* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20464

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JESUS ALEJANDRO OSORIO

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:06-CR-89-7

Before PRADO, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:*

Jesus Alejandro Osorio was convicted of conspiracy to possess cocaine with

intent to distribute and possession of cocaine with intent to distribute. He

appeals, urging that his conviction be vacated because: (1) the district court

should not have permitted extrinsic evidence detailing a previous drug

transaction;(2)the prosecutor asked questions in cross-examination of a defense

witness that improperly assumed Osorio’s guilt; and (3) the district court erred

United States Court of Appeals

Fifth Circuit

F I L E D

August 15, 2008

Charles R. Fulbruge III

Clerk
No. 07-20464

1 The other middleman was co-defendant Bonifacio Hernandez (“Hernandez”).

2

in refusing to provide a requested jury instruction regarding character evidence.

Because we find no reversible error, we affirm his conviction.

I. Factual Background

Jesus Alejandro Osorio was alleged to be one of two middlemen in a

complicated sale of over five kilograms of cocaine from his co-defendants Juan

Antonio Escobar (“Escobar”), Leon Baldomero DeLeon (“DeLeon”), and Leonardo

Arcemio Garcia (“Garcia”) to purchasers Sugentino Percel (“Percel”), Eric

Vasquez (“Vasquez”), and German Arias (“Arias”).1 Percel and Vasquez were

tried with Osorio in a four-day jury trial in the Southern District of Texas,

Houston Division, in November of 2006. 

The Government alleged that the conspirators assembled in Houston,

Texas, on February 21, 2006, to conduct an intricate, day-long narcotics

transaction by which Escobar, DeLeon, and Garcia (“the sellers”) sold thirty-five

kilograms of cocaine to Percel, Vasquez, and Arias (“the purchasers”), who

traveled to Houston from Boston and New York. According to the Government’s

theory of the case, Osorio served as a broker of the deal because of his friendship

with purchasers Percel and Vasquez, and stood to earn between $2,000 and

$3,000 for his efforts.

The Government submitted evidence that the cocaine was transported

from Mexico in the hidden compartment of a truck, and subsequently taken from

a “stash house” to seller Escobar’s home. Escobar retrieved Hernandez and the

purchasers to consummate the drug deal at his home, where the conspirators

packaged the cocaine for transport.

Later that evening, Escobar picked up Osorio, who had been at work

during the day. Escobar drove Osorio to Escobar’s home, and they met with

another conspirator. After about fifteen minutes, Osorio and the other two
No. 07-20464

2 Osorio’s defense was essentially that he was an innocent bystander and had been at

work while his co-defendants engaged in the criminal conduct.

3

individuals returned to Osorio’s apartment to retrieve a minivan, which was

brought to Escobar’s home and parked in the garage. While Osorio was in the

“fairly small” home,the purchasers dismantled a panel in the van and placed ten

bricks of cocaine in a hidden compartment behind the tail light. Twenty-five

remaining packages were left in Escobar’s home to be transported in another

vehicle. The conspirators planned to return the van to Osorio’s parking lot and

drive the van and other vehicle back to New York or Boston.

A cooperating co-defendant accused Osorio of brokering the transaction at

his apartment on a previous day. During that meeting, Osorio indicated to one

of the sellers that he “had clients” (identified as Percel and Vasquez) willing to

purchase twenty-five to thirty-five kilograms of cocaine. Throughout the deal,

Osorio acted as a go-between, arranging the transaction so that the purchasers

and the sellers did not have to communicate. According to the trial testimony,

Osorio was not present for the daytime meetings between co-conspirators, the

delivery of the cocaine to Escobar’s home, or the packaging of the drug.

