United States Court of Appeals

For the Eighth Circuit

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No. 14-1387

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Esad Bekric

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Missouri - Cape Girardeau

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 Submitted: January 16, 2015

 Filed: May 11, 2015

[Published]

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Before LOKEN, MELLOY, and GRUENDER, Circuit Judges.

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PER CURIAM.

A jury convicted Esad Bekric of Possession with Intent to Distribute Fifty

Kilograms or More of Marijuana, 21 U.S.C. § 841(a). Bekric appeals, arguing the
district court improperly admitted evidence of a prior arrest that did not result in a

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prosecution and improperly excluded as hearsay certain testimony that should have

been allowed. Because evidence of the prior arrest tended to prove knowledge,

intent, planning, and modus operandi, and because the excluded testimony was

hearsay, we affirm.

I.

In 2012, officers in Texas stopped Bekric while he was driving a semi tractor

pulling a trailer. The trailer, not owned by Bekric, was discovered to have a false

wall concealing 1,970 pounds of marijuana custom-wrapped in bundles to fitspecific

voids behind the wall. Officers arrested Bekric, but prosecutors declined to pursue

charges.

In 2013, while driving his own semi tractor pulling his own trailer in Missouri,

Bekric exited a highway upon seeing signs indicating he was approaching a drug

checkpoint. After he left the highway, officers stopped him for a traffic violation. 

Bekric claimed to have left the highway due to difficulties with a refrigeration system

on his trailer. He also claimed to have documentation of certain repairs. The officer

could determine from conditions on the scene—a functional refrigeration system and

documents that did not support Bekric's assertions—that Bekric was not telling the

truth. During the traffic stop, a drug dog alerted to Bekric's trailer. Officers then

searched the trailer and discovered 198 pounds of marijuana custom-wrapped in

packages to fit specific voids behind a false wall.

At trial following the 2013 arrest, the government introduced testimony from

an officer involved in the 2012 arrest. Bekric objected, but the court allowed the

The Honorable Stephen N. Limbaugh, Jr., United States DistrictJudge for the

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Eastern District of Missouri.

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testimony as evidence tending to prove Bekric's knowledge, intent, planning, and

modus operandi concerning false walls in semi trailers and bundles wrapped to fit

specific voids. The district court provided a detailed limiting instruction regarding

the scope of the permissible use of this evidence.

Also at trial, Bekric attempted to elicit from an officer involved in the 2013

arrest a description of a different, non-testifying officer's 2013 out-of-court

questioning ofBekric. Bekric sought to elicit testimony that the non-testifying officer

had asked him to conduct a controlled delivery and that Bekric had agreed to do so. 

The government objected on hearsay grounds, and the district court excluded the

testimony. Later in the trial, Bekric himself testified without government objection

that the non-testifying officer asked him to conduct a controlled delivery, that Bekric

agreed to do so, but that no such delivery actually took place.

On appeal, Bekric argues it was error to admit evidence of the 2012 arrest and

events surrounding that arrest because prosecutors at that time had elected not to

pursue charges. Bekric also argues the district court committed error by excluding

the Missouri officer's testimony to describe a different officer's 2013 questioning of

Bekric and request for Bekric's assistance with a controlled delivery.

II.

"The district court has broad discretion in determining whether to admit or

exclude evidence, and we reverse such rulings only for a clear and prejudicial abuse

of that discretion." United States v. Robinson, 110 F.3d 1320, 1324 (8th Cir. 1997). 

The erroneous admission or exclusion of evidence is prejudicial where it has "a

substantial influence on the verdict." McDowell ex re. Jones v. Blankenship, 759

F.3d 847, 852 (8th Cir. 2014) (citation and quotation marks omitted). And where the

evidence of guilt otherwise is overwhelming, an allegedly erroneous evidentiary

ruling is seldom likely to have a substantial influence on the verdict. See United

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States v. Carroll, 207 F.3d 465, 472 (8th Cir. 2000) ("In light of this overwhelming

evidence . . . we conclude that the admission of evidence of his prior conviction had

only a slight impact on the trial, and thus the error was harmless.").

