United States v. Smith ( 2004 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50571
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CURTIS SMITH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-95-CR-226-1
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May 28, 1997
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Curtis Smith appeals from his conviction following a jury
trial for the offense of possession with intent to distribute
cocaine base. He asserts error in the introduction of evidence.
The first stemming from the denial of his motion to suppress and
the second from the introduction of evidence relating to his
membership in a gang. We find no merit in his arguments and
affirm his conviction and sentence.
*
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that this opinion should not be published and is not precedent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.
Smith argues that the district court erred in denying his
motion to suppress statements which he made following his
detention because they were the result of the coercive conduct of
the arresting authorities. Because Smith did not object to the
factual findings of the magistrate judge made after hearing the
motion to suppress, he may attack the findings for plain error
only. Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir. 1982)
(en banc). Smith has not demonstrated that the factual findings
of the magistrate judge constitute clear or obvious error that
affected his substantial rights or the fairness, integrity, or
public reputation of the judicial system. See United States v.
Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc). Based
on those factual findings, we make the legal determination that
under the totality of the circumstances, Smith’s statements were
voluntarily made and were not the result of coercive police
conduct. See United States v. Raymer, 876 F.2d 383, 386 (5th
Cir. 1989).
Finally, the district court did not abuse its discretion in
allowing the Government to present evidence of Smith’s gang
membership following the presentation of Smith’s direct
testimony. The evidence was properly admitted under Fed. R.
Evid. 404(b) because it was probative of Smith’s intent to
distribute crack cocaine and of his knowledge that drugs were
located in the house where he was detained. See United States v.
Blake, 941 F.2d 334, 339 (5th Cir. 1991). The evidence was also
No. 96-50571
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properly admitted as impeachment evidence. See United States v.
Riggio, 70 F.3d 336, 339 (5th Cir. 1995), cert. denied, 116 S.
Ct. 1366 (1996).
Further, even assuming that the introduction of the
extrinsic evidence was error, it was harmless error in light of
the other overwhelming evidence of Smith’s guilt presented at the
trial. See United States v. Rodriguez, 43 F.3d 117, 123 (5th
Cir.), cert. denied, 115 S. Ct. 2260 (1995).
AFFIRMED.