### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-50243

UNITED STATES OF AMERICA, Plaintiff - Appellee
v. MIGUEL ANTONIO CARRILLO, Defendant - Appellant

Appeal from the United States District Court for the Western District of Texas

Before GARZA and DENNIS, Circuit Judges. 1 DENNIS, Circuit Judge: The defendant-appellant, Miguel Carrillo, w a s c onvicted by a jury of possessing with intent to distribut e m ethamphetamine and sentenced to 172 months’ imprisonment. On appeal, he contends that his confession should have been suppressed because it was obtained in violation of his constitutional right not to be interrogated while in police custody without an attorney present, under Miranda v. Arizona , 384 U.S. 436 (1966). He also claims that the district court erred by giving the jury an instruction regarding what inferences could be drawn U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 18 , 20 11 Lyle W . Cayce Clerk

Judge Ga rw ood wa s a me mbe r of the pane l that hear d oral argum ents but due to his 1 dea th on July 14, 2011, did not partic ipat e in this dec isi on. T h i s cas e is being dec ide d by a quor um. 28 U .S .C. § 46(d). Case: 10-50243 Document: 00511636290 Page: 1 Date Filed: 10/18/2011No. 10-50243

from his flight from the police. He additionally argues that the prosecution’s use of certain evidence regarding his prior acts violated Rule 404(b) of the Federal Rules of Evidence. Lastly, he contends that the distri c t c o u rt should not have required him not to consume any alcohol as a condition of his supervised release. For the reasons assigned below, we affirm Carrillo’s conviction and sentence. BACKGROUND Carrillo was tried together with Lori R o dri guez, his girlfriend; each of them was charged with one count of possessing with intent to distribute five grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). The jury found Carrillo guilty and Rodriguez not guilty. At trial, Detective Robby Mobley of the Midland, Texas Police Department testified that he learned from Rodriguez’s sister that Carrillo and Rodriguez

were traveling by car to California together on September 6-7, 2009, to acquire methamphetamine and bring it back to Midland. Mobley contact e d Border Patrol agents at the Sierra Blanca checkpoint on September 7 and gave them a description of Rodriguez’s car, a blue Honda Accord. A B o r d e r Patrol agent testified that on September 7, a car matching Mobley’s description arrive d a t the checkpoint, with Rodriguez driving and Carrillo as the sole passenger. A drug-sniffing dog alerted to the car, and Border P atrol agents then searched the car and Rodriguez and Carrillo’s persons, b u t they found no illegal dr u g s . Af ter about an hour and a half, Rodriguez and Carrillo were allowed to leave the checkpoint. Detective Sean Sharp of the Midland Police Department testified that on September 7, he assisted Detective Mobley in looking for Rodriguez and Carrillo after they had left the checkpoint. He was stationed on an interstate highway west of Odessa, Texas. He was n o t i n uniform and was driving an unmarked sport-utility vehicle. When he saw a blue Honda Ac c o r d , h e followed it. He

c o u l d n o t identify the occupants of the Accord, but he was able to see “a ma l e

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driver and a female passenger.” After a couple of miles, the Accord took an exit

a n d s t o p p e d at a red light. The car then ran the light. Sharp continued t o follow, and “[t]he car just slowly continued to increase speed.” Sharp was “sure they figur e d [h e] was following them.” At one point, the car pulled into a gas station parking lot, then pulled back out onto the road without stopping. The car then stopped at another red light. According to Sharp, “at that light there was traffic in f

ront of us, so I stopped and got out and displayed my badge and approached the vehicle. Before I could get up to it, the driver took off through the -- through the light and through th e intersection northbound.” He explained, “there were still vehicles in front of the Honda Accord as it drove around them to go through the intersection.” Sharp continued to follow, and “[t]he driver was driving into oncoming traffic, basically just d o d gi ng cars as they were

a p p r o aching. I’m guessing upwards of 60 miles per hour.” Sharp stopped the pursuit because, he said, “I was afraid th at they were going to keep running from me and ending up getting in a wreck.” Rodriguez subsequently testified that Carrillo was driving the car at that time. According to Rodriguez, Carrillo said, “somebody is following us.” She said she believed the reason the y w e r e being followed was because Carrillo “was messing around with somebody and they wanted to kick his butt, messing with their wives, girlfriend.” S h e said she did not think the person following them was a police officer. Carrillo did not testify. At the t i m e o f these events, Carrillo was on parole, as a result of a previous conviction under state law. D e t e c t iv e Mobley testified that he contacted Carrillo’s parole officer and a warrant was issued for Carrillo’s arrest for a parole violation. On September 9, 2009, Carrillo was arrested. Mobley further testif

ie d th at o n S e p t e mb er 9 , with Ro dri gu ez’s permission, he and other police officers searched the residence where Rodriguez and Carrillo l iv e d. They found, inter alia, a “crystal substance” that tested positive f o r

