Unpublished Disposition, 936 F.2d 580 (9th Cir. 1989)

MEMORANDUM^** 

Jorge Ramon Leyva-Atondo appeals his conviction, following a jury trial, for possession with intent to distribute over 100 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (B) (vii). Leyva-Atondo claims the district court erred by admitting evidence seized following an illegal stop of his truck. He also claims the district court improperly permitted the government to allude to "other crimes" to show his criminal character. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

FACTS

On January 14, 1989, United States Customs Agent Johnny Rojas learned from a confidential informant that a man driving a 1979 white Silverado pickup with license plate number 3ET-338 had delivered a shipment of marijuana to a residence in Tucson, Arizona on January 13. The informant reported that, on that occasion, a woman driving a 1985 white and blue Chevrolet Blazer with license plate number 3PV-274 had acted as "scout" for the pickup, the "load" vehicle, by checking the roads for law enforcement personnel, calling an unknown person from a rest area on I-19 near Amado, Arizona, and then meeting up with the Silverado to escort it to the delivery site in Tucson. Acting on this information, police seized a quantity of marijuana at the delivery site in Tucson.

On January 20, 1989, Agent Rojas spotted the Blazer the informant had described driving northward on I-19. He followed the car and watched it pull off at a rest area near Amado. When Rojas pulled into the rest area a few minutes later, he saw a woman emerge from the public telephone booth, walk to the Blazer and wait. Rojas assumed she was waiting for the white Silverado pickup the informant had described. When the pickup drove by ten or twenty minutes later, the woman left the rest area and proceeded north on I-19. Rojas followed the two vehicles and came upon the Blazer parked on the shoulder of the road some two miles north of the rest area. He suspected the woman had pulled over to divert his attention from the pickup, so he continued northward until he overtook and stopped the Silverado. Rojas arrested Leyva-Atondo, the driver, when he discovered 23 bales of marijuana, weighing more than 700 pounds altogether, hidden in the cab and under the camper shell of the pickup. After being informed of his Miranda rights, Leyva-Atondo told Rojas that he had been hired in Mexico to drive the truck from Nogales, Arizona to a Safeway store in Tucson. He admitted that he believed there were 700 pounds of marijuana in the truck.

Before trial, Leyva-Atondo moved to suppress these statements and evidence of the marijuana on the ground that Rojas had stopped his truck without founded suspicion. He also moved in limine to preclude the government from mentioning the information Rojas had received from the informant concerning the January 13 drug delivery. The district court denied the motion to suppress, and ordered the government to limit Rojas' testimony so as to avoid mention of the earlier seizure of marijuana. Leyva-Atondo was convicted following a jury trial and he timely appeals.

DISCUSSION

We review de novo a district court's determination that police had a founded suspicion to justify an investigatory stop. United States v. Sanchez-Vargas, 878 F.2d 1163, 1166 (9th Cir. 1989); United States v. Robert L., 874 F.2d 701, 703 (9th Cir. 1989). In evaluating the legality of a stop, we consider " 'the totality of the circumstances--the whole picture.' " United States v. Sokolow, 490 U.S. 1, 8 (1989) (quoting United States v. Cortez, 449 U.S. 411 (1981)).

We review de novo the legal question whether proffered information is evidence of "other crimes" under Fed.R.Evid. 404(b). United States v. Soliman, 813 F.2d 277, 278 (9th Cir. 1987). We review for abuse of discretion a district court's decision to admit evidence over a defendant's timely objection. United States v. Catabran, 836 F.2d 453, 456 (9th Cir. 1988).

Here, Rojas observed a Blazer and a Silverado that matched in every detail the two vehicles the informant said had been involved in a drug delivery one week earlier. The Blazer stopped at a rest area and the driver made a telephone call. Soon afterward, the Silverado appeared. That these events were perfectly consistent with those the informant had detailed on January 14 provided ample grounds for Rojas's suspicion. Therefore, we uphold the district court's denial of Leyva-Atondo's motion to suppress. See Sokolow, 490 U.S. at 8.

At trial, Rojas testified that he had information linking the two vehicles to "some marijuana operations in the past" (RT at 24). He did not mention Leyva-Atondo, however, or the arrest arising out of the transaction on January 13. We hold that this was not evidence of "other crimes" within the meaning of Rule 404(b), and therefore the district court did not err by permitting Rojas's testimony. See Soliman, 813 F.2d at 278.

AFFIRMED.