However, he was in telephone contact with Escobar and Hernandez during the

day and arrived at Escobar’s home in order to “be there in case something

happened.” Osorio spent his time at Escobar’s home on February 21 watching

television with two conspirators and speaking with Escobar about topics

including cocaine. It was planned that Osorio would return to Escobar’s home

with an Audi so that the conspirators could load and transport the remaining

twenty-five kilograms of cocaine. Osorio was to be paid $2,000 to $3,000 for

brokering the drug deal.2

Before Osorio could return the minivan to his apartment or retrieve the

Audi, the DEA conducted a traffic stop and discovered the ten kilograms of

cocaine hidden in the vehicle’s paneling. Osorio consented to a search of his
No. 07-20464

4

apartment, where the officers found industrial-sized green Saran Wrap and

vacuum sealed bags that were identical to the wrapping found on the ten

kilograms of cocaine recovered from the van. The officers also found a small

scale and some bags with cocaine residue on them. At Escobar’s home and an

alleged “stash house,” the officers recovered numerous items consistent with a

drug trafficking conspiracy which corroborated the testimony ofthe cooperating

co-defendants, including thirty-three kilograms of cocaine, significant amounts

of drug distribution paraphernalia, cash, a firearm, and green cellophane of the

same brand found in Osorio’s apartment. In all, law enforcement officers

recovered forty-three kilograms of cocaine, which had an estimated street value

of $4.3 million and a wholesale value of over $1 million. 

On February 23, 2006, all eight defendants were charged by complaint

with conspiring to possess with intent to distribute cocaine, and an indictment

was returned by a federal grand jury on March 21, 2006. The jury found Osorio,

Percel, and Vasquez guilty of both counts of the indictment, and Osorio was

sentenced to 151 months’ imprisonment. 

II. Analysis

A. Admission of Extrinsic Acts Evidence

The district court permitted the admission of testimony of a similar

cocaine transaction that had occurred in December 2005 or January 2006. Codefendant Arias stated that on that occasion, he drove from New York to

Houston in a rented van and was picked up by middleman Hernandez, who

brought him to Osorio’s apartment. Percel and Vasquez were already there with

fifteen kilograms of cocaine. Arias testified that he had not met Osorio prior to

the transaction. The three purchasers packaged the thirty-three pounds of

cocaine to be transported from Osorio’s apartment to Boston. Osorio was present

in the apartment, but watched television during the sixty to ninety minutes that

his co-defendants were wrapping the cocaine and moving it from Osorio’s
No. 07-20464

3 Federal Rule of Evidence 404(b) provides in relevant part, “Evidence of other

crimes, wrongs, or acts is not admissible to prove the character of a person in order to show

action in conformity therewith. 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 . . . .”

5

apartment to Arias’s rented minivan. Arias did not testify that Osorio arranged

this prior drug transaction, participated in it, or knew that it took place in his

apartment. There was no evidence regarding the size of Osorio’s apartment. 

In permitting Arias’s testimony,the district court applied the two-pronged

test set forth in United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en

banc). The court held that the testimony was admissible as probative of Osorio’s

“intent, motive, opportunity, preparation, plan, knowledge, and absence of

mistake or accident,” and determined that a limiting instruction would alleviate

any unfair prejudice. Defense counsel raised a number of objections, which were

overruled. At the conclusion of Arias’s testimony on direct examination, the

district court provided a limiting instruction, informing the jury thatit may only

use the prior conduct to establish, “first, whether the Defendant had the state

of mind or intent necessary to commit the crime charged in the indictment or,

second, whether the Defendant had a motive or the opportunity to commit the

acts charged in the indictment or, third, whether the Defendant acted according

to a plan or in preparation for commission of a crime or, fourth, whether the

Defendant committed the act for which he is on trial by accident or mistake.”

The district court also provided a similar limiting instruction, adopted from the

Fifth Circuit Pattern Jury Instructions, in its jury charge. Osorio contends that

the admission of this extrinsic evidence constitutes reversible error.

We review a district court’s admission of extrinsic acts evidence under

Federal Rule of Evidence 404(b) with a heightened abuse-of-discretion standard.

