United States of America v. Efrain Reyes

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3929
UNITED STATES OF AMERICA
v.
EFRAIN REYES,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(05-cr-00534)
District Judge: James Knoll Gardner
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 8, 2008
Before: MCKEE, AMBRO and ALDISERT, Circuit Judges
(Opinion Filed: March 28, 2008)
OPINION
McKEE, Circuit Judge
Efrain Reyes appeals his conviction for violating 21 U.S.C. § 841(a)(1)(A) and 18
U.S.C. § 2. For the reasons that follow, we will affirm.
Inasmuch as we write primarily for the parties, we need not detail the factual or
procedural history.
Reyes argues that the district court erred in admitting evidence of uncharged sales

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of heroin in violation of Fed. R. Evid. 404(b). The district court thoroughly explained
why the evidence was admissible in the Order dated January 19, 2006. App. 5a. We
reject the defendant’s Rule 404(b) challenge substantially for the reasons explained in
Judge Gardner’s thorough and thoughtful explanation.
As Judge Gardner observed, Rule 404(b) does not apply because the evidence of
the prior heroin sales “constituted direct proof of the charged offense. . . .” As Judge
Gardner also explains, even if Rule 404(b) did apply, the evidence would “nonetheless
be admissible . . . under any of the Rule 404(b) exceptions. . . .” Id. at 3a.
Moreover, after the evidence of other sales was admitted, the court gave a
cautionary instruction explaining the limited use of that testimony. That charge was
more than adequate to guard against any improper use of the evidence, and Reyes does
not argue to the contrary.
We also note that Reyes has submitted a pro se brief in which he claims that trial
counsel was ineffective. Pursuant to LAR 31.3, we do not consider pro se briefs except
in situations governed by Anders v. California, 386 U.S. 738 (1967). Moreover, as the
government correctly notes, even if we were to accept the defendant’s brief, we would
not address Reyes’ claim of ineffective assistance of counsel because such claims are not
generally considered on direct appeal. See United States v. Rieger, 942 F.2d 230, 235
(3d Cir. 1991). Since the prosecutorial misconduct, the reasonableness of the sentence,
and the trial court’s purported bias are raised only in Reyes’ pro se brief, we need not

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address those issues.
For the reasons set forth above, the Order dated August 24, 2006, denying Reyes
a new trial is hereby affirmed.

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