United States v. Naboyan

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-20048

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

REYNEL NABOYAN and SENAIDO ADAME,

Defendants-Appellants.

Appeal from the United States District Court For the Southern District of Texas (CR-H-94-157-1) April 9, 1997

Before KING and PARKER, Circuit Judges and ROSENTHAL*, District Judge. PER CURIAM:**

Appellants Reynel Naboyan (“Naboyan”) and Senaido Adame

* U.S. District Judge from the Southern District of Texas, sitting by designation. ** Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.

1 (“Adame”) were convicted of conspiracy to possess with intent to

distribute cocaine, in violation of 21 U.S.C. § 846 and possession

with intent to distribute cocaine, in violation of 21 U.S.C. §

841(b)(1)(A) on October 2, 1995, after a jury trial. Their co-

defendant Jose Elias was found not guilty on both counts. Naboyan

was sentenced to concurrent 295-month terms of confinement,

followed by concurrent five-year terms of supervised release, a

$10,000 fine and the $100 special assessment. Adame was sentenced

to serve concurrent 300-month terms of confinement, concurrent

five-year terms of supervised release, a $2,500 find and the $100

special assessment. Naboyan and Adame appeal.

The district court did not abuse its discretion in denying

Naboyan’s motion to sever his trial from codefendant Elias. A

review of the record, briefs and arguments reveals no serious risk

that the joint trial compromised Naboyan’s specific trial rights or

prevented the jury from making a reliable judgment about guilt or

innocence. See Zafiro v. United States, 113 S. Ct. 933, 938

(1993). Neither did the district court abuse its discretion in

denying Naboyan’s motion for mistrial after a government witness

mentioned that Naboyan had a “criminal history.” There is no

significant possibility that the prejudicial evidence had a

substantial impact upon the jury verdict, viewed in light of the

entire record. See United States v. Limones, 8 F.3d 1004, 1008

(5th Cir. 1993).

2 The district court did not err in denying Naboyan’s motion to

suppress evidence seized pursuant to the search of a vehicle after

an investigatory stop. The district court’s finding that the

officers had the objective justification needed for an

investigative stop was not clear error. See United States v.

Tellez, 11 F.3d 530, 532 (5th Cir. 1993).

The district court did not abuse its discretion in admitting

extrinsic evidence of Adame’s deferred adjudication and ten

importation of marijuana offenses under FED.R.EVID. 404(b). The

fact that Adame had trafficked in drugs in the past, by driving a

vehicle containing concealed drugs for a friend to a designated

location is relevant to and probative of the issue of his knowledge

that the friend’s vehicle which he was driving in this case

contained drugs, which sufficiently outweighed the prejudice of

admitting the Rule 404(b) evidence. See United States v. Beechum,

582 F.2d 898, 915 (1979).

Finally, the evidence was sufficient to support the jury’s

guilty verdicts as to both counts against Naboyan and Adame.

For the foregoing reasons, we affirm the convictions of

Naboyan and Adame.

AFFIRMED.