                                                        [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                  FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                            December 5, 2005
                               No. 05-10607
                                                           THOMAS K. KAHN
                           Non-Argument Calendar               CLERK
                         ________________________

                     D. C. Docket No. 04-20014-CR-JAL

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

MACDIEL DORTA,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                             (December 5, 2005)

Before TJOFLAT, DUBINA and HULL, Circuit Judges.

PER CURIAM:

     Macdiel Dorta appeals his convictions for conspiracy and attempt to possess
with intent to distribute five kilograms or more of cocaine, in violation of 21

U.S.C. §§ 841(b)(1)(A) and 846; conspiracy and attempt to obstruct, delay, and

affect commerce by robbery, in violation of 18 U.S.C. § 1951(a); conspiracy to

use, carry, brandish, and possess a firearm during and in relation to a crime of

violence and drug trafficking, in violation of 18 U.S.C. § 924(o); and possession of

a firearm during and in relation to a crime of violence and drug trafficking, in

violation of 18 U.S.C. § 924(c)(1)(A) (collectively “charged offenses”). On

appeal, Dorta claims that the district court abused its discretion when it admitted

evidence of prior uncharged crimes. After review, we affirm.1

                                       I. BACKGROUND

       At trial, the government presented evidence that an undercover police officer

working with a confidential informant approached a group of individuals the

informant said were planning home invasion robberies. The undercover officer

posed as a disgruntled drug courier willing to aid the group in stealing cocaine

from his employer’s “stash house.” After various meetings with the group, some

of which Dorta attended, the undercover officer provided the group with the

location of the “stash house” and a date to steal the cocaine. The group, including



       1
           We review a district court’s ruling on the admission of evidence for an abuse of

discretion. United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000).

                                                  2
Dorta, was arrested when they arrived at the appointed location.

      A federal grand jury indicted Dorta and five other individuals on the charged

offenses. In anticipation of Dorta’s “mere presence” affirmative defense, the

government gave Dorta notice of its intent to rely on evidence of other criminal

acts to prove his intent to commit the charged offenses and to show absence of

mistake or accident on his part. Specifically, the government planned to present

testimony concerning Dorta’s participation in, inter alia, a 2000 home-invasion

robbery with codefendant Alvarez (“home-invasion robbery”), in which they

planned to steal cocaine, and a 2003 attempted bank burglary in Monroe County,

Florida, with codefendant Rodriguez (“attempted bank burglary”). Dorta moved in

limine to exclude the evidence from use at trial. The district court ruled that both

prior uncharged criminal acts were admissible under Rule 404(b) because, inter

alia, the acts were relevant to issues other than Dorta’s character, namely Dorta’s

knowledge and intent, the evidence was not unfairly prejudicial and was necessary

to the government’s case.

      At trial, during Rodriguez’s testimony concerning Dorta’s involvement in

the events surrounding the charged offenses, the government attempted to present

evidence of a third uncharged crime. Specifically, the government sought to admit

testimony from Rodriguez that, on December 13th, immediately prior to the



                                           3
December 16th arrest for the charged offenses, Dorta and the other codefendants

were in Tampa, Florida, preparing to burglarize another bank (“planned bank

burglary”), when they received the call to rob the stash house in Miami. According

to Rodriguez, the group conferred and voted to travel to Miami and rob the stash

house rather than burglarize the bank. Dorta objected to the inclusion of this

evidence and moved for a mistrial on the grounds that it was Rule 404(b) evidence

of which the government had not given notice, making it inadmissible at trial. The

district court denied Dorta’s motion for a mistrial and found that the evidence

concerning the planned bank burglary was not Rule 404(b) extrinsic evidence, but

was instead inextricably intertwined with the charged offenses and necessary to

complete the story of the crime.

      The jury found Dorta guilty of all counts. The district court sentenced Dorta

to 211 months’ imprisonment.