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methamphetamine in a field tes t ; “what appeared to be meth manufacturing recipes”; a digital scale; and several unused small plastic bags. While Carrillo was in jail, on Septemb e r 1 0 , 2009, he had a lengthy interview with Detectives Mobley and Sharp, which Mobley recorded with a tape recorder. In that in t e rview, Carrillo admitted, inter alia, that when he and Rodriguez went through the Border Patrol ch eckpoint, he had three ounces of methamphetamine taped to his body which the agents failed to discover. He also admitted that he was supposed to deliver part of those three ounces to another man in Midland. Before trial, Carrillo moved to suppress the recording. At the suppression hearing, Mobley testified about the circumstances surrounding the int e rview. Mobley first went to talk to Carrillo in jail on September 9, the day of his arrest. How ever , Carrillo invoked his constitutional right not to be interrogated without

an attorney present, and Mobley then stopped talking to him and left. The next day, September 10, Mobley received a phone message from an officer at the jail, who said that Carrillo wanted to talk to him. Mobley returned to the jail, along with Sharp, and the two detectives talked with Carrillo. In that interview, there

was some discussion about Carrillo’s right to an attorney. Specifically, Mobley read Carrillo his rights, and then the conversation went as follows: Carrillo: I just man, I’m not gonna lie to you I wish I had a lawyer right here

knowing that you know it’s gonna I mean I’m gonna work with y’all I’m telling you I’m gonna tell you everything Mobley: Yah but I Carrillo: But you know I’m just see I don’t want to get fucked on this shit is

all I’m saying I mean I gotta work out for me too Mobley: I know I understand that Carrillo: I can tell you

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Mobley: But you call me out there a n d you didn’t want over this the other

day Carrillo: I told that m a n th a t I want him to come up here and I wanted to

talk with you Mobley: OK Carrillo: And I wanted to se e if w e could push this to where I could get my

lawyer cause I was supposed to go upstairs to go uh to see the judge and then I get u p there and they’re telling me that I’m not even supposed to be there[ ] 2 Mobley: (Gets on the phone) Mobley: Here is the deal if you want to talk to us Carrillo: I do but I just don’t want to fucked on this is all I’m telling you is all

I’m asking Mobley: Well. Carrillo: You know I I mean Mobley: I under, I understand but Carrillo: No cause I could tell Mobley: But we went through the same deal the other day I mean why would

you call me back up here if you’re saying Carrillo: C a u s e I t old that man that I wanted to see if you could work w i th

me and push this deal to where I can get a lawyer and just sit down and talk about it Mobley: Well I can’t do that until you’re arraigned Carrillo: So what happens if I talk to you right now I’m fixing to go to Odessa

or what?

It is uncle ar wh at happ ened in the incid ent to wh ich Carri llo ref err ed here

. The 2 partie s’ brie fs do not expla in it, and Carril lo doe s not argue that it involved a violat ion of his right s. 5 Case: 10-50243 Document: 00511636290 Page: 5 Date Filed: 10/18/2011No. 10-50243

Mobley: No Carrillo: So what does that mean I mean Mobley: If you talk t o m e right now you’re just you’re just you’re just

cooperating and and and you know helping yourself and nothing’s gonna change until you get into the federal system and then you’ll get an attorney Carrillo: So you know for sure I’m gonna get in the federal system? Mobley: Yah. Carrillo: Alright. Mobley: That’s, she’s[ ] already in federal custody 3 Carrillo: Buts that’s. Ya Mobley: But there’ll be a retainer filed on y o u o r a r emand filed on you to

where wheneve r you take care of your state stuff you’ll automatically go on to the same charge she’s facing Carrillo: Same charge as she’s facing? Mobley: Right now you’ve just been charged with the stuff that was found at

th e h ouse but like I said there’s a bigger thing coming involvin g a big conspiracy uh it it’ll be a lot better to be a witness on that than be another defendant in another case so Sharp: Separate charges Mobley: Ya Sharp: You got the possession within intent, which has to do with the house

right? And then conspiracy will be a w h o l e o th e r charge and the amount will be aggregated the total amount of the dope means the weight will go up does that make sense? Carrillo: Ya

Thep ers on ref

err ed to as “s he” in this p ort ion of the inte rvieww as Rodriguez. 3 6 Case: 10-50243 Document: 00511636290 Page: 6 Date Filed: 10/18/2011No. 10-50243

Mobley: And you know who it involves Carrillo: Ya. So what do you need to know? The remainder of th e conversation consisted of Carrillo giving the detectives information about various people who were involved in distributing methamphetamine, as well as admitting to his own possession and distribution of methamphetamine. At the suppression hearing, Mobley testified that he did not understand Carrillo to have bee n r e qu e sting an attorney or invoking his right not to be questioned without an attorney present. The district court is s u e d a written order denying Carrillo’s motion to suppress, on the grounds that Carrillo did not make an unambiguou s r e qu e s t for an attorney and that he knowingly and intelligently waived his right not to be questioned without an attorney present. Accordingly, at trial, the recording of the September 10 interview was played for the jury to hear. Also at trial, Rodriguez’s nephew, P.J. Lara, testified that he had smoked methamphetamine with Carrillo and Rodriguez on some occasions in July and August 2009. The defense objecte d t o this testimony under Rule 404(b) of the Federal Rules of Evidence. The district court overruled the objection, but gave

a limiting instruction, telling the jury they could not consider the testimony in deciding whether the defendants had committed the acts they were charged with, but that they could consider it in relation to the defendants’ mental state, such as their knowledge or intent. The prosecution also introduced, throu gh Mob l ey’ s testimony, the fact that Carrillo had been convicted in 2005, in a Texas court, of “the offense of delivery of a controlled substance, cocaine, 4 gra m s o r m o r e but less than 200 grams.” The defense objected to this evidence under Rule 404(b). The district court overruled the objection, but gave a limiting instruction, telling the jury that they

c o u l d not consider the prior conviction in deciding whether Carrillo h a d

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committed th e act he was charged with, but that they could consider it in relation to his mental state. After the close of all the evidence, the di s tri c t court gave instructions to th e j ury , including an instruction regarding what inferences could b e dr awn f ro m the testimony they had heard regarding Carrillo’s flight from Detective Sharp. (The instruction is quote d i n f ull below in footnote 4.) Carrillo’s counsel made

