                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-1387
                        ___________________________

                             United States of America

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

                                    Esad Bekric

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
              for the Eastern District of Missouri - Cape Girardeau
                                 ____________

                           Submitted: January 16, 2015
                              Filed: May 11, 2015
                                  [Published]
                                ____________

Before LOKEN, MELLOY, and GRUENDER, Circuit Judges.
                           ____________

PER CURIAM.

       A jury convicted Esad Bekric of Possession with Intent to Distribute Fifty
Kilograms or More of Marijuana, 21 U.S.C. § 841(a). Bekric appeals, arguing the
district court1 improperly admitted evidence of a prior arrest that did not result in a
prosecution and improperly excluded as hearsay certain testimony that should have
been allowed. Because evidence of the prior arrest tended to prove knowledge,
intent, planning, and modus operandi, and because the excluded testimony was
hearsay, we affirm.

                                          I.

      In 2012, officers in Texas stopped Bekric while he was driving a semi tractor
pulling a trailer. The trailer, not owned by Bekric, was discovered to have a false
wall concealing 1,970 pounds of marijuana custom-wrapped in bundles to fit specific
voids behind the wall. Officers arrested Bekric, but prosecutors declined to pursue
charges.

       In 2013, while driving his own semi tractor pulling his own trailer in Missouri,
Bekric exited a highway upon seeing signs indicating he was approaching a drug
checkpoint. After he left the highway, officers stopped him for a traffic violation.
Bekric claimed to have left the highway due to difficulties with a refrigeration system
on his trailer. He also claimed to have documentation of certain repairs. The officer
could determine from conditions on the scene—a functional refrigeration system and
documents that did not support Bekric's assertions—that Bekric was not telling the
truth. During the traffic stop, a drug dog alerted to Bekric's trailer. Officers then
searched the trailer and discovered 198 pounds of marijuana custom-wrapped in
packages to fit specific voids behind a false wall.

       At trial following the 2013 arrest, the government introduced testimony from
an officer involved in the 2012 arrest. Bekric objected, but the court allowed the


      1
       The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.

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testimony as evidence tending to prove Bekric's knowledge, intent, planning, and
modus operandi concerning false walls in semi trailers and bundles wrapped to fit
specific voids. The district court provided a detailed limiting instruction regarding
the scope of the permissible use of this evidence.

       Also at trial, Bekric attempted to elicit from an officer involved in the 2013
arrest a description of a different, non-testifying officer's 2013 out-of-court
questioning of Bekric. Bekric sought to elicit testimony that the non-testifying officer
had asked him to conduct a controlled delivery and that Bekric had agreed to do so.
The government objected on hearsay grounds, and the district court excluded the
testimony. Later in the trial, Bekric himself testified without government objection
that the non-testifying officer asked him to conduct a controlled delivery, that Bekric
agreed to do so, but that no such delivery actually took place.

      On appeal, Bekric argues it was error to admit evidence of the 2012 arrest and
events surrounding that arrest because prosecutors at that time had elected not to
pursue charges. Bekric also argues the district court committed error by excluding
the Missouri officer's testimony to describe a different officer's 2013 questioning of
Bekric and request for Bekric's assistance with a controlled delivery.

                                          II.

       "The district court has broad discretion in determining whether to admit or
exclude evidence, and we reverse such rulings only for a clear and prejudicial abuse
of that discretion." United States v. Robinson, 110 F.3d 1320, 1324 (8th Cir. 1997).
The erroneous admission or exclusion of evidence is prejudicial where it has "a
substantial influence on the verdict." McDowell ex re. Jones v. Blankenship, 759
F.3d 847, 852 (8th Cir. 2014) (citation and quotation marks omitted). And where the
evidence of guilt otherwise is overwhelming, an allegedly erroneous evidentiary
ruling is seldom likely to have a substantial influence on the verdict. See United

                                          -3-
States v. Carroll, 207 F.3d 465, 472 (8th Cir. 2000) ("In light of this overwhelming
evidence . . . we conclude that the admission of evidence of his prior conviction had
only a slight impact on the trial, and thus the error was harmless.").

