                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-15789
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:15-cr-60173-BB-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

GABRIEL SAMSON GASKINS,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (March 6, 2017)

Before ED CARNES, Chief Judge, MARCUS and FAY, Circuit Judges.

PER CURIAM:
       Gabriel Gaskins was charged with and convicted of sex trafficking of a

minor in violation of 18 U.S.C. § 1591(a), (b)(2). He appeals that conviction,

contending that the district court abused its discretion at trial by allowing the

government to use extrinsic evidence of his prior acts.

                                           I.

       The victim Gaskins was convicted of trafficking was A.K.L., a 17-year-old

minor. A.K.L. advertised on Backpage.com, a website used for advertising escort

and prostitution services, and on that page she listed that she was 21 years old. A

man named Steven gave A.K.L. Gaskins’ phone number and told her that Gaskins

would drive her to “outcalls,” which were dates where she needed someone to

drive her to meet clients at the place of their choosing. A search of Gaskins’ phone

records showed that Steven also sent Gaskins A.K.L.’s phone number, and that

Steven called Gaskins and then messaged him “17,” to which Gaskins responded

“That ain’t bad . . . .”

       A.K.L. testified that when she first met Gaskins, she showed him her

Backpage advertisement but told him that she was actually 17 years old, and at one

point she asked him if he knew someone who could make her a fake identification

card so that she could stop engaging in prostitution and get a job as a club dancer.

She also testified that she would receive around 20 requests for outcalls per day,

and that Gaskins would drive her to meet those clients. While on their way to one


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outcall, Gaskins was pulled over by law enforcement, A.K.L. was removed from

the car, and while she was answering the officer’s questions, Gaskins honked the

horn and yelled at her to stop talking to the police.

      At trial the government also introduced evidence of Gaskins’ interactions

with two other minors, A.S. and A.C., who also had Backpage profiles and whom

Gaskins drove to outcalls six months before he met A.K.L. Testimony showed that

before Gaskins met A.K.L., officers conducting an undercover operation caught

him with A.S. and A.C., at which point he was questioned. During that

questioning Gaskins told the officer that he believed A.S. and A.C. were 21 (the

age listed in their Backpage profiles) despite the officer’s statement that they

“look[ed] like little babies.” At trial A.S. testified that after the night Gaskins was

questioned, A.C. told him that A.S. was a minor, and that Gaskins nevertheless

continued to drive A.S. to outcalls.

                                          II.

      Gaskins contends that the evidence as to A.S. and A.C. was inadmissible

under Federal Rule of Evidence 404(b) because it was irrelevant and unduly

prejudicial. We review the district court’s evidentiary rulings for an abuse of

discretion. See United States v. Cunningham, 194 F.3d 1186, 1193 (11th Cir.

1999). “By definition . . . under the abuse of discretion standard of review there

will be occasions in which we affirm the district court even though we would have


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gone the other way had it been our call.” In re Rasbury, 24 F.3d 159, 168 (11th

Cir. 1994). This standard “allow[s] a range of choice for the district court, so long

as that choice does not constitute a clear error of judgment.” United States v.

Kelly, 888 F.2d 732, 745 (11th Cir. 1989).

      While evidence of a crime, wrong, or other act is not admissible to show that

“on a particular occasion the person acted in accordance with [his] character,” that

evidence is admissible for other purposes, including to prove motive, intent,

knowledge, or absence of mistake. Fed. R. Evid. 404(b). To be admissible under

Rule 404(b), the evidence must be (1) relevant to an issue other than the

defendant’s character; (2) established by sufficient proof that the jury could find

that the defendant committed the extrinsic act; and (3) of probative value that is not

substantially outweighed by undue prejudice under Federal Rule of Evidence 403.

United States v. Matthews, 431 F.3d 1296, 1310–11 (11th Cir. 2005). Gaskins

disputes only the first and third prongs of this admissibility test.

      For the first prong — relevance to an issue other than character or

propensity — “where the state of mind required for the charged and extrinsic

offenses is the same, the first prong of the Rule 404(b) test is satisfied.” United

States v. Edouard, 485 F.3d 1324, 1345 (11th Cir. 2007). Here the state of mind at

issue was Gaskins’ knowledge that A.K.L. was a minor. The evidence of the

uncharged extrinsic conduct — that Gaskins had transported two minors whose


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Backpage profiles falsely listed their ages and that he later found out that they were

minors — was relevant to show that Gaskins was on notice not to rely on the age

listed on the website. In other words, the evidence was relevant to show that

Gaskins knew or should have known that even though A.K.L.’s Backpage profile

stated that she was 21, she may have been younger than that and she could have

been a minor.

      As to the third prong — requiring that probative value not be substantially

outweighed by unfair prejudice — we assess the evidence “in a light most

favorable to its admission, maximizing its probative value and minimizing its

undue prejudicial impact.” United States v. Brown, 441 F.3d 1330, 1362 (11th Cir.

2006). This determination “lies within the sound discretion of the district judge

and calls for a common sense assessment of all the circumstances surrounding the

extrinsic offense, including prosecutorial need, overall similarity between the

extrinsic act and the charged offense, as well as temporal remoteness.” United

States v. Jernigan, 341 F.3d 1273, 1282 (11th Cir. 2003) (quotation marks

omitted). And because evidence of crimes, wrongs, or other acts “is inherently

prejudicial to the defendant,” this third prong requires that the incremental

probative value of the evidence be balanced against the potential for undue

prejudice. United States v. Sterling, 738 F.3d 228, 238 (11th Cir. 2013) (quotation

marks omitted).


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         The district court did not abuse its discretion in finding that the third prong

was met. The evidence was highly probative because the charged offense and

Gaskins’ interactions with A.S. and A.C. were close both in nature and in time.

See Jernigan, 341 F.3d at 1282. Although the government presented some

evidence that Gaskins knew A.K.L.’s age, that evidence was not so strong that the

evidence as to A.S. and A.C. was cumulative and lacked probative value.

         Gaskins contends that the prejudicial effect of the evidence as to A.S. and

A.C. was undue because that evidence was “vivid” and “highly-inflammatory.”

But “[t]hat the nature of the crime itself, and therefore the nature of the evidence

tending to prove it, is emotionally charged does not mean that the prosecution must

be deprived of its most probative evidence.” United States v. Smith, 459 F.3d

1276, 1296 (11th Cir. 2006). Here the nature of the extrinsic evidence was no

more inflammatory or emotionally charged than the crime for which Gaskins was

tried.

         And while Gaskins repeatedly points to the fact that the government

presented more evidence about the extrinsic conduct than it did about the conduct

for which he was charged, that does not mean that the probative value was

substantially outweighed by an unduly prejudicial effect. See United States v.

Delgado, 56 F.3d 1357, 1366 (11th Cir. 1995) (rejecting the defendant’s argument

that the probative value of Rule 404(b) evidence, which “formed the bulk of


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evidence against him,” was substantially outweighed by the risk of undue

prejudice). Not only that, but the district court provided two limiting instructions

at trial — one immediately after A.S. testified and one during the jury charge —

and as a result the risk of prejudice was minimized. See United States v. Ramirez,

426 F.3d 1344, 1354 (11th Cir. 2005) (“[T]he risk of undue prejudice to [the

defendant] was reduced by the court’s limiting instruction.”); see also United

States v. Lopez, 649 F.3d 1222, 1237 (11th Cir. 2011) (“We presume that juries

follow the instructions given to them.”). The district court did not abuse its

discretion by allowing the government to use the evidence about A.S. and A.C.

      AFFIRMED.




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