592 F.2d 871 (5th Cir. 1979), 78-5292, United States v. McMahon

Docket Nº:78-5292.
Citation:592 F.2d 871
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Harold McMAHON, Defendant-Appellant.
Case Date:April 06, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 871

592 F.2d 871 (5th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellee,

v.

Harold McMAHON, Defendant-Appellant.

No. 78-5292.

United States Court of Appeals, Fifth Circuit

April 6, 1979

Page 872

Carl H. Green, El Paso, Tex. (Court-appointed), Harold McMahon, pro se, for defendant-appellant.

Jamie C. Boyd, U. S. Atty., LeRoy Morgan Jahn, James W. Kerr, Jr., Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GEWIN, HILL and FAY, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Harold McMahon appeals from his conviction for conspiracy to transport aliens within the United States in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324(a) (2), alleging that the trial court committed reversible error in admitting into evidence his prior misdemeanor conviction for aiding and abetting an alien to elude examination. We affirm.

I.

The thrust of the government's case against appellant was that he had hired two coconspirators, Randolph Barboa and Armando Avilucia, to transport aliens for him from El Paso, Texas, to various points in New Mexico. Barboa was to take a load of aliens to Albuquerque, but was arrested on January 13, 1978, while making his first run for appellant; subsequently, he pled guilty to the charge of transporting illegal aliens. Avilucia, instructed by appellant to take aliens to Los Lunas, was more successful in his exploits; he made five successful "hauls" until he was arrested on his sixth such trip on March 28, 1977. Avilucia pled guilty and was convicted of transporting illegal aliens, but the government allowed him to withdraw his plea of guilty and dismissed the indictment against him in return for his agreement to testify against appellant.

Following an appearance by appellant before a federal Grand Jury on November 17, 1977, a one-count indictment was returned charging him with the offense of conspiring to transport aliens in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324(a)(2). This indictment was amended on December 1, 1977, to allege two additional counts of making false statements to the Grand Jury in violation of 18 U.S.C. § 1623. The conspiracy count was severed from the remaining

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counts and on December 12-13, 1977, appellant was tried and convicted for conspiracy to transport aliens within the United States. Appellant was sentenced to serve five years' imprisonment.

II.

During its case in chief, the government tendered into evidence appellant's prior misdemeanor conviction for aiding and abetting an alien to elude examination. 1 Defense counsel objected, 2 but the district court ruled the evidence admissible under Fed.R.Evid. 404(b) as tending to show defendant's intent to participate in the conspiracy with Barboa and Avilucia.

This case is controlled by our recent decision in United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc), in which we discussed the admissibility of past offenses to prove intent. Under Beechum, extrinsic offense evidence is admissible if it satisfies a two-tier test. First, the trial court must determine that "the extrinsic offense requires the same intent as the charged offense and that the jury could find that the defendant committed the extrinsic offense." Id. at 913. Second, the court must find that the incremental probative value of the extrinsic offense evidence is not " 'substantially outweighed by the danger of unfair prejudice' " to the defendant. Fed.R.Evid. 403; United States v. Beechum, 582 F.2d at 914. The resolution of these questions of admissibility is committed to the sound discretion of the trial judge. 582 F.2d at 915. Judging the admissibility of appellant's prior conviction in light of the Beechum two-part test, we cannot say that the trial judge abused his discretion in admitting the evidence under Fed.R.Evid. 404(b).

The first prong of the Beechum test is clearly satisfied in this case. The similarity in intent required between the extrinsic and charged offenses only means that the defendant "indulg(e) himself in the same state of mind in the perpetration of both . . . offenses." 582 F.2d at 911. Appellant's extrinsic offense was a misdemeanor conviction for aiding and abetting an alien to elude examination, a reduced charge of transporting illegal aliens. Engaging in the transportation of illegal aliens requires the defendant to possess the same "state of mind" as agreeing with others to do the same thing. 3 Certainly proof of the defendant's intent to commit the earlier extrinsic offense makes it more likely that he intended to conspire with Barboa and Avilucia to transport illegal aliens. See United States v. Barnes, 586 F.2d 1052, 1057-58 (5th Cir. 1978); United States v. Beechum, 582 F.2d at 911. Moreover, it is undisputed that appellant committed the extrinsic offense.

We find that the second part of the Beechum test has also been satisfied here. Before the district judge may exclude extrinsic offense evidence, he must find that the danger of unfair prejudice Substantially outweighs the incremental probative value of the evidence. This...

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