Unpublished Disposition, 885 F.2d 875 (9th Cir. 1989)

MEMORANDUM^* 

Rogelio Gonzalez, Sr. appeals his conviction of one count of conspiracy to distribute cocaine, two counts of distributing cocaine, and one count of attempting to distribute cocaine, all in violation of 21 U.S.C. § 841(a) (1). He contends that the district court erred by improperly admitting other crimes testimony and by refusing to suppress statements he made to FBI agents while allegedly under a grant of equitable immunity. We have jurisdiction pursuant to 18 U.S.C. § 1291 and we affirm.

* Testimony of Raida Dominguez

Evidence is deemed admissible under Rule 404(b) on appeal if it is admissible on any ground. United States v. McKoy, 771 F.2d 1207, 1214 (9th Cir. 1981) (citing United States v. Green, 648 F.2d 587, 592 (9th Cir. 1981)).

This circuit has recognized that evidence of prior criminal acts may be relevant in conspiracy cases to show the background and development of the conspiracy. McKoy, 771 F.2d at 1214 (citing United States v. Nadler, 698 F.2d 995 (9th Cir. 1983)).

Here, Gonzalez testified that he only knew Francis Garcia as a friend and as the purchaser of his horse. As far as he was concerned, this explained his conduct during surveillances, his phone calls to and from Garcia, and why three of the one hundred dollar bills used by Officer Sinclair in two separate purchases of cocaine from Garcia were found during a search of his apartment. The challenged testimony of Raida Dominguez served to show that, on the other hand, Gonzalez' contact with Garcia was based on his desire to distribute his stash of cocaine.

Because this prior crimes evidence served the legitimate purpose of showing the background and development of the conspiracy to distribute cocaine, the district court did not abuse its discretion in allowing it. McKoy, 771 F.2d at 1214; see also United States v. O'Connor, 737 F.2d 814, 819 (9th Cir. 1984) (allowing, under Rule 404(b), evidence of aborted cocaine transaction as necessary background); United States v. Lester, 749 F.2d 1288, 1299 (9th Cir. 1984) (allowing into evidence independent of 404(b) the fact that the two defendants were connected to a third party's narcotics operation); United States v. Passaro, 624 F.2d 938, 943 (9th Cir. 1980) (allowing as direct evidence the testimony of a witness who saw the defendant and a third party go through a laboratory catalog and pick out items to be purchased); United States v. Munoz-Nunez, 595 F.2d 1186, 1188 (9th Cir. 1979) (allowing as direct evidence the testimony of a narcotics agent that when he first negotiated with defendant for the purchase of heroin, defendant offered to get him other "contraband" and marijuana).

II

Testimony of Virginia Malloy

Even if this circuit recognized the doctrine of equitable immunity, a question we need not decide here, Gonzalez' claim would fail.

The district court correctly limited the scope of Malloy's testimony to statements Gonzalez made before the FBI's promise of immunity. Counsel for Gonzalez reserved the opportunity to cross-examine Malloy as to exactly when Gonzalez made the incriminating statements, but then failed to do so. Thus, although it is unclear whether Gonzalez is challenging the trial court's limiting instruction or the timing of the challenged statements, he has failed to meet the burden of showing error in either case, choosing instead to focus on the equitable immunity question. Accordingly, because the district court's limiting instruction is unchallenged and there has been no showing that the challenged statements were made after the FBI promise in contravention to this instruction, the district court did not err in admitting Malloy's testimony.

AFFIRMED.