* 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that this opinion should not be published and is not precedent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

August 14, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-41241

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID PENA; THOMAS TAYLOR,

Defendants-Appellants.

--------------------

Appeals from the United States District Court

for the Southern District of Texas

USDC No. V-02-CR-11-1

--------------------

Before EMILIO M. GARZA, DENNIS, and CLEMENT, Circuit Judges. 

PER CURIAM:*

David Pena and Thomas Taylor appeal from their convictions for

conspiring to possess 503 grams of pseudoephedrine with the intent

to manufacture methamphetamine. Pena argues that the district

court erred in 1) denying his motion for mistrial based on witness

Clara Bradley’s statement that her testimony would result in

“putting [Pena] away again,” 2) allowing witness Rhonda Strain to

testify regarding Pena’s association/relationship with Taylor, and
No. 02-41241

-2-

3) adopting the presentence report (“PSR”)’s drug-quantity

findings. As his sole ground of error, Taylor argues that the

district court erred in admitting Strain’s testimony regarding

Taylor’s subsequent bad acts of soliciting her help to purchase

methamphetamine ingredients and giving her methamphetamine in

exchange for her cleaning of his apartment.

Because Pena failed to timely object to the admission of the

evidence upon which his motion for mistrial is based, we review

this issue only for plain error. See FED. R. CRIM. P. 52(b); United

States v. Caucci, 635 F.2d 441, 448 (5th Cir. 1981). Under the

plain-error standard of review, we may address Pena’s argument only

if (1) there is an error, (2) the error is plain, and (3) the error

affects substantial rights. See United States v. Olano, 507 U.S.

725, 732-35 (1993). Because Pena has not shown that Bradley’s

reference to his previous incarceration had a substantial impact

upon the jury’s verdict or otherwise affected Pena’s substantial

rights, he has not demonstrated plain error. Id.; United States v.

Paul, 142 F.3d 836, 844 (5th Cir. 1998); United States v. Millsaps,

157 F.3d 989, 993 (5th Cir. 1998).

Strain’s testimony regarding Pena’s association/relationship

with Taylor was relevant to the conspiracy charge. See United

States v. Cardenas, 9 F.3d 1139, 1157 (5th Cir. 1993)(“[A]ssociation

is a factor that, along with other evidence, may be relied upon to

find conspiratorial activity by the defendant.”). Pena has failed to

demonstrate that this testimony was unfairly prejudicial.
No. 02-41241

-3-

Therefore, we conclude that the district court did not abuse its

discretion by admitting Strain’s association/relationship testimony.

See United States v. Hays, 872 F.2d 582, 587 (5th Cir. 1989); United

States v. Pace, 10 F.3d 1106, 1115-16 (5th Cir. 1993). We also

conclude that the district court did not abuse its discretion by

admitting Strain’s testimony regarding Taylor’s subsequent bad acts;

Taylor placed his intent at issue by pleading not guilty, see United

States v. Chavez, 119 F.3d 342, 346 (5th Cir. 1997), and the

challenged evidence was highly probative of his knowledge and intent

to commit the charged offense. The fact that Taylor’s bad acts

occurred subsequent to the events that are the subject of the

charged offense does not mean that evidence of those bad acts must

be excluded under Rule 404(b). See United States v. Peterson, 244

F.3d 385, 392 (5th Cir.)(“Our prior decisions clearly allow for

evidence of "bad acts" subsequent to the subject matter of the trial

for the purpose of demonstrating intent.”). 

Finally, based on the evidence adduced at trial and offered in

response to Pena’s drug-quantity objection, the district court’s

drug-quantity finding was plausible. Accordingly, the district

court did not clearly err in its drug-quantity calculation with

respect to Pena. See United States v. Shipley, 963 F.2d 56, 58 (5th

Cir. 1992); United States v. Ponce, 917 F.2d 841, 842 (5th Cir.

1990).

AFFIRMED.