U.S. v. Rocha

• Decision Date: 05 May 1977
• Docket Number: No. 76-3572,76-3572
• Citation: 553 F.2d 615
• Parties: 1 Fed. R. Evid. Serv. 988 UNITED STATES of America, Plaintiff-Appellee, v. Alfred Barton ROCHA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 615

553 F.2d 615

1 Fed. R. Evid. Serv. 988

UNITED STATES of America, Plaintiff-Appellee, v.Alfred Barton ROCHA, Defendant-Appellant.

No. 76-3572.

United States Court of Appeals Ninth Circuit.

May 5, 1977.

Tom O'Toole, Federal Public Defender, Bernardo P. Velasco, Asst. Federal Public Defender, argued, Tucson, Ariz., for defendant-appellant.

U. S. Atty. William C. Smitherman, Eugene R. Bracamonte, Asst. U. S. Atty., argued, Tucson, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before CARTER, TRASK and KENNEDY, Circuit Judges.

PER CURIAM:

Appellant was convicted by a jury for possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).He argues on appeal that the district court erred in admitting evidence of a prior arrest for marijuana possession of which he was acquitted.We disagree and therefore affirm.

On August 5, 1976, appellant entered the United States from Mexico driving a Chevrolet van.Appellant was observed driving off onto a dirt road and going to an area where he loaded some sacks into the van.A subsequent search of the van revealed that these sacks contained 231 pounds of marijuana.

Appellant had been arrested in April 1976 for transportation of marijuana.At the trial of that charge, appellant testified that he thought he was moving a load of furniture for which he would be paid $20.00, but denied knowing the contents of the truck.The jury acquitted him.

Appellant was tried on the present charge in October 1976.At that time the attorneys for the government and appellant stipulated that the evidence of the prior arrest was not to be admitted.The jury was unable to reach a verdict, and a mistrial resulted.

At the second trial, the government introduced evidence of the prior arrest, over appellant's objection, as part of its case in chief.Appellant re-explained the first arrest.He also related how he had accidentally found the marijuana in the present case and had picked it up in his van in order to turn it over to authorities and clear his name and record.The jury returned a verdict of guilty at this second trial and appellant was sentenced to a term of four years.This appeal followed.

Rule 404(b) of the Federal Rules of Evidence provides:

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

This rule codifies prior case law.SeeParker v. United States, 400 F.2d 248, 252(9 Cir.), cert. denied, 393 U.S. 1097, 89 S.Ct. 892, 21 L.Ed.2d 789(1968).

The rule represents one of inclusion which admits evidence of other crimes or acts relevant to an issue in the trial, except where it tends to prove only criminal disposition.United States v. Riggins, 539 F.2d 682, 683(9 Cir.1976).The question on appeal is whether the district court abused its discretion when it decided that the tendency of the evidence in question to prove the essential elements of knowledge and intent outweighed its potential prejudice.United States v. Perez, 491 F.2d 167, 172(9 Cir.), cert. denied, 419 U.S. 858, 95 S.Ct. 106, 42 L.Ed.2d 92(1974).

This case is nearly identical to United States v. Castro, 464 F.2d 336(9 Cir.1972), cert. denied, 410 U.S. 916, 93 S.Ct. 971, 35 L.Ed.2d 278(1973).Appellant in that case was arrested for importation of marijuana.At trial, the government introduced evidence of a prior arrest and acquittal for importation of marijuana.In both trials, ...