Revised December 31, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-50946 _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JESUS HERNANDEZ-GUEVARA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Western District of Texas _________________________________________________________________ December 11, 1998 Before KING, GARWOOD, and HIGGINBOTHAM, Circuit Judges.
KING, Circuit Judge:
Defendant-appellant Jesus Hernandez-Guevara appeals his
conviction for conspiracy to transport aliens, illegal
transportation of aliens, and misprision of a felony. We affirm
the conviction. Hernandez also appeals his sentence, arguing
that the district court erred in requiring that the three-year
supervised release term assessed for his conviction run
consecutive to the supervised release term for an earlier
conviction. We agree and modify the sentence accordingly.
I. FACTUAL AND PROCEDURAL BACKGROUND On January 28, 1997, after receiving a telephone tip that a
smuggler would be transporting a group of undocumented aliens in
the area, United States Border Patrol agents set up surveillance
on U.S. Highway 277 between the Texas towns of Eagle Pass and
Carrizo Springs. Some agents were posted at two rest areas,
approximately thirteen and twenty-four miles east of Eagle Pass;
others were stationed along the highway closer to Carrizo
Springs. About an hour and a half after the Border Patrol set up
surveillance, Agent Jaime Kypuros, who was hiding in the brush
near the second rest area, saw a blue van traveling west on
Highway 277 toward Eagle Pass. The van slowed near the rest area
and put on its turn signal, but Kypuros and his partner could not
see whether it actually entered the rest stop. Between thirty
and fifty minutes later, Kypuros saw the van again, this time
traveling east on the highway. A white Lincoln Continental was
following about a quarter-mile behind the van. Agent Mario
Ramirez, who was stationed five miles east of Kypuros, saw both
vehicles pass twice; he estimated that they were two to three
miles apart when traveling west and five miles apart on the
return trip.
As the vehicles proceeded toward Carrizo Springs, Agent
Rodolfo Benavides, who was stationed east of Ramirez, saw the van
turn left onto Highway 191, which leads to U.S. Highway 83 and
Crystal City, Texas. Driving an unmarked truck, Benavides
followed the van for eight miles, to the intersection of Highways
2 191 and 83, where he stopped it. The driver of the van was Mike
Trevino; the eight other occupants were all undocumented aliens
from Mexico. After other agents arrived to assist Benavides, the
Lincoln, which Benavides estimated had been traveling three to
four miles behind the van, approached. The Lincoln slowed when
the driver saw the agents and the van, and Benavides flagged the
car down, displaying his credentials. Joe Sanchez was driving
the car; the passenger was defendant-appellant, Jesus Hernandez-
Guevara (Hernandez), also known by the nickname “Chuy.” The
agents arrested Trevino, Sanchez, Hernandez, and the aliens.
The evidence against Hernandez at trial included testimony
from the Border Patrol agents who stopped the vehicles, Sanchez,
and two of the aliens. Sanchez, who had pleaded guilty and
received a probated sentence, told the jury that he had agreed to
give Hernandez a ride from his home to Eagle Pass to pick up a
transmission. As they passed the first rest stop, Sanchez
noticed people entering a blue van, and Hernandez remarked that
these individuals were “his.” They continued driving for another
five miles, but then Hernandez told Sanchez to turn back. At
that point, Sanchez testified, he realized for the first time
that the people being picked up were undocumented aliens. He
became angry at Hernandez and drove on in silence until stopped
by the Border Patrol. Sanchez concluded that he had been brought
along to look for Border Patrol agents, but claimed that he did
no scouting. He did admit that Hernandez offered him money at
3 some point during the trip, although it is not clear from his
testimony whether the payment was to be compensation for scouting
or for driving Hernandez to Eagle Pass. At any rate, when they
saw that the van had been detained, Hernandez told Sanchez not to
say anything to the agents.
Two of the aliens, Juan Padron-Silva and José Norberto
Ortega-Martinez, provided additional evidence against Hernandez
in the form of post-arrest statements admitted by stipulation at
trial. Padron-Silva stated that he entered the United States the
day before his arrest; he had been told to wait for a smuggler,
and the van had picked him up. He was to be charged $600.00 for
his transportation. Ortega-Martinez described similar events.
He added that the smuggler’s name was “Chuy,” a name he
recognized because he had been transported to Oklahoma by a man
named Chuy two years earlier. From a photo lineup, Ortega-
Martinez identified Hernandez as the “Chuy” who had smuggled him
before.
In addition to testimony about the offenses with which
Hernandez was charged, the evidence at trial included references
to his past misconduct. The government’s first witness, Agent
Kypuros, testified that the multiple-agent surveillance was
established in response to a telephone call. Consistent with his
pretrial motion in limine, Hernandez objected that this was
irrelevant and prejudicial hearsay. The district court overruled
the objection, and Kypuros stated that “[b]ased on the phone
4 call,” the agents “prepared to go out to the highway and set up
in an effort, in an attempt to apprehend an alien smuggler.”
After describing the logistics of the stakeout, he added that in
setting up surveillance, he and another agent hid in the brush.