a general objection to that i n s t r uction. (“We object to the flight instruction on pages 12 and 13.”) The district court overruled the objection. The j u ry found Carrillo guilty and Rodriguez not guilty. Carrillo was

s e ntenced to 172 months of imprisonment, to be followed by eight years of supervised release. A s o n e of the conditions of supervised release, the district court required Carrillo not to consume any alcohol. Carrillo did not raise any objection to this condition. ANALYSIS Carrillo raises the following arguments on ap p e al : (1) that the police violated his constitutional right not to be interrogated without an attorney present, and therefore the district court should have granted his motion to suppress his confession; (2) that if he waived the afor e m e n tioned right, the

w a iv e r was invalid because the police deceived him, and thus the motion t o suppress s h o u l d h ave been granted; (3) that the district court should not have given a jury instruction regarding his flight; ( 4) th at Lara’s testimony about

s m oking methamphetamine with Carrillo and Rodriguez in July and Augus t 2009 was inadmissible under Rule 404(b) of the Federal Rules of Evidence; (5) that evidence of Carrillo’s prior conviction for delivery of cocaine was inadmissible under Rule 404(b); and (6) that the di s trict court abused its discretion by completely prohibiting him from consuming alcohol as a condition of his supervised release.

8 Case: 10-50243 Document: 00511636290 Page: 8 Date Filed: 10/18/2011No. 10-50243 I. Carrillo first argues that the district court should have granted his motion to suppress his confession, because durin g th e interview on September 10, he told Detectives Mobley and Sharp that he wanted to exercise his constitutional right to have counsel present. Carrillo’s argument relies on three comments he made during that interview: “I wish I had a lawyer right here”; “I wanted to see if we could push this to where I could get my lawyer”; and “I wanted to see if you could work with me and push this deal to where I can get a lawyer and just sit down and talk about it.” These comments, when viewed in isolation, do appear to constitute a clear invocation of Carrillo’s right to have cou n sel present. However, considering the entire context in which Carrillo made the comments,

a reasonable police officer would not have understood him to be saying that he wanted to stop talking with th e p o lice without an attorney present. We therefore conclude that the district court did not err by denying Carrillo’s motion to suppress. “In reviewing a district court’s denial of a defendant’s motion to suppress, this court reviews factual findings, including credibility det er min ation s , f or cl e ar error, while we review legal conclusions de novo.” United States v. Montes , 602 F.3d 381, 385 (5th Cir. ) , cert. denied , 131 S. Ct. 17 (2010). “[A] district court’s determination regarding the validity of a defendant’s wa iver of his Miranda rights is a question of law reviewed de novo.” Unite d S t a t e s v . Cardenas , 410 F.3d 287, 292 (5th Cir. 2005) (quoting United States v. Solis , 299 F.3d 420, 439 (5th Cir. 2002)). In this case, there are no disputed facts relevant to the motion to suppress. Therefore, we apply a de novo standard of review to the district court’s legal conclusion that Carrillo validly waived his right not to be questioned without an attorney present. “[A]n accused has a Fifth and Fourteenth Amendment right to have counsel present during custodial interrogation.” Edwards v. Arizona , 451 U.S.

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477, 482 (1981) (citing Miranda v. Arizona , 384 U.S. 436 (1966)). “[A]n accused, . . . having expressed his desire to deal with the police only through counsel, is

n o t s ubject to further interrogation by the authorities until counsel has be e n made available to him, unless th e a c c u s ed himself initiates further communication, exchanges, or conversations with th e police.” Id. at 484-85. However, when a suspect invokes his right to counsel, the police do not have to immediately provide counsel; they only have to stop questioning the suspect without counsel. In Duckworth v. Eagan , 492 U.S. 195 (1 9 89), the Supreme Court explained, “Miranda does not require that attorneys be producible on call, but only that the suspect be info r m e d

. . . th a t he has the right to an attorney before and during questioning

. . . . If the police cannot provide appointed counsel, Miranda requires only that the police not question a suspect unless he waives his right to counsel.” Id. at 204. For this reason, the Duckworth Court held that police did not mislead a suspect about his Miranda rights by informing him in writing that “[w]e have no way of givi n g y o u a lawyer, but one will be appointed for you, if you wish, if and when you go to court.” Id. at 198. Further, a suspect’s ambiguous reference to counsel is not enough to trigger the requirement that p o l ice must immediately stop questioning the

su s p e c t

. “[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable office r i n light of the circumstances would have understood only that the suspect might be invoking th e right to counsel, [the Supreme Court’s] precedents do not require the cessation of questioning.” Davis

v . United States , 512 U.S. 452, 459 (1994). Rather, a suspect “must a rt i c u l a t e his desire to have counsel presen t sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for

an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect.” Id.

