Unpublished Disposition, 851 F.2d 361 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 851 F.2d 361 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Antonio GUIZAR-VALDAVINOS, Defendant-Appellant.

No. 87-3079.

United States Court of Appeals, Ninth Circuit.

Submitted May 24, 1988.* Decided June 24, 1988.

Before FERGUSON, NORRIS and WIGGINS, Circuit Judges.


MEMORANDUM** 

Antonio Guizar-Valdavinos appeals from his conviction for aiding and abetting the distribution of heroin and cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a) (1). The appellant claims that the district court erred by (1) admitting evidence of his presence at a prior heroin sale; (2) inadequately instructing the jury about the limited purpose of the prior act evidence, and (3) referring to the charges against him as counts 2 and 3, after count 1 had been dismissed, instead of counts 1 and 2. We have jurisdiction and affirm.

Federal Rule of Evidence 404(b) allows a court to admit evidence of a defendant's prior bad acts for purpose other than to prove character or criminal propensity; such evidence may be admitted to prove motive, intent or knowledge. Evidence of a prior act is admissible if (1) the evidence is offered for a proper purpose under Fed.R.Evid. 404(b), (2) there is sufficient evidence to support a finding by the jury that the defendant committed the prior act, (3) the prior act evidence is relevant to the case in which it is admitted, (4) the probative value of the prior act evidence is not substantially outweighed by the danger of unfair prejudice, and (5) the trial court instructed the jury that the prior act evidence is to be considered only for a proper purpose as defined by Fed.R.Evid. 404(b). See Huddleston v. United States, 56 U.S.L.W. 4363, 4366 (U.S.1988).

The indictment charged the appellant with aiding and abetting the sale of heroin and cocaine on February 3, 1987. Immediately prior to trial, the appellant moved in limine to prohibit the introduction of evidence of the appellant's presence at an earlier sale on January 26. The court denied the motion on the ground that such evidence tended to prove the appellant's intent to aid and abet the February 3 offense, and was not unduly prejudicial to the appellant. At trial, the court instructed the jury on the limited use of the prior act evidence in accordance with Fed.R.Evid. 105.

The appellant contends on appeal that evidence of his presence at the January 26 sale should not have been admitted because (1) it did not establish in a clear and convincing manner that he was in fact present; (2) the prejudicial effect of the evidence outweighed its probative value; and (3) the district court did not adequately instruct the jury on the limited purpose of the prior act evidence.

This circuit has required that evidence of prior acts prove in a clear and convincing manner that the defendant in fact committed the prior act. See United States v. Vaccaro, 816 F.2d 443, 452 (9th Cir.), cert. denied, 108 S. Ct. 262 (1987). However, in a recent case, a unanimous United States Supreme Court implicitly disapproved the use of the clear and convincing test. See Huddleston, 56 U.S.L.W. at 4364-65 n. 2. In Huddleston, the court resolved a conflict among the courts of appeal, ruling that district courts are not required to make a preliminary finding that the prior act occurred. Id. at 4364-65 n. 2, 4366. Instead, prior act evidence is admissible if it meets the relevancy test of Fed.R.Evid. 104(b); that test merely requires a district court to determine whether there is sufficient evidence to support a finding by the jury that the defendant committed the prior act. Id. at 4366. We apply the Huddleston standard here. See Dobbins v. Schweiker, 641 F.2d 1354, 1360 n. 8 (9th Cir. 1981) ("As a general rule, appellate courts will apply changes in laws that come into effect after an initial judgment, but before an appeal is decided.").

At the in limine hearing, the government testified that Drug Enforcement Administration officers saw the appellant stop by the house of Suarez-Lopez prior to the January 26 drug sale and then drive his car to and park it at the drug sale site in a position to observe the transaction. This evidence provided the necessary predicate that the defendant in fact was present at the January 26 sale.

The claim of unfair prejudice by the admission of this evidence is similarly unavailing. Such evidence was closely related in time to the February 3 transaction and is similar. It is not the type of evidence that would inflame the jury. It was not an abuse of discretion to admit it.

The appellant also contends that the district court erred by inadequately instructing the jury on the limited purpose of the prior act evidence. We disagree.

The district court's limiting instruction informed the jury that the appellant was not charged with aiding or abetting the January 26, 1987 heroin sale and the evidence concerning that sale "is only to be considered as to whether the defendant intended to aid and abet the sale of a controlled substance on February 3, 1987, and for no other purpose." This instruction correctly stated the law to the jury. See United States v. Bradshaw, 690 F.2d 704, 710 (9th Cir. 1982), cert. denied, 463 U.S. 1210 (1983).

The appellant contends that he was unfairly prejudiced by the jury instructions because they referred to the charges against him as "counts 2 and 3" of the indictment, thus permitting the jury to speculate about the nature of the missing count which had been dismissed before trial. The only argument made in support of this contention is that the numbering used by the district court had the potential of creating an undue prejudicial effect upon the jury. However, we find no evidence that this inadvertent and isolated error by the trial judge infected the entire trial or indeed had any effect at all upon the trial. To the extent that the trial judge may have committed an inadvertent error in characterizing the counts of the indictment against the appellant, we find that such error was harmless.

The judgment is AFFIRMED.

 *

The panel finds this case appropriate for submission without argument pursuant to Fed. R. App. P. 34(a) and 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3