     Case: 18-50229       Document: 00515145943         Page: 1     Date Filed: 10/04/2019




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

                                     No. 18-50229
                                                                                  Fifth Circuit

                                                                                FILED
                                   Summary Calendar                       October 4, 2019
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                  Plaintiff - Appellee

v.

SELENA FLORES,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:17-CR-804-1


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Selena Flores challenges her jury-trial convictions for conspiracy to
transport illegal aliens and illegal alien transportation for commercial
advantage or private financial gain, in violation of 8 U.S.C. § 1324. At trial,
the Government introduced evidence of Flores’ prior arrest, under similar
circumstances, for illegal-alien transportation.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 18-50229

      For the only issue raised on appeal, Flores asserts the district court
abused its discretion in admitting this evidence, contending the probative
value of the arrest was substantially outweighed by its prejudicial effect.
Whether to admit evidence of prior arrests is governed by Federal Rule of
Evidence Rule 404(b) (“Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character . . . . This evidence may be admissible
for another purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.”). On appeal,
“[w]e review the admission of Rule 404(b) evidence for an abuse of discretion
with a heightened review in criminal cases”. United States v. Olguin, 643 F.3d
384, 389 (5th Cir. 2011) (citation omitted). To be admissible, extrinsic-offense
evidence (1) must be “relevant to an issue other than the defendant’s character”
and (2) “must possess probative value that is not substantially outweighed by
its undue prejudice”. United States v. Beechum, 582 F.2d 898, 911 (5th Cir.
1978) (en banc).
      The district court ruled evidence of Flores’ prior arrest was relevant to
her intent, state of mind, and knowledge—permissible uses of extrinsic
evidence under Rule 404(b)—in conjunction with both counts of the indictment.
See Huddleston v. United States, 485 U.S. 681, 682, 685 (1988). Because our
court has held pleading not-guilty to conspiracy puts a defendant’s intent at
issue for purposes of Rule 404(b), see United States v. Gonzalez, 76 F.3d 1339,
1347 (5th Cir. 1996) (citation omitted), and because knowledge of a person’s
status as an illegal alien is an element of 8 U.S.C. § 1324, the evidence
proffered was relevant to an issue other than Flores’ character. Flores does
not contest the court’s ruling. The ruling, however, informs our consideration
of the prejudicial-effect issue raised by Flores.




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                                 No. 18-50229

      In other words, at issue is only whether the undue prejudice to Flores
substantially outweighed the evidence’s probative value.      In deciding that
question, courts consider “(1) the government’s need for the extrinsic evidence,
(2) the similarity between the extrinsic and charged offenses, (3) the amount
of time separating the two offenses, and (4) the court’s limiting instructions”.
United States v. Kinchen, 729 F.3d 466, 473 (5th Cir. 2013) (citation omitted).
Our review utilizes “a lens that gives great deference to the district court’s
informed judgment in weighing the factors”. Id. (citation omitted).
      The facts surrounding Flores’ prior arrest resemble those pertinent to
the current offense. In both instances, Flores was stopped at a temporary
checkpoint on Farm to Market Road 2644 while driving an illegal alien. In the
instant case, this similarity was probative of Flores’ knowledge of her
passenger’s illegal-alien status and Flores’ intent to commit the charged
offense. Although a close resemblance between extrinsic-offense evidence and
a charged offense can increase the risk of unfair prejudice to defendant, the
evidence of Flores’ prior arrest was not unfairly prejudicial because the prior
misconduct was neither violent nor greater in magnitude than the charged
offenses. See United States v. Hernandez-Guevara, 162 F.3d 863, 872 (5th Cir.
1998) (holding, inter alia, the admission of prior-conviction evidence was not
improper, as it “lacked the hallmarks of highly prejudicial evidence” because
“[t]hey were not violent acts, nor were they greater in magnitude than the
crimes for which [defendant] was on trial”).
      Further, Flores’ prior arrest occurred approximately three years before
the instant offense. Our court has upheld the admission of extrinsic-offense
evidence that was as many as 18 years old. See United States v. Arnold, 467
F.3d 880, 885 (5th Cir. 2006) (citations omitted).




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                                 No. 18-50229

      Finally, the risk of unfair prejudice to Flores was minimized by the
court’s Federal Rule of Evidence 105 jury instruction that the evidence could
be considered only for the limited purpose of determining whether she had the
requisite intent or state of mind to commit the charged offense. See Kinchen,
729 F.3d at 474 (holding the prejudicial effect of evidence “was further
diminished by the district court’s instructions to the jury regarding the limited
purpose[ ] for which any evidence of other similar acts may be considered”)
(internal quotation marks and citation omitted).
      Our court has consistently rejected challenges, like Flores’, to the
admission of evidence regarding prior instances of transporting illegal aliens,
ruling:   the evidence was relevant to defendant’s state of mind; and its
probative value was not substantially outweighed by undue prejudice. See
Hernandez-Guevara, 162 F.3d at 871–72; United States v. Robles-Vertiz, 155
F.3d 725, 730 (5th Cir. 1998).
      AFFIRMED.




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