United States v. Jackson, 339 F.3d 349, 354 (5th Cir. 2003).3“A district court

abuses its discretion if it bases its decision on an error of law or a clearly
No. 07-20464

6

erroneous assessment of the evidence.” United States v. Insaulgarat, 378 F.3d

456, 464 (5th Cir. 2004). Even if the district court abused its discretion, we do

not reverse if the error was harmless. Id.

In evaluating the admission of extrinsic acts evidence, we apply the twopronged testfor 404(b) evidence setforth in Beechum, 582 F.3d at 911. First, the

extrinsic evidence must be “relevant to an issue other than the defendant’s

character.” Id. Second, the evidence must have probative value that is not

substantially outweighed by undue prejudice and must otherwise be admissible

under Federal Rule of Evidence 403. Id. We have repeatedly held, and Osorio

acknowledges, that a prior drug transaction is relevant to intent in a drug

conspiracy case. See, e.g., United States v. Pompa, 434 F.3d 800, 805 (5th Cir.

2005) (“In a drug-trafficking case, the issue of intent is always material.”).

However, Osorio argues thatthe evidence should have been barred as irrelevant

because there was insufficient proof that he was an active participant in the

prior drug transaction.

“In the Rule 404(b) context, similar act evidence is relevant only if the jury

can reasonably conclude that the act occurred and that the defendant was the

actor.” Huddleston v. United States, 485 U.S. 681, 689 (1988). Although a

preliminary judicial finding under Rule 104(a) that the extrinsic act occurred is

not required, relevancy does command the proponent of the 404(b) testimony to

tender sufficient proof to permit a reasonable jury to find the existence of the

conduct by a preponderance of evidence. Id. at 688-90; United States v.

Anderson, 933 F.2d 1261, 1269 (5th Cir. 1991). The standard of proof of such

preliminary facts is “relatively light.” Anderson, 933 F.2d at 1269; see also

United States v. Gonzalez-Lira, 936 F.2d 184, 189-90 (5th Cir. 1991) (The

Government must“atleast provide some evidence thatthe defendant committed

the prior bad act.”). 
No. 07-20464

7

Certainly, Arias’s testimony did not provide dispositive evidence that

Osorio had brokered the prior drug deal. The sum of the extrinsic evidence was

that in late December or early January of 2005, Osorio was present during the

sixty to ninety minutes when four of his co-defendants (including a total

stranger) packaged and removed thirty-three pounds of cocaine from his

apartment. Although this is a close question, we do not find that the trial judge

abused her discretion in determining that a reasonable jury could conclude that,

more likely than not, Osorio committed the prior bad act. The jury is permitted

to consider the totality of evidence and apply common sense. Here, the jury

could have concluded that an individual is usually aware of, and involved in, a

sixty to ninety minute transaction occurring in their own home, which included

a total stranger, that results in the packaging and removal of thirty-three

pounds of cocaine. When considered in light of DeLeon’s testimony that Osorio

took a largely passive role when he brokered the later narcotics deal from his

home and the other evidence that Osorio’s role in the conspiracy was as a broker

between the sellers and out-of-town buyers, the connection between Osorio and

the earlier transaction does not appear so weak as to bar a reasonable jury from

concluding that, more likely than not, he committed the prior bad act.

Accordingly, we find thatthe extrinsic evidence was sufficiently established and

relevant to the issue of Osorio’s knowledge and intent.

Although relevant, extrinsic acts evidence must nonetheless be excluded

if its probative value is substantially outweighed by the danger of undue

prejudice. Beechum, 582 F.2d at 911. The Beechum court explained, 

[T]he more closely the extrinsic offense resembles the charged

offense, the greater the prejudice to the defendant. The likelihood

that the jury will convict the defendant because he is the kind of

person who commits this particular type of crime or because he was

not punished for the extrinsic offense increases with the increasing

likeness of the offenses.
No. 07-20464

8

Id. at 915 n.20.