The following exchange ensued:
Q [by Assistant United States Attorney Robert Cadena] Why did you hide in the brush? A Because in the past, on several occasions-- MR. VILLARREAL [defense counsel]: Your Honor, I’m going to object on relevancy grounds to anything that may have happened in the past. It’s speculative. It has no relevance to the facts before the jury in this case. THE COURT: Overruled. MR. CADENA: You may answer. THE WITNESS: Okay. Based on Border Patrol experience and intelligence reports many-- MR. VILLARREAL: I’ll object to any testimony concerning intelligence reports as offering hearsay. THE COURT: Sustained. Sustained as to intelligence report. BY MR. CADENA: Q Based on your training and intelligence why were you hiding in the brush? A I had seen, on several occasions, Mr. Hernandez travel on that highway.
Defense counsel objected to this answer and moved for a mistrial,
arguing that an instruction would not cure the error. The trial
court agreed that “to instruct on it just exacerbates and
magnifies it” but denied the motion for mistrial.
Border Patrol Agent Robert Edwards also testified about
Hernandez’s past misconduct. Over objection, Edwards stated that
in 1996, he arrested Hernandez driving thirteen aliens in a
truck. At the bench before Edwards gave this testimony, defense
counsel objected that the prosecutor had not offered a theory to
support the introduction of the evidence. The trial court
5 overruled that objection, and in response to Hernandez’s request
for an on-the-record balancing of the probative value of
Edwards’s testimony against its prejudicial effect, it stated:
“But at least the Court has the impression that the defensive
theory, slash, argument would be that Mr. Hernandez-Guevara was
just out looking for car parts and happened to be in the wrong
place at the wrong time. And, therefore, the probative value
outweighs any improper prejudicial effect.” The district court
did not give a limiting instruction immediately after Edwards’s
testimony.
After Edwards took the stand, United States Probation
Officer Victor Calderon also testified to Hernandez’s prior
misconduct, stating that Hernandez had been convicted in 1979 and
1996 of transporting aliens. After admitting this evidence, the
court instructed the jury that it could consider the convictions
for the “very limited” purposes of
determin[ing] whether the defendant had the state of mind or intent necessary to commit the crime charged in the indictment in this case or whether this defendant had a motive or opportunity to commit the acts charged in this indictment, or whether this defendant acted according to a plan or in preparation for the commission of a crime, or whether the defendant committed the acts for which he is on trial by accident or mistake or not. And these are the very limited purposes for which evidence of these other similar acts may be considered by you.
Hernandez then moved for a mistrial “in view of the limited
instruction.” The court overruled the motion.
6 During his closing argument, the prosecutor repeatedly
referred to Hernandez’s past misconduct. He suggested, for
example, that the jury “start by looking at the past” to
determine whether Hernandez “is responsible for this crime.” The
prosecutor then told the jury that the evidence about the past
was called “Rule 404(b) evidence” and could be used for a “very
limited purpose”:
Basically, that evidence was presented so that you can see, was this some kind of mistake? Was somebody there at the wrong place at the wrong time? Was it innocent behavior out there that was being exhibited by the defendant, Chuy Hernandez, when he just happened to be going past when the aliens were being picked up and driving back following the alien load? Is that all innocent behavior?
The district court overruled Hernandez’s objection to this
argument. Later, the prosecutor urged the jury to “look at it in
the context of 404(b) material. Look at it in the context of
intent. Look at it in the context of lack of mistake.”
Hernandez did not object or move for a mistrial on this basis.
Finally, the prosecutor asserted:
The fact is that this man is guilty by clear and convincing evidence based on all the actions that were going on out there and all the observations by trained anti-smuggling unit agents, based on the coconspirator’s statements that you heard and Joe Raymundo Sanchez what was going on in the car, based upon the 404(b) material that you heard.
Hernandez objected that the prosecutor was “arguing [the
extrinsic evidence] again as direct evidence, as character
evidence.” The court sustained the objection but denied the
motion for mistrial.
7 Some confusion arose at trial about whether Hernandez was on
bond at the time of the offenses complained of. The source of
the confusion and the district court’s response thereto will be
discussed in greater detail infra.
The jury convicted Hernandez of conspiracy to transport
aliens, two counts of illegal transportation of aliens, aiding
and abetting an offense against the United States, and misprision
of a felony, in violation of 18 U.S.C. § 371, 8 U.S.C.
1324(a)(1), 18 U.S.C. § 2, and 18 U.S.C. § 4. At the time of
sentencing, Hernandez was serving an unexpired sentence of one
year in prison for his 1996 conviction and was subject to a
three-year term of supervised release for that conviction. The
district court sentenced him to twenty-four months imprisonment
on the conspiracy and transportation charges and twelve months
imprisonment on the misprision count, to run concurrently with
each other but consecutively to the prison term in the 1996 case.
In addition, the court imposed a three-year period of supervised
release to run consecutively to the 1996 term of supervised
release. Hernandez appealed both his conviction and his
sentence.
II. DISCUSSION
A. Evidence of Extrinsic Offenses
On appeal, Hernandez argues that the district court abused
its discretion by allowing, over objection, testimony that he
smuggled aliens in the past. Specifically, he contends that the
8 district court should have excluded (1) Border Patrol Agent
Robert Edwards’s testimony that he arrested Hernandez
transporting aliens in 1996, (2) evidence that Hernandez had been
convicted of alien smuggling in 1979 and 1996, and (3) Border
Patrol Agent Jaime Kypuros’s reason for hiding in the brush,
which Hernandez claims amounted to an assertion that Hernandez
was a known alien smuggler. He also challenges the district
court’s limiting instructions as inadequate because they simply
listed the permissible uses of extrinsic offense evidence, rather
than specifying which uses applied in Hernandez’s case.
