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

                                                                            FILED
                                                                           May 12, 2008

                                     No. 07-40271                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

ALLEN COOPER

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                   (06-CR-122)


Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
       Defendant Allen Cooper appeals his conviction of conspiracy to possess
with intent to distribute more than 1,000 kilograms of marijuana, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. Finding no reversible error, we
affirm.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 07-40271

                                       I.
      At trial, the government relied primarily on the testimony of cooperating
co-conspirators, Andrew Mills and Renato Madrigal. Their testimony was
corroborated by wiretap evidence, tape recordings, pen registers and other
testimony.
      Allen Cooper was a truck driver for a nationwide trucking company. The
government presented evidence that Cooper was part of a conspiracy headed by
three brothers, Hector, Renato and Miguel Madrigal, to drive marijuana along
with the trucking company’s legitimate loads. A dispatcher for the company had
previously arranged for transportation of the drugs by the company’s drivers.
When he left the company, Renato decided to step up in the drug trafficking
organization by filling the void. He recruited his brothers to help. Renato’s job
was to recruit drivers. He recruited Cooper as a driver on the assumption that
Cooper had been driving for the former dispatcher. Renato testified that Cooper
drove six loads of marijuana between 2003 and 2004 for Renato and the
organization; two 500 pound loads to Raleigh, North Carolina, one 750 pound
load and one 550 pound load to Atlanta, one 1,000 pound load to Chicago, and
a 200 to 300 pound load to Dallas. Cooper received $100 per pound transported.
      Cooper introduced Mills to Renato and his brothers as a prospective driver.
Cooper vouched for Mills trustworthiness and accompanied Mills on his first run
to Chicago. After Mills successful first run, he was assigned a second load of
marijuana in May 2003. Because the government had the organization under
surveillance, the government anticipated that a load was to be transported by
Mills. Helicopter surveillance observed Mill’s tractor trailer and a green SUV
rendevous at a gas station. The helicoptor followed the tractor trailer to a
warehouse area, where marijuana was loaded in the truck. As Mills left the
warehouse and drove onto Interstate 35 North, he was stopped by state police.
A drug sniffing dog was called to the scene and the marijuana bundles were


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discovered. Mills was later apprehended again in July 2006 with another 433
pound load of marijuana near El Paso, Texas.
      The above testimonial evidence was supported by the admission of taped
conversations involving two of the Madrigal brothers and included a
conversation with Cooper about transporting drugs to Chicago. The testimony
was also supported by evidence of phone calls between Cooper , Renato, Hector
and Mills.
      Over the objection of the defense, the district court allowed the
government to admit evidence under Fed. R. Evid. 404(b) of a seizure in January
2006 of a load of marijuana from a truck driver named Efrem Holloway.
Holloway testified that Cooper had recruited him to transport the load for a
supplier named “E” and his brother “Al.” Holloway paid Cooper a percentage of
his earnings from successful drug transport runs.
                                        II.
      Cooper argues first that the district court erred in admitting the above
described evidence under Rule 404(b). Under the rule, evidence of prior crimes
is not admissible in criminal cases unless it is relevant to an issue other than the
defendant’s character or his propensity to act in accordance with that character.
The incremental probative value of the evidence must not be substantially
outweighed by the danger of unfair prejudice to the defendant. United States
v. Jones, 484 F.3d 783, 786 (5th Cir. 2007). Other acts evidence can be admitted
to show the defendant’s intent, which is at issue in every conspiracy case.
United States v. Pompa, 434 F.3d 800, 805 (5th Cir. 2005). “As long as it is clear
to the jury that the extrinsic evidence . . . is presented only to show modus
operandi to prove knowledge and intent, there is little danger that presentation
of the extrinsic evidence will cause unfair prejudice . . .” United States v.
Nyugen, 504 F.3d 561, 574-75 (5th Cir. 2007)(quoting United States v. Williams,
900 F.2d 823, 827 (5th Cir. 2007)), cert. denied, 128 S.Ct. 1324 (2008).

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      In this case, extrinsic evidence that Cooper recruited Holloway to
transport marijuana from Laredo to places north presents the identical modus
operandi as the facts of this case in which Cooper recruited Mills to make the
same types of runs.     It also served to negate Cooper’s claim that he was
innocently involved in the drug transport scheme. In addition, the district court
carefully instructed the jury of the limited uses of the evidence, both when it was
presented and in the final charge. The district court did not abuse its discretion
by admitting this evidence, even under the heightened standard applicable to
criminal cases. United States v. Hernandez-Guevara, 162 F.3d 863, 869-70 (5th
Cir. 1998); United States v. Fox, 69 F.3d 15, 20 (5th Cir. 1995).
                                       III.
      Cooper argues next that the trial court made improper comments
concerning the evidence that influenced the jury’s decision and affected Cooper’s
right to a fair trial. Cooper identifies six instances in which he claims the
district court strayed from his neutral role, vouching for the government’s
evidence and relieving the jury of its duty to deliberate concerning the existence
of a conspiracy. Reading the district court’s comments in context, it is clear that
they do not have the effect claimed by the defense. The district court described
the concept of conspiracy in the context of the facts of this case. He repeatedly
admonished the jury that it was their job to decide which witnesses to believe
and to decide whether Cooper was a member of the conspiracy. Curative
instructions also informed the jury that the judge’s comments were not evidence
in the case. The comments by the district court were not improper, did not
prejudice Cooper’s case or deny him a fair trial. United States v. Wallace, 32
F.3d 921, 928 (5th Cir. 1994); United States v. Adkins, 741 F.2d 744, 747 (5th Cir.
1984).




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                                  No. 07-40271

                                       IV.
      Cooper finally claims that the government failed to present sufficient
evidence to sustain his conviction for conspiracy to convict with intent to
distribute. We review the evidence and inferences drawn therefrom in the light
most favorable to the jury’s guilty verdict and ask whether a rational jury could
have found the defendant guilty beyond a reasonable doubt. United States v.
Burton, 126 F.3d 666, 669 (5th Cir. 1997). To prove a conspiracy to possess and
distribute marijuana, the government must show (1) an agreement between two
or more people to violate the narcotics laws; (2) the defendant’s knowledge of the
agreement; and (3) his voluntary participation in the conspiracy. United States
v. Valdez, 453 F.3d 252, 256-57 (5th Cir. 2006). The evidence described above is
clearly sufficient to establish that Cooper was part of a conspiracy with the
Madrigal brothers and Mills to transport drugs. The jury was entitled to find
that he knew of the agreement and participated in it, as evidenced by his
recruitment of Mills to participate in the scheme. The jury clearly believed the
testimony of Renato Madrigal and Mills. Cooper’s conviction stands.
                                       V.
      For the foregoing reasons, Cooper’s conviction is AFFIRMED.




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