*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

FOR THE FIFTH CIRCUIT

No. 97-30270

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM ALLEN FITZGERALD,

Defendant-Appellant.

Appeal from the United States District Court

For the Western District of Louisiana

(96-CR-50051)

November 7, 1997

Before POLITZ, Chief Judge, JONES and DeMOSS, Circuit Judges.

PER CURIAM:*

William Allen Fitzgerald appeals his conviction and sentence for possession

with the intent to distribute methamphetamine and for aiding and abetting the
1

 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2.

2

possession with intent to distribute methamphetamine.1 He contends that the

district court erred by: admitting evidence of his subsequent drug offense; denying

his motion for judgment of acquittal or new trial; giving an erroneous jury

instruction on aiding and abetting; and preventing his counsel from using a

summary chart during closing argument. For the reasons assigned, we affirm.

Background

A tractor-trailer rig occupied by Fitzgerald and codefendant, Joe David

Reynolds, was subjected to a routine stop at the Louisiana-Texas border. The

officers discovered that Reynolds, who then was operating the rig, was not the duty

driver and had a suspended driver’s license. Fitzgerald was asleep in the berth of

the truck. Reynolds and Fitzgerald agreed to a search which revealed marihuana

inReynolds’ shaving kit behind the driver’s seat, marihuana and methamphetamine

in a small film canister in the truck console, and several ounces of

methamphetamine packaged in individually wrapped plastic bags in a black nylon

zippered camera bag on the passenger-side floorboard near the dash.

Fitzgerald and Reynolds were indicted for possession with intent to distribute

methamphetamine. A jury found Fitzgerald guilty and he was sentenced to 120

months imprisonment to be followed by a supervised release term of four years.
2

“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.” Fed.R.Evid. 404(b).

3 United States v. Broussard, 80 F.3d 1025 (5th Cir.), cert. denied, 117 S.Ct. 264

(1996).

3

He timely appealed.

Analysis

Fitzgerald contends that extrinsic crimes evidence admitted was relevant only

to prove his character and thus was inadmissible under Fed.R.Evid. 404(b).2 Four

months after his arrest for the instant offense, Fitzgerald was arrested in Oklahoma

for possession with intent to distribute marihuana and subsequently pleaded guilty

to same. The district court admitted evidence of that offense, concluding that the

similarities between the instant offense and the extrinsic offense were significant

and that the evidence wasrelevant to show intent and motive. Fitzgerald, however,

maintains that the evidence was admitted improperly because he did not put his

intent or motive at issue or, in the alternative, that the evidence was highly

prejudicial and should have been excluded.

The admission of evidence of extrinsic criminal acts will be reversed only

upon a clear showing of an abuse of discretion.3 Extrinsic evidence includes
4 United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc).

5 First, the court must determine if the extrinsic-offense evidence is relevant to an issue

other than the defendant’s character. If so, the evidence is admissible if its probative value

is substantially outweighed by its undue prejudice and meets the other requirements of

Fed.R.Evid. 403. Id.

6 United States v. Robertson, 110 F.3d 1023 (5th Cir. 1977).

4

offenses that occur before or after the offense charged.4 In determining whether to

admit this evidence the district court correctly applied the two-part Beechum test,5

determining that the evidence was relevant to show Fitzgerald’s intent, and

concluding that “because the defendant had unlawful intent in the extrinsic offense,

it is less likely that he had lawful intent in the present offense.” We perceive no

abuse of discretion in this ruling.

Fitzgerald next asserts that the district court erred by denying his motion for

judgment of acquittal or, alternatively, a new trial. On appeal we review all of the

evidence, and the reasonable inferences to be drawn therefrom, in the light most

favorable to the verdict, to determine if a rational trier-of-fact could have found

each element of the offense established beyond a reasonable doubt.6 The evidence

presented in this case was sufficient to support the verdict.

Fitzgerald challenges the jury instruction on aiding and abetting and the

sufficiency of the evidence offered in support thereof. In reviewing this claim we

must determine “whether the court’s charge, as a whole, is a correct statement of
7 United States v. Daniel, 957 F.2d 162 (5th Cir. 1992) (citation and internal quotation

omitted).

5

the law and whether it clearly instructs jurors as to the principles of law applicable

to factual issues confronting them.”7 Our review of the record persuades that the

district court correctly instructed the jury on the law of aiding and abetting and that

the evidence offered in support of this charge was adequate and sufficient.

Finally, we find neither error nor abuse of discretion in the court’s ruling on

defense counsel’s use of the chart in closing argument.

The conviction and sentence are AFFIRMED.