Unpublished Disposition, 933 F.2d 1016 (9th Cir. 1990)

Ricardo Gonzalez-Sanchez appeals his jury conviction for possession with intent to distribute over 100 grams of heroin, in violation of 21 U.S.C. §§ 841(a) (1) and (b) (1) (B) (i).

Standard of Review

This court reviews de novo whether evidence received in trial constitutes "other crimes" under FED.R.EVID. 404(b). United States v. Mundi, 892 F.2d 817, 820 (9th Cir. 1989). A trial court's decision on a question of the relevance of evidence is reviewed for abuse of discretion. United States v. Kessi, 868 F.2d 1097, 1107 (9th Cir. 1989). The same abuse of discretion standard applies to the district court's balance of probative value of evidence against its prejudicial effect. United States v. Gilley, 836 F.2d 1206, 1213 (9th Cir. 1988).

Admission of Evidence

Rule 404(b) allows the introduction of prior bad acts evidence "as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." FED.R.EVID. 404(b). Evidence is admissible under the rule if: (1) sufficient proof exists for the jury to find that the defendant committed the prior acts; (2) the prior act was not too remote in time; (3) the prior criminal conduct must be similar to the events charged in some cases; and (4) it must be introduced to prove an element of the charged offense that is a material issue in the case. United States v. Miller, 874 F.2d 1255, 1268 (9th Cir. 1989). With the testimony of the arresting officer, Sergeant May, there was sufficiently credible evidence that the acts occurred and that the defendant was the actor. Huttleson v. United States, 485 U.S. 681 (1988). Each prior meeting where drugs were discussed or purchased could be linked to the eventual purchase and subsequent arrest on January 30, 1990. It was similar conduct that, in fact, demonstrated intent, motive and knowledge of the defendant and his co-defendant to distribute heroin.

The evidence was admissible because rather than impugning the defendant's character, it demonstrated his involvement in the ongoing drug distribution scheme. "Evidence should not be treated as 'other crimes' evidence when 'the evidence concerning the ["other"] act and the evidence concerning the crime charged are inextricably intertwined.' " United States v. Mundi, 892 F.2d 817, 820 (9th Cir. 1989) (quoting United States v. Aleman, 592 F.2d 881, 885 (5th Cir. 1979)). "Evidence of negotiations of illicit transactions both prior and subsequent to the specific sale described in the count can be used to establish a seller's guilt as an aider and abetter." United States v. Smith, 832 F.2d 1167, 1169 (9th Cir. 1987).

Also, a trial court has great latitude in the admissibility of evidence. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." FED.R.EVID. 401. United States v. Gilley, 836 F.2d 1206, 1213 (9th Cir. 1988). In fact, the district court specifically noted that it would only allow evidence that had a direct relation to the January 30, 1990, meeting at which the arrest occurred.

Even if relevant, however, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. FED.R.EVID. 403. The prosecution recounted various interactions between May, the defendant and co-defendant Gonzales-Garza. Each tended to show that the defendant was actively, although perhaps secondarily, involved in Gonzales-Garza's drug distribution efforts. We conclude the district court did not abuse its discretion by admitting this evidence.

Sufficiency of the Evidence

In review of a challenge to the sufficiency of the evidence, this court determines whether any rational trier of fact could find the elements of the crime beyond a reasonable doubt. United States v. Adler, 879 F.2d 491, 495 (9th Cir. 1988). While mere presence in a residence or vehicle is insufficient to prove guilt, concerted activity can create an inference of a joint venture. United States v. Hernandez, 876 F.2d 774, 780 (9th Cir. 1989).

In United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987), for example, the defendant's "alleged counter-surveillance activities did not occur at times or places where the risk of detection or capture [was] greatest, i.e., at meetings between buyers and sellers or during actual transfer of drugs to buyers." Id. at 349. The defendant in Penagos was present on only one occasion where drugs were implicated. Here, however, the government demonstrated that the defendant was not only present several times when drugs were discussed, but also at the time of the actual arrest when he attempted to warn Gonzales-Garza. As in United States v. Perez 451 F.2d 167 (9th Cir. 1974), a case distinguished in Penagos, the defendant unsuccessfully acted as a lookout and, through his actions, demonstrated his involvement.

We find no merit in the defendant's factual or legal arguments, and therefore, AFFIRM.