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Carrillo argues that when he said “I wish I had a lawyer right here,” his words were similar to language used by the Supreme Court in Miranda itself

— “if an individual indicates that he wishes the assistanc e o f counsel before any interrogation occurs, th e authorities cannot rationally ignore or deny his request

on the basis that the individua l d o e s n o t have or cannot afford a retained attorney,” 384 U.S. at 4 7 2 ( e m p hasis added) — and that his words should therefore have been enough to invoke his right not to be questioned without an attorney present. He also argues that his words resemb l e d th o se found in Alvarez v. Gomez , 185 F.3d 995 (9th Cir. 1999), which held that the police should have ceased interrogating a suspect after he “asked three questions: ( 1 ) ‘Can I get an attorney right now, man?’ (2) ‘You can have attorney right now?’ and (3) ‘Well, like righ t n ow you got one?’” Id. at 998. Likewise, he relies on Kyger v. Carlton , 146 F.3d 374 (6th Cir. 1998) , w hi ch held that the police should have stopped questioning a suspect when he said he would “ j u s t as soon have an attorney.” Id. at 379. Notwith s t an din g th e apparent similarities between what Carrillo s ai d an d the language found in Miranda , Alvarez , and Kyger , the particular facts of the present case lead us to conclude that Carrillo was not attempting to invoke his

ri gh t n o t to be questioned by the police without an attorney present. Carrillo

w a s arr e sted on September 9, 2009, and Detective Mobley spoke to him in j a i l that day. It is undisp u t e d th a t during that conversation on September 9, Carrillo invoked his right not to be questioned without an attorney present, and Mobley ended the interview. The next day, S e p t e mber 10, Carrillo initiated further communication, and Detectives Mobley and Sharp came back to the jail to question him. Thus, on September 10, Carrillo cl e arly knew that he could bring the interview to an end by saying he did not want to talk to the detectives further without an attorney present, since that was exactly what had happened the day before.

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After Mobley read him his rights, Carrillo said, “I just man, I’m not gonna lie to you I wish I had a lawyer right h ere knowing that you know it’s gonna I mean I’m gonna work with y’all I’m telling you I’m gonna tell you everything.” Under the circumstances, this comment was ambiguous at b e s t

. I t certainly expressed Carrillo’s preference to have an attorney present; however, the fact that Carrillo kept talking and said “I’m going to tell you everything” tended to i n dicate that he also desired to keep the interview going and not to e n d i t b y invoking his right not to be questioned without an attorney present. Moreover, Carrillo re-initiated communication with Mobley after the previous day’s interview had ended with Carrillo’s invocation of his right to have an attorney present during questioning. Thus, the circumstances tended to show that Carrillo wanted to continue talking to the detectives, or at least that he was still making up his mind about whether to keep talking, and that he knew he could end the interview at any time if he chose to do so. Carrillo and the detectives then continued to discuss Carrillo’s right to counsel. Carrillo said, “I wanted to see if we could push this to where I could get my lawyer,” and then reiterated that “I wanted to see if you could work with me and push this deal to where I can get a lawyer.” In response to these comments, Mobley explained, “I can’t do that until you’re arraigned.” Carrillo then asked, “So what happens if I talk to you right now?” Mobley answered: “If you talk to

me right now you’re just you’ r e j u st you’re just cooperating and and and you know helping yourself and nothing’s gonna change until you get into the federal system and then you’ll get an attorney.” These explanations by Mobley resemble the statement in Duckworth that “[w]e have no way of giving you a lawyer, but

one will be appointed for you, if you wish, if and when you go to court.” 492 U.S. at 198. Carrill o ’s comments and questions indicate to us that he was still deciding what he should do, not that he was invoking his right not to be questioned without an attorney present. Only when Carrillo, apparently having

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made up his mind, said “So what do you need to know?” did the detectives begin interrogating him about his criminal activities. Under Davis , a police officer must cease questioning a sus p e ct if the suspect “articulate[s] his desire to have counsel present sufficiently clearly that

a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” 512 U.S. at 459. If “a reasonable officer in light of the c i r c umstances would have understood only that the suspect might be invoking the right to counsel,” the officer does not have to stop questioning the suspect. Id. In the circumstances presented by this case, we do not believe that

a reasonable police officer in Mob l ey an d S h arp’s position would have understood Carrillo to be invoking his “Fifth and Fourteenth Ame n d ment right to have counsel present during custodial interrogation” under Edwards , 451 U.S. at 482. Rather, the transcript of the interview indicates to us that Carrillo — who had

v o l u nt arily reached out to the detectives and was clearly aware that he co u l d bring the interview to an end by exercising his right to have counsel present

—
was weighing the pros and cons of talking to the detectives without the presence of an attorney, and that he eventually decided to do so. Only after Carrillo had evide ntly de ci ded to cooperate did the detectives begin questioning him about his criminal activities. Accordingly, we conclude that in the S e p t ember 10 interview, Carrillo did not clearly invoke his right not to be questioned without an attorney present, and therefore the district court did not err by denying his motion to suppress his confession. II. Carrillo argues in the alternative that the detectives unlawfully deceived him into waiving his right to have counsel present during questioning. A waiver of Mirandarights “‘must be voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception,’ and ‘made with a full awareness of both the nature of the right being abandoned and

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the consequences of the decision to abandon it.’” Berghuis v. Thompkins , 130 S. Ct. 2250, 2260 (2010) ( qu o t ing Moran v. Burbine , 475 U.S. 412, 421 (1986)). However, we are not persuaded that Carri ll o’s waiver of his right was the product of deception, because Carrill o has not identified any statement by the detectives that was actually false or deceptive. Mobley told Carril l o that he would not get an attorney until he was arraigned in federal court, and that he would not be arraigned in federal court

u ntil after his state parole revocation hearing. Mobley’s exact words were, “ I can’t do that until you’re arraigned

