Appeal from the United States District Court for the Southern District of California. D.C. No. CR-90-0644-M-5. Thomas J. MacBride, Senior District Judge, Presiding.
Before: J. Clifford Wallace, Chief Judge, Stephen S. Trott, and Thomas G. Nelson, Circuit Judges. Opinion by Judge T.g. Nelson.
T.G. NELSON, Circuit Judge:
A jury convicted appellant Jose Arambula-Ruiz (Arambula) for conspiracy to possess a controlled substance with intent to distribute, possession of a controlled substance with intent to distribute, and aiding and abetting in violation of 21 U.S.C. §§ 841(a)(1) (1984), 21 U.S.C. § 846 (1984) and 18 U.S.C. § 2 (1979). He was sentenced to a ninety-month jail term followed by four years of supervised release. He appeals claiming that both evidentiary and constitutional errors occurred at trial. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal under 28 U.S.C. § 1291 and now affirm.
Drug Enforcement Agent Jorge Rodriguez went undercover to investigate Otto Rene Aldana. Aldana negotiated a sale of fifteen ounces of heroin with Rodriguez and, after meeting to test a sample, they arranged for delivery of the drug on June 27, 1990, at a Denny's Restaurant.
On June 27, while Agent John Roberts was conducting surveillance at Aldana's apartment, he observed Arambula and Mariles-Ortega standing outside conducting "counter-surveillance." He then saw Aldana, Arambula, Mariles, Medina-Flores and Guerra-Remboa congregate on the front porch, after which both Arambula and Mariles went to a Chevrolet Impala and retrieved a white package from the trunk. Afterwards, they all returned to the house and came out approximately five minutes later with Aldana carrying a brown paper sack.
They got into three separate cars and drove to Denny's where Agent Rodriguez was waiting. Arambula and Mariles drove to the restaurant in the Chevrolet Impala and upon their arrival went inside Denny's. Medina and Guerra walked to the side of the restaurant, and Aldana remained in his car. Agent Rodriguez approached Aldana's vehicle. Aldana then handed the brown paper sack to Rodriguez which contained heroin. All five men were immediately arrested.
A federal grand jury returned a two-count indictment against all five men (Arambula, Aldana, Medina, Mariles and Guerra), charging them with conspiracy to possess a controlled substance with intent to distribute, possession of a controlled substance with intent to distribute, and aiding and abetting. Arambula pled not guilty and was tried jointly with Medina and Guerra; Aldana's trial was severed; and Mariles pled guilty.
The jury found Arambula guilty on both the conspiracy and possession counts; however, the jury found codefendants Medina and Guerra not guilty on the possession charges. Because the jury was unable to agree on the conspiracy charges against Medina and Guerra, the court granted their motions for acquittal.
Arambula now appeals claiming that the district court erred in three ways: (1) admitting evidence of prior bad conduct for the limited purpose of showing knowledge and intent; (2) admitting co-conspirator statements in violation of Fed. R. Evid. 801(d)(2)(E); and (3) failing to grant his motion for mistrial after an alleged Bruton error. See Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968).
Arambula contends the district court erred in admitting evidence of his prior drug conviction for possession of a controlled substance with intent to distribute.
We review for abuse of discretion the district court's decision to admit evidence of prior bad conduct under Fed. R. Evid. 404(b). United States v. Rubio-Villareal, 927 F.2d 1495, 1502 (9th Cir. 1991), vacated in part and remanded on other grounds, 967 F.2d 294 (1992) (en banc). However, the issue of whether the ...