                                   II. DISCUSSION

      On appeal, Dorta argues that the evidence of the uncharged crimes should

have been excluded under Rules 404(b) and 403 because its unfair prejudice

outweighed its probative value. Specifically, Dorta contends that the government

already had sufficient evidence on the issue of his knowledge or intent through his

co-conspirators’ testimony about his involvement in the crime and that the



                                          4
additional evidence of the uncharged crimes was nothing more than highly

prejudicial propensity evidence. We conclude that the district court properly

determined that the uncharged crimes evidence was probative of Dorta’s

knowledge and intent and that the probative value of this evidence was not

substantially outweighed by its prejudicial effect.

      Rule 404(b) provides that evidence of other crimes, commonly referred to as

extrinsic offense evidence, is inadmissible to show that the defendant acted in

conformity with his past conduct, but may be admissible for other purposes such as

to prove, inter alia, intent, knowledge or absence of mistake, as follows:

      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. It may, however, be admissible for other purposes, such as
      proof of motive, opportunity, intent, preparation, plan, knowledge,
      identity, or absence of mistake or accident, provided that upon request
      by the accused, the prosecution in a criminal case shall provide
      reasonable notice in advance of trial, . . . of the general nature of any
      such evidence it intends to introduce at trial.

Fed. R. Evid. 404(b). Rule 404(b) “is a rule of inclusion, and . . . accordingly

404(b) evidence, like other relevant evidence, should not lightly be excluded when

it is central to the prosecution’s case.” United States v. Jernigan, 341 F.3d 1273,

1280 (11 th Cir. 2003) (internal quotation marks omitted). To determine whether

extrinsic evidence is admissible under Rule 404(b), we apply the following three-

part test: (1) the evidence must be relevant to an issue other than the defendant’s

                                           5
character; (2) the government must present sufficient proof that the defendant

committed the extrinsic act; and (3) the probative value of the evidence must not be

substantially outweighed by its undue prejudice and must meet the other

requirements of Rule 403.2 See United States v. Miller, 959 F.2d 1535, 1538 (11 th

Cir. 1992) (en banc).

       First, Dorta argues that evidence of the home-invasion robbery and the

attempted bank burglary was not relevant, thus failing the first prong of the three-

part test.3 “To establish relevance under the first prong where testimony is offered

as proof of intent, it must be determined that the extrinsic offense requires the same


       2
           Rule 403 states that “[a]lthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.” Because “[t]he nature of the government’s evidence against a
defendant is meant to be prejudicial,” the court’s Rule 403 inquiry is “not whether the evidence
itself is prejudicial, but rather whether its probative value is outweighed by its prejudicial
effect.” United States v. Wright, 392 F.3d 1269, 1276 (11th Cir. 2004), cert. denied, 125 S. Ct.
1751 (2005) (holding that “the balancing test prescribed by Rule 403 militates in favor of
admissibility”).
         3
           The district court concluded that the evidence relating to the third crime – the planned
bank burglary – was intrinsic evidence rather than Rule 404(b) extrinsic evidence. Evidence of
uncharged criminal activity is generally considered extrinsic evidence under Rule 404(b).
However, such evidence is not subject to the strictures of Rule 404(b) if it is “(1) an uncharged
offense which arose out of the same transaction or series of transactions as the charged offense,
(2) necessary to complete the story of the crime, or (3) inextricably intertwined with the
evidence regarding the charged offense.” United States v. McLean, 138 F.3d 1398, 1403 (11th
Cir. 1998) (quoting United States v. Ramsdale, 61 F.3d 825, 829 (11th Cir. 1995)). Dorta does
not challenge on appeal the district court’s determination that the evidence of the planned bank
burglary was intrinsic evidence not subject to Rule 404(b), and therefore we do not address this
finding of the district court. Rather, Dorta argues that the evidence of the planned bank burglary
nonetheless should have been excluded under Rule 403. As explained later, we conclude that it
also was not error under Rule 403 to admit this intrinsic evidence.


                                                 6
intent as the charged offense.” United States v. Dickerson, 248 F.3d 1036, 1047

(11 th Cir. 2001) (internal quotation marks omitted).