. . . nothing’s gonna change until you get into the federal system and then you’ll get an attorney.” Carrillo aske d , “ S o you k n o w f o r sure I’m gonna get in the federal system?” Mobley answered affirmatively (“Yah”), and explained, “There’ll be a retaine r f i l ed on you or a remand filed on you to where whenever you take care of your sta t e s t uff you’ll automatically go on to the same charge she’s facing” — meaning the same charge that Rodriguez was facing in feder a l c o u rt, namely, possession with intent to distribute methamphetamine. Carrillo concedes that he was not entitled to have an attorney appointed for him prior to hi s a rr aignment. Nonetheless, he suggests that Mobley’s comments were deceptive because he was “entitled to an attorney for his state charges as well.” Appellant’s Reply Br. 7-8. But the record indi c ates that Carrillo was not actually charged with any new crimes under state law; he was only charged with a parole violation. Under Gagnon v. Scarpelli , 411 U.S. 778 (1973), parol e e s are not auto m atic ally entitled to appointed counsel at revocation hearings. “ I n G a

gnon
. . . , the Supreme Court held that a parolee is not absolutely entitled to appointed counsel at a revoc a t i o n hearing, and ‘that the decision as to the need for counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole sy s t e m .’” Ex parte Taylor , 957

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S.W.2d 43, 47 (Tex. Crim. App. 1997) (quoting Gagn on , 411 U.S. at 790). “Although the presence and participation of counsel will prob ably be both undesirable and constitutionally unnecessary in most revo c atio n h e arings, there will remain certain cases in which fundamental fairness — the touchstone of due
process — will require that the State provide at its expense counsel for indigent probationers or parolees.” Meza v. Livingston , 607 F.3d 392, 404 n.13 (5th Cir. 2010) (quoting Gagnon , 411 U.S. at 790). Carrillo has not indicated that he was facing any state charges for which h e was entitled to the appointment of counsel. Nor has he attempt e d t o s h o w that his state parole revocation hearing involve d any circumstances that required an attorney to be appointed for him, under either Texas law or federal law

. Therefore, when Mobley told Carrillo that an attorney would not be appointed for him until he was arraigned in federal c o u rt , he was providing accurate information, not engaging in deception. We conclude that the police did not deceiv e C arrillo into waiving his constitutional right not to be questioned without an attorney present. III. Next, Carrillo argues that the district court should not have instructed the jury that they could cons i d e r e vidence of flight in determining his guilt or innocence. “D i strict courts enjoy substantial latitude in formulating a jury

4

Thef light ins tru cti on, inf

ull, w as as fol low s: 4 Yo u have hear d tes tim ony in this tri al that the def enda nt Migue l Antoni o Car r i l lo fle d fr om law enf orc em ent off

icer s. Intent ional fli ght im me diat ely aft er a cri me has been com mi tte d, and/or wh ile a cri me is ongoing, is not, of cour se , suf

fic ient i n its elf to es tabl ish his guilt but is a fac t wh ich, if pr oved , m a y b e c o nsi der ed by you, in light of all the evide nce in this cas e, in det erm ining guilt or innoc ence . Wh ethe r the def enda nt’ s conductinthisc ase cons tit uted fli ght is exclus ively for you to det erm ine. If you do so d e t e r m i n e , wh ethe r or not that fli ght sho we d a c o nsc ious nes s of guilt on the def enda nt’ s part and the signi fic ance to be a t t a c h e d to that evide nce are als o mat ter s exclus ively wi thin your pr ovince

. In your cons ide ration of any evide nce of fli ght, if you sho uld f i n d t hat 15 Case: 10-50243 Document: 00511636290 Page: 15 Date Filed: 10/18/2011No. 10-50243

charge, and h e n c e w e review all challenges to, and refusals to give, jury instructions for ab u s e o f discretion.” United States v. Webster , 162 F.3d 308, 321-22 (5th Cir. 1998). “We consider whether the instruction, taken as a whole, ‘is a correct statement of the law and whether it clearly instructs jurors as to the
p ri nciples of law applicable to the factual issues confronting them.’” Un i t e d States v. Freeman , 434 F.3d 369, 37 7 ( 5 th Cir. 2005) (quoting United States v. Daniels , 281 F.3d 168, 183 (5th Cir. 200 2)). “A flight instruction is proper when the evidence supports four inferences: 1) the defendant’s conduct constituted flight; 2) the defendant’s flight was the result of consciousness of guilt; 3) the defendant’s guilt related to the crime with which he was charged; and, 4) the defendant felt guilty about the crime charged because he, in fact, committed the crime.” United States v. Martinez , 190 F.3d 673, 678 (5th Cir. 1999) (citing United States v. Murphy , 996 F.2d 9 4 , 9 7 (5th Cir. 1993) )

. In this case, Detective Sharp testified that he approached the car Carrillo was driving and displayed his police badge, and that Carrillo then “took off,” ran a red light, and drove dangerously into o n c o m i n g traffic before Sharp abandoned the pursuit. Moreover, the evidence, including Carrillo’s confession, indicated that when this sequence of events occurred, Carrillo p o s s e s s e d and intended to distribute methamphetamine — the crime with wh i c h h e was charged. From these facts, the jury could have rationally drawn each of the four

ther e wa s any, you sho uld als o cons ide r that ther e may be reas ons for this that are full y cons ist ent wi th innoc ence . There may be many reas on s for a per so n to be relu cta nt to be int e rview ed by police off icer s that are perfec tly innoc ent r e a s o n s and that in no way sho w cons ciou sne ss of guilt on the part o f th a t per so n. Also , a f

e e l i n g o f guilt doe s not nece ss aril y ref lect act ual guilt of the allege d cri me s unde r your cons ide rat ion. Yo u sho uld alw ays bear in mi nd that the lawnever imp os eson a def enda nt in a crim inal cas e the burd en or dut y of call ing any w itne ss esorp rod ucing any e viden ce. This ins tru cti on wa s simi lar to one that we quot ed app rovingly in Uni ted States v. Wil li am s , 775 F.2d 1295, 1299- 1300 (5t h Cir. 1985)

