United States v. Mosley

*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this opinion should not be published and is not precedent except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
F I L E D
November 17, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-30809
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PERRY MOSLEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:04-CR-50159-ALL
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Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
Perry Mosley appeals his jury convictions for conspiracy to
possess with intent to distribute five or more grams of cocaine
base, possession with intent to distribute five or more grams of
cocaine base, possession of firearms in connection with a drug-
trafficking offense, and possession of a firearm by a felon.
Mosley argues that the district court abused its discretion in
admitting the testimony of a witness, Charles James, that Mosley
threatened him. Mosley argues that the evidence had little or no
probative value and that the probative value was substantially

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outweighed by the danger of unfair prejudice. Mosley’s threat
against a specific adverse witness was relevant to show Mosley’s
consciousness of guilt. See United States v. Rocha, 916 F.2d 219,
240-41 (5th Cir. 1990). Because the evidence was probative of an
issue other than Mosley’s character, it was admissible under FED.
R. EVID. 404(b). See United States v. Carrillo, 981 F.2d 772, 774
(5th Cir. 1993). Under the circumstances of this case, it was
reasonable for the district court to conclude that the danger of
unfair prejudice did not substantially outweigh the probative value
of the evidence. See Rocha, 916 F.2d at 241. Further, any
potential prejudice was mitigated by the district court’s limiting
instruction that the defendant was not on trial for an act,
conduct, or offense not alleged in the indictment. See United
States v. Taylor, 210 F.3d 311, 318 (5th Cir. 2000). Therefore,
the district court did not abuse its discretion in admitting
Charles James’s testimony that Mosley threatened him. See Rocha,
916 F.2d at 240-41.
AFFIRMED.

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