Unpublished Disposition, 861 F.2d 269 (9th Cir. 1988)

MEMORANDUM^* 

Jerome A. Llobregat appeals his conviction for conspiracy to distribute cocaine, and for interstate travel in aid of racketeering. Llobregrat contends that the district court abused its discretion in admitting evidence of his prior cocaine purchases.

Although Fed.R.Evid. 404(b) generally prohibits the introduction of evidence of extrinsic acts that might adversely reflect on the actor's character, see Huddleston v. United States, --- U.S. ----, 108 S. Ct. 1496, 1499 (1988), such evidence may be admissible if it bears on a relevant issue in the case. United States v. McKoy, 771 F.2d 1207, 1213 (9th Cir. 1985). Here, the necessary prerequisites for the admission of evidence of prior acts have been met. See United States v. Sarault, 840 F.2d 1479, 1485 (9th Cir. 1988). First, the prior acts were relevant to prove Llobregat's involvement in the conspiracy by demonstrating his intent, knowledge, opportunity and plan. See United States v. Powell, 587 F.2d 443, 448 (9th Cir. 1978). Second, the unchallenged testimony of three individuals that they sold cocaine to Llobregat on several occasions constituted sufficient evidence from which the finder of fact could conclude that the defendant had committed the prior acts. See Huddleston, 108 S. Ct. at 1499. Third, the prior acts were not too remote in time from the charged offense. See United States v. Alphonso, 759 F.2d 728, 739 (9th Cir. 1985) (five year time gap does not require exclusion of evidence).

Finally, we find no abuse of discretion by the trial judge in concluding that the potential for unfair prejudice did not outweigh the probative value of the prior acts evidence. See Fed.R.Evid. 403; United States v. Patterson, 819 F.2d 1495, 1505 (9th Cir. 1987) (exclusion of relevant evidence to avoid unfair prejudice is an extraordinary remedy to be used sparingly).¹ 

AFFIRMED.