. Carrillo doe s not argue that ther e wa s any pr oblem wi th the ins tru cti on’s s pec ifi c wo rding. 16 Case: 10-50243 Document: 00511636290 Page: 16 Date Filed: 10/18/2011No. 10-50243

inferences that are prerequisites for a flight instruction under Martinez and Murphy

. Therefore, the district court did not abuse its discretion by giving the flight instruction. IV. Carrillo contends that the distri c t c o u rt erred by allowing P.J. Lara (Rodriguez’s nephew) to testify about having smoked methamphetam i ne with Carrillo and Rodriguez in July and August 2009. He argues that the government failed to comply with Rule 404(b) of the Federal Rules of Evidence. Under Rule 404(b), “evidence of other crimes, wrongs, or acts” may be admissible for certain purposes, but the rule requires “that on request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial,

or during trial if th e court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to i n t r o du c e a t trial.” Carrillo argues tha t th e government did not provide any such notice and that the testimo ny w a s therefore inadmissible. See Fed. R. Evid. 404(b) advisory committee note (1991 Amendments) (“Because the notice requirement serves as condition precedent to adm i s s ibility of 404(b) evidence, the offered evidence is inadmissible if the court decides that the notice requirement has not been met.”). “We review the admission of evidence under Federal Rule o f Evidence 4 04(b) under a ‘heightened’ abuse of discretion standard.” United S t a t e s v . Templeton , 624 F.3d 215, 221 (5th Cir. 2010) (quoting United States v. McCall , 5 5 3 F.3d 821, 827 (5th Cir. 2008)), cert. denied , 131 S. Ct. 1530 (20 1 1 )

. “Evidence in criminal trials must be strictly relevant to the particular o ffense charged.” Id. (quoting United States v. Jackson , 339 F.3d 349, 354 (5th Cir. 2003)) (internal quotation marks omitted). “However, w e d o not reverse for

erroneous admission s u n d e r Rule 404(b) if the error was harmless.” Id. “An

error is harmless when it does not affect the substantial rights of a party. The

17 Case: 10-50243 Document: 00511636290 Page: 17 Date Filed: 10/18/2011No. 10-50243

government has the burden of establishing h armlessness beyond a reas onable doubt.” United States v. McCall , 553 F.3d 821, 827 (5th Cir. 200 8). The government first argues that i t c o m plied with Rule 404(b)’s notice requirement. It cites a document in the record called “Second Notice to Defendants of Government’s Intention to Introduce Other Acts of Defendants at Trial.” However, that document only gives notice of the government’s intent to introduce evidence of Carrillo’s “repeated distribution of methamphetamine

. .

. over a period of 12 to 18 months up until the time of [Carrillo’s and Rodriguez’s] arrest.” The document does not give any notice about evidence of prior incidents of Carrillo’s personal use of methamphetamine, as opposed to distribution

. Therefore, the record establishes that the government did not comply with Rule 404(b)’s notice requirement. 5 Next, the government argues that the testimony at issue was not governed by Rule 404(b) at all, because it is properly classified as “intrinsic” rather than “extrinsic” evidence. However, under our precedents, the testimony was clearly extrinsic evidence. We have explained the distincti o n b etween intrinsic and extrinsic evidence as follows: To determine whether “other acts” evi dence was erroneously admitted, we must first decide whether the evidence was intrinsic or extrinsic. “‘Other act’ evidence is ‘intrinsic’ when the evidence of the other act and the evidence of the crime charged are ‘inextricably intertwined’ or both acts are part of a ‘single criminal episode’ or the other acts were ‘necessary preliminaries’ to the crime charged.” United States v. Wil l iams , 900 F.2d 823, 825 (5th Cir. 1990). Intrinsic evidence is admissible to “complete the story of the crime b y p r oving the immediate context of events in time and place, ” United St a t e s v. Coleman , 78 F.3d 154, 156 (5th Cir. 1996), and to “evaluate all of the circu m s t anc e s un der which the defendant acted,” United States v. Randall , 887 F.2d 1262, 1268 (5th Cir.19 89). Intrinsic evidence does not implicate rule 404(b), and “consideration

The governm ent doe s not clai m that the di s t r i ct cour t “exc use [d] pr etrial noti ce on 5 goodc aus e s how n,” as p erm itt ed by t he rule

. Fed

. R. Evid. 404 (b)

. 18 Case: 10-50243 Document: 00511636290 Page: 18 Date Filed: 10/18/2011No. 10-50243

of its admissibility pursuant to [that rule] is unnecessary.” United States v. Garcia , 27 F.3d 1009, 1014 (5th Cir. 19 94). United States v. Rice , 607 F.3d 133, 141 (5th Cir.) (alteration in original), cert. denied , 131 S. Ct. 356 (2010). The evidence at issue here — Lara’s testimony describing personal use of methamphetamine by Carrillo, Lara, and Rodriguez in July and August 2009

—
was not “inextricably intertwined” with the evidence of Carrillo’s charged crime

