offense. See Beechum, 582 F.2d at 913. Second, because
knowing possession is required for both the prior and charged offenses, the prior
offense is relevant to the issue of Defendant’s knowledge for the current crime.
See id.
      The second step of Beechum’s analysis involves balancing the Rule 403
factors:   evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, misleading

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                                  No. 09-41200

the jury, or by considerations of undue delay, waste of time, or presentation of
cumulative evidence. F ED. R. E VID. 403. The amount of time that has elapsed
between the previous offense and the present charge, and the overall similarity
of the two acts, may affect the probative value of the extrinsic evidence.
Beechum, 582 F.2d at 915.        Additionally, the risk of unfair prejudice is
substantially lowered by a district court’s limiting instruction. United States v.
Crawley, 533 F.3d 349, 355 (5th Cir. 2008).
      The district court did not abuse its discretion in finding the Rule 403
balancing favored admission of evidence of the prior Texas offense. The prior
offense was committed in 1995; however, the length of time between the two
offenses is only one factor considered in our Rule 403 balancing test. See United
States v. Chavez, 119 F.3d 342, 346-47 (5th Cir. 1997) (upholding admission of
fifteen-year-old prior conviction to show intent). Though evidence of the prior
Texas offense posed some threat of prejudice, Rule 403 sets a high standard for
exclusion; evidence is excluded only if “the trial judge believes that there is a
genuine risk that the emotions of the jury will be excited to irrational behavior,
and that this risk is disproportionate to the probative value of the offered
evidence”. Beechum, 582 F.2d at 915 n.20 (internal quotation marks and citation
omitted). The district judge did not find such risk here.
      Additionally, in an attempt to minimize the chance of unfair prejudice, the
district court gave two separate limiting instructions: one immediately before
the Government introduced the prior conviction, and one before the jury began
deliberating.   Both instructions delineated the limited purposes for which
evidence of the prior conviction was relevant. If any risk of unfair prejudice
remained after delivery of the court’s instructions with regard to the knowledge
element, it did not substantially outweigh the probative value of the prior
conviction. See Crawley, 533 F.3d at 355.
      Finally, there is no merit to Guerra’s contention the district court
neglected on-the-record consideration of the issue of the prejudice potentially

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caused by admitting evidence of the Texas offense. The court addressed the
issue on the record more than once.
     AFFIRMED.




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