Unpublished Disposition, 889 F.2d 1097 (9th Cir. 1989)

MEMORANDUM^** 

Jack Price was convicted by a jury for his involvement in a "bust-out" mail fraud, in which his business ordered merchandise on credit and then closed without paying for the merchandise. Price argues that the district court erred in allowing the government to ask questions about his earlier business schemes in other parts of the country and in not deciding his in limine motion before he took the stand.

Price argues that under Fed.R.Evid. 404(b) and 403 evidence pertaining to an earlier business scheme should have been excluded as evidence of "other wrongs." Whether such evidence was evidence of "other wrongs" is a question of law that is reviewed de novo. United States v. Soliman, 813 F.2d 277, 278 (9th Cir. 1987).

In our view, the evidence was not evidence of "other wrongs," but was admissible to show defendant's intent, knowledge, motive, or plan. In addition, as we said in United States v. Jackson, 845 F.2d 880, 884 (9th Cir.), cert. denied, 109 S. Ct. 149 (1988), such evidence is admissible to show "the totality of [Price's] conduct while involved in this scheme ... and subject to the jury's considerations in its determination of his intent." In this particular case, the evidence was also admissible to impeach Price's testimony that he was an honest businessman who had come to California for the purpose of engaging in a legitimate business.

The district court also did not abuse its discretion in allowing questions about Price's prior debts. Price had opened the door to his creditworthiness in his direct examination, and such evidence was relevant for impeachment purposes as well.

Finally, Price argues that the court abused its discretion in not ruling prior to trial on his motion in limine to exclude the Rule 404(b) evidence. Although a "trial court has discretion to issue an advance ruling ... it need not do so." United States v. Kennedy, 714 F.2d 968, 975 (9th Cir. 1983), cert. denied, 465 U.S. 1034 (1984). We have held that "it is well within the district court's discretion to refuse to issue a ruling prior to hearing the defendant's actual, in-court testimony." United States v. Browne, 829 F.2d 760, 762 (9th Cir. 1987), cert. denied, 108 S. Ct. 1298 (1988). We find no abuse of discretion in this case.

The district court also imposed a special assessment on defendant Price. Special assessments have been declared unconstitutional in our Circuit. United States v. Munoz-Florez, 863 F.2d 654 (9th Cir. 1988). That portion of defendant's sentence is vacated. In all other respects, the judgment of conviction is

AFFIRMED.