IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10781

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

VICTOR CHAPA,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:13-CR-19-2

Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

A jury convicted Victor Chapa of conspiracy to possess with intent to 

distribute 100 kilograms or more of marijuana and possession of a firearm in 

furtherance of a drug trafficking crime. He appeals those convictions, raising 

two arguments.

In his first argument, Chapa contends that the district court erred under 

Federal Rule of Evidence 403 in admitting photographs from his cell phone 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 16, 2015

Lyle W. Cayce

Clerk

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No. 14-10781

2

because the court failed to conduct an on-the-record examination of whether 

the probative value of the photographs was substantially outweighed by the 

risk of unfair prejudice. Chapa contends that such an evaluation was required 

by United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc). Beechum

is inapposite here because it concerned the admission of extrinsic evidence 

under Federal Rule of Evidence 404(b), whereas Chapa’s instant dispute 

concerns only Rule 403. See United States v. Maceo, 947 F.2d 1191, 1199 & n.4 

(5th Cir. 1991); Beechum, 582 F.2d at 910-11.

With regard to prejudice under Rule 403, Chapa asserts that the 

Government used the photos to confuse the jury into believing that the 

firearms depicted in the photos were the same as those found in a shed where 

he was present with drug trafficking paraphernalia. Even assuming Chapa 

has preserved his Rule 403 challenge to the exhibits, he has not shown a clear 

abuse of discretion by the district court. See United States v. El-Mezain, 

664 F.3d 467, 508 (5th Cir. 2011).

The disputed photos were relevant because they tended to support the 

probability that Chapa was in possession of the firearms in the shed and 

elsewhere, rather than, as he contended, simply an innocent bystander who 

was merely present among them. See FED. R. EVID. 401. “Evidence which 

tends to rebut a defendant’s claim of innocent action is unlikely to be unduly 

prejudicial.” El-Mezain, 664 F.3d at 509. Chapa has failed to show that the 

district court abused its discretion in admitting the challenged exhibits. In any 

event, any error in admitting the exhibits was harmless given the substantial 

amount of other evidence showing Chapa’s guilt on the firearm charge, 

including his presence in the shed with the firearms and marijuana trafficking 

materials and the testimony of three of his associates who recounted his 

culpability. See United States v. Clark, 577 F.3d 273, 287 (5th Cir. 2009).

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In his second argument, Chapa contends that the district court erred in 

denying his motion for a new trial without a hearing. Chapa moved for a new 

trial because a juror performed an Internet search, after the first day of the 

trial, on the punishment range applicable to Chapa’s charges. The jurors 

thereafter discussed the extrinsic information.

“[A] defendant is entitled to a new trial when extrinsic evidence is 

introduced into the jury room unless there is no reasonable possibility that the 

jury’s verdict was influenced by the material that improperly came before it.” 

United States v. Ruggiero, 56 F.3d 647, 652 (5th Cir. 1995) (internal quotation 

marks and citation omitted). In evaluating whether extrinsic material 

improperly influenced the jury, “a district court must examine the content of 

the material, the way in which it was brought to the jury’s attention, and the 

weight of the evidence against the defendant.” United States v. Davis, 393 F.3d 

540, 549 (5th Cir. 2004); accord Ruggiero, 56 F.3d at 652-53.

A district court’s determination that the jury was not improperly tainted 

by extrinsic material is reviewed for clear error. United States v. Bernard, 

299 F.3d 467, 476 (5th Cir. 2002). The district court’s denial of a motion for a 

new trial and its decision whether to hold an evidentiary hearing on the motion

are reviewed for an abuse of discretion. Bernard, 299 F.3d at 476; United 

States v. Cantu, 167 F.3d 198, 201 (5th Cir. 1999).

Chapa has not shown that the district court abused its discretion in 

denying his motion for a new trial or deciding that an evidentiary hearing 

would not advance the issue further. The extrinsic material concerned only 

Chapa’s possible punishment, and the evidence of his guilt on the charges was 

overwhelming.

AFFIRMED.

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