Unpublished Disposition, 875 F.2d 871 (9th Cir. 1989)

MEMORANDUM^* 

Sunday Obabueki ("Obabueki") appeals his conviction of seven counts of using counterfeit access devices, in violation of 18 U.S.C. § 1029(a) (1). Obabueki's conviction stemmed from a scheme in which he processed charges on phony credit cards bearing stolen account numbers. His basic defense to the charges was that he did not know the cards to be counterfeit or the account numbers stolen. On appeal, he challenges the government's introduction of his prior state conviction for grand theft and its failure to provide the address of an allegedly exculpatory witness. We consider both arguments in turn, and we affirm.

Obabueki first challenges the district court's decision to allow the introduction of evidence of a prior conviction under Fed.R.Evid. 404(b). In the prior case, a state court jury determined that Obabueki had knowingly deposited forged checks into, and then withdrawn funds from, his merchant account. In his federal trial, the district court admitted evidence of the state conviction to show identity, intent and absence of mistake. We review this decision for an abuse of discretion. United States v. Sarault, 840 U.S. 1479, 1485 (9th Cir. 1988).

In order to introduce evidence to show identity or absence of mistake, the party seeking admission of prior acts evidence under 404(b) must first demonstrate that the proffered evidence satisfies four preconditions: 1) that there is evidence sufficient to allow a jury rationally to conclude that the defendant did in fact commit the prior act; 2) that the prior act is not too remote in time; 3) that it is similar to the offense charged; and 4) that it is being introduced to prove an element of the charged offense that is a material issue in the case. Huddleston v. United States, 108 S. Ct. 1496, 1499 (1988); United States v. Bailleaux, 685 F.2d 1105, 1109-10 (9th Cir. 1982).¹ 

In this case, there is no dispute that Obabueki committed the prior act and that it was sufficiently recent in time to be admitted. Similarly, since Obabueki's defense hinged on his lack of knowledge that the credit cards were counterfeit and their account numbers stolen, it is clear that the evidence would, if admitted, bear upon a disputed material element of the crime, his intent. Obabueki's only substantive challenge to the admission of the evidence, then, focuses on the similarity element of the Bailleaux test. He claims that his prior crime, depositing checks he knew to be forged and then withdrawing the proceeds of the checks from his bank account, was not similar to the crime of which he was charged, knowingly using counterfeit credit cards.

The district court analyzed the similarity issue explicitly, concluding that the two schemes were essentially "the same breed of cat," or at least "first cousin [s]" "in the crime family." Both schemes involved Obabueki's handling of tainted financial instruments. In both cases his knowledge of the character of the instruments was centrally at issue, and in the former case, a jury had determined that Obabueki had acted knowingly in withdrawing the stolen proceeds of the checks from his merchant account. Although the acts which underlay his state conviction and the acts alleged in his federal indictment are not identical, we cannot conclude on this record that the district court abused its discretion in determining that the two sets of acts were sufficiently similar to satisfy the requirements of 404(b). See Sarault, 840 F.2d at 1485.² 

Obabueki's second contention on appeal concerns the government's refusal to turn over to him the address of an allegedly exculpatory witness, Mason. Relying on Brady v. Maryland, 373 U.S. 83, 87 (1963), and United States v. Bagley, 473 U.S. 667, 682 (1985), Obabueki claims that this failure prejudiced him and requires a reversal of his conviction, inasmuch as Mason would have testified that Obabueki was nothing more than a dupe in the credit card scheme. We reject this argument.

First, while as a general rule it is true that the government must disclose the address of a witness where there is a reasonable possibility that the witness will provide evidence to the defense, see, e.g., United States v. Cadet, 727 F.2d 1453, 1468-69 (9th Cir. 1984), there are exceptions to this rule. One of those exceptions comes into play when the potentially exculpatory witness is a government informant. See United States v. Tornabene, 687 F.2d 312, 315 (9th Cir. 1982) In such a case, all the government must do is undertake "reasonable efforts" to locate and produce the witness. It need not disclose his whereabouts to the defense. Id. at 315-16. In this case, the record shows that Mason was in fact a government informant and that the government telephoned him several times and made a number of attempts to serve him in person with the defense's subpoena. These efforts, we conclude, were "reasonable" under the circumstances and thus satisfied the government's burden with respect to locating and producing Mason.

Furthermore, as the district court noted, it was far from clear that Mason, if produced, would offer exculpatory testimony. The district court found that it was equally likely that Mason's testimony would inculpate Obabueki, for a memorandum of a government interview with Mason (upon which the defense relied to support its claim that Mason would offer testimony favorable to Obabueki) contained statements to the effect that Obabueki had told him that he knew that Mason thought him a dupe but that he fully "knew what was going on." Accordingly, we conclude that Obabueki has failed to make a "plausible showing" that Mason could possibly have offered admissible "testimony [that] would have been both material and favorable to [Obabueki's] defense." United States v. Valenzuela-Burnal, 458 U.S. 858, 867 (1982). We thus hold that there is no reversible error in the government's inability to produce Mason, or in its failure to give his address to the defense.

AFFIRMED.