                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 10 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-50172

              Plaintiff-Appellee,                D.C. No. 3:13-cr-01554-L-1

 v.
                                                 MEMORANDUM*
RAMON MARTINEZ-ALCAZAR,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    M. James Lorenz, District Judge, Presiding

                       Argued and Submitted August 2, 2016
                               Pasadena, California

Before: REINHARDT, KOZINSKI, and WARDLAW, Circuit Judges.

      Martinez–Alcazar appeals his conviction for the importation of heroin in

violation of 21 U.S.C. §§ 952 and 960, contending that the district court abused its

discretion under Federal Rule of Evidence 404(b) by admitting character evidence and

that this admission prejudiced him.



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1. Martinez-Alcazar argues that the government’s prior–act evidence was

inadmissible character evidence because it did not describe a prior smuggling action

that was sufficiently similar to the one at issue in this trial. The prior act, however,

was sufficiently similar for the district court not to have abused its discretion by

admitting the evidence. In both the prior act and the smuggling at issue in this case,

the defendant drove a recently purchased car, with his wife in the passenger seat, in

which law enforcement found a secret compartment in the vehicle. We repeatedly

have admitted into evidence prior acts, such as the one in this case, under Rule 404(b)

to show knowledge when both the prior act and the present act involved secret

compartments and the defendant claimed as a defense to the crime at issue that he

lacked knowledge of such a compartment. See, e.g., United States v. Bibo-Rodriguez,

922 F.2d 1398, 1402 (9th Cir. 1991); United States v. Castro–Castro, 464 F.2d 336,

337 (9th Cir. 1972); United States v. Escobedo, No. 98-50059, 1999 WL 637927 (9th

Cir. Aug. 20, 1999); United States v. Ramirez–Ozuna, No. 96-50601, 1997 WL

415339 (9th Cir. July 24, 1997). Moreover, although the two acts in this case were

a decade apart, we have held that district courts do not abuse their discretion when

admitting decade old evidence. See United States v. Vo, 413 F.3d 1010, 1018 (9th Cir.

2005); United States v. Johnson, 132 F.3d 1279, 1283 (9th Cir. 1997); United States

v. Spillone, 879 F.2d 514, 519 (9th Cir. 1989); United States v. Ross, 886 F.2d 264,


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267 (9th Cir. 1989). We note, however, that any prior act as remote in time as a

decade is suspect as improper character evidence and that the district court also would

not have abused its discretion if it had found the prior–act evidence to be inadmissible.

      2. Even if the district court had erred, Martinez-Alcazar would not have been

able to show prejudice. United States v. Chase, 340 F.3d 978, 993 (9th Cir. 2003) (en

banc). “To meet that standard, the government must show a fair assurance that the

verdict was not substantially swayed by the error.” Id. (quoting United States v.

Bauer, 132 F.3d 504, 510 (9th Cir.1997)). Here, there is a “fair assurance” that the

jury would have convicted Martinez–Alcazar even without the disputed evidence,

given the weakness of his defense. Martinez–Alcazar contends that he and his wife

drove about 1,000 miles one way for a dental appointment which never took place and

that he did not know about a secret compartment in his car, even though an expert

testified that it would be immediately noticeable to any driver going over

approximately 10 miles per hour. His main theory is that he left the car in a parking

lot in Mexico, where smugglers tampered with it and hid drugs inside it, on the

assumption that Martinez–Alcazar would drive the car back across the border and that

they could then retrieve the drugs somewhere in the United States without his

knowledge. Given the implausibility of this defense, any error in admitting the

disputed evidence would have been harmless.


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AFFIRMED.




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