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United States v. Pena , 71 F. App'x 367 ( 2003 )


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  •                                                        United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS         August 14, 2003
FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
Clerk
No. 02-41241
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID PENA; THOMAS TAYLOR,
Defendants-Appellants.
--------------------
Appeals from the United States District Court
for the Southern District of Texas
USDC No. V-02-CR-11-1
--------------------
Before EMILIO M. GARZA, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
David Pena and Thomas Taylor appeal from their convictions for
conspiring to possess 503 grams of pseudoephedrine with the intent
to manufacture methamphetamine.    Pena argues that the district
court erred in 1) denying his motion for mistrial based on witness
Clara Bradley’s statement that her testimony would result in
“putting [Pena] away again,” 2) allowing witness Rhonda Strain to
testify regarding Pena’s association/relationship with Taylor, and
*
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that this opinion should not be published and is not precedent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. 02-41241
-2-
3)   adopting   the    presentence     report    (“PSR”)’s     drug-quantity
findings.     As his sole ground of error, Taylor argues that the
district court erred in admitting Strain’s testimony regarding
Taylor’s subsequent bad acts of soliciting her help to purchase
methamphetamine    ingredients   and    giving    her   methamphetamine   in
exchange for her cleaning of his apartment.
Because Pena failed to timely object to the admission of the
evidence upon which his motion for mistrial is based, we review
this issue only for plain error.       See FED. R. CRIM. P. 52(b); United
States v. Caucci,
    635 F.2d 441
    , 448 (5th Cir. 1981).              Under the
plain-error standard of review, we may address Pena’s argument only
if (1) there is an error, (2) the error is plain, and (3) the error
affects substantial rights.      See United States v. Olano,
    507 U.S. 725
    , 732-35 (1993).      Because Pena has not shown that Bradley’s
reference to his previous incarceration had a substantial impact
upon the jury’s verdict or otherwise affected Pena’s substantial
rights, he has not demonstrated plain error.        Id.; United States v.
Paul,
    142 F.3d 836
    , 844 (5th Cir. 1998); United States v. Millsaps,
    157 F.3d 989
    , 993 (5th Cir. 1998).
Strain’s testimony regarding Pena’s association/relationship
with Taylor was relevant to the conspiracy charge.                See United
States v. Cardenas,
    9 F.3d 1139
    , 1157 (5th Cir. 1993)(“[A]ssociation
is a factor that, along with other evidence, may be relied upon to
find conspiratorial activity by the defendant.”). Pena has failed to
demonstrate     that   this   testimony     was     unfairly     prejudicial.
No. 02-41241
-3-
Therefore, we conclude that the district court did not abuse its
discretion by admitting Strain’s association/relationship testimony.
See United States v. Hays,
    872 F.2d 582
    , 587 (5th Cir. 1989); United
States v. Pace,
    10 F.3d 1106
    , 1115-16 (5th Cir. 1993).       We also
conclude that the district court did not abuse its discretion by
admitting Strain’s testimony regarding Taylor’s subsequent bad acts;
Taylor placed his intent at issue by pleading not guilty, see United
States v. Chavez,
    119 F.3d 342
    , 346 (5th Cir. 1997), and the
challenged evidence was highly probative of his knowledge and intent
to commit the charged offense.     The fact that Taylor’s bad acts
occurred subsequent to the events that are the subject of the
charged offense does not mean that evidence of those bad acts must
be excluded under Rule 404(b).    See United States v. Peterson,
    244 F.3d 385
    , 392 (5th Cir.)(“Our prior decisions clearly allow for
evidence of "bad acts" subsequent to the subject matter of the trial
for the purpose of demonstrating intent.”).
Finally, based on the evidence adduced at trial and offered in
response to Pena’s drug-quantity objection, the district court’s
drug-quantity finding was plausible.       Accordingly, the district
court did not clearly err in its drug-quantity calculation with
respect to Pena.   See United States v. Shipley,
    963 F.2d 56
    , 58 (5th
Cir. 1992); United States v. Ponce,
    917 F.2d 841
    , 842 (5th Cir.
1990).
AFFIRMED.