United States v. Gonzalez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20567 (Summary Calendar)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN ANTONIO GONZALEZ, also known as Tony Gonzalez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas (H-98-CR-122-1) -------------------- April 17, 2000

Before POLITZ, WIENER, and PARKER, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Juan Antonio Gonzalez appeals his jury-

trial conviction for possession of, and aiding and abetting

possession of, cocaine with intent to distribute. Gonzalez argues

that (1) the district court abused its discretion in admitting

improper “other acts” evidence, including evidence that he was

involved in prior drug transactions; (2) he was given inadequate

notice of the government’s intent to use such evidence; and (3) the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. court abused its discretion in admitting a post-arrest statement

that was more prejudicial than probative.

Assuming without deciding that the other acts evidence was

extrinsic to the instant offense, the evidence was nonetheless

admissible. At issue in the trial was whether Gonzalez knew that

a bag he transported contained cocaine. The evidence in question

was admissible to prove Gonzalez’s intent or absence of mistake, or

both. See FED. R. EVID. 404(b); See United States v. Beechum, 582

F.2d 898, 911 (5th Cir. 1978) (en banc). We conclude, under all

the circumstances of this case, including a late plea by the

testifying co-defendant, additionally that the district court did

not abuse its discretion in holding that the notice provided by the

government of its intent to use the Rule 404(b) evidence was

reasonable. And we are convinced that Gonzalez’s post-arrest

statement was probative of Gonzalez’s consciousness of guilt and

that its probative value was not outweighed by any prejudicial

effect. See FED. R. EVID. 403.

AFFIRMED.