[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUITU.S. COURT OF APPEALS

ELEVENTH CIRCUIT

March 29, 2006

N o . 05-12607

THOMAS K. KAHN

N o n - A r g u m e n t Calendar CLERK

D . C. Docket No. 03-00022-CR-RWS-1

U N IT E D STATES OF AMERICA,

Plaintiff-Appellee,

versus

KAREN KING,

a.k.a. Karen Jones,

Defendant-Appellant.

A p p e al from the United States District Court

fo r the Northern District of Georgia

(M a rch 29, 2006)

B efo re MARCUS, WILSON and PRYOR, Circuit Judges.

P E R CURIAM:

K aren King appeals her conviction for importing and trafficking in

co u n terfeit goods on the grounds that aggravating factors listed in her indictment w e re unconstitutional and the district court erred in admitting evidence of her p rev io u s conviction, supervised release status, and financial difficulties. Because K in g failed to move the district court to strike the aggravating factors and the p r o b a tiv e value of the evidence of her conviction, supervised release, and financial p ro b lem s outweighed its prejudicial nature, we affirm King's conviction.

BA CK GR OU ND K in g was a self-employed exporter and importer of goods for sale in and o u tsid e of the United States. King ordered a shipment of athletic shoes from China th at was seized by Customs & Border Protections in June 1999 for bearing reg istered trademarks of Nike. On January 14, 2003, a grand jury indicted King fo r importing and trafficking in counterfeit athletic shoes. 18U.S.C. §§ 545, 2 3 2 0 ( a) .

O n June 11, 2003, a superceding indictment was returned and on August 10, 2 0 0 4 , the grand jury returned a second superceding indictment. The second s u p e r ce d in g indictment included two aggravating factors based on non-statutory sen ten cin g factors. The first aggravating factor was that the retail value of the c o u n te rf eit items exceeded $70,000 and the second factor was that King committed th e offense while under a criminal justice sentence of supervised release. In 1996, K in g had been convicted for uttering counterfeit money, and from February 1998 th r o u g h March 2000, she had been under supervised release.

A t no time before or during trial did King move to strike the aggravating facto rs from the indictment. King instead stipulated to the facts regarding both facto rs. The district court, with the parties' consent, did not submit the aggravating facto rs to the jury during trial or during jury deliberations.

Before trial, King moved to exclude the introduction of her previous c o n v ic tio n . The district court held that the previous conviction could be introduced u n d er Federal Rule of Civil Procedure 404(b) for the limited purpose of showing K in g 's state of mind and absence of mistake. The district court gave limiting in s tr u c tio n s to the jury when this evidence was introduced and when the jury was c h a rg e d on the law. The government also noted the limited nature of the evidence d u rin g closing arguments.

A t the opening statements, King argued that she mistakenly believed the sh o es were genuine and did not intend to import counterfeit shoes. During trial, th e government called King's probation officer as a witness. The probation officer te stif ie d , among other things, that King was having financial difficulties. King was co n v icted and ultimately sentenced to seven months of imprisonment followed by th r e e years of supervised release. S T A N D A R D OF REVIEW W e review issues first raised on appeal for plain error. United States v. P arrish , 427 F.3d 1345, 1347 (11th Cir. 2005). We review evidentiary rulings of th e district court for abuse of discretion. United States v. Ndiaye, 434 F.3d 1270, 1 2 8 0 (11th Cir. 2006).

D IS C U S S IO N K in g raises three issues on appeal: (1) the district court failed to strike the ag g rav atin g factors in the superseding indictment as "surplusage" in violation of h e r Fifth and Sixth Amendment rights; (2) the introduction of evidence of her p rev io u s conviction and supervised release status violated Federal Rule of E v id e n c e 404(b); and (3) the introduction of evidence of her financial difficulties w as unduly prejudicial. We address each argument in turn.

F irst, King argues that the district court plainly erred when it did not strike th e aggravating factors from the indictment. She argues that the aggravating facto rs in the superseding indictment were surplusage because they are not statu to ry crimes and that the use of these aggravating factors implicates her Fifth A m en d m en t right to indictment by a grand jury for infamous crimes and her Fifth an d Sixth Amendment rights to a fair and impartial trial. King's argument fails.

The Federal Rules of Criminal Procedure do not permit the district court to s tr ik e surplusage except on a motion by the defendant. Rule 7(d) states that "[u ]p o n the defendant's motion, the court may strike surplusage from the in d ictm en t or information." The Advisory Committee Notes to Rule 7(d) explain th at "[t]he authority of the court to strike such surplusage is to be limited to doing so on defendant's motion . . . ." Because King did not move the district court to strik e the factors as surplusage, she waived the right to complain on appeal that the ag g rav atin g factors, the facts of which she later admitted, were included in the in d ic tm e n t.

K in g 's related argument that the aggravating factors made the indictment so d efectiv e as to deprive the district court of subject matter jurisdiction over the case also fails. King's argument is foreclosed by controlling authority. The Supreme C o u rt has held that "defects in an indictment do not deprive a court of its power to ad ju d icate a case." United States v. Cotton, 535 U.S. 625 , 630-31, 122 S. Ct. 1781, 1 7 8 5 (2002).

S eco n d , King argues that the district court erred by admitting evidence of h er previous conviction and her supervised release status, but evidence of past crim es or wrongs can be admitted at trial to establish the defendant's state of mind, in ten t, or lack of mistake. Fed. R. Evid. 404(b). Evidence of prior wrongs may be a d m itte d if it satisfies a three-part test: "(1) the evidence must be relevant to an issu e other than defendant's character; (2) the probative value must not be s u b s ta n tia lly outweighed by its undue prejudice; (3) the government must offer s u f fic ie n t proof so that the jury could find that the defendant committed the act." United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005) (citing United S tates v. Hogan, 986 F.2d 1364, 1373 (11th Cir. 1993)). The first and third parts are easily satisfied. The evidence of King's previous conviction was admitted to estab lish that King did not mistakenly believe the shoes were counterfeit, and King d o es not contest that she had been convicted.

T h e district court did not abuse its discretion when it concluded that the p ro b ativ e value of the evidence was not substantially outweighed by its undue p reju d ice. King placed her state of mind squarely at issue in her opening statement w h en she argued that she received the counterfeit shoes as an accident or mistake.

The prejudicial impact was minimal because the testimony regarding King's p rev io u s conviction was of short duration, and the judge gave proper limiting in stru ctio n s to the jury.

F in ally, King erroneously argues that the district court erred when it ad m itted evidence of her financial difficulties. Rule 404(b) permits evidence of m o tiv e. "[E]vidence of financial difficulties is admissible in fraud prosecutions to d e m o n s tr ate knowledge, motive, intent, design, and absence of mistake." United S ta te s v. Metallo, 908 F.2d 795, 798-99 (11th Cir. 1990).

C O N C L U S IO N K in g 's conviction is A F F IR M E D .