1. Standard of Review
Where the party challenging the trial court’s evidentiary
ruling makes a timely objection, we review that ruling under an
abuse-of-discretion standard. See United States v. Westmoreland,
841 F.2d 572, 578 (5th Cir. 1988). Such review is necessarily
heightened in a criminal case, however, which demands that
“evidence . . . be ‘strictly relevant to the particular offense
charged.’” United States v. Hays, 872 F.2d 582, 587 (5th Cir.
1989) (quoting Williams v. New York, 337 U.S. 241, 247 (1949)).
Similarly, where the appellant preserves error, an abuse-of-
discretion standard applies to our review of the district court’s
instructions to the jury. See United States v. Townsend, 31 F.3d
262, 270 (5th Cir. 1994). We also review the denial of motions
for mistrial or a new trial for abuse of discretion. See United
9 States v. Soto-Silva, 129 F.3d 340, 343 (5th Cir. 1997), cert.
denied, 118 S. Ct. 1822 (1998).
Where the party challenging the district court action fails
to make a timely objection, however, we review only for plain
error. See United States v. Burton, 126 F.3d 666, 671 (5th Cir.
1997). Federal Rule of Criminal Procedure Rule 52(b) provides
that “[p]lain errors or defects affecting substantial rights may
be noticed although they were not brought to the attention of the
court.” FED. R. CRIM. P. 52(b). In applying this rule, the
appellate court must determine (1) that there was an error, that
is, a deviation from a legal rule, (2) that the error is “plain,”
meaning obvious, and (3) that the error affected substantial
rights, meaning that it must be prejudicial and affect the
outcome of the district court proceeding. See United States v.
Olano, 507 U.S. 725, 731-35 (1993). The defendant, not the
government, bears the burden of persuasion with respect to
prejudice. See id. at 734. Finally, because plain error review
is discretionary rather than mandatory, the court of appeals
should correct a plain error affecting substantial rights only if
the error “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. at 736 (internal
quotation marks omitted); see also United States v. Mansolo, 129
F.3d 749, 751 (5th Cir. 1997) (setting forth plain error
standard).
2. Analysis
10 Although extrinsic offense evidence is not admissible to
prove the defendant’s bad character and action in conformity
therewith, it may be introduced to show motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. See FED. R. EVID. 404(b). Interpreting Rule
404(b), we have stated:
What the rule calls for is essentially a two-step test. First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant’s character. 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.
United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en
banc).
Hernandez first contends that his prior smuggling activities
are irrelevant, as shown by the prosecution’s inability
adequately to articulate reasons for introducing them. This
argument lacks merit. As a preliminary matter, we find that the
government did make it clear to the jury that it should consider
the extrinsic offense evidence as probative of intent and lack of
mistake. During his closing argument, for example, the
prosecutor stated:
Where do you start? I submit to you you start by looking at the past. This is what this evidence is about, the--well, you can use it for a limited purpose. It’s what we call Rule 404(b) evidence. Basically, that evidence was presented so that you can see, was this some kind of mistake? Was somebody there at the wrong place at the wrong time? Was it innocent behavior out there that was being exhibited by the defendant, Chuy
11 Hernandez, when he just happened to be going past when the aliens were being picked up and driving back following the alien load? Is that all innocent behavior?
The prosecutor clearly indicated to the jury that it should
consider evidence of Hernandez’s prior bad acts for the “very
limited purpose” of showing absence of mistake. Later, he
explained again that the extrinsic offense evidence showed intent
and lack of mistake:
[H]ow do you know he’s not an observer? How do you know he’s not just some person that’s on the side of the road? Basically because you’ve seen the progression. You’ve seen the progression of how to accomplish this. And you look at it in the context of 404(b) material. Look at it in the context of intent. Look at it in the context of lack of mistake.
Thus, the prosecution emphasized that the “404(b) material” was
to be used to show intent and lack of mistake, thus rebutting
Hernandez’s defense that he was simply in the wrong place at the
wrong time. Hernandez’s assertion that the government is
obligated to state both the specific purpose for which extrinsic
offense evidence is being offered and the chain of inferences
leading from it to a fact of consequence is supported only by
out-of-circuit authority. See United States v. Murray, 103 F.3d
310, 316 (3d Cir. 1997), cert. denied, 119 S. Ct. 254 (1998);
United States v. Merriweather, 78 F.3d 1070, 1076 (6th Cir.
1996). It is true, of course, that we have held that the
government generally should explain why a defendant’s prior bad
acts are relevant. In United States v. Fortenberry, 860 F.2d
628, 633 (5th Cir. 1988), for example, we found that the
12 “government’s inability to articulate the probative value of the
[extrinsic offense] evidence, as well as the weakness of the
evidence linking Fortenberry to the extrinsic offenses, warrants
the conclusion that the primary impact of the evidence on the
proceedings was to increase the prejudice against Fortenberry.”
The Fortenberry prosecutor had, at different times, defended the
evidence as establishing motive, intent, opportunity, identity,
and plan. See id. This bears a superficial resemblance to
Hernandez’s case, in which the prosecutor suggested during a
pretrial motion in limine hearing that the jurors could use the
extrinsic offense evidence “to determine whether or not there was
motive, intent, opportunity, design, lack of mistake. And that’s
what we intend to offer it on.” Here, however, the government
did ultimately make clear why the evidence was introduced and
what elements of the defense it was intended to rebut.
