Appeal from the United States District Court for the District of Arizona. No. CR-91-00043-01-RCB. Robert C. Broomfield, District Judge, Presiding
Before: Reinhardt, Trott and Rymer, Circuit Judges.
Sam Barnes appeals his conviction and sentence for attempted possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291 (1988), and we affirm.
Barnes argues the district court erred in admitting evidence of prior conduct pursuant to Fed. R. Evid. 404(b). "We review the trial court's decision to admit evidence of prior criminal acts under Fed. R. Evid. 404(b) for abuse of discretion." United States v. Spillone, 879 F.2d 514, 518 (9th Cir. 1989), cert. denied, 498 U.S. 878 (1990).
Evidence of prior conduct "may be relevant to a fact of consequence, or it may be relevant only insofar as it proves the character of the defendant in order to show action in conformity therewith, in which case it is a form of character evidence." McKinney v. Rees, No. 89-55869, slip op. at 5954 (9th Cir. June 10, 1993). Fed. R. Evid. 404(b) "generally prohibits the introduction of evidence of extrinsic acts that might adversely reflect on the actor's character, unless that evidence bears upon a relevant issue in the case such as motive, opportunity, or knowledge." Huddleston v. United States, 485 U.S. 681, 685 (1988). "We have uniformly recognized that the rule is one of inclusion and that other acts evidence is admissible whenever relevant to an issue other than the defendant's criminal propensity." United States v. Mehrmanesh, 689 F.2d 822, 830 (9th Cir. 1982). "The Government, however, must carry the burden of showing how the proffered evidence is relevant to one or more issues in the case; specifically, it must articulate precisely the evidential hypothesis by which a fact of consequence may be inferred from the other acts evidence." Id.
We apply a four-part test to determine whether evidence of Barnes's prior conduct is admissible under Rule 404(b):
(1) sufficient evidence must exist for the jury to find that the defendant committed the other acts; (2) the other acts must be introduced to prove a material issue in the case; (3) the other acts must not be too remote in time; and (4) if admitted to prove intent, the other acts must be similar to the offense charged.
United States v. Ayers, 924 F.2d 1468, 1473 (9th Cir. 1991); see also Spillone, 879 F.2d at 518-20. "Once its relevancy is shown, the evidence is admissible only after the Government demonstrates to the trial court that, on balance, its probative value is not substantially outweighed by the danger of unfair prejudice to the defendant." Mehrmanesh, 689 F.2d at 830.
Barnes contends the district court erred in admitting testimony from his former wife that Barnes packaged and sold small quantities of cocaine in 1985. Barnes argues the evidence is inadmissible because (1) the government did not articulate precisely the hypothesis by which one or more consequential facts could be inferred from the testimony; (2) the prior acts of selling cocaine are dissimilar in both size and type of drug to the acts upon which the charge in the instant matter is based; and (3) the sales of cocaine in 1985 are too remote to be admitted in this case.
We reject all three of Barnes's arguments. First, although Barnes correctly asserts that the government must articulate the evidential hypothesis by which a fact of consequence may be inferred from the prior acts, he cites no authority holding that the district court, in an in limine proceeding, must specify the contested issues to which similar act evidence is relevant. To the contrary, we have held that "evidence is deemed admissible under Rule 404(b) on appeal if it is admissible on any ground . . . It is unnecessary to specify the exception within which a particular line of inquiry or piece of evidence is admissible. It is enough that the evidence is relevant to an issue in the case other than a defendant's criminal propensity." United States v. Green, 648 F.2d 587, 592 (9th Cir. 1981) (per curiam) (internal citations omitted).
We believe the district court and the government have adequately explicated a theory of admissibility for the prior act evidence. Barnes concedes that the issue of his intent at the time of the drug sale was contested at trial. To establish a violation of 21 U.S.C. § 841(a)(1), the government is required to prove Barnes possessed the requisite intent. "His intent was thus a material issue in the case." United States v. Adrian, 978 F.2d 486, 492 (9th Cir. 1992). The testimony of Deborah Barnes was offered by the government in the second trial specifically to rebut Barnes's defense argued in both trials--that he set up the drug transaction only to get information necessary to cause the undercover officer posing as the seller to be arrested.
Second, we find the prior acts of packaging and selling cocaine are sufficiently similar to the acts underlying the instant charge. "We have consistently held that evidence of a defendant's prior possession or sale of narcotics is relevant under Rule 404(b) to issues of intent, knowledge, motive, opportunity, and absence of mistake or accident in prosecutions for possession of, importation of, and intent to distribute narcotics." Mehrmanesh, 689 F.2d at 832. Furthermore, "where evidence is offered to show knowledge and intent, it is not necessary that the illegal drug involved in the prior offense be identical to the illegal drug involved in the charged crimes." United States v. ...