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

                                                FILED
                                                                   July 2, 2009
                                No. 08-50885
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

GONZALO NICOLAS REYNA

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 7:08-CR-24-4


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      Gonzalo Nicolas Reyna was convicted by a jury of conspiracy to commit
access device fraud, in violation of 18 U.S.C. § 1029 (count one), and identity
theft and aiding and abetting, in violation of 18 U.S.C. § 1028A and 18 U.S.C. § 2
(count two). The district court sentenced Reyna to two months in prison as to
count one and to the statutory minimum of 24 months in prison as to count two,
to be served consecutively.



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-50885

      Reyna appeals, arguing that the district court abused its discretion when
it admitted extrinsic offense evidence of Reyna’s theft of a customer’s checking
account information, which he gave to the conspiracy’s leader, and with which
he attempted to make purchases. Reyna further contends that the error was not
harmless.
      First, the record reflects that the extrinsic offense evidence was relevant
to an issue other than Reyna’s character, such as intent. United States v.
Beechum, 582 F.2d 898, 911 (5th Cir. 1978)(en banc)). Although Reyna does not
contest that the extrinsic offense evidence was sufficient, under a preponderance
of the evidence standard, to prove that he committed the extrinsic offense, see
United States v. McCarty, 36 F.3d 1349, 1353 (5th Cir. 1994), he does contest
whether the extrinsic offense evidence was necessary to prove intent. Because
Reyna put his intent at issue when he pleaded not guilty, the extrinsic offense
evidence was relevant to the issue of intent. See United States v. Roberts, 619
F.2d 379, 383 (5th Cir. 1980). Furthermore, although Reyna only argues the
intent issue, the extrinsic offense evidence was relevant to show motive,
opportunity, plan, knowledge, and identity. See Beechum, 582 F.2d at 912 n.15.
      Second, the record reflects that the evidence’s probative value was not
substantially outweighed by undue prejudice. Id. at 911. The testimony and
evidence showed that in December 2007, Reyna stole one customer’s checking
account information (the extrinsic offense) and another’s credit card information
(the charged offense). The testimony further showed that Reyna gave this
information to the leader of the conspiracy who, also in December 2007, made
purchases using the information. Given the factual similarities between the
offenses and the temporal proximity of the offenses, the district court did not err
in determining that the probative value of the extrinsic offense evidence was not
substantially outweighed by undue prejudice. See United States v. Chavez, 119
F.3d 342, 346 (5th Cir. 1997). Because both prongs of the Beechum test were



                                        2
                                   No. 08-50885

satisfied, the district court did not abuse its discretion in admitting the extrinsic
offense evidence.
      Furthermore, even if we were to find that the district court erred in
admitting the extrinsic offense evidence, the error was harmless given the
substantial evidence establishing Reyna’s guilt as to the charged offense and the
district court’s limiting jury instruction.    Under harmless error review, “a
nonconstitutional trial error is harmless unless it had substantial and injurious
effect or influence in determining the jury's verdict.” United States v. Buck, 324
F.3d 786, 790 (5th Cir. 2003).
      The trial testimony and evidence showed that with respect to the charged
offense, Reyna stole credit card information from one of his customers, Reyna
provided the information to the leader of the conspiracy, Reyna and the leader
of the conspiracy attempted to make online purchases using the information, and
the leader of the conspiracy did use the information to make other purchases.
Thus, the evidence regarding the charged offense was substantial, and Reyna
has failed to show that the extrinsic offense evidence substantially influenced
the jury’s verdict. See United States v. McCall,553 F.3d 821, 829 (5th Cir. 2008).
      Moreover, any prejudice resulting from the admission of the extrinsic
offense evidence was mitigated by the district court’s limiting instruction, which
the court issued four times, charging the jury to consider the extrinsic evidence
only for the limited purpose of determining whether Reyna had the intent to
commit the charged crime or whether he committed the offense by accident or
mistake. See United States v. Taylor, 210 F.3d 311, 318 (5th Cir. 2000).
      AFFIRMED.




                                         3