We also agree with the prosecution and the trial court that
evidence that Hernandez had been convicted of two previous alien
smuggling offenses is relevant to his intent and the absence of
mistake or accident. Hernandez’s defense at trial was that he
had traveled to Eagle Pass to obtain car parts, that he
coincidentally fell in behind a van of illegal aliens, and that
Joe Raymundo Sanchez, himself a convicted felon, implicated him
in an attempt to gain favor with the Border Patrol agents.
Evidence that Hernandez had, on past occasions, smuggled aliens
with a guilty intent makes it more likely that he was not
13 innocently looking for car parts. Cf. United States v. Robles-
Vertiz, 155 F.3d 725, 730 (5th Cir. 1998) (holding that evidence
of the defendant’s previous alien smuggling activities was
admissible to show lack of mistake where his defense to the
latest smuggling charge was that he believed the alien to be a
United States citizen); United States v. Cheramie, 51 F.3d 538,
541-42 (5th Cir. 1995) (holding that evidence of the defendant’s
prior drug smuggling activities was admissible to show knowledge
and intent); United States v. Williams, 900 F.2d 823, 827 (5th
Cir. 1990) (holding that evidence of the defendant’s prior
mailings of drugs from California to New Orleans was admissible
to show knowledge and intent in the charged mailing).
Having found that the extrinsic offense evidence was
relevant, we turn to the second prong of the Beechum analysis.
On this point, Hernandez contends that the prejudicial effects of
his prior bad acts substantially outweighed their probative
value. He makes two subarguments: First, he claims that the
district court failed to conduct an adequate on-the-record
balancing of the extrinsic offense evidence’s prejudicial effects
and probative value. Second, he asserts that the court neglected
to give proper limiting instructions regarding the purposes for
which the jury could consider the evidence. We address these
contentions in turn.
We have held that the Beechum probative value/prejudice
inquiry must be articulated on the record upon a party’s request.
14 See United States v. Robinson, 700 F.2d 205, 213 (5th Cir. 1983).
We acknowledge that we have implied that conclusory statements do
not meet the Robinson articulation requirement. See United
States v. Zabaneh, 837 F.2d 1249, 1264 (5th Cir. 1988). In
Zabaneh, the district court simply announced, “I have made the
balancing judgments that are called for in the Beechum opinion at
pages 909 to 915.” Id. It is not clear, however, that Zabaneh
requires reversal simply because the trial judge’s articulation
of the Beechum probative value/prejudice inquiry lacks detail,
for the Zabaneh court also rested its decision on the fact that
the judge erroneously believed that evidence should be excluded
as unduly prejudicial only where it would “inflame the jury’s
passions.” Id. at 1265. Indeed, we suggested in a more recent
opinion that the result in Zabaneh hinged on the fact that the
court in that case affirmatively misunderstood the required
Beechum balancing. See United States v. Osum, 943 F.2d 1394,
1403 (5th Cir. 1991). In Osum, we declined to remand for
additional Beechum probative value/prejudice findings where the
trial judge responded to the defendant’s argument that the
evidence did not possess adequate probative value when measured
against its prejudicial effect by saying: “Well, I think it
does, and I just have to satisfy myself by another reading of
Beechum here for a minute.” After a brief recess, defense
counsel repeated his point that if the prejudicial effects
substantially outweighed the probative value, the evidence would
15 have to be excluded. The court responded: “That’s right. If I
felt that that’s what it was, and I do not, I do not, okay.” Id.
at 1402. On appeal, we held that such a statement was adequate
“at least where, as here, the following three factors are
present: there is no express request for such findings; the trial
court expressly states that it has made the Beechum probative
value/prejudice weighing and finds that the prejudice does not
substantially outweigh the probative value; there is nothing to
indicate that the trial court misunderstood or misapplied the
Beechum test.” Id. at 1403. Although Hernandez did explicitly
ask for Beechum findings, the trial judge in this case offered
considerably more than did his counterparts in Zabaneh and Osum:
He stated the defense theory that the extrinsic evidence would
rebut and concluded that, given this theory, the probative value
of the evidence outweighed any prejudicial potential. We decline
to conclude that the district court abused its discretion.
Nor can we say that the district court abused its discretion
in finding that the probative value of Hernandez’s prior
convictions was not substantially outweighed by its possible
prejudicial effects. Similarity between the elements of the
extrinsic offense and those of the charged offense may enhance
the probative value of the extrinsic offense evidence. See
United States v. Bermea, 30 F.3d 1539, 1562 (5th Cir. 1994)
(citing Beechum, 582 F.2d at 913). In this case, the extrinsic
evidence involved the same crime--alien smuggling--as was charged
16 in the indictment. Of course, a close resemblance between the
extrinsic offense and the charged offense also increases the
unfair prejudice to the defendant. See id. (citing Beechum, 582
F.2d at 915 n.20). But here, Hernandez’s prior misconduct lacked
the hallmarks of highly prejudicial evidence. See Fortenberry,
860 F.2d at 632. They were not violent acts, nor were they
greater in magnitude than the crimes for which Hernandez was on
trial, nor did they occupy more of the jury’s time than the
evidence of the charged offenses. Furthermore, the probative
value of Rule 404(b) evidence “is not an absolute; it must be
determined with regard to the extent to which the defendant’s
unlawful intent is established by other evidence, stipulation, or
inference.” Beechum, 582 F.2d at 914; see Williams, 900 F.2d at
827; United States v. Henthorn, 815 F.2d 304, 308 (5th Cir.
