[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-16256

Non-Argument Calendar

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D.C. Docket No. 3:12-cr-00096-RBD-MCR-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

WILLIAM ARTHUR VANHOLTEN, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(October 9, 2013)

Before HULL, MARTIN and JORDAN, Circuit Judges.

PER CURIAM: 

William Vanholten appeals his conviction for possession and aiding and 

abetting possession of cocaine with intent to distribute, in violation of 21 U.S.C. 

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§841(a)(1) and (b)(1)(A). At trial, the government attempted to show that 

Vanholten had been caught at a traffic stop in a scheme to transport cocaine by car. 

Specifically, Vanholten enlisted the help of an unsuspecting driver, who was never 

told that her purpose in driving from Jacksonville to Miami and back was to move 

ten kilograms of cocaine. He also drove the route with her in tandem. On appeal, 

Vanholten first argues that the district court erred in admitting evidence of his prior 

drug conviction pursuant to Fed. R. Crim. P. 404(b). He further argues that the 

district erred in denying his untimely motion to suppress evidence from a traffic 

stop. 

I. Prior Conviction

Vanholten argues that evidence of his prior 2006 conviction for possession 

with intent to distribute cocaine was improperly admitted. The prior conviction,

also the result of a traffic stop, was introduced pursuant to Federal Rule of 

Evidence 404(b), “to prove intent, knowledge, identity, and/or absence of mistake 

or accident” as to the indicted offense. Vanholten argues that the prejudicial effect 

of such evidence outweighed its minimal probative value where the offenses were 

six years apart and where the 2006 offense involved only 250 grams of cocaine and 

the 2012 offense involved 10 kilograms.

We review a district court’s Rule 404(b) rulings for an abuse of discretion. 

United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir. 2005). If an 

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evidentiary ruling is based on an erroneous view of the law, however, it constitutes 

an abuse of discretion per se. Id.

Federal Rule of Evidence 404(b) prohibits the admission of evidence of a 

person’s crimes or other wrongful acts “to prove a person’s character in order to 

show that on a particular occasion the person acted in accordance with the 

character.” However, such evidence may be admitted for other purposes, such as 

“proving motive, opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). Rule 404(b)

evidence must pass a three-part test to be admissible against a defendant: 

First, the evidence must be relevant to an issue other than the 

defendant’s character. Second, as part of the relevance analysis, there 

must be sufficient proof so that a jury could find that the defendant 

committed the extrinsic act. Third, the evidence must possess 

probative value that is not substantially outweighed by its undue 

prejudice[.]

United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003) (quotation marks

omitted).

The third part of this test—whether the probative value of the evidence is 

substantially outweighed by undue prejudice—“lies within the sound discretion of 

the district judge and calls for a common sense assessment of all the circumstances 

surrounding the extrinsic offense . . . .” Id. at 1282 (quotation marks omitted). 

Circumstances relevant to this analysis include “prosecutorial need, overall 

similarity between the extrinsic act and the charged offense, as well as temporal 

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remoteness.” Id. (quotation marks omitted). We have declined to adopt a brightline rule as to temporal remoteness because “decisions as to impermissible 

remoteness are so fact-specific that a generally applicable litmus test would be of 

dubious value.” United States v. Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005) 

(quotation marks omitted). Accordingly, a defendant “bears a heavy burden in 

demonstrating an abuse of the court’s broad discretion in determining if an 

extrinsic offense is too remote to be probative.” Id. (quotation marks omitted). In 

other circumstances, we have concluded that a conviction for drug trafficking 

“only six years prior to the beginning of the conspiracy charged at trial” was 

properly admissible to prove intent. United States v. Brown, 587 F.3d 1082, 1091 

(11th Cir. 2009).

The district court did not abuse its discretion in admitting evidence of 

Vanholten’s prior drug conviction. Vanholten concedes that his not guilty plea 

placed his intent at issue and that the prior conviction constituted sufficient proof 

of the prior bad act, thereby satisfying the first two prongs of admissibility. 

The third prong—that the evidence’s probative value outweighs the risk of 

unfair prejudice—was met as well. First, the offenses were similar, as both 

involved Vanholten being found with large sums of cash during traffic stops. See

Jernigan, 341 F.3d at 1282. Second, the prior conviction was probative of 

Vanholten’s knowledge and intent to transport and distribute cocaine. See id. 

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Indeed, testimony at trial established that Vanholten had remarked upon arrest for 

the 2006 conviction, “I lost my job, now I guess I have to keep selling drugs so I

get rich.” Third, we have in other cases found that six years is not too long to 

dissipate the probative value under 404(b) of a prior conviction. See, e.g., Brown,

587 F.3d at 1091; United States v. Matthews, 431 F.3d 1296, 1312 (11th Cir. 2005) 

(eight years not too remote). Finally, the district court mitigated any potential 

prejudice to Vanholten by giving a limiting instruction. On this record, the district 

court did not abuse its discretion by introducing evidence of the prior conviction.

II. Untimely Motion to Suppress

Vanholten also argues that the district court abused its discretion when it 

denied his admittedly late motion to suppress evidence from the traffic stop as 

untimely. Specifically, Vanholten argues that he established good cause for the 

delay because the government did not provide him the requested video footage for 

the traffic stop until after the district court’s suppression motion filing deadline. 

We review a denial of a motion to suppress on grounds of untimeliness for 

abuse of discretion. United States v. Smith, 918 F.2d 1501, 1509 (11th Cir. 1990). 

Pursuant to the Federal Rules of Criminal Procedure, a motion to suppress must be 

brought prior to trial. Fed. R. Crim. P. 12(b)(3)(C). The district court may set a 

deadline for the parties to make pretrial motions, and failure to bring a motion to 

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suppress prior to the court’s deadline, in the absence of good cause, constitutes 

waiver. Id. at 12(c), (e). 

The harmless error doctrine applies to violations of the Fourth Amendment. 

United States v. Khoury, 901 F.2d 948, 960 (11th Cir. 1990). In applying the 

doctrine, we ask “whether there is a reasonable possibility that the evidence 

complained of might have contributed to the conviction.” Id. (quotation marks

omitted). “If the jury might have relied on the unconstitutional evidence in 

reaching its verdict, then the error was harmful unless the other evidence of guilt 

was so overwhelming that the defendant suffered no prejudice from the admitted 

evidence.” Id.

The district court did not abuse its discretion in denying Vanholten’s 

untimely motion to suppress. He failed to show good cause for his delay in filing. 

In neither his generic suppression motion nor in open court did Vanholten ever 

explain what information he needed from the video tape to file a proper 

suppression motion that he did not already know from being present at the traffic 

stop. 

Even assuming the district court did abuse its discretion, any resulting error 

was harmless. The only evidence gained from the stop in particular was that 

Vanholten was carrying a large sum of cash and a cell phone. Given the other 

evidence proffered by the government, including Vanholten’s tandem driving with 

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the car carrying the cocaine; testimony of the other driver; video evidence of 

Vanholten placing bags in the car; and evidence from a DEA tracking device, there 

is not a reasonable probability that the traffic stop evidence tilted the scale to a 

conviction. See Khoury, 901 F.2d at 960. For these reasons, we affirm as to this 

issue.

III. Conclusion

Vanholten’s conviction is

AFFIRMED.

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