Generally, probative value is determined by considering whether the

defendant’s unlawful intent is established by other, non-extrinsic evidence. Id.

at 914-15. “Thus, if the Government has a strong case on the intent issue, the

extrinsic offense may add little and consequently will be excluded more readily.”

Id. at 914. On the other hand, probative value is increased where little

independent evidence exists to otherwise establish intent. Id.; United States v.

LeBaron, 156 F.3d 621, 625 (5th Cir. 1998) (“The probative value is augmented

if there is slight direct evidence.”).

Little evidence existed to tie Osorio to the charged conspiracy independent

of his co-conspirators’ testimony, which was challenged as suspect. Indeed,

Osorio’s defense was that there was no direct evidence of his guilt, because he

arrived at Escobar’s residence after the cocaine had been packaged, spent his

time in the house talking and watching television, and was not near the van

other than when he got into and out of it. That his visiting co-defendants

(including a complete stranger) were alleged to have conducted a lengthy

transaction which resulted in the packaging and transport of over thirty pounds

of cocaine from his apartment a few months earlier is probative of his

participation in the conspiracy and would support the testimony of DeLeon, a

cooperating defendant. Certainly, the extrinsic evidence was probative as to the

role of each conspirator, the modus operandi of the conspiracy, the introduction

of Arias into the conspiracy, and the intent of the two individuals standing trial

with Osorio, both of whom actively participated in the earlier transaction. 

As to prejudice, the district court provided a detailed limiting instruction

to the jury after the receipt of evidence of the extrinsic acts, and then again in

its charge to the jury. This court has repeatedly held that such a limiting

instruction is sufficient to cure any impropriety in the admission of prior bad

acts evidence. See, e.g., United States v. Willis, 6 F.3d 257, 262 (5th Cir. 1993)
No. 07-20464

9

(stating that “[t]he danger of unfair prejudice to [the defendant] was minimized

by the district court’s careful instructions to the jury, which made it clear that

the prior convictions could not be considered unless and untilthe jury firstfound

that [the defendant] had participated in the charged acts, and, even then, could

be considered only for the purpose of determining whether [the defendant] had

the state of mind or intent necessary to commit the crime . . .”), overruled on

other grounds by Bailey v. United States, 516 U.S. 137 (1995). Indeed, in United

States v. Gordon, 780 F.2d 1165, 1174 (5th Cir. 1986), this court observed that

the issue of whether the district court abused its discretion in admitting

extrinsic evidence need not be reached, because the trial judge provided a proper

limiting instruction adopted from the Fifth Circuit’s Pattern Jury Instructions.

B. Cross Examination of Robert Bosley

In his defense, Osorio introduced the testimony of Robert Bosley, who

worked with Osorio for ten to twelve years and had hired Osorio as an employee

in early 2006. Bosley testified that his records indicated that Osorio was at work

on February 21, 2006, that Osorio never exhibited suspect behavior or said

anything suspicious regarding drugs, and it would not be unusual for Osorio to

leave work later than 5:00 p.m. Although Osorio’s counsel inquired whether

Bosley had “gotten to know about his character and generally the kind of person

Mr. Osorio is,” Bosley provided no testimony regarding Osorio’s character for

truthfulness, law-abiding nature, or any other pertinent character trait.

During cross-examination, the following colloquy ensued:

Q. You indicated that, to a certain extent, you have a sort of

familiarity with Mr. Osorio based on your working relationship.

You talked about his character. Would it surprise you if you learned

that the substance cocaine was found in his residence?

MR. NGUYEN [Counsel for Osorio]: Objection, Judge. Whether

the witness is surprised or not is not relevant to this case.

THE COURT: Overruled.
No. 07-20464

10

BY MR. BURNS [Prosecutor]:

Q. Would that surprise you, sir?

A. It probably would. Yes.

Q. Would it be fair to say that the Osorio that you know would

not be an individual that might have small quantities of cocaine at

his residence?