1987). The probative value of the extrinsic offense evidence was
relatively great: Hernandez based his defense on a claim that he
was merely in the wrong place at the wrong time and had been
framed by Sanchez. Other than Sanchez’s testimony, the admitted
evidence shed little light on Hernandez’s intent and whether his
alleged crime was the result of mistake or accident. For these
reasons, we decline to overturn the district court’s probative
value/prejudicial effect balancing.
We also reject Hernandez’s suggestion that the district
court abused its discretion in admitting the 1979 conviction
because it was stale and had been excluded during the motion in
17 limine hearing. The age of a prior conviction has never been
held to be a per se bar to its use under Rule 404. See United
States v. Broussard, 80 F.3d 1025, 1040 (5th Cir.), cert. denied,
117 S. Ct. 264 (1996). We have held that a fifteen-year-old
conviction for the same type of crime as that for which the
defendant is currently on trial is admissible to show intent,
especially where the other evidence of guilt is not strong. See
United States v. Chavez, 119 F.3d 342, 346-47 (5th Cir.), cert.
denied, 118 S. Ct. 615 (1997). Although Hernandez’s 1979
conviction was nearly eighteen years old, it involved exactly the
same crime as was charged in the indictment. Therefore, we
cannot say that the district court abused its discretion in
admitting this conviction. Hernandez also complains that the
prosecutor introduced this conviction without prior court
approval, in flagrant disregard of a pretrial motion in limine.
The record shows that the motion in limine extended to a 1978
arrest, which resulted in a conviction. At trial, the
prosecution claimed that the 1979 conviction introduced was not
the evidence that the court already had excluded. Even if it
was, we find that its introduction did not rise to the level of
prosecutorial misconduct, as the prosecution apparently believed
that the 1979 conviction was not barred by the motion in limine.1
1 The Presentence Investigation Report in Hernandez’s 1996 case, United States v. Hernandez, No. DR-96-CR-178 (W.D. Tex. Feb. 11, 1997), suggests that the prosecutor may have been correct. Under Hernandez’s criminal history, the report lists
18 Furthermore, it was properly admitted under Rule 404(b) and, as
we discuss below, the jury was properly instructed on the limited
purposes for which the evidence could be considered. See United
States v. Merkt, 794 F.2d 950, 963 n.15 (5th Cir. 1986)
(declining to find reversible error under similar circumstances).
Second, we consider whether the district court failed to
give adequate instructions limiting the purposes for which the
jury could consider the evidence. Hernandez claims that even
assuming that the evidence was admissible to show absence of
mistake, the court’s instructions “went far beyond that purpose,
telling the jury that it could rely on the convictions to show
state of mind or intent, motive, or opportunity, plan or
preparation, or accident or mistake.” At trial, however,
Hernandez did not object to the court’s instructions, nor did he
offer any suggestion regarding them. We therefore review only
for plain error. See United States v. Cortinas, 142 F.3d 242,
248 (5th Cir.) (reviewing for plain error where parties
challenging the limiting instructions as being erroneous or
inadequate failed to object or propose that other, preferable
instructions should have been given), cert. denied, 119 S. Ct.
224 (1998), and cert. denied, No. 98-6654, 1998 WL 772941 (U.S.
Nov. 30, 1998).
both an arrest on January 20, 1978 for aiding and assisting the illegal entry of an alien, to which Hernandez pled guilty on January 30, 1978, and an April 12, 1979 arrest for the same charge, to which Hernandez pled guilty on April 17, 1979.
19 The district court instructed the jury immediately after the
prosecution introduced evidence of the 1996 and 1979 convictions
that it could use that evidence only for the limited purposes
permitted by Rule 404(b). In its instructions to the jury, the
court reiterated this admonition. We have found no plain error
where the district court failed to give a limiting instruction
regarding extrinsic offense evidence altogether. See United
States v. Prati, 861 F.2d 82, 86-87 (5th Cir. 1988) (holding that
there was no plain error where a district court failed to give a
limiting instruction regarding extraneous acts and offenses where
court did warn the jury that the defendant was “not on trial for
any act or conduct or offense not alleged in the indictment”).
If a district court does not commit plain error by neglecting to
give a limiting instruction, we do not see how it does so by
reciting the permissible uses of extrinsic offense evidence as
laid out in Rule 404(b). It is true, of course, that we implied
in United States v. Anderson, 933 F.2d 1261, 1272-73 (5th Cir.
1991), that an instruction listing all the permissible Rule
404(b) uses for extrinsic offense evidence was too broad.
However, Anderson also involved a situation in which the
government never articulated the probative value of the evidence,
see id. at 1268, and the entire presentation of the evidence was
tainted by the fact that the court made no ruling that the jurors
could reasonably find that the defendant committed the extrinsic
crimes, see id. at 1273. In fact, it was not even clear from the
20 record that the Anderson trial judge conducted the Beechum
analysis. See id. We did not hold in Anderson, nor have we so
held since, that giving a broad instruction is, without more,
reversible error, and we decline to do so now.2
We also find that the district court did not err by
providing limiting instructions only after the government
introduced Hernandez’s convictions and in its final instructions
to the jury. Hernandez did not request a limiting instruction
after Edwards testified, and he stated that Kypuros’s remark
could not be cured with any instruction. In any case, a district
court need not provide a limiting instruction each and every time
a prior bad act is introduced into evidence. See United States
v. Asibor, 109 F.3d 1023, 1033 (5th Cir.), cert. denied, 118 S.
