Unpublished Disposition, 935 F.2d 273 (9th Cir. 1991)

MEMORANDUM^** 

Conner argues that the district court erred by denying his motion for a new trial. We affirm.

When a district court denies a request for a continuance, reversal is not warranted unless, at a minimum, the appellant shows that the denial of his request caused prejudice. United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir.), amended 764 F.2d 675 (1985). In the past, we have found prejudice only when the denial of a continuance prevented the appellant from presenting a material part of his case. No such prejudice occurred here. Conner was able to present his entire case to the jury. Conner contends that he was prejudiced because the "empty chair" sent the wrong message to the jury and because he was forced to present his case out of order. On this record, we cannot conclude that these circumstances caused Conner prejudice.

Nor do we believe that the granting of the motion in limine was an error that warrants a new trial. Rule 404 does not permit evidence of prior bad acts to be used to show that the defendant probably committed those acts again in a particular case. Evidence of prior bad acts is admissible, however, when it is advanced for a proper purpose.

In this case Conner contends that the evidence was admissible to show Wallace's intent. Conner's argument is not persuasive. The theory, according to Conner, is that Wallace hated men with long hair and beards, and that Wallace arrested Conner in order to "cover" his use of excessive force. Even if such a theory of admissibility were legitimate, Conner would have to show that the prior acts were relevant to and probative of that theory. The record contains no information that the other complainants were long-haired bearded men. On the contrary, one of the prior complaints was filed by a woman. The record does not reveal whether the prior complaints of excessive force also involved allegations of a false arrest to "cover" the use of force. Nor does the record reveal whether the other prior acts of allegedly excessive force were sufficiently similar or sufficiently vicious to be probative of Conner's contention, advanced for the first time in the motion for a new trial, that the prior acts showed malice and were admissible to show that Wallace acted with malice against Conner.

Conner does not consistently argue that the prior bad acts should be admitted on this theory of intent and malice. He sometimes contends that the jury should have learned of the prior bad acts to help it evaluate Wallace's credibility. Prior bad acts are not generally admissible to show lack of credibility. Conner's "credibility" argument amounts to an argument that because Wallace used excessive force in the past, he must have done it again when he encountered Conner. Rule 404 does not provide for admitting evidence of prior bad acts in support of such an argument.

AFFIRMED.