U.S. v. Arambula-Ruiz

• Decision Date: 03 March 1993
• Docket Number: No. 91-50504,D,ARAMBULA-RUI,91-50504
• Parties: 38 Fed. R. Evid. Serv. 201 UNITED STATES of America, Plaintiff-Appellee, v. Joseefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 599

987 F.2d 599

38 Fed. R. Evid. Serv. 201

UNITED STATES of America, Plaintiff-Appellee, v. Jose ARAMBULA-RUIZ, Defendant-Appellant.

No. 91-50504.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 5, 1992.

Decided March 3, 1993.

Robert E. Boyce and Tamara L. Cross, San Diego, CA, for defendant-appellant.

Gonzalo P. Curiel, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Thomas J. MacBride, Senior District Judge, Presiding.

Before J. CLIFFORD WALLACE, Chief Judge, and STEPHEN S. TROTT and THOMAS G. NELSON, Circuit Judges.

T.G. NELSON, Circuit Judge:

I.

OVERVIEW

A jury convicted appellant Jose Arambula-Ruiz (Arambula) for conspiracy to possess a controlled substance with intent to distribute, possession of a controlled substance with intent to distribute, and aiding and abetting in violation of 21 U.S.C. § 841(a)(1) (1984), 21 U.S.C. § 846 (1984) and 18 U.S.C. § 2 (1979). He was sentenced to a ninety-month jail term followed by four years of supervised release. He appeals claiming that both evidentiary and constitutional errors occurred at trial. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal under 28 U.S.C. § 1291 and now affirm.

II.

BACKGROUND

Drug Enforcement Agent Jorge Rodriguez went undercover to investigate Otto Rene Aldana. Aldana negotiated a sale of fifteen ounces of heroin with Rodriguez and, after meeting to test a sample, they arranged for delivery of the drug on June 27, 1990, at a Denny's Restaurant.

On June 27, while Agent John Roberts was conducting surveillance at Aldana's apartment, he observed Arambula and Mariles-Ortega standing outside conducting "counter-surveillance." He then saw Aldana, Arambula, Mariles, Medina-Flores and They got into three separate cars and drove to Denny's where Agent Rodriguez was waiting. Arambula and Mariles drove to the restaurant in the Chevrolet Impala and upon their arrival went inside Denny's. Medina and Guerra walked to the side of the restaurant, and Aldana remained in his car. Agent Rodriguez approached Aldana's vehicle. Aldana then handed the brown paper sack to Rodriguez which contained heroin. All five men were immediately arrested.

                Guerra-Remboa congregate on the front porch, after which both Arambula and Mariles went to a Chevrolet Impala and retrieved a white package from the trunk.   Afterwards, they all returned to the house and came out approximately five minutes later with Aldana carrying a brown paper sack
                

A federal grand jury returned a two-count indictment against all five men (Arambula, Aldana, Medina, Mariles and Guerra), charging them with conspiracy to possess a controlled substance with intent to distribute, possession of a controlled substance with intent to distribute, and aiding and abetting. Arambula pled not guilty and was tried jointly with Medina and Guerra; Aldana's trial was severed; and Mariles pled guilty.

The jury found Arambula guilty on both the conspiracy and possession counts; however, the jury found codefendants Medina and Guerra not guilty on the possession charges. Because the jury was unable to agree on the conspiracy charges against Medina and Guerra, the court granted their motions for acquittal.

Arambula now appeals claiming that the district court erred in three ways: (1) admitting evidence of prior bad conduct for the limited purpose of showing knowledge and intent; (2) admitting co-conspirator statements in violation of Fed.R.Evid. 801(d)(2)(E); and (3) failing to grant his motion for mistrial after an alleged Bruton error. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

III.

DISCUSSION

A. Prior Bad Conduct

Arambula contends the district court erred in admitting evidence of his prior drug conviction for possession of a controlled substance with intent to distribute.

We review for abuse of discretion the district court's decision to admit evidence of prior bad conduct under Fed.R.Evid. 404(b). United States v. Rubio-Villareal, 927 F.2d 1495, 1502 (9th Cir.1991), vacated in part and remanded on other grounds, 967 F.2d 294 (9th Cir.1992) (en banc). However, the issue of whether the evidence falls within the scope of Rule 404(b) is reviewed de novo. Id. at 1503.

