United States v. Marmino

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 9, 2004
• Docket: 03-50125
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS December 9, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-50125 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JASON RAY MARMINO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. W-02-CR-79-4 --------------------

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Jason Ray Marmino appeals his conviction by a jury of

conspiracy to manufacture methamphetamine in violation of

21 U.S.C. §§ 841(a)(1) and 846. He argues that there was

insufficient evidence to convict him and that the district court

abused its discretion in admitting evidence of his prior wrongful

acts under FED. R. EVID. 404(b) because such evidence related only

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-50125 -2-

to his character and that its prejudicial effect substantially

outweighed its probative value under FED. R. EVID. 403.

Marmino has not shown that the testimony regarding his prior

involvement with activities related to the manufacture of

methamphetamine was not probative on the issue of his intent to

join the conspiracy or that the admission of this testimony was

improperly prejudicial under Rule 403. See United States v.

Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc). Therefore,

the district court did not abuse its discretion in admitting the

evidence of Marmino’s prior wrongful acts. See United States v.

Roberts, 619 F.2d 379, 383-84 (5th Cir. 1980)

The jury reasonably could infer from the evidence of

Marmino’s presence in the motel room, his actions during the

weekend in question, his prior drug-related activities, and his

prior associations with some of the co-conspirators that he

knowingly and intentionally participated in the conspiracy to

manufacture methamphetamine. See United States v. Broussard, 80

F.3d 1030-32 (5th Cir. 1996). Thus, viewing the evidence and all

inferences drawn from the evidence in the light most favorable to

the verdict, the jury could find beyond a reasonable doubt that

Marmino committed the charged offense. See id.

Accordingly, Marmino’s conviction is AFFIRMED.