IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 96-10297

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MICHAEL WAYNE ROUTE,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

_________________________

January 13, 1997

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Michael R oute appeals his conviction of thirteen counts of

bank fraud in violation of 18 U.S.C. § 1344. Finding no error, we

affirm.

I.

Route was charged with p articipating in a scheme to defraud

various businesses and financial institutions. Route and Eddie

Crossley conspired to draft checks payable in the name of Paul2

Beaty, a fictitious individual in whose name Route and Crossley had

obtained a Texas driver's license, which checks were then given to

M arvin Fullwood. Fullwood, having obtained a bank account in

Beaty’s name, would then cash the checks and give a certain

percentage of the proceeds to Route and Crossley.

After Cro ssley and Fullwood cooperated with authorities in

exchange for leniency, the government proceeded to trial against

Route. A jury convicted Route on all thirteen counts, and the

court sentenced him to thirteen concurrent ninety-six-month terms

of imprisonment and thirteen concurrent five-year terms of

supervised release, restitution in the amount of $74,490, and a

special assessment of $650.

II.

A.

Route contends first that the district court erred in failing

to grant his pretrial motion to suppress evidence seized during the

execution of an arrest warrant at his residence . We review the

district court’s factual findings for clear error and its conclusions of law de novo

. S ee United States v. Rico

, 51 F.3d 495 (5th

Cir.), cert. denied , 116 S. Ct. 220 (1995).

It is uncontested that the police obtained a valid arrest

warrant for both Route and Crossley to be executed at Route’s1 Although we use the term “Route’s residence,” we note that the police had

obtained sufficient information indicating that Crossley a lso resided there.

Among the items the police had identified as indicating Crossley’s residence at

Route’s house are (1) Crossley’s cr edit card applications listing 1520 Mims

(Route’s address) as his mailing address; (2) an electric and water bill for 1520

Mims in Crossley’s name; (3) verification from the Postal Inspector that Crossley

was receiving mail at 1520 Mims; and (4) Crossley’s car registration listing 1520

Mims as his address. In any event, Route does not contest that Crossley was in

fact living at his house.

3 residence. 1 When the police arrived at the residence, they found

Route backing his car out of the driveway and arrested him

immediately. Route testified at the suppression hearing that,

after he refused to consent to a search of his home, Detective

Faber took the house keys from his pock et and proceeded to enter

the house.

While in the house, F aber observed computer equipment and

other items that he believed had been used in the commission of the

bank fraud. After receiving a search warrant based in large part

upon the observations made during his search of the house, Faber

returned to Route’s house and seized the computer equipment and

other accessories.

Faber testified at the suppression hearing that, after Route

had refused to consent to a house search and after Route insisted

that he did not know of Crossley’s whereabouts, Faber proceeded to

walk around the perimeter of the house in search of Crossley.

According to Faber, as he was w alking around the house, he heard

the television inside the residence and thus suspected that

Crossley might be inside. After Route again refused permission to

search the house for Crossley, Faber entered the house, whereupon2 Although Woods pre-dates Payton

, the Woods standard is fully consistent

with Payto n and, as such, we adhere to its articulation of the “reasonable

belief” test.

3 See, e.g.

, United States v. Risse

, 83 F.3d 212, 216 (8th Cir. 1996) (“[T]he

officers’ assessment need not in fact be correct; rather, they need only 'reasonably

believe' that the suspect resides at the dwelling to be searched and is currently

(continued...)

4 he did not find Crossley but did happen upon the computer equipment

and other criminal accessories.

A valid arrest warrant car ries with it the implicit but

limited authority to enter the residence of the person named in the

warrant in order to execute the warrant, where there is “reason to

believe” that the suspect is within. S ee Payton v. New York

,

445 U.S. 573, 603 (1980); United States v. Woods

, 560 F.2d 660, 665

(5th Cir. 1977), cert. denied

, 435 U.S. 906 (1978). As distinct

from the “probable cause” stan dard that governs the initial

issuance of the arrest warrant and t hat must be determined by a

magistrate, we have defined previously the “reason to believe”

standard to “'allow[] the officer, who has already been to the

magistrate to secure an arrest warrant , to determine that the

suspect is probably within certain premises without an additional

trip to the magistrate and without exigent circumstances.'” W oods

,

560 F.2d at 665 (quoting U nited States v. Cravero

, 545 F.2d 406,

421 (5th Cir. 1976), cert. denied , 430 U.S. 983 (1977)). 2

All but one of the other circuits that have considered the

que stion are in accord, relying upon the “reasonable belief”

standard as opposed to a probable cause standard. 3 To the extent3 (...continued)

present at the dwelling.”); United States v. Lauter

, 57 F.3d 212, 215 (2nd Cir.

