IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-41008

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JOHN MATTHEW COCKRELL,

Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Texas

Before KING, GARZA and HAYNES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Appellant John Matthew Cockrell appeals his conviction for conspiracy to

possess with intent to distribute heroin resulting in serious bodily injury, in

violation of 21 U.S.C. § 846. Cockrell argues that the district court erred in

admitting certain evidence. For the following reasons, we AFFIRM.

I

In 2006, the Plano Police Department notified agents from the Federal

Bureau of Investigation High Drug Trafficking Area (“FBI”) of several Collin

County heroin-related overdoses, some of which were fatal. Law enforcement

identified Cockrell as a distributor in the Plano area. Based on the ensuing

United States Court of Appeals

Fifth Circuit

F I L E D

November 6, 2009

Charles R. Fulbruge III

Clerk
No. 08-41008

2

investigation, Cockrell was arrested and indicted for his participation in a

conspiracy to distribute heroin.

At trial, several co-conspirators testified that they purchased drugs from

Cockrell from 2005 through early 2007. One witness testified that she initially

purchased methamphetamine from Cockrell, but switched to heroin, purchasing

as often as two to three times per week. Witnesses testified that they saw heroin

packaged inside of balloons in Cockrell’s apartment and car and that he

distributed those balloons to customers and other dealers. Multiple witnesses

said they pooled money with Cockrell to purchase larger quantities of heroin for

personal use and distribution. Testimony also linked Cockrell to the non-fatal

overdoses of William Baca and Christopher Schubert. Both Baca and Schubert

testified that they overdosed on heroin supplied by Cockrell and they required

emergency medical treatment. Testimony of treating paramedics and

ambulance records corroborated Baca and Schubert’s testimony.

The government also successfully introduced evidence of Cockrell’s prior

drug crime conviction. He was indicted in 1999 for conspiracy to possess with

the intent to distribute heroin, but ultimately pleaded guilty to using a telephone

to facilitate a heroin trafficking crime. Cockrell was sentenced to 41 months’

imprisonment. The district court considered admissibility prior to the start of

trial. Cockrell argued that the prior conviction was inadmissible under FED. R.

EVID. 404(b) because it was prior “bad act” evidence. The government argued

that the prior conviction showed intent to distribute drugs or absence of mistake.

Cockrell responded that because the prior conviction and the current charge

were very similar, they were highly prejudicial. The district court admitted the

evidence, finding that Cockrell’s not-guilty plea put his intent at issue and the

extraneous offense was temporally proximate, similar to the offense charged,

and relevant to show Cockrell’s intent or that he had not accidentally been swept

up in a heroin distribution scheme. The district court also noted that because
No. 08-41008

3

much of the other evidence about Cockrell’s distribution activities would be

provided by indicted and unindicted co-conspirators, there was a need for the

government to offer other evidence from which intent could be inferred.

Immediately following the prior conviction testimony, the district court

instructed the jury on the limited extent to which they could consider the

evidence. In relevant part, the jury was instructed that:

The plea agreement and judgment))are not admissible and should

not be considered by you for the purpose of proving that Mr.

Cockrell committed what he’s accused of and what he’s on trial for

here. . . . If you find from other evidence that he committed that

offense, then you can consider the previous conviction for the

purpose of determining whether or not he knowingly conspired and

whether or not he possessed any heroin with the intent to distribute

it.

Near the end of the trial, the court decided that testimony about Cockrell’s

prior arrest and the discovery of 1.4 grams of methamphetamine in his car was

admissible. The arrest occurred in February 2007. While he was at the

Farmer’s Branch, Texas, Police Department, police officers observed Cockrell on

a telephone call that appeared to be a heroin transaction. One officer observed

Cockrell speaking on the phone and, while on speaker-phone, heard the

customer ask if Cockrell “would be able to pick up a quarter of brown,” a term

the officer knew to refer to heroin. After determining that Cockrell had

outstanding warrants, they arrested him. The officers found a syringe in

Cockrell’s pocket and a search of his vehicle turned up approximately 1.49 grams

of methamphetamine. Both officers testified that this amount of

methamphetamine was consistent with either distribution or personal use.

The district court admitted the evidence, citing two grounds. First, the

district court noted its belief that Cockrell’s course of conduct at Farmer’s

Branch, including his phone calls for what appeared to be a heroin deal, were

intrinsic to the overall conspiracy that Cockrell was charged with. The district
No. 08-41008

4

court further ruled that even if not intrinsic, the evidence of methamphetamine

possession in a distributable quantity was relevant and admissible under FED.