— possession with intent to distribute methamphetamine in September 2009. Neither was it “part of a single criminal episode” with the crime charged; nor

was it relevant to “the immediate context of events in time and place” or to “the circumstances under which the defendant acted.” Compare Rice , 607 F.3d at 141 (evidence of various other offenses committed on the same night as the charged offense was intrinsic because it “helped the government to paint the picture of

a group committed to robbing someone that night and to explain how and why they decided to victimize [the victim]”), Coleman , 78 F.3d at 156-57 (evidence of previous car-jacking attempt on same night was intrinsic because it helped the government prove facts about the defendant’s participation in the carjacking for which the defendant was charged, which allegedly occurred several hours later), and Garcia , 27 F.3d at 1014 (small amount of marijuana, which was found in the defendant’s home within a few weeks after alleged conspiracy to di s t rib ute marijuana from that same home had already occurred, was intrinsic because “[a] jury could reasonably infer that the marihu an a in [the defendant’s] bedroom was p art of larger loads of marihuana brought to his house for distribution”), wit h Williams , 900 F.2d at 825 ( m a i l i n g s sent at different times were extrinsic evidence because they “were distinct and distinguishable events none of which constituted a necessary preliminary for another”). Therefore, Lara’s testimony about smoking methamphetamine with Carrillo and Rodriguez in July and August 2009 was clearly extrinsic rather than intrinsic evidence.

19 Case: 10-50243 Document: 00511636290 Page: 19 Date Filed: 10/18/2011No. 10-50243

B e c ause this evidence was extrinsic, Rule 404(b) applied. Even if th e testimony otherwise satisfied Rule 404(b)’s requirements for admissibility, the government was still required to comply with the notice requirement. Given the govern m e n t’s failure to meet that requirement, we conclude that the district court abused its discretion by a l lowing Lara to testify about smoking methamphetamine with Carrillo and Rodriguez in July and August 2009. How e v e r, this issue is subject to harmless error analysis. There was strong evidence of Carrillo’s guilt — including his detailed confession, which was recorded and played for the ju ry . Moreover, the district court gave a limiting instruction, which stated , i n t e r a lia, “You must not consider this evidence in deciding if either Mr. Carrillo or Ms. Rodriguez committed the acts set forth in the indictment.” We think it is extremely unlikely that Lara’s testimony about smoking m e thamphetamine with Carrillo and Rodriguez in July and August 2 0 0 9 h a d any effect on the jury’s decision to find Carrillo guilty of possessing methamphetamine with the intent to distribute it in September 2009. We therefore conclude that the government has shown that the error was harmless beyond a reasonable doubt. V. Carrillo also argues that the district court erred by adm i t t i n g evidence establishing that he had previously been convicted of “the offense of delivery of

a controlled substance, cocaine, 4 grams or more but less than 200 grams” by a Texas court in 2005. This was clearly “evidence of other crimes, wrongs, or acts” governed by Rule 404(b). Carrillo does not claim that the government failed to provi de notice that it would introduce the prior conviction, but he does argue that the prior conviction was inadmissible because it was introduced only for the illegitimate purpose of showing his bad character and propensity toward dealing in illegal drugs. Rule 404(b) states, in relevant part: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person i n o r d e r to

20 Case: 10-50243 Document: 00511636290 Page: 20 Date Filed: 10/18/2011No. 10-50243

show action in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, oppo rt u ni ty , intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .” As noted above, we review this issue under a “heightened” ab use of discretion standard, subject to harmless error analysis. Templeton , 624 F.3d at 2 2 1

. “ E vidence of prior offenses is admissible if ‘it is (1) relevant to an issu e other than the defendant’s character, and (2) the incremental probative value of the evidence is not substantial ly outweighed by the danger of unfair prejudice to the defendant.’” United States v. Pompa , 434 F.3d 800, 805 (5th C i r . 2 0 0 5 ) (quoting United States v. Thomas , 348 F.3d 78, 86 (5th Cir. 2003)). By pleading not guilty to possession with i n t ent to distribute methamphetamine, Carrillo put his intent and knowledge at issue. See United States v. Olguin , 643 F.3d 384, 390 (5th Cir. 2011) (“A defendant’s not-guilty plea intuitively puts his intent and knowledge into issue.”), cert. denied by Ledesema

v . U

. S

. , 2011 WL 3921408 (Oct. 11, 2011) and by Olguin v. U.S. , 2011 WL 4051403 (Oct. 11, 2011); McCall , 553 F.3d at 828 (“By pleading not guilty to the charges and requiring the government to prove the elements of its case, McCall made evidence of his general intent relevant.”). The government asserts that 6
th e p rior conviction was admissible under Rule 404(b) to show Carrill o ’ s knowledge and intent. However, Carrillo’s conviction for delivery of cocaine in 2005 arguably had no legitimate relevance to either his knowledge of

In Mc Cal l , we als o fou nd it signi fic ant that “M cC a l l had not off ere d ‘enf

orc eable 6 pr e-t rial ass uranc es that h e inte nd[ ed] not to dis put e cri mi nal inte nt. ’” 553 F.3d at 828 (al ter atio n in origi nal) (quo ting Uni ted States v. Webb , 625 F.2d 709, 710 (5t h Cir. 1980) ). And in Uni ted States v. Beec hum , 582 F.3d 898 (5t h Cir. 1978) (en banc) , we obs erved that “[i]f the def enda nt’ s inte nt is not co n t e s ted , then the incr em ental pr obat ive value of the extrins ic off ens e is inco nse quent ial wh en com par ed to its pr ejudi ce; ther efo re, in this cir cum st ance the evide nce is unif

orm ly exclud ed. ” Id. at914

. In this cas e, Carri llo doe s not ass ert on app eal that he off

ere d any ki nd of “enf

orc eable pr e-t rial ass uranc es” or any st ipul atio n or conc es sio n regar ding his inte nt; ther efo re, his inte nt and kn ow led ge we re elem ents that the governm ent had to pr ove at tri al. 21 Case: 10-50243 Document: 00511636290 Page: 21 Date Filed: 10/18/2011No. 10-50243

