FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCTOBER 5, 2007

THOMAS K. KAHN

CLERK

 Honorable William H. Albritton, III, United States District Judge for the Middle District *

of Alabama, sitting by designation.

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

___________________________

No. 06-16066

____________________________

D.C. Docket No. 06-60127-CR-CMA

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS FRANCISCO FRIAS, 

Defendant- Appellant.

____________________________

Appeal from the United States District Court

for the Southern District of Florida

_____________________________

 (October 5, 2007)

Before ANDERSON and PRYOR, Circuit Judges, and ALBRITTON, District *

Judge.
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PER CURIAM:

Appellant Jesus Francisco Frias appeals his convictions and sentence of 147

months imprisonment for conspiracy to commit Hobbs Act robbery, 18 U.S.C. §

1951; carrying a firearm in relation to a crime of violence, 18 U.S.C. §

924(c)(1)(A)(ii); and possessing a firearm after having been convicted of a felony,

18 U.S.C. § 922(g)(1). 

Frias argues that (1) there was an impermissibly suggestive in-court

identification of him at trial; (2) evidence pertaining to uncharged offenses was

erroneously admitted in violation of the Federal Rules of Evidence, (3) there was

insufficient evidence to sustain his convictions, and (4) the district court erred

when it applied a sentencing enhancement for obstruction of justice. We discuss

each argument in turn, and affirm the convictions and sentence.

A determination that an identification procedure was not impermissibly

suggestive is reviewed for clear error. United States v. Diaz, 248 F.3d 1065, 1103

(11th Cir. 2001). A suggestive identification can, under the totality of the

circumstances, nonetheless be reliable. Id.

The victim-witness whose in-court identification Frias challenges also

identified Frias during a photographic line-up before trial. Frias challenges only
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the in-court identification as being impermissibly suggestive. The district court

did not clearly err in admitting the in-court identification. Furthermore, the incourt identification was reliable because the pre-trial identification “ensured the

reliability of the . . . in-court identification.” Code v. Montgomery, 725 F.2d

1316, 1320 (11th Cir. 1984).

The United States also introduced at trial evidence of a separate theft of

guns that preceded the charged conduct, and of a separate attempted armed

robbery that followed the charged conduct. Frias argues that this evidence was

inadmissible under Rule 404(b) of the Federal Rules of Evidence. 

The admission of extrinsic crimes evidence under Rule 404(b) is reviewed

for an abuse of discretion. United States v. Ramirez, 426 F.3d 1344, 1354 (11th

Cir. 2005). Under Rule 404(b), evidence must be relevant to an issue other than

the defendant's character, the probative value of the evidence must not be

substantially outweighed by undue prejudice, and there must be sufficient proof so

that a jury could find that the defendant committed the uncharged misconduct. Id.

The evidence of the uncharged offenses which preceded and which followed

the conduct charged in this case was probative of Frias’ intent and identity, issues

contested at trial, because, among other reasons, it concerned weapons involved in

all three offenses. There also was sufficient evidence that the defendant
 Frias also refers to Rule 403 in his brief. To the extent he has challenged the 1

admissibility of the evidence pursuant to Rule 403 in addition to Rule 404(b), there has been an

insufficient showing of prejudice under Rule 403.

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committed the uncharged conduct, and there has been an insufficient showing of

undue prejudice. Therefore, there was no abuse of discretion in the admission of

the evidence of the uncharged offenses pursuant to Rule 404(b).1

Frias challenges the sufficiency of the evidence to serve as a basis for his

convictions, arguing that his alibi was supported by trustworthy witnesses, while

the government witnesses who identified him as being part of the charged conduct

gave confusing and inconsistent accounts. 

The sufficiency of the evidence supporting a criminal conviction is a

question of law, reviewed de novo. United States v. Diaz, 248 F.3d 1065, 1084

(11th Cir. 2001). Credibility determinations are within the exclusive province of

the jury. See United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997). 

Unless testimony is incredible as a matter of law, that is, unbelievable on its face,

this court must accept the credibility determination by the jury. Id. 

Neither the nature of the government witnesses’ testimony in this case,

Frias’s testimony, nor the testimony of his alibi witnesses rendered the testimony

of the government witnesses regarding Frias’s participation in the crimes

incredible as a matter of law. Based upon de novo review of the record, the court
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concludes there was sufficient evidence upon which to base Frias’s convictions.

Finally, Frias argues that the application of a two-level obstruction of justice

enhancement in the calculation of his sentence was improper because it was based

on his own testimony, which he had a constitutional right to provide, and because

his alibi was corroborated by several other witnesses. 

When a district court imposes an enhancement for obstruction of justice, we

review the court’s factual findings for clear error and review de novo the

application of the sentencing guidelines to the facts. United States v. Uscinksi,

369 F.3d 1243, 1246 (11th Cir. 2004). “It is well established that a criminal

defendant’s right to testify does not include the right to commit perjury.”

LaChance v. Erickson, 522 U.S. 262, 266, 118 S. Ct. 753, 756 (1998). The

district court did not clearly err in finding that Frias had deliberately testified

falsely, so that a two-level enhancement for obstruction of justice was appropriate

under the sentencing guidelines. See U.S.S.G. § 3C1.1.

For the foregoing reasons, Frias’s convictions and sentence are

AFFIRMED.