R. EVID. 404(b) to show Cockrell’s intent to distribute heroin under the

conspiracy charge. The district court rejected Cockrell’s arguments that the

prejudice outweighed the probative value. Cockrell requested a jury instruction,

and immediately following the officers’ testimony, the district court gave an

instruction similar to the one regarding the heroin conviction.

The jury found Cockrell guilty. The district court sentenced Cockrell to

imprisonment for a term of 380 months to be followed by five years of supervised

release. The court imposed a $100 special assessment, but no fine. Cockrell

timely appealed his conviction.

II

Cockrell argues that the district court erred in admitting evidence of the

prior heroin conviction and the methamphetamine arrest. This court reviews

the admission of evidence under Rule 404(b) for abuse of discretion. United

States v. Walters, 351 F.3d 159, 165 (5th Cir. 2003). Although this review is

“necessarily heightened” in criminal cases, United States v. Anderson, 933 F.2d

1261, 1268 (5th Cir. 1991), abuse of discretion is only reversible if a defendant

can demonstrate prejudice, United States v. Coleman, 78 F.3d 154, 156 (5th Cir.

1996).

Rule 404(b) provides that:

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 . . . .

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

applies a two-pronged analysis for the admissibility of evidence under Rule

404(b). First, the evidence of “other crimes, wrongs, or acts” must be relevant
No. 08-41008

5

to an issue other than the defendant’s character. Id. The standard of relevancy

under Rule 401 applies to the first prong of the analysis. United States v. Percel,

553 F.3d 903, 911–12 (5th Cir. 2008). The relevance of extrinsic act evidence “is

a function of its similarity to the offense charged.” Beechum, 582 F.3d at 911.

Second, the evidence must possess probative value that is not

substantially outweighed by its undue prejudice. Percel, 553 F.3d at 912. In

weighing the probative value and unfair prejudice, this court must make a

“commonsense assessment of all the circumstances surrounding the extrinsic

offense.” Beechum, 582 F.3d at 914. Probative value “must be determined with

regard to the extent to which the defendant’s unlawful intent is established by

other evidence, stipulation, or inference.” Id. Other factors to be considered

include “the overall similarity of the extrinsic and charged offenses, and the

amount of time that separates the extrinsic and charged offenses” as well as any

limiting instructions. United States v. Richards, 204 F.3d 177, 199–201 (5th Cir.

2000) (citation omitted).

Where, as here, a defendant enters a plea of not guilty in a conspiracy

case, the first prong of the Beechum test is satisfied. United States v. Broussard,

80 F.3d 1025, 1040 (5th Cir. 1996). “The mere entry of a not guilty plea in a

conspiracy case raises the issue of intent sufficiently to justify the admissibility

of extrinsic offense evidence.” Id.; United States v. Parziale, 947 F.2d 123, 129

(5th Cir. 1991), cert. denied, 503 U.S. 946 (1992). In other words, where the

prior offense involved the same intent required to prove the charged offense, that

prior offense is relevant and we are required only to consider whether the

requirements of Rule 403 are met under Beechum’s second prong. Broussard,

80 F.3d at 1040.
No. 08-41008

As noted above, because the intent is the same, we need not address Beechum’s first

1

prong. See Broussard, 80 F.3d at 1040. “Where the issue . . . is the defendant’s intent to

commit the offense charged, the relevancy of the extrinsic offense derives from the defendant’s

indulging himself in the same state of mind in perpetration of [both offenses]. . . . [B]ecause

the defendant had unlawful intent in the extrinsic offense, it is less likely that he had lawful

intent in the present offense.” Beechum, 582 F.2d at 911. Even were there some question as

to the relevance of the evidence to show intent, Cockrell has arguably waived it because his

brief appears to raise only the second prong under Beechum.

6

A

The evidence of the prior offense included documents and testimony that

showed that Cockrell was previously indicted for conspiracy to posses with intent

to distribute heroin, substantially the same crime charged here, except that it

did not include the bodily harm element. Evidence was also introduced of

Cockrell’s plea deal for use of a telephone to conduct narcotics transactions. This

evidence was relevant to show intent because both the extrinsic offense and the

charged offense involved an intent to distribute. See Beechum, 582 F.2d at 911. 1