1995) (“[T]he proper inquiry is whether there is a reason a ble belief that the

suspect resides at the place to be entered . . . and whether the officers have

reason to believe that the suspect is present.”); United States v. Edmonds

, 52 F.3d

1236, 1248 (3d Cir. 1995) (“[While the information available to the agents clearly

did not exclude the possibility that Carlton Love was not in the apartment, the

agents had reasonable grounds for concluding that he was there.”), vacated in part

on other grounds

, 52 F.3d at 1251; United States v. Magluta

, 44 F.3d 1530, 1535

( 11th Cir.) (“[T]he facts and circumstances within the knowledge o f the law

enforcement agents, when viewed in the totality, must warrant a reasonable belief

that the location to be searched is the suspect’s dwelling, and that the suspect is

within the residence at the time of entry.”), cert. denied

, 116 S. Ct. 189 (1995).

But cf. United States v. Harper

, 928 F.2d 894, 896 (9th Cir. 1991) (“[T]he police

may enter a home with an arrest warrant only if they have probable cause to believe

the person named in the warrant resides there.”).

5 th at this court has not already done so in W oods

, we adopt today

the “reasonable belief” standard of the Second, Third, Eighth, and

Eleventh Circuits.

There is no clear error in the district court’s determination

that Faber had a reasonable belief that Crossley resided at 1520

Mims and was within the residence at the time of entry. As noted

above, Faber had confirmed via Crossley’s credit card applications,

water and electricity bills, car registration, and receipt of mail

that Crossley at least was representing to others that he was

residing at 1520 Mims. Whether Crossley was in fact residing at

1520 Mims, which appears to have been the case, is irrelevant to

our conclusion that Faber had done sufficient due diligence to form

a reasonable belief of Crossley’s residence there.

Faber also testified at the suppression hearing that when he

arrived at 1520 Mims, although Route was leaving t he residence,

Faber could hea r the television inside the house and noticed

another vehicle remaining in the driveway. In light of Faber’s6

reasonable belief that Crossley resided at 1520 Mims, we agree with

the district court that Faber’s observations were su fficient to

form a reasonable belief that Crossley was in fact in the residence

at the time of the warrant.

B.

Route next argues that the district court erred in admitting

evidence of othe r fraudulent activity under F E D

. R. E VID

. 404(b).

The government had sought to introduce evidence of Route’s 1980

conviction for possession of a stolen check and his 1990 conviction

for bank fraud, for which conviction he was on supervised release

at the time o f his arrest for the present charges. The district

court excluded the 1980 conviction for staleness but al lowed the

government to introduce the 1990 conviction. To prevent the jury

from hearing of the conviction, Route agreed to stipulate that in

1989 he and another individual had devised and executed a scheme to

defraud a financial institution by opening several bank accounts

using false social security numbers and by depositing stolen checks

into the accounts and then withdrawing the cash.

We review the admission of extrinsic acts evidence for abuse

of discretion. S ee United States v. Broussard

, 80 F.3d 1025, 1039

(5th Cir.), cert. denied

, 117 S. Ct. 264 (1996). We use a two-part

test to determine whet her evidence is admissible properly under

404(b): (1) whether the evidence is relevant to an issue other than7

the defendant’s character and (2) whether the evidence possesses

probative value that is not outweighed substantially by the danger

of unfair prejudice and is other wise admissible under Rule 403.

See United States v. Beechum , 582 F.2d 898, 911 (5th Cir. 1978),

cert. denied , 440 U.S. 920 (1979).

We agree with the district court that evidence of the 1990

conviction was relevant to an issue other than Route’s character SS namely, intent and knowledge. In the instant trial, Route

defended himself by arguing that, although blank checks identical

to those used in the scheme were found in his home and although the

printer matching the print found on the tainted checks was also

found there, Crossley had used his home and computer equipment

without his knowledge. Evidence of a similar scheme in which Route

opened bank accounts under false names and deposited stolen checks

in the accounts (within five years of the instant scheme) was

indeed relevant to Route’s instant intent and knowledge.

Furthermore, the probative value of Route’s extrinsic acts

evidence was not outweighed substantially by the danger of unfair

prejudice. Notwithstanding Route’s protestations to the contrary,

the events were neither too remote nor too dissimilar. S ee, e.g.

,

Broussard

, 80 F.3d at 1040 (noting that rule 404 does not bar

per se the introduction of a ten-year-old conviction). Moreover,

any prejudice Route suffered was mitigated by the admission of his

stipulated involvement in the scheme (as opposed to his actual8

conviction) and by the limiting instruction to the jury regarding

the proof of other criminal conduct. See, e.g.

, United States v.

Devine , 934 F.2d 1325, 1346 (5th Cir. 1991).

