United States v. Rodriguez , 188 F. App'x 276 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 10, 2006
Charles R. Fulbruge III
Clerk
No. 05-41088
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS ISRAEL RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2520-ALL
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Jesus Israel Rodriguez appeals his conviction by a jury on
one count of possession with intent to distribute in excess of
five kilograms of cocaine and one count of importation of in
excess of five kilograms of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), 952(a), 960(b)(1). Finding no error, we
affirm.
Rodriguez first asserts that the Government failed to prove
that the substance retrieved from the vehicle that he was driving
*
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this opinion should not be published and is not precedent except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. 05-41088
-2-
was cocaine. Rodriguez’s argument is without merit because
Rodriguez signed a written stipulation in which he admitted that
the substance was, in fact, cocaine. Whether the Government
failed to introduce the stipulation formally into evidence, which
the parties dispute, is immaterial given Rodriguez’s stipulation.
See United States v. Branch, 46 F.3d 440, 442 (5th Cir. 1995);
see also United States v. Harrison, 204 F.3d 236, 241-43 (D.C.
Cir. 2000).
Rodriguez next contends that the district court abused its
discretion by refusing to excuse a juror for cause because she
indicated that she knew the case agent, Arturo Rocha, in high
school. The juror indicated that this would not bias her in
favor of the Government. We discern no abuse of discretion.
See, e.g., United States v. Flores, 63 F.3d 1342, 1357-58 (5th
Cir. 1995). Further, although Rodriguez contends that he was
required to exhaust his peremptory challenges as a result, the
refusal to grant a challenge for cause is grounds for reversal
only if the jury that actually sat was not impartial; the use of
a peremptory challenge to remove a juror who should have been
excused for cause does not impair the defendant’s exercise of
peremptory challenges. See United States v. Wharton, 320 F.3d
526, 535-36 (5th Cir. 2003). Rodriguez does not contend that the
jury that actually sat was biased. Moreover, as the Government
points out, Rodriguez did not exhaust his peremptory challenges.
In sum, Rodriguez has identified no reversible error.
No. 05-41088
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Finally, Rodriguez argues that the district court should
have excluded evidence that Rodriguez had entered the United
States from Mexico on two prior occasions pursuant to FED. R.
EVID. 404(b). We review the admission of Rule 404(b) evidence
for abuse of discretion. United States v. Buchanan, 70 F.3d 818,
831 (5th Cir. 1995).
The district court did not abuse its discretion. The fact
that Rodriguez had crossed the border at the same location twice
before, once in a similar vehicle with a separate registration
showing a Dallas, Texas, address, and once on foot, contradicted
Rodriguez’s statements to officers that he lived and worked in
Chicago. Thus, the evidence was relevant to the issue of guilty
knowledge. See United States v. Ortega Reyna, 148 F.3d 540, 543
(5th Cir. 1998) (inconsistent stories and implausible
explanations are circumstantial evidence of guilty knowledge).
Given that there was no evidence that the prior acts involved
wrongdoing or criminal activity, any prejudicial effect was
minimal. Any prejudice there may have been was further minimized
by the district court’s limiting instruction. See United States
v. Gordon, 780 F.2d 1165, 1174 (5th Cir. 1986).
For the foregoing reasons, the judgment of the district
court is AFFIRMED.