A. I don’t believe he would.

Q. And the Osorio that you know is not the type of individual

that would have or be around large quantities of cocaine?

A. I don’t believe so. No.

Q. And if, in fact, the individual that you do know was found in

those circumstances, it’d be fair to say that maybe you might not

really know him?

A. Possible. Yes. I know him as business and that’s it.

Bosley provided no further testimony concerning Osorio’s character.

Osorio claims on appealthatthe prosecutor’s questions constitute error that was

“gravely prejudicial,” because they rested upon an assumption of his guilt. 

A district court’s decision to permit a certain line of cross-examination is

typically reviewed for abuse of discretion. United States v. Smith-Bowman, 76

F.3d 634, 636 (5th Cir. 1996) (citing United States v. Candelaria-Gonzalez, 547

F.2d 291, 294 (5th Cir. 1977)). However, where the defendant fails to make a

proper objection to comments or questions by a prosecutor, we apply plain error

review. See United States v. Burns, 526 F.3d 852, 858 (5th Cir. 2008). Plain

error exists if (1) there was error; (2) the error was clear and obvious; and (3) the

error affected a substantial right. United States v. Jimenez, 256 F.3d 330, 340

(5th Cir. 2001). A finding of plain error is limited to those errors that “seriously

affect[] the fairness, integrity or public reputation of judicial proceedings.” Id.

(internal quotation marks omitted). Osorio acknowledges that a plain error
No. 07-20464

11

standard applies, because his relevance objection was not sufficiently specific to

challenge (as he does in the instant appeal) the questions as resting upon an

assumption of guilt.

Under certain circumstances, a district court abuses its discretion when

it permits on cross-examination questioning designed to elicit speculative

responses that rest on an assumption of guilt. Candelaria-Gonzalez, 547 F.2d

at 294. In Candelaria-Gonzalez, we found improper a prosecutor’s hypothetical

questions of character witnesses that required each witness to assume the

conviction of the defendant for the offense charged. The government inquired

of three witnesses whether the defendant’s reputation would be affected if he

were convicted of trafficking in narcotics. Id. at 293. Finding an abuse of

discretion, we explained,

The nature of the questions put to Ledesma’s witnesses by

government counsel, however, was a far cry from any concept of

formulated community opinion. Rather, the questions posed sought

speculative responses resting upon an assumption of guilt.

Government counsel asked if Ledesma’s reputation would be

affected if he were convicted of the alleged crime. These

hypothetical questions struck at the very heart of the presumption

of innocence which is fundamental to Anglo-Saxon concepts of fair

trial. We think that the risk of prejudice to defendant’s basic rights

from such questions requires reversal. The questions put have no

place in a criminal trial. 

Id. at 294 (citations omitted). 

However, Candelaria-Gonzalez is distinguishable. There, character

witnesses testified about the defendant’s reputation for honesty in the

community, and the prosecutor asked them whether Candelaria-Gonzalez’s

reputation would be affected if he were convicted of the alleged crime, thereby

implicating the sacrosanct presumption of innocence. Id. In addition, the

admission of the cross-examination questions in Candelaria-Gonzalez was

reviewed under an abuse of discretion standard. Id.
No. 07-20464

4

In fact, Osorio adopted these facts, stating in opening,

And from his mere presence being in the van when they

eventually uncovered the drugs in the van and in the panel – you

will hear some testimony from DEA Agent Cornelius that it was

welded in a panel in a minivan in the back, no odors, no

detection, that any passenger sitting in the van would not know

it was hid back there.

In closing, Osorio argued,

We know that the plastic wrap and the seal bags, the one small

scale, the two small Ziploc bags and the two sandwich-size Ziploc

bags which had cocaine residue on them, the four bags and the

scales – we know they were found at [Osorio’s address]. 

