FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 March 29, 2006 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-12607

Non-Argument Calendar

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D. C. Docket No. 03-00022-CR-RWS-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

KAREN KING, 

a.k.a. Karen Jones, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(March 29, 2006)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

Karen King appeals her conviction for importing and trafficking in
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counterfeit goods on the grounds that aggravating factors listed in her indictment

were unconstitutional and the district court erred in admitting evidence of her

previous conviction, supervised release status, and financial difficulties. Because

King failed to move the district court to strike the aggravating factors and the

probative value of the evidence of her conviction, supervised release, and financial

problems outweighed its prejudicial nature, we affirm King’s conviction.

BACKGROUND

King was a self-employed exporter and importer of goods for sale in and

outside of the United States. King ordered a shipment of athletic shoes from China

that was seized by Customs & Border Protections in June 1999 for bearing

registered trademarks of Nike. On January 14, 2003, a grand jury indicted King

for importing and trafficking in counterfeit athletic shoes. 18 U.S.C. §§ 545,

2320(a).

On June 11, 2003, a superceding indictment was returned and on August 10,

2004, the grand jury returned a second superceding indictment. The second

superceding indictment included two aggravating factors based on non-statutory

sentencing factors. The first aggravating factor was that the retail value of the

counterfeit items exceeded $70,000 and the second factor was that King committed

the offense while under a criminal justice sentence of supervised release. In 1996,
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King had been convicted for uttering counterfeit money, and from February 1998

through March 2000, she had been under supervised release.

At no time before or during trial did King move to strike the aggravating

factors from the indictment. King instead stipulated to the facts regarding both

factors. The district court, with the parties’ consent, did not submit the aggravating

factors to the jury during trial or during jury deliberations. 

Before trial, King moved to exclude the introduction of her previous

conviction. The district court held that the previous conviction could be introduced

under Federal Rule of Civil Procedure 404(b) for the limited purpose of showing

King’s state of mind and absence of mistake. The district court gave limiting

instructions to the jury when this evidence was introduced and when the jury was

charged on the law. The government also noted the limited nature of the evidence

during closing arguments.

At the opening statements, King argued that she mistakenly believed the

shoes were genuine and did not intend to import counterfeit shoes. During trial,

the government called King’s probation officer as a witness. The probation officer

testified, among other things, that King was having financial difficulties. King was

convicted and ultimately sentenced to seven months of imprisonment followed by

three years of supervised release.
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STANDARD OF REVIEW

We review issues first raised on appeal for plain error. United States v.

Parrish, 427 F.3d 1345, 1347 (11th Cir. 2005). We review evidentiary rulings of

the district court for abuse of discretion. United States v. Ndiaye, 434 F.3d 1270,

1280 (11th Cir. 2006).

DISCUSSION

King raises three issues on appeal: (1) the district court failed to strike the

aggravating factors in the superseding indictment as “surplusage” in violation of

her Fifth and Sixth Amendment rights; (2) the introduction of evidence of her

previous conviction and supervised release status violated Federal Rule of

Evidence 404(b); and (3) the introduction of evidence of her financial difficulties

was unduly prejudicial. We address each argument in turn.

First, King argues that the district court plainly erred when it did not strike

the aggravating factors from the indictment. She argues that the aggravating

factors in the superseding indictment were surplusage because they are not

statutory crimes and that the use of these aggravating factors implicates her Fifth

Amendment right to indictment by a grand jury for infamous crimes and her Fifth

and Sixth Amendment rights to a fair and impartial trial. King’s argument fails. 

The Federal Rules of Criminal Procedure do not permit the district court to
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strike surplusage except on a motion by the defendant. Rule 7(d) states that

“[u]pon the defendant’s motion, the court may strike surplusage from the

indictment or information.” The Advisory Committee Notes to Rule 7(d) explain

that “[t]he authority of the court to strike such surplusage is to be limited to doing

so on defendant’s motion . . . .” Because King did not move the district court to

strike the factors as surplusage, she waived the right to complain on appeal that the

aggravating factors, the facts of which she later admitted, were included in the

indictment.

King’s related argument that the aggravating factors made the indictment so

defective as to deprive the district court of subject matter jurisdiction over the case

also fails. King’s argument is foreclosed by controlling authority. The Supreme

Court has held that “defects in an indictment do not deprive a court of its power to

adjudicate a case.” United States v. Cotton, 535 U.S. 625, 630-31, 122 S. Ct. 1781,

1785 (2002).

Second, King argues that the district court erred by admitting evidence of

her previous conviction and her supervised release status, but evidence of past

crimes or wrongs can be admitted at trial to establish the defendant’s state of mind,

intent, or lack of mistake. Fed. R. Evid. 404(b). Evidence of prior wrongs may be

admitted if it satisfies a three-part test: “(1) the evidence must be relevant to an
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issue other than defendant’s character; (2) the probative value must not be

substantially outweighed by its undue prejudice; (3) the government must offer

sufficient proof so that the jury could find that the defendant committed the act.” 

United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005) (citing United

States v. Hogan, 986 F.2d 1364, 1373 (11th Cir. 1993)). The first and third parts

are easily satisfied. The evidence of King’s previous conviction was admitted to

establish that King did not mistakenly believe the shoes were not counterfeit, and

King does not contest that she had been convicted.

The district court did not abuse its discretion when it concluded that the

probative value of the evidence was not substantially outweighed by its undue

prejudice. King placed her state of mind squarely at issue in her opening statement

when she argued that she received the counterfeit shoes as an accident or mistake. 

The prejudicial impact was minimal because the testimony regarding King’s

previous conviction was of short duration, and the judge gave proper limiting

instructions to the jury.

Finally, King erroneously argues that the district court erred when it

admitted evidence of her financial difficulties. Rule 404(b) permits evidence of

motive. “[E]vidence of financial difficulties is admissible in fraud prosecutions to

demonstrate knowledge, motive, intent, design, and absence of mistake.” United
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States v. Metallo, 908 F.2d 795, 798-99 (11th Cir. 1990).

CONCLUSION

King’s conviction is

AFFIRMED.