      Here, the extrinsic evidence regarding the home-invasion robbery to steal

cocaine is highly relevant since the offense also involved the plan to steal cocaine.

Specifically, evidence that Dorta had committed a previous home invasion with the

intent to steal cocaine is highly relevant to whether he intended to invade the stash

house and steal cocaine in this case as well. The evidence of the attempted bank

burglary likewise was probative of Dorta’s intent to steal. Furthermore, there was

evidence that, in both the charged offense and the attempted bank robbery, Dorta

drove his co-conspirators to the crime scene in a minivan. Thus, the evidence of

the attempted bank burglary also was probative of Dorta’s knowledge and skill to

operate as a get-away driver of a minivan for a theft offense and keep a low profile

while doing so.

      Second, Dorta argues that, even if relevant, the uncharged crimes fail to

meet the requirements of Rule 403, thus failing the third prong of the three-part

test. In determining whether the third prong of the test is met, courts consider “the

differences between the charged and extrinsic offenses, their temporal remoteness,

and the government’s need for the evidence to prove intent.” United States v.

Diaz-Lizaraza, 981 F.2d 1216, 1225 (11 th Cir. 1993).



                                           7
       At trial, Dorta argued that he was merely present at the scene and did not

intend to commit the charged offenses. All three uncharged crimes were probative

of Dorta’s intent to conspire to steal, and the prior home invasion was probative of

Dorta’s intent to steal cocaine.4 Because Dorta put his intent squarely in issue by

raising the “mere presence” defense, the government’s need for evidence

challenging Dorta’s defense was strong. Dorta points to the fact that the

government already had evidence of his involvement in the charged offense in the

form of testimony from his co-conspirators. While this testimony was no doubt

helpful to the government to prove Dorta’s intent, as the district court noted, the

credibility of these co-conspirators was “vulnerable to attack.” See id. (noting that

the government had a strong need for extrinsic offense evidence when the

defendant denied any connection with the charged offense and “there were no

overwhelmingly credible witnesses” to testify regarding intent).5

       4
           We disagree with Dorta’s contention that the three-year-old home invasion was too
remote in time to be probative.
         5
           Dorta’s reliance upon United States v. Matthews, 411 F.3d 1210 (11th Cir. 2005), is
misplaced. In Matthews, the defendant was charged with conspiracy to sell cocaine. The
defendant pled not guilty, but did not assert a defense, such as “mere presence,” that specifically
placed his intent in issue. Rather, because “intent . . . is a necessary conclusion from the act” of
participating in a drug sale, id. at 1228 (internal quotation marks omitted), “the Government’s
case would rise or fall based on whether the jury believed Matthews had committed the charged
acts at all, not on whether he possessed the requisite guilty intent.” Id. at 1225. In holding that,
under these circumstances, a 1991 arrest for drug dealing was inadmissible under Rule 404(b),
the Matthews court distinguished prior precedent, including Diaz-Lizaraza, in which the
defendant asserted a “mere presence” defense that put his intent squarely at issue and this Court
upheld the admission of prior offenses to negate the defendant’s innocent explanation. Id. at
1226-28. Because Dorta asserted a “mere presence” defense, that is, because the jury could have

                                                 8
       Furthermore, this evidence was not unduly prejudicial given that the jury

had already heard evidence, to which Dorta did not object, that Dorta and his co-

conspirators were “professionals” and that the sting operation had caused the group

to miss another opportunity to steal cocaine from a boat bound for Florida. The

district court also mitigated the possibility of prejudice by giving limiting

instructions that cautioned the jury that this evidence could be used only to

determine Dorta’s intent. See id. Accordingly, the district court did not abuse its

discretion when it concluded that any prejudice this evidence may have created did

not substantially outweigh its probative value.

       AFFIRMED.




found that Dorta drove his co-defendants to the scene of the crime and to other meetings with the
confidential informant and still found that he did not have the requisite intent to commit the
charged offenses, Diaz-Lizaraza, and not Matthews, is the instructive precedent.

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