Ct. 254, and cert. denied, 118 S. Ct. 638 (1997).
B. Prosecutorial Misconduct
Hernandez also argues that his conviction should be reversed
because the government argued his extrinsic bad acts as
substantive evidence of guilt.
2 It is not entirely clear what standard of review the Anderson court applied when reviewing the district court’s instructions. At the beginning of its discussion, the court asserted generally that it would “reverse only for an abuse of discretion.” Anderson, 933 F.2d at 1267-68. It did not, however, make any mention of whether the defendant-appellant had preserved error with respect to the limiting instruction.
21 In reviewing a claim of prosecutorial misconduct, we must
decide whether the misconduct casts serious doubt upon the
correctness of the jury’s verdict. See United States v. Willis,
6 F.3d 257, 263 (5th Cir. 1993). We consider three factors:
(1) the magnitude of the prejudicial effect of the prosecutor’s
remarks, (2) the efficacy of any cautionary instruction by the
judge, and (3) the strength of the evidence supporting the
conviction. See United States v. Casel, 995 F.2d 1299, 1308 (5th
Cir. 1993). Improper prosecutorial comments require reversal
only if the comments substantially affected the defendant’s right
to a fair trial. See Bermea, 30 F.3d at 1563 (citing United
States v. Diaz-Carreon, 915 F.2d 951, 956 (5th Cir. 1990)). We
accord wide latitude to counsel during closing argument, and we
also give some deference to the district court’s determination
regarding the prejudicial or inflammatory nature of those
arguments. See id. at 1563.
The record demonstrates that the government never attempted
to argue Hernandez’s prior bad acts as substantive evidence of
guilt. Hernandez contends that the prosecution made two explicit
references to his prior offenses: At the beginning of his
closing argument, the Assistant United States Attorney told the
jury that it should begin by looking to the past, to the “Rule
404(b) evidence,” and toward the end of his closing, he urged the
jury to consider the evidence “in the context of 404(b)
22 material.” As noted above, the prosecution’s explicit references
to the prior offenses were followed by urging the jury to use
them only for specific purposes. We do not believe this
constitutes arguing extrinsic offenses as substantive evidence of
guilt.
Hernandez also contends that the prosecutor twice intimated
that he was a professional alien smuggler by stating that tandem
smuggling was “about trying to distance yourself from the crime
that you’ve committed” and suggesting that Hernandez had
progressed from aiding and abetting to transporting aliens
himself to distancing himself from the load by using someone
else’s car. The first reference to tandem smuggling, however,
contained absolutely no suggestion that Hernandez had been
convicted of past smuggling offenses. The second reference was
made just after the prosecutor urged the jury to view the Rule
404(b) evidence in the context of intent and lack of mistake.
Contrary to Hernandez’s assertion that the prosecutor was
suggesting that he was a professional smuggler who should be
punished regardless of his guilt of the present charges, the
challenged remarks suggested only that Hernandez’s innocent-
bystander defense was not worthy of belief. Finally, the
prosecutor’s remarks that Hernandez viewed alien-smuggling as a
business rather than a philanthropic attempt to improve the lives
of Mexican citizens contained no reference to the past offenses.
We find that the prosecutor engaged in no misconduct and that,
23 therefore, the district court did not abuse its discretion by
permitting the challenged argument.
C. District Court’s Comments
Hernandez also complains he was denied a fair trial because
the district court “instructed” the jury that it was “satisfied”
that Hernandez was on bond at the time of his arrest, thereby (1)
depriving Hernandez of the right to have a jury determine all
factual issues, (2) improperly testifying, and (3) suggesting to
the jury that the court was biased in favor of the prosecution.
Some background on this “instruction” is in order.
Towards the end of the trial, Probation Officer Calderon
identified the judgment covering Hernandez’s 1996 smuggling
conviction, for which Hernandez was sentenced on January 31,
1997. Defense counsel elicited from Calderon that he had been
present at Hernandez’s sentencing on January 31 and that
Hernandez had been in the custody of the U.S. Marshal at the
time. Counsel then questioned how, if he was in custody awaiting
sentencing, Hernandez could have committed the crimes alleged in
the indictment on January 28. On redirect, Calderon testified
that Hernandez had been out on bond on that date, but defense
counsel objected that Calderon had no personal knowledge of
Hernandez’s bond status, and the court sustained the objection.
At an on-the-record bench conference, the district court told
counsel that “[s]omehow or other we’ve got to clear up this,
perhaps, misconception that [Hernandez] wasn’t out there on
24 January 28th which is a great defensive tactic.” Noting that
pretrial service and marshal records showed that Hernandez had
been on bond on January 28, the court indicated its desire to
tell the jury what “the court records indicate.” Hernandez’s
counsel objected that pretrial service documents are not
admissible at trial.
At the court’s suggestion, the government called courtroom
deputy Gloria Vela as a witness, but she was unable definitively
to confirm Hernandez was on bond on January 28. The government
then requested permission to call Stacy Salinas of the U.S.
Pretrial Services Office. The court responded:
If you think it’s necessary. But I now see a--I have in here in the court record an agreed motion to set the bond signed by Dan Newsome, attorney for the defendant, and Robert Cadena, attorney for the United States. And then next, on September the 4th, 1996, I find an order that I signed approving the agreed motion to set the bond.
