     Case: 14-10781      Document: 00513117768         Page: 1    Date Filed: 07/16/2015




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

                                                                                  FILED
                                                                               July 16, 2015
                                    No. 14-10781
                                                                               Lyle W. Cayce
                                  Summary Calendar                                  Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

VICTOR CHAPA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:13-CR-19-2


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       A jury convicted Victor Chapa of conspiracy to possess with intent to
distribute 100 kilograms or more of marijuana and possession of a firearm in
furtherance of a drug trafficking crime. He appeals those convictions, raising
two arguments.
       In his first argument, Chapa contends that the district court erred under
Federal Rule of Evidence 403 in admitting photographs from his cell phone


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-10781

because the court failed to conduct an on-the-record examination of whether
the probative value of the photographs was substantially outweighed by the
risk of unfair prejudice. Chapa contends that such an evaluation was required
by United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc). Beechum
is inapposite here because it concerned the admission of extrinsic evidence
under Federal Rule of Evidence 404(b), whereas Chapa’s instant dispute
concerns only Rule 403. See United States v. Maceo, 947 F.2d 1191, 1199 & n.4
(5th Cir. 1991); Beechum, 582 F.2d at 910-11.
      With regard to prejudice under Rule 403, Chapa asserts that the
Government used the photos to confuse the jury into believing that the
firearms depicted in the photos were the same as those found in a shed where
he was present with drug trafficking paraphernalia. Even assuming Chapa
has preserved his Rule 403 challenge to the exhibits, he has not shown a clear
abuse of discretion by the district court.    See United States v. El-Mezain,
664 F.3d 467, 508 (5th Cir. 2011).
      The disputed photos were relevant because they tended to support the
probability that Chapa was in possession of the firearms in the shed and
elsewhere, rather than, as he contended, simply an innocent bystander who
was merely present among them. See FED. R. EVID. 401. “Evidence which
tends to rebut a defendant’s claim of innocent action is unlikely to be unduly
prejudicial.” El-Mezain, 664 F.3d at 509. Chapa has failed to show that the
district court abused its discretion in admitting the challenged exhibits. In any
event, any error in admitting the exhibits was harmless given the substantial
amount of other evidence showing Chapa’s guilt on the firearm charge,
including his presence in the shed with the firearms and marijuana trafficking
materials and the testimony of three of his associates who recounted his
culpability. See United States v. Clark, 577 F.3d 273, 287 (5th Cir. 2009).



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                                 No. 14-10781

      In his second argument, Chapa contends that the district court erred in
denying his motion for a new trial without a hearing. Chapa moved for a new
trial because a juror performed an Internet search, after the first day of the
trial, on the punishment range applicable to Chapa’s charges. The jurors
thereafter discussed the extrinsic information.
      “[A] defendant is entitled to a new trial when extrinsic evidence is
introduced into the jury room unless there is no reasonable possibility that the
jury’s verdict was influenced by the material that improperly came before it.”
United States v. Ruggiero, 56 F.3d 647, 652 (5th Cir. 1995) (internal quotation
marks and citation omitted).      In evaluating whether extrinsic material
improperly influenced the jury, “a district court must examine the content of
the material, the way in which it was brought to the jury’s attention, and the
weight of the evidence against the defendant.” United States v. Davis, 393 F.3d
540, 549 (5th Cir. 2004); accord Ruggiero, 56 F.3d at 652-53.
      A district court’s determination that the jury was not improperly tainted
by extrinsic material is reviewed for clear error. United States v. Bernard,
299 F.3d 467, 476 (5th Cir. 2002). The district court’s denial of a motion for a
new trial and its decision whether to hold an evidentiary hearing on the motion
are reviewed for an abuse of discretion. Bernard, 299 F.3d at 476; United
States v. Cantu, 167 F.3d 198, 201 (5th Cir. 1999).
      Chapa has not shown that the district court abused its discretion in
denying his motion for a new trial or deciding that an evidentiary hearing
would not advance the issue further. The extrinsic material concerned only
Chapa’s possible punishment, and the evidence of his guilt on the charges was
overwhelming.
                                                                    AFFIRMED.




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