C.

Route next contends that the district court erred by terminating prematurely his cross-e xamination of Fullwood, the chief

governm ent witness. On cross-examination, Route asked Fullwood

whether Crossley had hid in Fullwood’s dormitory room for the two

days following Route’s arrest. The district court noted correctly

that the question was beyond the scope of Fullwood’s direct

examination and instructed Route to restrict properly his examination.

A district court possesses wide latitude to impose reasonable

limits on cross examination, subject to the Confrontation Clause of

the Sixth Amendment. S ee United States v. Cooks

, 52 F.3d 101, 103

(5th Cir. 1995). We review the restriction of the scope of crossexamination for abuse of discretion. S ee United States v. Stewart

,

93 F.3d 189 , 193 (5th Cir. 1996). Even where the district court

abuses its discretion, we will not order a new trial unless the

harm is plainly prejudicial. See Cooks , 52 F.3d at 104.

The district court did not abuse its discretion. The court

correctly instructed Route that his cross-examination of Fullwood

was limited by the scope of the gov ernment’s direct examination,9

permitted Route to continue his questioning consistent with this

admonition, and ended Route’s cross-exami nation only after Route

indicated his inability to abide by the court’s instructions.

Even assuming that the court’s ruling was error, it was

harm less. S ee Cooks

, 52 F.3d at 104. Route intended to ask

Fullwood whether, after Route was arrested, Crossley hid for two

days in Fullwood’s dormitory room. According to Route, “[t]he fact

that Crossley and Fullwood were so intimate ly involved with each

other at the time of the offenses does tend to discount Route’s

involvement and to refute Fullwood’s testimony that Route was

involved.” Not only would such testimony have been duplicative SS Crossley had testified on direct examination that he had in

fact hid in Fullwood’s dormitory room SS but we are not convinced of

the validity of Route’s ruminations that “[t]here is even a

possibility that, und er cross examination, Fullwood would have

conceded that Route was not involved in the offenses.”

III.

Route next contests his sentence. First, he argues that the

dist rict court, as a basis for upward departure, considered

improperly the three theft offenses that he had committed when he

was eighteen to twenty-one years old. We review for abuse of

discretion the decision to depart upward. S ee United States v.

Ashburn

, 38 F.3d 803, 807 (5th Cir. 1994) (en banc), cert. denied

,10

115 S. Ct. 1969 (1995). The district court has wide discretion in

determining the extent of the departure, and we will affirm an

upward departure if (1) the court gives acceptable reasons for

departing and (2) the extent of the departure is reasonable. See

United States v. Hawkins

, 87 F.3d 722, 728 (5th Cir.), cert.

denied , 117 S. Ct. 408 (1996)

.

Route filed written objections to the presentence report

(“PSR”) and argued orally that the offenses SS two of the which did

not receive any criminal history points S S were too remote in time

and too dissimilar to war rant consideration. The court noted

Route’s objections but concluded that his criminal history

category of 6 did not reflect adequately the seriousness of his

past conduct nor the likelihood that he would commit future crimes.

As such, the court adopted the PSR’s recommendation that Route

receive an upward adjustment of one level. Because the court gave

acceptable reasons for its decision, and because the extent of the

departure was reasonable, we do not find any abuse of discretion.

Second, Route contests the PSR’s conclusions that the extent

of his check fraud scheme totaled $193,696.34 , substantially

greater than the $24,129.46 for which he was convicted. We review

the PSR’s factual conclusions for clear error. See United States

v. Mir

, 919 F.2d 940, 943 (5th Cir. 1990). Not only was the

d istrict court’s consideration of the PSR’s factual findings

reasonable, but Route did not offer any rebuttal evidence to refute11

the factual findings. Thus, the court was free to adopt the facts

in the PSR without further inquiry. S ee United States v. Mueller

,

902 F.2d 336, 346 (5th Cir. 1990).

IV.

Finally, Route claims that he is entitled to a new trial

because of ineffective assistance of counsel. Generally, we will

not review on direct appeal an ineffective assistance claim that

the defendant has failed to present to the district court; we will

entertain such claims only in those rare cases where the record

allows us to evaluate fairly the merits of the claim. See United

States v. Navejar

, 963 F.2d 732, 735 (5th Cir. 1992). This is not

one of those rare cases. As such, we decline to address the matter

on direct appeal.

V.

Route also challenges this court’s denial of his mot ion for

su bstitute counsel on appeal. We will not substitute appointed

counsel except in the event of incompatibility between attorney and

client or other most pressing circumstances. S ee United States v.

Trevino , 992 F.2d 64 (5th Cir. 1993). We agree with this court’s

prior adjudicat ion of this issue that such circumstances are not

present in the instant case.

AFFIRMED.