The district court found the prior conviction similar because it involved use

of a telephone to facilitate distribution, and the charged offense required the

government to prove intent to distribute. Cockrell contends that admission of

his prior drug conviction was “for the same offense for which [he] was on trial”

and therefore the prejudicial effect was great. While Cockrell correctly notes

that “the more closely the extrinsic offense resembles the charged offense, the

greater the prejudice to the defendant,” id. at 915 n.20, it simply does not follow

that such similarity requires exclusion of the evidence. Indeed, as we stated in

Beechum, “the judge must consider the danger of undue prejudice” and the “test

is whether the probative value of the evidence is substantially outweighed by its

unfair prejudice.” Id. (emphasis added). Rule 403 “would seem to require

exclusion only in those instances where the trial judge believes that there is a

genuine risk that the emotions of the jury will be excited to irrational behavior,

and that this risk is disproportionate to the probative value of the offered
No. 08-41008

7

evidence.” Id. Moreover, “[a] bald assertion that the probative value of extrinsic

offense evidence was substantially outweighed by its prejudicial effect does not

show an abuse of discretion by the district court.” United States v. Bermea, 30

F.3d 1539, 1562 (5th Cir. 1994). Cockrell has made nothing more than just such

a bald assertion. We previously have found that the probative value of prior

drug conspiracy convictions is not substantially outweighed by unfair prejudice.

See, e.g., United States v. Booker, 334 F.3d 406, 412 (5th Cir. 2003) (finding no

unfair prejudice from admission of evidence of seizure of 178 kilograms of

marijuana to show intent in a crack cocaine conspiracy); Broussard, 80 F.3d at

1040 (finding no unfair prejudice from admission of “conviction for possession of

fifty to 200 pounds of marijuana” with intent to distribute to show intent to

distribute cocaine); United States v. Harris, 932 F.2d 1529, 1534 (5th Cir. 1991)

(finding no unfair prejudice from admission of evidence of prior

methamphetamine manufacturing activities to show intent in conspiracy to

manufacture methamphetamine case). Cockrell’s prior conviction in 2000 was

temporally proximate to the current offense for which Cockrell was arrested in

2007. “Although remoteness of the extrinsic acts evidence may weaken its

probative value, the age of the prior conviction does not bar its use under Rule

404.” Broussard, 80 F.3d at 1040 (finding no prejudice from admission of prior

conviction that was more than 10 years before the charged offense); see also

United States v. Chavez, 119 F.3d 342, 346 (5th Cir. 1997) (finding no abuse of

discretion in the admission of a 15-year-old conviction). Nor was the evidence

of the prior offense of a “heinous nature” such as would incite a jury to an

irrational decision on the charges before it. See Beechum, 582 F.3d at 917.

Lastly, the district court gave extensive and immediate limiting instructions

following the admission of the prior offense testimony. See id.; Broussard, 80

F.3d at 1040 (finding that any prejudice was minimized by limiting instruction
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8

given immediately after extrinsic offenses offered into evidence). Accordingly,

we find no abuse of discretion.

B

Cockrell also complains about the admission of testimony regarding his

arrest at the Farmer’s Branch police station. The officers testified that they

observed Cockrell conducting what appeared to be a heroin transaction on his

cell phone while at that station. They arrested Cockrell on unrelated

outstanding warrants, and the search incident to arrest turned up a syringe and

1.4 grams of methamphetamine, a quantity sufficient to be for personal use or

distribution. They discovered no other drug paraphernalia or indicia of drug

dealing activities. Initially, the district court was inclined to exclude this

evidence because it believed that when Cockrell was arrested, his participation

in the conspiracy was over. The court thought the evidence would be duplicative

and unnecessary. However, it reconsidered when the government clarified that

the conspiracy was still ongoing at the time of, and after, the arrest. The

government argued that the evidence was intrinsic to the ongoing conspiracy

and therefore admissible. It also argued that it needed this testimony because

Cockrell had shown through cross-examination of the government’s witnesses

that no drugs had ever actually been seized from Cockrell. The district court

initially ruled that “evidence of the discovery of the methamphetamine and

everything that went on at the Farmer’s Branch Police Department is intrinsic

to this overall conspiracy.” The district court further ruled that even if not

intrinsic, evidence of methamphetamine possession in distributable quantity was

relevant and admissible under FED. R. EVID. 404(b) to show intent to distribute.

The district court rejected Cockrell’s argument that the prejudice outweighed the

probative value because the government had no evidence of heroin discovered in

Cockrell’s possession and needed to be able to counter the defense that no heroin

was ever found in Cockrell’s possession. Following the government’s
No. 08-41008

 The district court’s comments that the government needed evidence of the 2

methamphetamine possession because no heroin was actually found in Cockrell’s possession

are problematic. Specifically, the district court stated: “[G]iven the fact that the government

doesn’t have . . . any heroin that was discovered on Mr. Cockrell, I think that the government

still has some need there to counter the defense that . . . no heroin was ever found on Mr.

