                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-28-2008

USA v. Reyes
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3929




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"USA v. Reyes" (2008). 2008 Decisions. Paper 1373.
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                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       No. 06-3929

                            UNITED STATES OF AMERICA

                                             v.

                                     EFRAIN REYES,
                                           Appellant


                        Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                                        (05-cr-00534)
                            District Judge: James Knoll Gardner

                      Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     February 8, 2008

              Before: MCKEE, AMBRO and ALDISERT, Circuit Judges

                             (Opinion Filed: March 28, 2008)


                                        OPINION

McKEE, Circuit Judge


      Efrain Reyes appeals his conviction for violating 21 U.S.C. § 841(a)(1)(A) and 18

U.S.C. § 2. For the reasons that follow, we will affirm.

      Inasmuch as we write primarily for the parties, we need not detail the factual or

procedural history.

       Reyes argues that the district court erred in admitting evidence of uncharged sales
of heroin in violation of Fed. R. Evid. 404(b). The district court thoroughly explained

why the evidence was admissible in the Order dated January 19, 2006. App. 5a. We

reject the defendant’s Rule 404(b) challenge substantially for the reasons explained in

Judge Gardner’s thorough and thoughtful explanation.

       As Judge Gardner observed, Rule 404(b) does not apply because the evidence of

the prior heroin sales “constituted direct proof of the charged offense. . . .” As Judge

Gardner also explains, even if Rule 404(b) did apply, the evidence would “nonetheless

be admissible . . . under any of the Rule 404(b) exceptions. . . .” Id. at 3a.

       Moreover, after the evidence of other sales was admitted, the court gave a

cautionary instruction explaining the limited use of that testimony. That charge was

more than adequate to guard against any improper use of the evidence, and Reyes does

not argue to the contrary.

       We also note that Reyes has submitted a pro se brief in which he claims that trial

counsel was ineffective. Pursuant to LAR 31.3, we do not consider pro se briefs except

in situations governed by Anders v. California, 386 U.S. 738 (1967). Moreover, as the

government correctly notes, even if we were to accept the defendant’s brief, we would

not address Reyes’ claim of ineffective assistance of counsel because such claims are not

generally considered on direct appeal. See United States v. Rieger, 942 F.2d 230, 235

(3d Cir. 1991). Since the prosecutorial misconduct, the reasonableness of the sentence,

and the trial court’s purported bias are raised only in Reyes’ pro se brief, we need not


                                              2
address those issues.

       For the reasons set forth above, the Order dated August 24, 2006, denying Reyes

a new trial is hereby affirmed.




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