Fed.R.Evid. 404(b) provides that evidence of prior crimes, acts or wrongs is not admissible to prove the character of an accused in order to show action in conformity with that character. However, Rule 404(b) also sets forth an exception which allows the admission of prior conduct for the purposes of proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

In determining whether evidence of Arambula's prior conviction was properly admitted under Rule 404(b), the evidence must satisfy the following four requirements: (1) it must prove a material element of the offense for which the defendant is now charged; (2) in certain cases, the prior conduct must be similar to the charged conduct; (3) proof of the prior conduct must be based upon sufficient evidence; and (4) the prior conduct must not be too remote in time. United States v. Houser, 929 F.2d 1369, 1373 (9th Cir.1990). Finally, in addition to these requirements, we must analyze the evidence pursuant to Rule 403 and determine whether its probative value outweighs its prejudicial effect. Id. The Government has the burden of proving that the evidence meets all of the above requirements. United States v. Alfonso, 759 F.2d 728, 739 (9th Cir.1985). Furthermore, the Government is required to establish how the evidence is relevant to one or more

issues in the case: "it must articulate precisely the evidential hypothesis by which a fact of consequence may be inferred from the other acts evidence." United States v. Mehrmanesh, 689 F.2d 822, 830 (9th Cir.1982).

(1) Material Element

In the present case, Arambula's prior conviction for possession of heroin with intent to distribute is relevant to a material element of the charged offense because it tends to show knowledge. Knowledge is a material element of the crime of possessing heroin with intent to distribute. 21 U.S.C. § 841. It is also a material element of the crime of conspiring to possess heroin with intent to distribute. United States v. Schmidt, 947 F.2d 362, 367 (9th Cir.1991) ("knowledge of the objective of the conspiracy is an essential element of any conspiracy conviction" (internal quotation and citation omitted)).

Arambula's defense at trial was that he was an innocent bystander "at the wrong place at the wrong time." Because he argued that he was unaware of the purpose of the conspiracy to distribute heroin, his prior conviction was relevant to establish a crucial element of the crime charged. It was not admitted, therefore, merely to show criminal disposition. See United States v. Lewis, 837 F.2d 415, 418-19 (9th Cir.) (approving use of evidence that six weeks prior to child's death, defendant had severely beaten him where such evidence was not used for sole purpose of showing criminal disposition), cert. denied, 488 U.S. 923, 109 S.Ct. 304, 102 L.Ed.2d 323 (1988).

(2) Similarity

Arambula argues that the only similarity between the prior drug conviction and the one under which he was charged is that they both involved narcotics. However, as indicated in our prior opinions, similarity is not always a prerequisite to admissibility under Rule 404(b). See United States v. Ramirez-Jiminez, 967 F.2d 1321, 1326 (9th Cir.1992). As we reasoned in Ramirez-Jiminez:

The degree of similarity required ... will depend on the evidential hypothesis which is being employed. Thus, for example, we have held that similarity is always required to prove identity of intent.... When offered to prove knowledge, however, the prior act need not be similar to the charged act as long as the prior act was one which would tend to make the existence of the defendant's knowledge more probable than it would be without the evidence.

Id. (internal quotation and citations omitted); see also United States v. Miller, 874 F.2d 1255, 1269 (9th Cir.1989).

In this case, the district court admitted the evidence of Arambula's prior drug conviction for the purpose of showing both intent and knowledge. Although a factual similarity between Arambula's prior drug conviction and the one charged is required in the former, evidence of prior bad acts is admissible to show the latter even when similarity is lacking, as long as it makes "the existence of [Arambula's] knowledge more probable than it would be without the evidence." Ramirez-Jiminez, 967 F.2d at 1326. The fact that Arambula had been convicted of possessing heroin with the intent to distribute certainly made the existence of his knowledge regarding the current heroin sale more probable than not. It helped disprove Arambula's contention that he was merely an innocent bystander, and tended to show that he was aware of the heroin transaction. See id. The district court, therefore, did not abuse its discretion in admitting that evidence.

(3) Sufficient Proof

In this case, the fact that Arambula was convicted of the prior drug offense is sufficient proof that the defendant committed the prior act.

(4) Remoteness

Arambula's prior arrest for possession of controlled substances with intent to sell occurred on March 23, 1989. He was convicted on May 2, 1989. The district court did not err in ruling that evidence of the prior conviction was not too remote in

                time.   We have held that a conviction which occurred five years prior to the charge at issue was not too remote.  Houser, 929 F.2d at 1373
                

(5) Probative Value/Prejudicial Effect

Finally, we must review for abuse of discretion the district court's decision that the probative value of the evidence concerning Arambula's prior conviction outweighed its prejudicial value. Id. Both ...