Cockrell.” This would appear to be precisely the impermissible purpose for which the evidence

cannot be used. The jury is not allowed to infer from evidence of possession of one drug that

the defendant must have also possessed some other drug. Although this reasoning gives us

pause, that statement was outside the hearing of the jury, and the jury was properly

instructed as to how it could consider this evidence. Moreover, the methamphetamine

evidence was not just evidence of drug possession, but evidence of drug possession of a

distributable quantity. A jury could properly infer an intent to distribute from evidence of

possession of one drug in a distributable quantity.

9

presentation of this evidence, Cockrell asked for an instruction if the evidence

was being admitted under Rule 404(b), rather than as intrinsic evidence.

Having heard the evidence, the district court stated that the telephonic heroin

transaction was intrinsic, but the methamphetamine was 404(b) evidence. It

granted Cockrell’s request, and immediately following the testimony, gave an

instruction similar to the one given regarding the heroin conviction.

Cockrell appears to challenge the admission of this evidence under both

prongs of the Beechum test. He contends that the evidence was not relevant for

any permissible purpose because it showed only that he was in possession of

methamphetamine in a personal-use quantity, which is not relevant to whether

he possessed heroin, a different drug, with an intent to distribute. Cockrell also

contends that admission of the evidence was unfairly prejudicial and, coupled

with admission of the prior heroin conviction, compounded the prejudicial effect.

Cockrell’s not-guilty plea put his intent sufficiently at issue to justify

admission of extrinsic evidence. Broussard, 80 F.3d at 1040. Cockrell

nonetheless raises the question whether this evidence was relevant to show

intent at all. We find that it was. The evidence showed that Cockrell appeared

to be making arrangements for a heroin sale, not just that he possessed

methamphetamine.2 Both the evidence of the apparent heroin sale and the
No. 08-41008

10

evidence of methamphetamine possession were relevant to show that Cockrell

had the requisite intent for the crime charged))to possess heroin with an intent

to distribute. Ignoring the testimony of both officers, Cockrell states that the

quantity possessed was an amount sufficient for personal use. Presumably he

wishes us to find that the only intent that could be inferred is an intent to use

the drug, not to distribute. But the evidence was clear: 1.4 grams of

methamphetamine was consistent with either personal use or distribution.

Thus, one could reasonably infer an intent to possess the drug with an intent to

distribute))the same intent that is charged in the current offense. Moreover,

it is acceptable to infer such intent even where the prior offense drug is different

from the drug charged in the current offense. See, e.g., Booker, 334 F.3d at 412

(admitting evidence of marijuana offense to show intent in crack cocaine

conspiracy); Broussard, 80 F.3d at 1040 (admitting evidence of marijuana offense

to show intent in cocaine conspiracy).

We also find that the probative value of this evidence was not

substantially outweighed by any unfair prejudice. The evidence regarding the

telephone drug transaction and the distributable quantity of methamphetamine

were contemporaneous with the heroin conspiracy with which Cockrell was

charged. Moreover, the district court gave proper limiting instructions

immediately following the testimony and again in the jury charge before

deliberations. Although the jury could infer Cockrell’s intent through the

testimony of a number of witnesses who purchased or received drugs from

Cockrell, the government needed corroborative evidence of that intent. Most of

the witnesses were indicted and unindicted co-conspirators, many of whom

received immunity or plea agreements, a fact that the defense used to repeatedly

attack credibility. Given Cockrell’s choice to defend in this manner, it was not

an abuse of discretion to admit testimony regarding the events at the Farmer’s

Branch police station for the purposes of showing intent and to support any
No. 08-41008

11

inference of intent that might be drawn from other testimony. See United States

v. Buchanan, 70 F.3d 818, 831 (5th Cir. 1996) (finding probity of extrinsic offense

evidence enhanced where defense attacked witness credibility); United States v.

Henthorn, 815 F.2d 304, 308 (5th Cir. 1987) (finding admission of past offense

evidence proper where defendant attacked credibility of government’s

witnesses). Finally, we note that even if this evidence were duplicative and

unnecessary, Cockrell would be entitled to no relief because he has made

absolutely no showing of prejudice. Coleman, 78 F.3d at 156.

III

For the foregoing reasons, we AFFIRM.