IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40005

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JUAN DIEGO SANTIAGO, JR.,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:09-CR-641-1

Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:

*

Juan Diego Santiago, Jr., appeals his jury-trial convictions for conspiring

to bring in and transport an illegal alien, within the United States, and

transporting an illegal alien, within the United States, for private financial gain.

At trial, the district court permitted the Government to offer evidence, pursuant

to Federal Rule of Evidence 404(b), of Santiago’s prior conviction for aiding and

abetting undocumented aliens, as proof of his intent to commit the charged

crimes. His prior offense was nearly identical to the crimes of conviction. For

United States Court of Appeals

Fifth Circuit

F I L E D

November 17, 2010

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. 10-40005

all offenses, Santiago transported undocumented aliens in a vehicle not

registered to Santiago, and explained to Border Patrol Agents that he was

unaware of their undocumented status and picked them up at a service station

because they needed a ride. Santiago contends: the district court erred in

admitting the prior-crime evidence because its probative value was substantially

outweighed by the danger of unfair prejudice under Federal Rule of Evidence

403.

Because Santiago made a timely objection to the district court’s

evidentiary ruling, we review for abuse of discretion. A Rule 404(b) ruling is

subject to heightened review, requiring the evidence be strictly relevant to the

particular offense charged. See United States v. Hernandez-Guevara, 162 F.3d

863, 869 (5th Cir. 1998); see also United States v. Buchanan, 70 F.3d 818, 831

(5th Cir. 1995).

Rule 404(b) precludes the admission of “[e]vidence of other crimes, wrongs,

or acts . . . to prove the character of a person in order to show action in

conformity therewith”. FED. R. EVID. 404(b). “It may, however, be admissible for

other purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident . . . .” Id. In assessing the

admissibility of evidence under Rule 404(b), we ask whether: (1) the extrinsicoffense evidence is relevant to an issue other than Santiago’s character; and (2)

the probative value of the evidence is not substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the jury. See United

States v. Hernandez-Guevara, 162 F.3d 863, 870 (5th Cir. 1998) (citing United

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

Applying this two-step inquiry, the prior-crime evidence was highly

relevant to an issue other than Santiago’s character; it tended to show he

possessed the requisite intent for the crime charged. The only other evidence

regarding Santiago’s intent to transport illegal aliens was the testimony of the

woman he transported, who initially testified Santiago had no knowledge of her

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No. 10-40005

undocumented status. Because of the lack of evidence available to establish

Santiago’s unlawful intent, and the degree of similarity between the charged and

extrinsic offenses, the extrinsic-offense evidence was highly probative of

Santiago’s intent. See United States v. McMahon, 592 F.2d 871, 875 (5th Cir.

1979).

As to the second prong, the probative value of the extrinsic-offense

evidence was not substantially outweighed by any unfair prejudice. The prior

offense was not of a heinous nature, and it did not constitute cumulative

evidence, confuse the issues, mislead the jury, or cause undue delay. See id. at

876. Moreover, any danger of unfair prejudice was minimized by the district

court’s appropriate limiting instruction to the jury. See id.

AFFIRMED.

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Case: 10-40005 Document: 00511296437 Page: 3 Date Filed: 11/17/2010