methamphetamine or his intent to di stribute methamphetamine in 2009. Carrillo’s prior conviction did little, if anything, to establish a relevant fact other than Carrill o’s bad character or propensity toward selling illegal drugs. 7 Furthe r , i t i s doubtful whether the prior conviction’s incremental probative value, if any, was outweighed by the danger of unfair prejudice to Carrillo. See Pompa , 434 F.3d at 805. Without deciding whether the district court abused its discretion by admitting the prior offense, we c o n c l u de that the error, if any, was harmless. The district court gave a limiting instruction regarding the prior offense, telling the jury, inter alia, that “[y]ou must not consider the evidence of this conviction in deciding if Mr. Carrillo co m m i t t ed the act charged in the indictment.” As noted, there was strong evidence of Carrillo’s guilt, including his confession. Therefore, we believe that the government has met its burden to show that if the admission of the prior conviction was error, it was harmless beyond a reasonable doubt. VI. Finally, Carrillo argues that the district court should not have completely prohibited him from consuming alcohol as a condition of his supervised release. Carrillo did not object to the imposition of this condition below, so we review this issue only for plain error. Under that standard of review, “[t]here must be ‘error’

The Sup rem e Court has expla in e d the reas ons wh y pr ope nsi ty evide nce is 7 inad mi ss ible unde r Rule 404(b) as fol low s: The st ate may not sho w def enda nt’ s prior tro uble wi th the law , sp ecif ic cri mi nal act s, or ill nam e amo ng his neighbo rs , even thou gh suc h fac ts mi ght logic ally be per sua sive t h a t h e is by pr ope nsi ty a pr obable per pet rat or of the cri me . The inquiry is not rejec ted beca use char act er is irr elevant ; on the cont rary, it is sai d to we igh too muc h wi th the jury and to so overp ers uade them as to pr ejudge one wi th a bad gener al rec ordand deny hima fair opp ort unity todefe nd agains t a partic ular char ge. Ol d Chief v. Uni ted States , 519 U. S. 172, 181 (199 7) (quo ting Mi che ls on v. Uni ted States , 335 U. S. 469 , 475- 76 ( 1948) ). 22 Case: 10-50243 Document: 00511636290 Page: 22 Date Filed: 10/18/2011No. 10-50243

that is ‘plain’ and that affects ‘ s ub s t a n t i al rights,’ and even then we have discretion not to correct the error u n l e s s it ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’” United States v. Phipps , 319 F.3d 177, 189 (5th Cir. 2003) (quoting United States v. Olano , 507 U.S. 725, 732 (1993)). “A district court has wide discretion in imposing terms and conditions of supervised release. However, this discretion is limited by 18 U.S.C. § 3583(d), which provides that a court may impose special conditions of supervised release only when the conditions meet certain criteria.” United States v. Paul , 274 F.3d 155, 164 (5th Cir. 2001). “[S ] p e c i a l conditions of supervised release must be reasonably related to the factors set forth in [18 U.S.C.] § 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D).” Id. at 164-65 (citing 18 U.S.C. § 3 5 8 3 ( d)). “These factors include: (1) ‘the nature and circumstances of the offense and the history and characteristics of the defendant,’ (2) the need ‘to afford adequate deterrence to criminal conduct,’ (3) the need ‘to protect the public from further crimes of the defendant,’ and (4) th e need ‘to provide the defendant with needed [training], medical care, or other correctional treatment in the most effective manner.’” Id. at 165 (alteration in original) (quoting 18 U.S.C. § 3553(a)(1)-(2)). “In addition,

s up ervi s e d release conditions cannot involve a greater deprivatio n of lib erty th an is reasonably necessary to achieve the latter three statutory goals.” Id. (citing 18 U.S.C. § 3583(d)). Carrillo argues that the district court should not have imposed the alcohol prohibiti o n condition because it is a greater deprivation of liberty than is reasonably necessary to achieve the statutory goals as stated above. The Eighth Circuit has held that a distri c t c o u rt abused its discretion by imposing a complete ban on consuming alcohol as a condition of supervised release, where the defendant had been convicted of conspiring to distribute crack cocaine and

23 Case: 10-50243 Document: 00511636290 Page: 23 Date Filed: 10/18/2011No. 10-50243

had no history of alcohol abuse. United States v. Bass , 121 F.3d 1218, 1223-25 (8th Cir. 1997). However, the government argues that the a l c o h ol prohibition condition in the present case was a valid exercise of the district court’s discretion because the presentence report shows, inter alia, that (1) Carrillo regularly used methamphetamine from 2003 until his arrest in 2009; (2) Carrillo was convicted in 1998 of consuming alcohol while he was a minor; and (3) in 2005, Carrillo was stopped by a police officer who observed him driving a vehicle recklessly, and the officer further observed two open containers of beer in the cup holders between the vehicle’s front seats. We n eed not decide whether, on these facts, the district court abused its discretion by prohibiting Carrillo from consuming alcohol as a condition of supervised release. We conclude only that if the district court made an error, it

was not clear or obvious enough to amount to plain error. See Puckett v. United States , 129 S. Ct. 1423, 1429 (2009) (“[T]he legal error must be clear or obvious, rather than subject to reasonable dispute.”). Therefore, the supervised release condition survives plain error review. For the foregoing reasons, we AFFIRM Carrillo’s conviction and sentence.

24 Case: 10-50243 Document: 00511636290 Page: 24 Date Filed: 10/18/2011