Unpublished Disposition, 927 F.2d 611 (9th Cir. 1991)

MEMORANDUM^* 

Appellant appeals his conviction and his sentence for conspiring to manufacture a heroin analogue and for procuring the manufacture of a heroin analogue. Appellant challenges the district court's admission at trial of evidence of his selling PCP in the past, the district court's denial of his motion for a mistrial based on prosecutorial misconduct, and the calculation of his sentence under the guidelines.

* Appellant contends that evidence of his prior sale of PCP was improperly admitted under Fed.R.Evid. 404(b) because it was not sufficiently similar to the charges that he was involved in manufacturing a heroin analogue. The government argues that the evidence of the prior sale of PCP was admissible under Rule 404(b) to show appellant's knowledge that he was dealing in illegal drugs. The district court ruled that the evidence "as to the fact of the sale" was admissible on that basis, and the jury was instructed to use it only as evidence of appellant's knowledge or intent.

We agree with the government that it is well-settled in this circuit that evidence of prior drug transactions may be admitted to show knowledge or intent, even if the kind of drug involved in the prior transaction differs from that charged. United States v. Mehrmanesh, 689 F.2d 822, 832 (9th Cir. 1982) ("We have consistently held that evidence of a defendant's prior possession or sale of narcotics is relevant under Rule 404(b)"); United States v. Batts, 573 F.2d 599, 603 (9th Cir.) ("Merely because the drugs involved are different does not strip this conduct of its evidentiary value. The past acts of negotiation leading to the distribution of one drug [are] relevant to show knowledge, motive and intent on the part of appellant to partake in the attempt here to import commercial quantities of yet another drug for the purposes of distribution. The relevant factor is the type of activity undertaken, not the identity of the drugs"), cert. denied, 439 U.S. 859 (1978); United States v. Marshall, 526 F.2d 1349, 1360-61 (9th Cir. 1975) ("if the jury could find [defendant] knew the character and uses for the cocaine, they might reasonably infer that he knew the character and uses for the heroin"), cert. denied, 426 U.S. 923 (1976); United States v. Perez, 491 F.2d 167, 171-72 (9th Cir.) (prior possession of cocaine relevant to show knowledge of possession of heroin with intent to distribute), cert. denied, 419 U.S. 858 (1974).

Appellant's reliance on United States v. Marques, 600 F.2d 742 (9th Cir. 1979), cert. denied, 444 U.S. 858 (1980), and Enriquez v. United States, 314 F.2d 703, 715-17 (9th Cir. 1963), is misplaced. Enriquez was distinguished by Perez because the prior offense in Enriquez involved marijuana, a "non-narcotic" drug under 21 U.S.C. § 802, which was not punishable under the same statute as heroin, the "narcotic" drug charged. Perez, 491 F.2d at 171-72. Here, both the PCP that appellant allegedly sold in the past and the heroin analogue he was convicted of helping manufacture are synthetic drugs of similarly "high potential for abuse" under the schedules of 21 U.S.C. § 812.

Marques, the other case relied upon by appellant, suggested in dicta, but did not hold, that prior conduct involving different drugs (cocaine versus methamphetamine), less serious activity (personal use versus resale), and different types of drug activity (purchase versus manufacture), might be too dissimilar to be relevant to prove the intent to manufacture methamphetamine. 600 F.2d at 751.

In this case, the prior act was not too dissimilar because it does show knowledge of synthetic illegal drugs, which was the issue in dispute. Appellant tried to characterize himself as the "errand boy" of other more culpable codefendants. The evidence of the prior sale makes it less likely that appellant participated in procuring the laboratory equipment, etc., without knowing that the drug to be produced was illegal. The probative value of the prior sale was sufficiently great that it was not outweighed by the prejudicial nature of this evidence. Thus, the district court did not abuse its discretion in admitting the evidence.

II

Even if the court's ruling on the admissibility of the prior bad act was proper, appellant argues that the court erred in refusing to grant a mistrial when the prosecutor elicited testimony that appellant sold the PCP in order to finance a buy of heroin from Thailand. The mention of heroin, appellant contends, was sufficiently prejudicial to warrant a mistrial because it "materially affected the verdict." United States v. Christophe, 833 F.2d 1296, 1301 (9th Cir. 1987).

In this case, the prejudice generated by the additional reference to a heroin sale could not have added significantly to the prejudice already inherent in the properly admitted reference to a sale of PCP. The trial court's instruction to disregard the heroin sale was unequivocal: " [t]here is no testimony that [Mr. Langshaw] ever engaged in any prior heroin transaction, so the jury should disregard that completely." Excerpts of Record, # 15, 18. Appellant contends that because the judge did not instruct the jury to disregard the testimony until the day after they heard it, and did not repeat the instruction before their deliberations, the instruction was not sufficiently clear or forceful. Because the curative instruction was given before the jury heard any other testimony, however, the judge did not abuse his discretion in denying appellant's motion for a mistrial in these circumstances. The court's clear curative instruction was "forceful enough to dispel the prejudice generated by the evidence." United States v. Johnson, 618 F.2d 60, 62 (9th Cir. 1980).

III

Appellant also challenges his sentence. He argues that the district court violated Fed. R. Crim. P. 32(c) (3) (D) in failing to address his contention that the presentence report misreported one of his prior convictions. Rule 32 requires the district court to make findings or state that the controverted matter will not be taken into account whenever "the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report." The district court never addressed appellant's contention that the report of his 1981 Oregon conviction was incorrect. We have held that in any case in which the district court does not comply strictly with Rule 32, the sentence must be vacated and we must remand for resentencing. United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir. 1990) (en banc).

We will allow the district court to address appellant's other objections to his sentence on remand.

The conviction is AFFIRMED. The sentence is VACATED and the case REMANDED for resentencing.