Unpublished Disposition, 933 F.2d 1017 (9th Cir. 1991)

MEMORANDUM^** 

Darryl Lamar Reed appeals his conviction by jury trial for manufacture of crack cocaine, possession with intent to distribute crack cocaine, and possession with intent to distribute cocaine hydrochloride in violation of 21 U.S.C. § 841(a) (1) and his sentence under the United States Sentencing Guidelines. He was sentenced to three concurrent terms of 420 months imprisonment and 5 years supervised release and fined $50,000 on each count. He contends that the district court erred by (1) admitting testimony by two witnesses about his prior drug-related acts, (2) upwardly adjusting his Sentencing Guidelines offense level based on his leadership role, (3) failing to resolve a factual dispute about a juvenile conviction, and (4) increasing his criminal history score based on the juvenile conviction. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* Admission of Testimony

We review the district court's admission of evidence for abuse of discretion. United States v. Thomas, 893 F.2d 1066, 1070 (9th Cir.), cert. denied, 111 S. Ct. 80 (1990).

Reed challenges the district court's admission of testimony by Trevor Seymore to show knowledge and intent under Federal Rules of Evidence 404(b) and 403. Seymore testified about Reed's prior use of the same cocaine manufacturing method as that charged in the indictment and Reed's prior sales of cocaine to Seymore and others.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Fed.R.Evid. 404(b). The district court may admit evidence under Rule 404(b) if: "(1) sufficient proof exists for the jury to find that the defendant committed the prior act; (2) the prior act was not too remote in time; and (3) the prior act is introduced to prove a material issue in the case." United States v. Hadley, 918 F.2d 848, 850-51 (9th Cir. 1990). Where a prior act is admitted to prove intent, it must also be similar to the charged offense. United States v. Spillone, 879 F.2d 514, 519 (9th Cir. 1989), cert. denied, 111 S. Ct. 173 and 111 S. Ct. 210 (1990). The defendant's choice of defense does not relieve the prosecution of its burden to prove each element of an offense, and so intent can be a material issue for purposes of Rule 404(b) even where the defendant does not dispute it. Hadley, 918 F.2d at 852.

Reed contends that intent was not in dispute and therefore not material because when the government presented its case, he was asserting the defense that he did not participate in the crimes charged and had not taken the position that he was merely present. He contends that knowledge was not in dispute because he was not asserting the defense that he did not know drugs were in the apartment where he was arrested. These contentions lack merit because intent and knowledge are elements of the crimes of possession and manufacture of cocaine and thus material. 21 U.S.C. § 841(a) (1); see Hadley, 918 F.2d at 852. Accordingly, the district court did not abuse its discretion by admitting Seymore's testimony under Rule 404(b). See Thomas, 893 F.2d at 1070.

"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403. Evidence of similar prior acts may be highly probative of intent. Hadley, 918 F.2d at 852. Unfairly prejudicial evidence is evidence that tends to adversely affect the jury's attitude toward the defendant wholly apart from its judgment as to the defendant's guilt or innocence. United States v. Bailleaux, 685 F.2d 1105, 1111 (9th Cir. 1982). The prejudicial effect of prior acts evidence may be limited by jury instructions. Hadley, 918 F.2d at 852; Thomas, 893 F.2d at 1071.

Here, Seymore's testimony was probative of Reed's intent to distribute the cocaine, but also prejudicial because the jury might unfairly have concluded that his prior acts made it more likely that he would again manufacture and sell drugs. See Hadley, 918 F.2d at 852. Nevertheless, the district court gave a limiting instruction that the prior acts evidence was admitted only to prove intent. Accordingly, the district court did not abuse its discretion by admitting Seymore's testimony under Rule 403. See Thomas, 893 F.2d at 1071.

Reed also challenges the district court's admission of testimony by expert witness Detective Everett Gremminger about the street value of cocaine and the significance of drug ledger books. As discussed above, this evidence was properly admitted under Rule 404(b) to show knowledge and intent. See Hadley, 918 F.2d at 852.

Reed also argues that Gremminger's reference to "speedballing" and John Belushi's death, in answer to a question about how buyers used cocaine hydrochloride, was improper under Rule 403. Any unfairly prejudicial effect of this evidence was minimal because Gremminger referred to Belushi only as an example of a cocaine user and did not connect him to Reed. Accordingly, this argument lacks merit. See Bailleaux, 685 F.2d at 1111.

II

Leadership Role

Reed contends that the district court erred by relying on uncharged conduct by Reed and others when upwardly adjusting his offense level because he was an organizer or leader of a drug distribution network.

This court reviews de novo the district court's interpretation of the Sentencing Guidelines. United States v. Carvajal, 905 F.2d 1292, 1295 (9th Cir. 1990). The Guidelines provide for an upward adjustment of four levels " [i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." U.S.S.G. Sec. 3B1.1(a). A defendant's role in collateral conduct may not itself serve as the basis for a role adjustment, but may shed light on the defendant's role in the offense of conviction. U.S.S.G. Ch. 3, Pt. B, intro. comment.; United States v. Lillard, No. 90-30202, slip op. at 4177-78 (9th Cir. Mar. 29, 1991); United States v. Zweber, 913 F.2d 705, 709 (9th Cir. 1990).

Accordingly, the district court properly considered trial testimony and other evidence about drug transactions on different dates in finding that Reed was an organizer or leader of the manufacture and possession of cocaine that took place on December 8, 1988. See Lillard, No. 90-30202, slip op. at 4177-78. We therefore affirm the upward adjustment under U.S.S.G. Sec. 3B1.1(a).

III

Criminal History

Reed contends that the district court violated Federal Rule of Criminal Procedure 32(c) (3) (D) by failing to determine whether a prior juvenile conviction listed in his presentence report was for possession of cocaine for sale or possession of marijuana for sale.

When a defendant contests the accuracy of facts in the presentence report, the district court must either make a factual finding on the matters contested or state that the matters are not being considered in sentencing. United States v. Macias-Perez, 915 F.2d 570, 571 (9th Cir. 1990). Here, at the sentencing hearing, the district court stated that the nature of the juvenile conviction "won't make any difference in terms of the point calculation." Thus, the district court complied with Rule 32 by stating that the nature of the conviction was not being considered in sentencing. See id.

Reed contends that the district court erred by assessing one criminal history point under U.S.S.G. Sec. 4A1.1(c) for the cocaine or marijuana possession conviction because it was a juvenile conviction. Criminal history points may be assessed for juvenile convictions. U.S.S.G. Sec. 4A1.2(d) (2) (B); United States v. Williams, 891 F.2d 212, 215-16 (9th Cir. 1989), cert. denied, 110 S. Ct. 1496 (1990); United States v. Mackbee, 894 F.2d 1057, 1058 (9th Cir.), cert. denied, 110 S. Ct. 2574 (1990). Accordingly, Reed's contention lacks merit.

AFFIRMED.