IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-50229

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

SELENA FLORES,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:17-CR-804-1

Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.

PER CURIAM:*

Selena Flores challenges her jury-trial convictions for conspiracy to 

transport illegal aliens and illegal alien transportation for commercial 

advantage or private financial gain, in violation of 8 U.S.C. § 1324. At trial, 

the Government introduced evidence of Flores’ prior arrest, under similar 

circumstances, for illegal-alien transportation. 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

October 4, 2019

Lyle W. Cayce

Clerk

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No. 18-50229

2

For the only issue raised on appeal, Flores asserts the district court 

abused its discretion in admitting this evidence, contending the probative 

value of the arrest was substantially outweighed by its prejudicial effect. 

Whether to admit evidence of prior arrests is governed by Federal Rule of 

Evidence Rule 404(b) (“Evidence of a crime, wrong, or other act is not 

admissible to prove a person’s character . . . . This evidence may be admissible 

for another purpose, such as proving motive, opportunity, intent, preparation, 

plan, knowledge, identity, absence of mistake, or lack of accident.”). On appeal, 

“[w]e review the admission of Rule 404(b) evidence for an abuse of discretion 

with a heightened review in criminal cases”. United States v. Olguin, 643 F.3d 

384, 389 (5th Cir. 2011) (citation omitted). To be admissible, extrinsic-offense 

evidence (1) must be “relevant to an issue other than the defendant’s character” 

and (2) “must possess probative value that is not substantially outweighed by 

its undue prejudice”. United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 

1978) (en banc).

The district court ruled evidence of Flores’ prior arrest was relevant to 

her intent, state of mind, and knowledge—permissible uses of extrinsic 

evidence under Rule 404(b)—in conjunction with both counts of the indictment. 

See Huddleston v. United States, 485 U.S. 681, 682, 685 (1988). Because our 

court has held pleading not-guilty to conspiracy puts a defendant’s intent at 

issue for purposes of Rule 404(b), see United States v. Gonzalez, 76 F.3d 1339, 

1347 (5th Cir. 1996) (citation omitted), and because knowledge of a person’s 

status as an illegal alien is an element of 8 U.S.C. § 1324, the evidence 

proffered was relevant to an issue other than Flores’ character. Flores does 

not contest the court’s ruling. The ruling, however, informs our consideration 

of the prejudicial-effect issue raised by Flores. 

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In other words, at issue is only whether the undue prejudice to Flores 

substantially outweighed the evidence’s probative value. In deciding that 

question, courts consider “(1) the government’s need for the extrinsic evidence, 

(2) the similarity between the extrinsic and charged offenses, (3) the amount 

of time separating the two offenses, and (4) the court’s limiting instructions”. 

United States v. Kinchen, 729 F.3d 466, 473 (5th Cir. 2013) (citation omitted). 

Our review utilizes “a lens that gives great deference to the district court’s 

informed judgment in weighing the factors”. Id. (citation omitted).

The facts surrounding Flores’ prior arrest resemble those pertinent to

the current offense. In both instances, Flores was stopped at a temporary 

checkpoint on Farm to Market Road 2644 while driving an illegal alien. In the 

instant case, this similarity was probative of Flores’ knowledge of her 

passenger’s illegal-alien status and Flores’ intent to commit the charged 

offense. Although a close resemblance between extrinsic-offense evidence and 

a charged offense can increase the risk of unfair prejudice to defendant, the 

evidence of Flores’ prior arrest was not unfairly prejudicial because the prior 

misconduct was neither violent nor greater in magnitude than the charged

offenses. See United States v. Hernandez-Guevara, 162 F.3d 863, 872 (5th Cir. 

1998) (holding, inter alia, the admission of prior-conviction evidence was not 

improper, as it “lacked the hallmarks of highly prejudicial evidence” because 

“[t]hey were not violent acts, nor were they greater in magnitude than the 

crimes for which [defendant] was on trial”). 

Further, Flores’ prior arrest occurred approximately three years before 

the instant offense. Our court has upheld the admission of extrinsic-offense

evidence that was as many as 18 years old. See United States v. Arnold, 467 

F.3d 880, 885 (5th Cir. 2006) (citations omitted).

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Finally, the risk of unfair prejudice to Flores was minimized by the 

court’s Federal Rule of Evidence 105 jury instruction that the evidence could 

be considered only for the limited purpose of determining whether she had the 

requisite intent or state of mind to commit the charged offense. See Kinchen, 

729 F.3d at 474 (holding the prejudicial effect of evidence “was further 

diminished by the district court’s instructions to the jury regarding the limited 

purpose[] for which any evidence of other similar acts may be considered”) 

(internal quotation marks and citation omitted). 

Our court has consistently rejected challenges, like Flores’, to the 

admission of evidence regarding prior instances of transporting illegal aliens, 

ruling: the evidence was relevant to defendant’s state of mind; and its

probative value was not substantially outweighed by undue prejudice. See 

Hernandez-Guevara, 162 F.3d at 871–72; United States v. Robles-Vertiz, 155 

F.3d 725, 730 (5th Cir. 1998).

AFFIRMED. 

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