We also know from the evidence that the 10 packages found in

the van were undetectable. They were hidden – well hidden

behind the panel and you couldn’t see them.

12

Here, Osorio’s defense was not based wholly on the credibility of character

witnesses, and the prosecutor’s questions concerned undisputed facts.4 Although

irrelevant,the prosecutor’s four questions in cross-examination simply summed

up the undisputed evidence that Osorio was around large quantities of cocaine,

and a small amount of cocaine was recovered from his apartment. The inquiries

did not assume Osorio’s knowledge of the cocaine or intent to possess it. Bosley

was asked only whether the undisputed evidence in the case was consistent with

his knowledge of Osorio. He was never required to assume Osorio’s guilt.

Accordingly, the “grossly prejudicial” harm set forth in Candelaria-Gonzalez is

absent. 

This case is similar to United States v. Smith-Bowman, 76 F.3d at 636.

There, the district court permitted the prosecutor to cross-examine a character

witness concerning the defendant’s use of a credit card, an allegation that she
No. 07-20464

5 Although Smith-Bowman was charged with misusing that credit card in connection

with her employment, she claimed that her use of the account was appropriate. Id. at 636.

6 Fifth Circuit Pattern Jury Instruction 1.09 states, 

Where a defendant has offered evidence of good general

reputation for truth and veracity, or honesty and integrity, or as

a law-abiding citizen, you should consider such evidence along

13

did not contest. Id.

5 Over the objection of defense counsel, the character witness

was asked, 

Have you heard that this defendant took an American Red Cross

credit card and went to the La Quinta Inn and rented a room in the

name of Judy Walker so she could have a rendezvous with her

boyfriend?

Have you heard that this defendant took an American Red Cross

credit card and bought jewelry for herself?

Id. Finding no error, the Smith-Bowman court distinguished CandelariaGonzalez, because the questions did not clearly assume the defendant’s guilt for

the charged offense, the allegations were uncontested, and her defense was not

based wholly on the credibility of character witnesses. Id. at 636-37. 

In any case, reversing the district court under plain error review would

require us to find thatthe admission of such cross-examination was so egregious

as to seriously affect the fairness, integrity or public reputation of judicial

proceedings. Jimenez, 256 F.3d at 340. The testimony here, which boils down

to a defense witness admitting that he would be surprised to learn that Osorio

had small amounts of cocaine in his home and was “around large quantities of

cocaine,” does not reach that level of error, if any.

C. Requested Jury Instruction

Finally, Osorio contends that the district court abused its discretion by

refusing to provide theFifth Circuit’s Pattern Jury Instruction 1.09 on character

evidence.6 Osorio requested this instruction because of the questions submitted
No. 07-20464

with all the other evidence in the case.

Evidence of a defendant’s reputation, inconsistent with those

traits of character ordinarily involved in the commission of the

crime charged, may give rise to a reasonable doubt, since you

may think it improbable that a person of good character in

respect to those traits would commit such a crime.

You will always bear in mind, however, that the law never

imposes upon a defendant in a criminal case the burden or duty

of calling any witnesses or producing any evidence.

FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS (CRIMINAL CASES) § 1.09 (2001).

14

to Bosley upon cross-examination; however, Bosley was not submitted as a

character witness, Osorio’s defense was concentrated on his absence from the

drug transactions, and Osorio’s character was not an essential part of his

defense. The testimony of Bosley was raised merely by implication in Osorio’s

lengthy closing argument, and only then to suggest that Osorio was at work

until late evening and could not have been involved in the drug transactions that

occurred on February 21, 2006. Osorio did not argue to the jury that Bosley’s

testimony compelled the conclusion that Osorio was law-abiding and unlikely to

have committed the offenses charged. 

