Appeal from the United States District Court for the Western District of Washington. D.C. No. CR-89-83-WD. William L. Dwyer, District Judge, Presiding
Before: Wright, Goodwin, and Hug, Circuit Judges.
Alvaro Chavez appeals his conviction and sentence. He was convicted by a jury of conspiracy to import cocaine, in violation of 21 U.S.C. § 963; possession of cocaine on an aircraft, in violation of 19 U.S.C. § 1590(a); importation of cocaine, in violation of 21 U.S.C. § 960; and possession of cocaine with the intent to distribute, in violation of 21 U.S.C. 841(a)(1). He was sentenced under the guidelines to 324 months imprisonment, to be followed by 10 years supervised release. We affirm.
Chavez claims the district court erred when it admitted evidence of his past narcotics activity under Fed. R. Evid. 404(b) and 403.
A district court's decision to admit evidence of prior bad acts under Fed. R. Evid. 404(b) is reviewed for abuse of discretion. United States v. Hadley, 918 F.2d 848, 850 (9th Cir. 1990), cert. granted, 112 S. Ct. 1261, cert. dismissed, 113 S. Ct. 486 (1992). Rule 404(b) is an "inclusionary rule," under which evidence is inadmissible "only when it proves nothing but the defendant's criminal propensities." Id.
Rule 404(b) permits the introduction of prior bad acts "as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed. R. Evid. 404(b). We have developed a four-part analysis to determine whether evidence is admissible under 404(b). The court must determine that,
(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.
In prosecutions for narcotics violations, intent may be demonstrated through evidence of prior possession and sale of narcotics. United States v. Adrian, 978 F.2d 486, 492 (9th Cir. 1992).
Evidence that is offered for a proper purpose under 404(b) may nonetheless be excluded under Fed. R. Evid. 403 if "its probative value is substantially outweighed by the danger of unfair prejudice." United States v. Bibo-Rodriguez, 922 F.2d 1398, 1400-1401 (9th Cir.), cert. denied, 115 L. Ed. 2d 1028, 111 S. Ct. 2861 (1991). A district court's ruling under Rule 403 is reviewed for abuse of discretion. Palmerin v. City of Riverside, 794 F.2d 1409, 1411 (9th Cir. 1986). The decision is given considerable deference. United States v. Layton, 855 F.2d 1388, 1402 (9th Cir. 1988), cert. denied, 489 U.S. 1046, 103 L. Ed. 2d 244, 109 S. Ct. 1178 (1989).
In applying Rule 403, the district court must balance "the probative value of the evidence against the effect of its non-probative aspect--and [must] assess the danger that admission of the evidence will unfairly prejudice the defendant." Layton, 855 F.2d at 1402, quoting United States v. Bailleaux, 685 F.2d 1105, 1111 (9th Cir. 1982). The evidence should be excluded "when the effect on the jury of the non-probative aspect of the evidence is likely to be substantially greater than the effect of the probative aspect." Id. The prejudicial effect of Rule 404(b) evidence under Rule 403 can be limited by the instructions given by the district court. Hadley, 918 F.2d at 852.
Review of the record demonstrates that the district court carefully balanced the probative value of the evidence against its prejudicial effect. The court held that the prior bad acts showed Chavez's knowledge and intent. The district Judge issued several limiting instructions to the jury. He informed them that they were to consider the prior bad acts evidence only for, "whatever bearing it may have, if any, on the question of the defendant's intent and knowledge in regard to the offenses that are charged and on trial here and not for any other purpose." The district court did not abuse its discretion by admitting the Rule 404(b) evidence.
Chavez contends that the trial court erred when it denied his motion for a new trial based on the newly discovered evidence that government witness Mark Barron had tested positive for cocaine prior to the trial.
We review a district court's denial of a Rule 33 motion for new trial, based on newly discovered evidence, for abuse of discretion. United States v. Lopez, 803 F.2d 969, 977 (9th Cir. 1986), cert. denied, 481 U.S. 1030, 95 L. ...