     Case: 14-30939       Document: 00513178985         Page: 1     Date Filed: 09/02/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-30939
                                    c/w No. 14-31057
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                   Summary Calendar                              FILED
                                                                          September 2, 2015
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk

                                                  Plaintiff - Appellee

v.

MICHAEL D. BRUMFIELD,
                                                  Defendant - Appellant


                   Appeals from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:01-CR-141-1
                              USDC No. 2:13-CR-94-1


Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       Michael D. Brumfield challenges his jury-trial convictions for conspiracy
to distribute, and possess, with intent to distribute, 500 grams or more of
cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846,
and possession of a quantity of cocaine hydrochloride, with intent to distribute,
in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Brumfield asserts the court



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-30939
                                 c/w No. 14-31057

abused its discretion in admitting evidence of his 1993, 1997, and 2002
convictions for cocaine-related offenses, as well as the testimony of a co-
conspirator concerning these drug dealings in 2001.
         He also challenges the revocation of his supervised release related to a
prior conviction for distribution of cocaine base. He maintains this revocation
should be vacated because it is based on the above-referenced jury-trial
convictions, which, according to Brumfield, must be reversed.
         Federal Rule of Evidence 404(b)(1) precludes the admission of “[e]vidence
of a crime, wrong, or other act . . . to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with the
character”. On the other hand, such “evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident”. Fed. R. Evid.
404(b)(2).
         For such evidence to be admissible, a court must first determine “that
the extrinsic offense evidence is relevant to an issue other than the defendant’s
character”. United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en
banc).     Along that line, Brumfield concedes the relevance of his prior
convictions. “Second, the evidence must possess probative value that is not
substantially outweighed by its undue prejudice and must meet the other
requirements of rule 403.” Id. Evidentiary rulings are reviewed for abuse of
discretion. E.g., United States v. Kinchen, 729 F.3d 466, 470 (5th Cir. 2013).
         Although Brumfield contends he was harmed because the evidence of his
prior convictions amounted to propensity evidence due to the respective ages
of the prior convictions and the similarities between the offenses, our court has
emphasized that the test under the prejudice prong of Beechum “is whether
the probative value of the evidence is substantially outweighed by its unfair


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                                 No. 14-30939
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prejudice”.    United States v. Cockrell, 587 F.3d 674, 679 (5th Cir. 2009)
(emphasis in original) (internal quotation marks omitted). Brumfield’s prior
convictions for possession of cocaine and distribution of cocaine base were
probative of his knowledge of the drug and his intent to distribute. E.g., United
States v. Gadison, 8 F.3d 186, 192 (5th Cir. 1993).
      Further, admission of Brumfeld’s prior convictions was permissible
despite their remoteness in time. “[T]he amount of time that has passed since
the previous conviction is not determinative”. United States v. Arnold, 467
F.3d 880, 885 (5th Cir. 2006). Our court has upheld the introduction of a nearly
18-year-old prior conviction. See, e.g., United States v. Hernandez-Guevara,
162 F.3d 863, 872-73 (5th Cir. 1998). By comparison, two of Brumfield’s prior
convictions occurred about 11 and 16 years, respectively, before the charged
offenses.     And, although the 1993 conviction’s remoteness weakens its
probative value, the age of that extrinsic offense does not serve as a per se bar
to admission. See United States v. Wallace, 759 F.3d 486, 494-95 (5th Cir.
2014). Moreover, Brumfield’s not-guilty plea, his attack on the credibility of
the alleged co-conspirators who testified against him, and his theory of defense
that the physical evidence against him was planted “enhance[] the probity of
the prior offense evidence by placing his intent and state of mind at issue”.
United States v. Buchanan, 70 F.3d 818, 831 (5th Cir. 1995).
      Furthermore, the extrinsic offenses were not of such a “heinous nature”
that they would “incite the jury to irrational decision by [their] force on human
emotion”. Beechum, 582 F.2d at 917. The district court minimized the danger
of unfair prejudice by instructing the jury regarding the limited purposes for
which it could consider the evidence. Cf. United States v. Booker, 334 F.3d 406,
412 (5th Cir. 2003). In sum, the district court did not abuse its discretion.




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                               c/w No. 14-31057

      Regarding the testimony by a co-conspirator, Brumfield challenges the
admission of Jeffrey Michele’s testimony that, in 2001, he supplied Brumfield
with cocaine, which Brumfield redistributed. Prior to trial, the court ruled
background-information testimony of Brumfield’s co-conspirators was intrinsic
and, thus, did not implicate Rule 404(b). Evidence is considered intrinsic when
it is inextricably intertwined with the evidence of the charged crime, when both
acts are part of a single criminal episode, or when it was a necessary
preliminary to the charged crime. United States v. Sumlin, 489 F.3d 683, 689
(5th Cir. 2007).
      Even if the court erred by admitting this testimony by Jeffrey Michele,
the error is harmless. E.g., United States v. Hawley, 516 F.3d 264, 267-68 (5th
Cir. 2008). The evidence showed: from 2010 through April 2013, Sam Michele,
the brother of Jeffrey Michele, regularly supplied cocaine to Brumfield (and
others) on consignment; immediately preceding his arrest, Brumfield
possessed an amount of cocaine, cash, and other evidence indicative of
distribution, not personal use; and Brumfield had obtained from Sam Michele
the cocaine discarded during the police chase. In the light of overwhelming
evidence of Brumfield’s guilt of the charged offenses, any error in admitting
evidence of the 2001 drug dealings between Brumfield and Jeffrey Michele was
harmless. See, e.g., id. at 268-69.
      As Brumfield has not shown the challenged convictions must be
reversed, he has not shown that the court abused its discretion by revoking his
supervised release. See United States v. Grandlund, 71 F.3d 507, 509 (5th Cir.
1995).
      AFFIRMED.




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