       "Federal Rule of Evidence 404(b) . . . 'generally prohibits the introduction of
evidence of extrinsic acts that might adversely reflect on the actor's character, unless
that evidence bears upon a relevant issue in the case such as motive, opportunity, or
knowledge.'" Robinson, 110 F.3d at 1324 (quoting Huddleston v. United States, 485
U.S. 681, 685 (1988)). For evidence of prior acts to be admissible for the purpose of
proving intent, knowledge, planning, or modus operandi, the acts must be similar in
nature, close in time, and proven by a preponderance of the evidence. Id. In addition,
the potential for unfair prejudice must not outweigh the probative value. Id.

       The testimony addressing Bekric's 2012 arrest described conduct that was close
in time, highly similar, and extremely probative as to the knowledge or planning
necessary in the use of false panels and the packaging of marijuana to fit into specific
voids. Arguments to the contrary lack merit. Bekric argues the evidence was not
established by a preponderance of the evidence and risked undue prejudice that
outweighed the probative value. He couples his prejudice argument with a claim that
the prosecutor, in closing arguments, specifically asked the jury to use the Rule
404(b) evidence for an improper purpose.

       Regarding the proof of Bekric's prior conduct and arrest, Bekric argues that
because he was neither indicted nor tried, the prosecutors in 2012 must have
concluded probable cause was lacking. Bekric argues the lack of an indictment
precludes future decisionmakers from finding by a preponderance of the evidence that
the prior conduct took place. Bekric's argument misses the mark. The testimony
admitted at trial to describe Bekric's prior arrest sufficed to establish by a
preponderance of the evidence that Bekric drove a truck in 2012 found to contain
similarly concealed and wrapped packages of marijuana. A prior exercise of

                                          -4-
prosecutorial discretion in Bekric's favor does not limit a future court's ability to hear
evidence and draw conclusions.2

       Regarding Bekric's claims of unfair prejudice related to the Rule 404(b)
evidence, Bekric ignores the district court's limiting instruction. He also attempts to
label as unfair a prosecutor's statement inferring he knew of the drugs in 2012 and
therefore is more likely to have known of the drugs in 2013. Such a statement is not
unfairly prejudicial; it speaks directly to the permissible purpose for which the
evidence was admitted.

       To the extent Bekric's argument focuses specifically on the prosecutor's word
choice, Bekric appears to present a hybrid prosecutorial-misconduct/evidentiary-error
theory. He notes that the prosecutor actually used the colloquialism "fool me once
shame on you, fool me twice shame on me." This statement, presented with rhetorical
flair and suggesting Bekric affirmatively took steps to "fool" authorities in 2012,
could be viewed as prejudicial in some settings. Here, however, it was consistent
with the permissible use of the testimony. Further, even if we were to find error,
there simply was no prejudice. The evidence establishing Bekric's guilt for the 2013
offense was overwhelming: he owned the trailer with the false wall, exited the
highway suspiciously, and lied to officers at the scene.




      2
        Bekric's argument appears to misconstrue the nature of prosecutorial
discretion. The record in the present case does not disclose why the government
elected not to pursue charges against Bekric in 2012. The decisionmakers involved
in that case did not necessarily doubt their ability to prove the existence of probable
cause. They may have concluded that they could not prove Bekric's guilt beyond a
reasonable doubt, or they simply may have had other priorities or insufficient
resources to invest in Bekric's prosecution. The absence of charges does not make
the officer testimony as to one-year-old events insufficient to prove Bekric's prior
conduct by a preponderance of the evidence.

                                           -5-
        Regarding the hearsay issue, we conclude the district court properly excluded
the testimony as "an out of court statement offered in evidence to prove the truth of
the matter asserted." United States v. Graves, 756 F.3d 602, 604 (8th Cir. 2014).
Bekric nevertheless argues the excluded testimony should have been admitted to
explain the course of the investigation. See, e.g., United States v. Davis, 154 F.3d
772, 778 (8th Cir. 1998) ("An out-of-court statement is . . . not hearsay if it is offered,
not for the truth of the matter asserted, but instead to explain the reasons for or
propriety of a police investigation."). Bekric's argument regarding the course of the
investigation makes little sense as the bulk of the evidence against him was obtained
at the traffic stop. In any event, Bekric himself later testified as to the contents of the
same out-of-court conversation. This fact, coupled with the overwhelming nature of
the evidence in this case, show that any error related to the hearsay issue was without
prejudice.

       We affirm the judgment of the district court.
                       ______________________________




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