The denial of a requested jury instruction is reviewed for abuse of

discretion. United States v. John, 309 F.3d 298, 304 (5th Cir. 2002). “A court

commits reversible error where (1) the requested instruction is substantially

correct; (2)the requested issue is not substantially covered in the charge; and (3)

the instruction ‘concerns an important point in the trial so that the failure to

give it seriously impaired the defendant’s ability to effectively present a given

defense.’” Id. (quoting United States v. Grissom, 645 F.2d 461, 464 (5th Cir. Unit

A May 1981)).

Osorio claims that the district court abused its discretion by failing to

include his requested jury instruction. The government responds that a
No. 07-20464

15

character instruction was not warranted, because Bosley was not a traditional

“character witness,” and provided no testimony about Osorio’s law-abiding

nature or character for truthfulness. Whether or not Bosley became a character

witness because of his answers on cross-examination,the defendant did not offer

the character evidence, and the omission of the jury charge did not impair

Osorio’s ability to effectively present a defense. 

Our decision in United States v. John stands for the proposition that a

district court can abuse its discretion if it refuses to give a requested character

instruction on evidence where the defendant (not the prosecution) has raised

good character as a centraltheme of defense. 309 F.3d at 304-05. We explained,

“[i]n some circumstances, evidence of good character may of itself create a

reasonable doubt as to guilt, and the jury must be appropriately instructed.” Id.

at 303-04 (quoting United States v. Hewitt, 634 F.2d 277, 278 (5th Cir. Unit A

Jan. 1981)). There, the district court’s treatment of character as a “non-issue”

was “tantamount to impairing John’s ability to present his defense,” and we

reversed and remanded. Id. at 305. 

However, John does not sweep as broadly as Osorio suggests. First, the

John court explained that a character instruction is warranted only if the

defendant first introduces admissible character evidence. Id. at 303. More

importantly, character was the central theory of the defense in John. Id. at 304.

The court conspicuously distinguished Oertle v. United States, 370 F.2d 719, 727

(10th Cir. 1966), United States v. Baytank (Houston), Inc., 934 F.2d 599, 613-14

(5th Cir. 1991), and United States v. Hunt, 794 F.2d 1095, 1099 (5th Cir. 1986),

noting that each stood for the proposition that a character instruction is not

required where character is not “central” or “crucial” to the defense. John, 309

F.3d at 304-05; Baytank, 934 F.2d at 614. 

Accordingly, the omission here of the requested jury instruction does not

require reversal. Bosley provided no evidence as to any pertinent character
No. 07-20464

16

trait. He was clearly submitted as a fact witness. In opening, defense counsel

explained Bosley’s purpose, and his theory of the case: 

You will hear when the defense presents its case for Mr. Osorio that

Mr. Osorio formerly owned a printing company here. He ran that

printing company on his own and, after several years, merged with

another printing company or got subsumed by a larger printing

company. You will hear from Mr. Osorio’s defense that Mr. Osorio

has been working at that larger company, Outback Printing, as an

employee for quite some time. And what’s very important from the

facts you’ll hear is that, despite the surveillance having started in

the early a.m. hours of February 22nd and all these places and all

these names get involved – you will hear from the defense,

uncontroverted, that Mr. Osorio was working from 8:00 o’clock that

morning all the way until 7:00 o’clock, 7:30 that night.

Indeed, Osorio states in his initial brief that his defense was: (1) that he

was at work and not present when the other individuals were at his apartment;

(2) the items found at his apartment were equally consistent with his innocence;

and (3) there was no physical evidence tying Osorio to the crime. Osorio

provided no defense, and never argued,that his character for truthfulness, or his

law-abiding nature, gave rise to a reasonable doubt regarding his guilt. In sum,

whatever character evidence was elicited from Bosley, it was certainly not

crucial to Osorio’s defense. Accordingly, the district court’s refusal to provide a

character evidence instruction did not impair Osorio’s defense, and it was not an

abuse of discretion. 

III. CONCLUSION

For the foregoing reasons, Osorio’s convictions are AFFIRMED.