"Federal Rule of Evidence 404(b) . . . 'generally prohibits the introduction of

evidence of extrinsic acts that might adversely reflect on the actor's character, unless

that evidence bears upon a relevant issue in the case such as motive, opportunity, or

knowledge.'" Robinson, 110 F.3d at 1324 (quoting Huddleston v. United States, 485

U.S. 681, 685 (1988)). For evidence of prior acts to be admissible for the purpose of

proving intent, knowledge, planning, or modus operandi, the acts must be similar in

nature, close in time, and proven by a preponderance of the evidence. Id. In addition,

the potential for unfair prejudice must not outweigh the probative value. Id. 

The testimony addressing Bekric's 2012 arrest described conduct that was close

in time, highly similar, and extremely probative as to the knowledge or planning

necessary in the use of false panels and the packaging of marijuana to fit into specific

voids. Arguments to the contrary lack merit. Bekric argues the evidence was not

established by a preponderance of the evidence and risked undue prejudice that

outweighed the probative value. He couples his prejudice argument with a claim that

the prosecutor, in closing arguments, specifically asked the jury to use the Rule

404(b) evidence for an improper purpose. 

Regarding the proof of Bekric's prior conduct and arrest, Bekric argues that

because he was neither indicted nor tried, the prosecutors in 2012 must have

concluded probable cause was lacking. Bekric argues the lack of an indictment

precludesfuture decisionmakersfromfinding bya preponderance ofthe evidence that

the prior conduct took place. Bekric's argument misses the mark. The testimony

admitted at trial to describe Bekric's prior arrest sufficed to establish by a

preponderance of the evidence that Bekric drove a truck in 2012 found to contain

similarly concealed and wrapped packages of marijuana. A prior exercise of

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prosecutorial discretion in Bekric's favor does not limit a future court's ability to hear

evidence and draw conclusions.2

Regarding Bekric's claims of unfair prejudice related to the Rule 404(b)

evidence, Bekric ignores the district court's limiting instruction. He also attempts to

label as unfair a prosecutor's statement inferring he knew of the drugs in 2012 and

therefore is more likely to have known of the drugs in 2013. Such a statement is not

unfairly prejudicial; it speaks directly to the permissible purpose for which the

evidence was admitted. 

To the extent Bekric's argument focuses specifically on the prosecutor's word

choice, Bekric appearsto present a hybrid prosecutorial-misconduct/evidentiary-error

theory. He notes that the prosecutor actually used the colloquialism "fool me once

shame on you, fool me twice shame on me." This statement, presented with rhetorical

flair and suggesting Bekric affirmatively took steps to "fool" authorities in 2012,

could be viewed as prejudicial in some settings. Here, however, it was consistent

with the permissible use of the testimony. Further, even if we were to find error,

there simply was no prejudice. The evidence establishing Bekric's guilt for the 2013

offense was overwhelming: he owned the trailer with the false wall, exited the

highway suspiciously, and lied to officers at the scene. 

Bekric's argument appears to misconstrue the nature of prosecutorial

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discretion. The record in the present case does not disclose why the government

elected not to pursue charges against Bekric in 2012. The decisionmakers involved

in that case did not necessarily doubt their ability to prove the existence of probable

cause. They may have concluded that they could not prove Bekric's guilt beyond a

reasonable doubt, or they simply may have had other priorities or insufficient

resources to invest in Bekric's prosecution. The absence of charges does not make

the officer testimony as to one-year-old events insufficient to prove Bekric's prior

conduct by a preponderance of the evidence.

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Regarding the hearsay issue, we conclude the district court properly excluded

the testimony as "an out of court statement offered in evidence to prove the truth of

the matter asserted." United States v. Graves, 756 F.3d 602, 604 (8th Cir. 2014). 

Bekric nevertheless argues the excluded testimony should have been admitted to

explain the course of the investigation. See, e.g., United States v. Davis, 154 F.3d

772, 778 (8th Cir. 1998) ("An out-of-court statement is. . . not hearsay if it is offered,

not for the truth of the matter asserted, but instead to explain the reasons for or

propriety of a police investigation."). Bekric's argument regarding the course of the

investigation makes little sense as the bulk of the evidence against him was obtained

at the traffic stop. In any event, Bekric himself later testified asto the contents of the

same out-of-court conversation. This fact, coupled with the overwhelming nature of

the evidence in this case, show that any error related to the hearsay issue was without

prejudice.

We affirm the judgment of the district court.

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