Nevertheless, the government proceeded to examine Salinas, who
testified that Hernandez called in to report to pretrial services
on January 27, that her office received notice of his arrest on
January 29, and that she interviewed Hernandez on January 30.
The court then told the jury, “Ladies and gentlemen, you’re--you
are instructed that the Court is satisfied that Mr. Jesus
Hernandez-Guevara was not in federal custody and was out on bond
as of January 28th, 1997.” Hernandez’s counsel moved for a
mistrial “to protect the record” and objected “to the Court’s
statements as being a comment on the weight of the evidence.”
25 The mistrial was denied and the objection was overruled, and the
government rested its case.
The objection that Hernandez’s counsel made, i.e., that the
“instruction” was a comment on the weight of the evidence, did
not provide an adequate predicate for Hernandez’s argument on
appeal that the instruction deprived Hernandez of his right to
have the jury determine all factual issues. Accordingly, we
review this challenge for plain error. See United States v.
Jobe, 101 F.3d 1046, 1061 (5th Cir. 1996), cert. denied, 118 S.
Ct. 81 (1997). The objection arguably does provide an adequate
predicate for Hernandez’s second and third arguments that the
“instruction” constituted improper judicial testimony and
suggested to the jury that the court was biased in favor of the
prosecution. In reviewing these challenges, we must “determine
whether the judge’s behavior was so prejudicial that it denied
the defendant a fair, as opposed to a perfect, trial.” Bermea,
30 F.3d at 1569 (citations omitted). In doing so, we examine the
trial court’s actions in the context of the entire record. See
United States v. Saenz, 134 F.3d 697, 702 (5th Cir. 1998)
(quoting United States v. Lance, 853 F.2d 1177, 1182 (5th Cir.
1988)).
a. Refusing to Submit a Fact Issue to the Jury
26 We consider first Hernandez’s claim that by “instructing”
the jury that it was “satisfied” that Hernandez was on bond at
the time of his arrest, the district court improperly removed an
issue of fact from the province of the jury. In a criminal case,
“no fact, not even an undisputed fact, may be determined by the
Judge. The plea of not guilty puts all in issue, even the most
patent truths.” United States v. Johnson, 718 F.2d 1317, 1322
(5th Cir. 1983) (en banc) (quoting Roe v. United States, 287 F.2d
435, 440 (5th Cir. 1961)).
In this case, as we said above, we apply plain error review
to determine whether such a mistake even occurred. As we noted
in Subsection II.A.1, plain error exists only where (1) there was
an error, (2) the error is “plain,” and (3) the error affected
substantial rights. After reviewing the record as a whole, we
find it questionable whether there was Johnson error at all, much
less plain error. The court was merely trying to forestall any
confusion potentially resulting from Hernandez’s suggestion that
because he was in federal custody at his sentencing for another
offense on January 31, 1997, he was also in custody on January 28
and so could not have committed the crime charged in the
indictment. Hernandez conceded in his opening statement that he
was in the Lincoln, and his defense throughout the trial was that
he was simply in the wrong place at the wrong time. Nearly every
witness testified that he was in the Lincoln at the time of his
arrest. It was only after the government called two witnesses to
27 testify to Hernandez’s bond status that the court, apparently in
an attempt to avoid confusing the jury and drawing out the
proceedings longer than necessary given the non-issue of
Hernandez’s presence in the Lincoln, made its statement. We also
note that the court emphasized to the jury that it was the
ultimate judge of the facts and that it should not interpret any
judicial remarks as a comment on the weight of the evidence. We
do not believe that the court intended to preempt the jury’s
determination as to Hernandez’s whereabouts on January 28.
b. Improper Judicial Testimony and Appearance of Bias
We find it doubtful that Hernandez’s objection that the
judge’s statement was a “comment on the weight of the evidence”
preserves error as to his final two arguments. Assuming without
deciding that it did and that the court abused its discretion, we
find the error harmless. A nonconstitutional error in a federal
criminal case3 requires reversal only if it had substantial and
injurious effect or influence in determining the jury’s verdict.
See generally Brecht v. Abrahamson, 507 U.S. 619, 631-32 (1993)
(discussing harmless error standard for nonconstitutional error).
Both of Hernandez’s contentions essentially assert that the judge
signaled his views to the jury and that they might have credited
3 A breach of the Federal Rules of Evidence does not, in itself, offend the Constitution, rising to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial. Cf. United States v. Lane, 474 U.S. 438, 446 n.8 (1986) (noting the nonconstitutional nature of improper joinder).
28 his view that Hernandez was not on bond. But we do not see how
the judge’s comment could have had a substantial and injurious
effect on the verdict in Hernandez’s case. There was
overwhelming evidence, as we noted above, that Hernandez was in
the Lincoln at the time of his arrest.
D. Consecutive Terms of Supervised Release
Finally, Hernandez argues that the district court erred as a
matter of law in requiring that the three-year supervised release
term for his 1997 conviction run consecutive to the three-year
term of supervised release on his 1996 conviction, United States
v. Hernandez, No. DR-96-CR-178 (W.D. Tex. Feb. 11, 1997). Thus,
Hernandez claims, he is now wrongly subject to six, rather than
three, years of post-incarceration supervision.
