United States v. Oliveros

71 F. App'x 346

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 8, 2003
• Docket: 02-41426
• Status: Unpublished

Opinion

PER CURIAM: *

Larry Normal Oliveros appeals his conviction after a jury trial for transporting an alien within the United States in violation of 8 U.S.C. §§ 1324(a)(1)(A)® and (a)(l)(A)(v)(II). Oliveros contends that the district court erred by admitting evidence of his prior conviction for aiding and abetting an undocumented alien to attempt to elude examination by Border Patrol agents in violation of 8 U.S.C. § 1325(a). He asserts that this evidence was only marginally relevant and that its probative value was substantially outweighed by the danger of unfair prejudice. See Fed.R.Evid. 404(b).

The evidence at trial established that the alien Oliveros was accused of transporting was concealed in the truck of his vehicle. Thus, evidence of his knowledge and intent were at issue. Indeed, counsel for Oliveros acknowledged, before evidence of the prior conviction was admitted, that Oliveros’s intent would be at issue. Moreover, there is no question but that Oliveros’s prior conviction was relevant to these issues; the extrinsic offense required the same intent as the charged offense. See United States v. McMahon, 592 F.2d 871, 873 (5th Cir.1979) (holding that aiding and abetting an alien to elude examination requires the same culpable mental state as the offense of transporting aliens). We also agree that the incremental probative value of the evidence was not substantially outweighed by the potential for unfair prejudice. The extrinsic offense was similar to the charged offense, and was clearly proximate in time, a conviction for the extrinsic offense having been obtained only four months prior to the commission of the charged offense. See id. at 873-74. The introduction of the extrinsic offense did not carry significant danger of unfair prejudice. Oliveros’s prior conviction was not heinous in nature and was not of a type “likely to incite the jury to an irrational decision.” Id. at 876. Finally, we conclude that any prejudicial effect of the extrinsic offense evidence was minimized by the district court’s limiting instruction, an instruction that Oliveros’s counsel had previously requested. Id. at 873, 876. Accordingly, the district court did not abuse its discretion in admitting evidence of 01- iveros’s prior conviction. See United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978) (en banc).

AFFIRMED.

* 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.