United States of America, Plaintiff-appellee, v. Joseph Michael Gieniec, Defendant-appellant, 993 F.2d 885 (9th Cir. 1993)

MEMORANDUM^*** 

The district court didn't err in admitting evidence of Gieniec's prior bad acts. The evidence was relevant to show the nature of Gieniec's relationship with Rydzewski, which in turn bore on Gieniec's likely intent in accepting money from Rydzewski. Because the evidence was relevant to show something other than Gieniec's bad character, it wasn't excludable under Fed.R.Evid. 404. The probative value of the evidence was also not substantially outweighed by the danger of any unfair prejudice. See Fed.R.Evid. 403.

The district court didn't err in telling Gieniec that, if he put on evidence about Rydzewski's relationship with Tornberg, the jury could be told about Tornberg's prior trial, guilty verdict and the judgment for Tornberg notwithstanding that verdict. The court's statement was quite likely correct: If Gieniec broached the subject of the Rydzewski-Tornberg relationship, the circumstances of the Tornberg trial would probably have become relevant and therefore admissible. But the right way of preserving this point for appeal would have been for Gieniec to present his evidence and then object to the government's evidence. By not doing this, Gieniec has waived his right to appeal. See Luce v. United States, 469 U.S. 38, 41-43 (1984).

The district court also didn't err in admitting evidence of certain statements made by Gieniec's wife. These statements were admitted not for their truth, but to show their effect on the hearer (Rydzewski). Gieniec could have gotten a limiting instruction had he asked for one, see Fed.R.Evid. 105, but he didn't.

Finally, a rational jury that believed the government's evidence and not Gieniec's could have concluded that Gieniec's guilt was proven beyond a reasonable doubt.

AFFIRMED