United States v. Palacio , 155 F. App'x 131 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 17, 2005
Charles R. Fulbruge III
Clerk
No. 05-50257
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURO CASTANEDA PALACIO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:03-CR-302-ALL-SS
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Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Mauro Castaneda Palacio appeals his conviction for use of a
computer with internet access to attempt to entice a minor to
engage in sexual activity, in violation of 18 U.S.C. § 2422. He
argues that the district court abused its discretion in admitting
extrinsic evidence of his prior conviction for online
solicitation of a minor. Palacio contends that the testimonies
of the minor witnesses from his prior offense should not have
been admitted into evidence under Federal Rule of Evidence 404(b)
*
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this opinion should not be published and is not precedent except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. 05-50257
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because the probative value of the evidence was substantially
outweighed by unfair prejudice.
In order to be admissible under FED. R. EVID. 404(b),
extrinsic evidence of a prior offense must be relevant to an
issue other than the defendant’s character, and its probative
value must not be substantially outweighed by undue prejudice.
United States v. Beechum, 582 F.2d 898, 911 (1978) (en banc).
Palacio concedes that the evidence was relevant to an issue other
than the defendant’s character. The only issue before this court
is whether the probative value of the evidence was outweighed by
its prejudice.
This court has consistently “held that evidence of a
defendant’s prior conviction for a similar crime is more
probative than prejudicial and that any prejudicial effect may be
minimized by a proper jury instruction.” United States v.
Taylor, 210 F.3d 311, 318 (5th Cir. 2000). Palacio’s prior
conviction was for a similar crime. The testimonies of the
witnesses established the same modus operandi and provided
details of the prior crime that were similar to the facts of the
charged offense. Further, the district court admonished the jury
that the evidence presented regarding the prior offense was not
to be considered as evidence that he committed the offense
charged. The district court did not abuse its discretion in
admitting evidence of Palacio’s prior conviction. Taylor, 210
F.3d at 318. Regardless, any error would be harmless considering
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the overwhelming evidence of Palacio’s guilt. See United States
v. Jackson, 339 F.3d 349, 358 (5th Cir. 2003).
Accordingly, the judgment of the district court is AFFIRMED.