           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         November 7, 2008

                                       No. 07-31158                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee,
v.

PETER A. WILLIAMS, JR.,

                                                   Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                                   2:07-CR-35-1


Before DAVIS, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Peter A. Williams, Jr. challenges his conviction
following a guilty verdict on three counts: two weapons counts and one drug
trafficking count. For the reasons stated below we affirm Williams’ conviction.
                                              I.
       Following his arrest in New Orleans, Williams was indicted in February
2007 for possession of a firearm by a convicted felon, 18 U.S.C. §922(g)(1);
possession with intent to distribute two grams of crack cocaine, 21 U.S.C.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-31158

§841(a)(1); and possession of a firearm in furtherance of a drug trafficking crime,
18 U.S.C. §924(c)(1).
      Stating the facts in a light most favorable to the verdict, the evidence
revealed the following. On January 26, 2007, two New Orleans police officers,
Michael Dimarco and Octavio Baldassaro, observed Williams in a high crime
area in New Orleans where the officers were on duty. When Williams saw the
officers, he ran. As Williams ran down an alleyway the officers saw him throw
a firearm between two houses. The officers retrieved the firearm from the
location where Williams had discarded it.        The officers then were able to
apprehend and arrest Williams. When the officers searched Williams they
recovered a plastic sandwich bag containing two smaller bags which held rocks
of crack cocaine and $375. No crack pipe or other items associated with personal
use of narcotics was recovered. A number of other officers who were patrolling
in the area arrived on the scene as the officers were chasing Williams. A drug
dog was called to the scene but because the arrest had been made no search was
made with the dog.
      The government produced expert testimony that the drug packaging sizes
and quantities the officers recovered from Williams were consistent with
possession with intent to distribute rather than for personal use. The
government called Jeff Sandoz, a New Orleans police officer who had
participated in an April 9, 2003 arrest of Williams on the same street at almost
exactly the same address for possession with intent to distribute crack cocaine.
The officer testified that prior to the 2003 arrest, he observed Williams discard
a plastic bag containing multiple rocks of crack cocaine and that they discovered
over $600 in cash on Williams’ person.        The district court overruled the
defendant’s objection to the admission of evidence of this prior arrest under FED.
R. EVID. 404(b). The court then issued a limiting instruction directing the jury
that the evidence could only be considered for the limited purpose of establishing


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the defendant’s motive or intent to commit the crime charged and that it could
not be used to establish bad character.
      Williams called five witnesses including his grandparents and his
girlfriend who testified that Williams never went down the alley where he was
allegedly arrested. To rebut this testimony the government called another New
Orleans police officer, Sergeant Hans Ganthier. Sergeant Ganthier testified that
he arrived at the scene two to four minutes after the officers called out their
location on the radio. Upon his arrival he saw Officer Baldassaro leading a
person in handcuffs out of an alley and towards a police vehicle. Sergeant
Ganthier was then allowed to testify, over a defense objection, that Officer
Baldassaro told him he had arrested the individual for narcotics and weapons
offenses.
      Williams argues on appeal that his conviction should be reversed because
the district court erred in (1) admitting the Rule 404(b) evidence of his prior
arrest and (2) admitting the hearsay statement of Sergeant Ganthier. We will
discuss these arguments in turn.
                                      II.
                                      A.
      Williams argues first that the district court erred in admitting evidence
of his 2003 arrest for possession with intent to distribute crack cocaine.
Williams contends that because he pled guilty to a lesser offense, possession of
crack cocaine, evidence of the charges lodged against him when he was arrested
was improper.
      Where relevant evidence of prior conduct may be admissible for such
purposes as proof of motive, opportunity, intent, plan, absence of mistake or
accident, or modus operandi, there is no requirement that the prior bad act
result in conviction or even formal charges being filed.      United States v.
Gonzalez-Lira, 936 F.2d 184, 189 (5th Cir. 1991). We review admission of prior

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bad acts under Rule 404(b) under what we have described as “a heightened
abuse of discretion standard.” United States v. Jackson, 339 F.3d 349, 354 (5th
Cir. 2003). In Jackson we also made it clear that extrinsic evidence in criminal
trials must be strictly relevant to the particular offense charged. Id. We employ
a two-step test for analyzing Rule 404(b) evidence.         Evidence is properly
admitted under Rule 404(b) if (1) it is relevant to an issue other than the
defendant’s character, and (2) its probative value is not substantially outweighed
by its undue prejudice. United States v. Leahy, 82 F.3d 624, 636 (5th Cir. 1996);
United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978)(en banc).        Except
for the absence of any weapon, the 2003 arrest by Williams was, in practical
terms, identical to the conduct for which he was arrested in 2007. The arrest
was located at the same location and adjacent to the same premises where the
arrest in this case occurred. It also involved the same type of illegal drug.
      To obtain a conviction on a charge of possession of narcotics with intent
to distribute requires the government to prove knowing possession of narcotics
and specific intent to distribute. We have frequently held that extrinsic evidence
of past drug offenses is “more probative than prejudicial” in cases like this one
where intent is a statutory element of the crime charged. United States v.
Harris, 932 F.2d 1529, 1534 (5th Cir. 1991). This is particularly true when, as
in this case, the trial judge gives a careful limiting instruction. United States v.
Crawley, 533 F.3d 349, 355 (5th Cir. 2008).
      Williams’ primary argument is that his prior offense was so old that its
probative value was substantially outweighed by its prejudicial effect. But, in
United States v. San Martin, we said “the test for remoteness need not and
indeed cannot be reduced to a simple rule of thumb based solely on the number
of years that have lapsed between the prior crime and the present offense
charged. The better test . . . is whether the prior crime is similar [enough] in
nature and in its material elements to have clearly probative value with respect

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to the intent of the accused at the time of the offense charged.” 505 F.2d 918,
922-23 (5th Cir. 1974). See also United States v. Arnold, 467 F.3d 880, 885 (5th
Cir. 2006).
          We are satisfied that evidence of the prior conduct was particularly
relevant to the issue of knowledge and intent and the district court did not abuse
its discretion in concluding that its probative value outweighed the prejudicial
effect.
                                          B.
          Williams argues next that the district court erred in admitting Sergeant
Ganthier’s statement relating Officer Baldassaro’s report that he had arrested
Williams on weapons and drug trafficking charges. The district court overruled
the hearsay objection on grounds that the statement was non-hearsay because
the report by Baldassaro that he had arrested the individual for narcotics and
weapons charges was not for the truth of the matter asserted but rather to
explain Sergeant Ganthier’s understanding of the unfolding events and to
confirm that the person he observed being led out of the alley was in fact
Williams.
          The importance of Sergeant Ganthier’s testimony rested primarily on his
statement that he personally observed Officer Baldassaro leading Williams in
handcuffs out of the alley and rebutting Williams witnesses’ testimony that
Williams had not been in the alley. Thus, even if Baldassaro’s statement that
he had arrested Williams on drug and weapons charges amounts to hearsay, it
is clear to us that it was not prejudicial.
          In addition to the testimony of the two arresting officers, who testified
about their arrest of Williams, one of the officers on the scene in addition to
Sergeant Ganthier saw the arresting officers lead Williams out of the alley in
handcuffs. The fact that Williams was charged with weapons and drug offenses
was a matter of record from the face of the indictment. Thus, even if the

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statement of Officer Baldassaro as to the nature of the charges on which he
arrested Williams is hearsay, that testimony was harmless beyond a reasonable
doubt.
     The conviction is AFFIRMED.




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