IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40165

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DIONICIO MALDONADO,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:09-CR-264-1

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

*

Dionicio Maldonado appeals his conviction for possession with intent to

distribute more than 1,000 kilograms of marijuana. See 21 U.S.C. § 841. He

argues (1) that the district court abused its discretion in admitting the testimony

of Jose Torres and the corresponding wage records over an objection to relevance

and (2) that the district court abused its discretion in admitting the wage records

over a hearsay objection.

United States Court of Appeals

Fifth Circuit

F I L E D

January 5, 2011

Lyle W. Cayce

Clerk

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.

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No. 10-40165

The wage records and Torres’s corresponding testimony were relevant to

show that Maldonado was not employed on the date he purchased his truck for

more than $26,000 and that there was no evidence of any employment around

that time. See FED. R. EVID. 401. In fact, the social security number provided

by Maldonado for the wage records search belonged to an individual with a

different name. Maldonado’s lack of employment and his possession of a large

amount of cash to purchase the truck are among the circumstances from which

the jury could have inferred his guilty knowledge of the $4.5 million of

marijuana he possessed. See, e.g., United States v. Ortega-Reina, 148 F.3d 540,

544 (5th Cir. 1998). When viewed together with the bogus bill of lading (with

nonexistent pickup and drop-off points) and no record of calls from “Chato,” the

person who allegedly hired Maldonado to drive the load of what was supposed

to be ceramic tile, the evidence was relevant to show Maldonado’s complicity in

the offense. FED. R. EVID. 401; see United States v. Villarreal, 324 F.3d 319, 324

(5th Cir. 2003). Maldonado has not shown that the danger of unfair prejudice

outweighed the probative value of the evidence. See FED. R. EVID. 401, 403.

The wage records did not constitute hearsay under FED. R. EVID. 801

because they fell within the business records exception to the hearsay rule. FED.

R. EVID. 803(6). Torres’s testimony indicated that it was the regular practice of

the Texas Workforce Commission to collect and keep wage records in its daily

course of business and that he was familiar with those records and how to search

them for an individual’s wage history. This testimony indicated that the wage

records were reliable and that a proper foundation was laid for their

introduction. See United States v. Brown, 553 F.3d 768, 792 (5th Cir. 2008);

United States v. Wells, 262 F.3d 455, 462 (5th Cir. 2001).

Maldonado has not shown that the trial court based its evidentiary rulings

on an erroneous view of the law or on a clearly erroneous assessment of the

evidence. See United States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008).

He has therefore failed to show that the district court abused its discretion in

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No. 10-40165

admitting Torres’s testimony and the wage records. See United States v.

Jimenez Lopez, 873 F.2d 769, 771 (5th Cir. 1989).

AFFIRMED.

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Case: 10-40165 Document: 00511340334 Page: 3 Date Filed: 01/05/2011