Unpublished Disposition, 867 F.2d 614 (9th Cir. 1987)

MEMORANDUM^** 

Armando Figueroa-Martinez appeals his conviction following jury trial on two counts of transporting illegal aliens. Figueroa-Martinez contends that the district court abused its discretion in admitting evidence of a previous arrest for transporting aliens. We affirm.

FACTS

On September 28, 1987, police officers arrested Figueroa-Martinez while he was driving a tractor-trailer, after getting a report that a vehicle of that description in the vicinity had been loaded with illegal aliens. After being arrested, and read his Miranda rights Figueroa-Martinez confessed to agents of the Border Patrol that he had been asked to drive aliens in the tractor-trailer with a load of illegal aliens in exchange for a waiver of the usual smuggling fee. At trial, a member of the Border Patrol testified that on a previous occasion, February 13, 1987, he had arrested Figueroa-Martinez after personally observing illegal aliens enter a tractor-trailer Figueroa-Martinez was about to drive. Prior to trial, the court denied Figueroa-Martinez's motion in limine, to preclude the government from admitting evidence of his previous arrest.

DISCUSSION

We review a district court's decision to admit evidence of a prior similar act under Fed. Rule of Evidence 404(b) for an abuse of discretion. United States v. Espinoza, 578 F.2d 224, 228 (9th Cir.), cert. denied, 439 U.S. 849 (1978).

Evidence of a defendants other crimes is admissible if offered to prove intent, plan, knowledge, identity or absence of mistake and such an issue is a material element of the charged offense. See Fed.R. Evidence 404(b). United States v. Bailleaux, 685 F.2d 1105, 1110 (9th Cir. 1982).

A material and contested issue at trial was whether Figueroa-Martinez was aware that the tractor-trailer he was driving held illegal aliens. His recent arrest for transporting illegal transporting aliens in a tractor-trailer under similar circumstances tends to show that Figueroa-Martinez was not mistaken about his role in transporting illegal aliens on this occasion. See United States v. Mehrmanesh, 689 F.2d 822, 831 (9th Cir. 1982); United States v. Ruiz-Juarez, 456 F.2d 1015, 1016 (9th Cir. 1972) (evidence that defendant had previously transported illegal alien under the hood of his car admissible on current charge of smuggling alien under hood of his car).

The trial court adequately balanced the probative effects of this evidence against its prejudicial impact. See United States v. Sangrey, 586 F.2d 1312, 1315 (9th Cir. 1978). Its decision to admit the evidence was not in violation of Fed. R. Civ. P. 403. See United States v. McCollum, 732 F.2d 1419, 1425 (9th Cir.), cert. denied, 469 U.S. 920 (1984).

AFFIRMED.