We review the district court’s application of the Sentencing
Guidelines de novo, see United States v. Sylvester, 143 F.3d 923,
931 (5th Cir. 1998), and its factual findings for clear error,
see United States v. Upton, 91 F.3d 677, 687 (5th Cir. 1996),
cert. denied, 117 S. Ct. 1818 (1997). A sentence will be upheld
on appeal unless it was imposed in violation of law, imposed as a
result of an incorrect application of the sentencing guidelines,
or outside the range of the applicable sentencing guideline and
is unreasonable. See United States v. Wyjack, 141 F.3d 181, 183
(5th Cir. 1998) (citing United States v. Garcia, 962 F.2d 479,
480-81 (5th Cir. 1992)).
29 2. Analysis
Federal law mandates that once a criminal defendant is
released from prison, his supervised release term must run
concurrently to any other supervision to which he is subject:
The term of supervised release commences on the day the person is released from imprisonment and runs concurrently with any Federal, State, or local term of probation or supervised release or parole for another offense to which the person is subject or becomes subject during the term of supervised release.
18 U.S.C. § 3624(e). Under a plain reading of the statute,
Hernandez’s supervised release term for the 1997 conviction must
run concurrently to any supervised released term for another
offense, including the 1996 alien smuggling offense. Cf. United
States v. Gonzales, 520 U.S. 1, 5, 9-10 (1997) (reading the
phrase “any other term of imprisonment” to include, without
limit, all terms of imprisonment to which a defendant may be
subject). Indeed, at least two of our sister circuits have held
that § 3624(e) prohibits consecutive supervised release terms.
See United States v. Bailey, 76 F.3d 320, 323-24 (10th Cir.),
cert. denied, 116 S. Ct. 1889 (1996) (“The meaning of [§ 3624(e)]
clearly dictates that the district court erred in sentencing
Appellant to consecutive terms of supervised release for separate
offenses.”); United States v. Gullickson, 982 F.2d 1231, 1236
(8th Cir. 1993) (holding that § 3624(e) “unambiguously states
that terms of supervised release on multiple convictions are to
run concurrently”).
30 The government’s arguments in support of the sentence lack
merit. The United States points out that 18 U.S.C. § 3583, which
empowers federal courts to impose supervised release, requires
judges to “consider the factors set forth in § 3553(a)” when
crafting a sentence. See 18 U.S.C. § 3583(a), (c). Section
3553(a) directs the court to take into account, inter alia, “the
circumstances of the offense and the history and characteristics
of the defendant.” See 18 U.S.C. § 3553(a)(1). In this case,
the government argues, Hernandez was subject to an undischarged
term of imprisonment on his 1996 conviction, and the sentencing
guidelines therefore allowed the district court to impose either
concurrent or consecutive terms of imprisonment. See U.S.
SENTENCING GUIDELINES MANUAL § 5G1.3(c) (1997). The district court
explicitly found, based on his “record,” that Hernandez needed
“to be under supervision for as long as we can possibly keep him
under supervision.” But the fact that the district court had
statutory and guideline authority to impose consecutive prison
terms for Hernandez’s 1996 and 1997 convictions has no bearing on
the question of whether he properly sentenced Hernandez to
consecutive terms of supervised release. Even when federal law
requires consecutive terms of imprisonment, the supervised
release term “is to run concurrently with any other term of
supervised release imposed.” Id. § 5G1.2 commentary. More
broadly, § 3553(a)’s general requirement that courts consider
characteristics specific to the defendant and his crime when
31 fashioning a sentence does not nullify § 3624(e)’s explicit
prohibition on consecutive supervised release terms. “Given this
clear legislative directive, it is not for the courts to carve
out statutory exceptions based on judicial perceptions of good
sentencing policy.” Gonzales, 520 U.S. at 10 (discussing 18
U.S.C. § 924(c)).
Our inquiry does not end here, however. We must also
determine whether we can modify Hernandez’s sentence to comply
with § 3624(e) or whether we must remand for resentencing. Most
of the time when we find that the district court has committed
harmful error at sentencing, we must vacate and remand for
resentencing. See United States v. Williams, 961 F.2d 1185, 1187
(5th Cir. 1992) (citing Williams v. United States, 503 U.S. 193,
204-05 (1992)). When the record shows that the district court
made it clear that the defendant should be sentenced to the
maximum term permitted by the guidelines, we need not waste
judicial resources by remanding for what undoubtedly would be a
rote resentencing. See United States v. Mills, 9 F.3d 1132, 1139
(5th Cir. 1993); United States v. Tello, 9 F.3d 1119, 1131 n.42
(5th Cir. 1993). In Hernandez’s case, the district court
explicitly stated that, as far as it was concerned, Hernandez
should be under supervision for as long as possible. So, instead
of vacating and remanding for resentencing by the district court,
we modify the consecutive feature of the supervised release term
imposed by the district court so that the supervised release term
32 will run concurrently with the term of supervised release imposed
in United States v. Hernandez, No. DR-96-CR-178 (W.D. Tex. Feb.
11, 1997), and affirm Hernandez’s sentence as thus modified.4
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of
conviction and AFFIRM the sentence as modified.
4 We thus modify the first two sentences of the supervised release section of the judgment in United States v. Hernandez- Guevara, DR-97-CR-44, at 3 (W.D. Tex. Oct. 31, 1997), to read: “Upon release from imprisonment, the defendant shall be on supervised release for a term of 3 years on each of Counts 1, 2, and 3, and 1 year on Count 4, to run concurrently. These terms of supervised release shall run concurrently with the term of supervised release imposed in DR-96-CR-178, United States of America v. Jesus G. Hernandez.” The remainder of the judgment in Hernandez-Guevara, No. DR-97-CR-44, shall remain the same.