United States v. Blake

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 27, 1999
• Docket: 98-21081
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

____________________

No. 98-21081 Summary Calendar ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDWARD LIONEL BLAKE,

Defendant-Appellant.

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Appeal from the United States District Court for the Southern District of Texas (No. H-98-Cr-215-1) _________________________________________________________________

September 23, 1999

Before JONES, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Edward Lionel Blake appeals his convictions for conspiracy to

possess with intent to distribute cocaine base and aiding and

abetting possession with intent to distribute cocaine base,

contending that the district court admitted improperly extrinsic

evidence of a subsequent bad act that contributed to his

conviction. Blake characterizes crack cocaine found in his

possession during the execution of a search warrant, subsequent to

the date of the charged offense, as extrinsic evidence under FED.

R. EVID. 404(b). An officer testified that, during the execution of

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. the warrant, Blake grabbed something from the dresser, where rocks

of crack cocaine were discovered, and fled.

The standard of review for the trial court’s determination of

admissibility of evidence is abuse of discretion. E.g., United

States v. Chavez, 119 F.3d 342, 346 (5th Cir.), cert. denied, 118

S. Ct. 615 (1997); see FED. R. EVID. 103.

The extrinsic evidence of other bad acts must fit within one

of the exceptions of Rule 404(b). It cannot be admitted to show the

character of the defendant. Here, the applicable exception is the

intent of the defendant. Such intent is at issue when the

defendant pleads not guilty to a drug conspiracy charge. United

States v. Parsee, 178 F.3d 374, 379 (5th Cir. 1999). Blake pleaded

not guilty. And, the district court noted similarities between the

two crimes, possession of drugs. Along this line, the district

court gave a limiting instruction that this evidence could be used

only to determine “whether Mr. Blake had the state of mind or

intent necessary to commit the crime charged in the indictment”.

Blake also contends that the bad act is not admissible because

it occurred after the charged offense. But, there is no

requirement that other bad acts occur prior to the charged offense.

AFFIRMED