                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 12 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-30153

              Plaintiff - Appellee,              D.C. No. 2:13-cr-00224-RAJ-1

 v.
                                                 MEMORANDUM*
JOSEPH R. KALAC,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Richard A. Jones, District Judge, Presiding

                              Submitted July 7, 2016**
                                Seattle, Washington

Before: KLEINFELD, McKEOWN, and M. SMITH, Circuit Judges.

      Joseph Kalac appeals his conviction and sentence for possession of heroin,

methamphetamine and cocaine base with intent to distribute in violation of 21

U.S.C. §§ 841(a)(1) and 841(b)(1)(A), (B) and (C); possession of a firearm in


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
violation of 18 U.S.C. § 924(c)(1)(A)(i); and being a felon in possession of a

firearm and being a felon in possession of ammunition in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291.

We affirm.

      Kalac argues that the district court abused its discretion in admitting

evidence of his prior conviction for possession of cocaine with intent to distribute

under Federal Rule of Evidence 404(b) “to prove a material point, namely

knowledge and intent,” because his defense was that the drugs were not his and

thus knowledge and intent were not at issue. Kalac’s choice of defense did “not

relieve the government of its burden of proof on any issue, including intent,” and

so did not preclude the government “from meeting this burden by an otherwise

acceptable means such as Rule 404(b).” United States v. Mayans, 17 F.3d 1174,

1182 (9th Cir. 1994) (internal quotation marks and citations omitted). In

prosecutions for possession with intent to distribute, “[w]e have consistently held

that evidence of a defendant’s prior possession or sale of narcotics is relevant

under Rule 404(b) to issues of intent [and] knowledge.” United States v. Vo, 413

F.3d 1010, 1018 (9th Cir. 2005) (internal quotation marks and citations omitted).

Thus, the district court did not abuse its discretion in admitting Kalac’s prior

possession conviction. See United States v. Hardrick, 766 F.3d 1051, 1055 (9th


                                           2
Cir. 2014) (“We review for abuse of discretion the district court’s admission of

prior acts evidence.”)

      Kalac also contends that, because the district court did not expressly mention

Rule 403 in ruling Kalac’s prior conviction admissible, we owe the district court’s

determination less deference. Kalac discussed Rule 403 in his in limine motion to

exclude his prior convictions, and the district court gave a limiting instruction on

the purpose of the prior conviction evidence to “address any concerns of unfair

prejudice.” Because “it is clear from the record that the court implicitly made the

necessary [Rule 403] finding,” we “will uphold admission of the evidence.”

United States v. Ramirez-Jiminez, 967 F.2d 1321, 1326 (9th Cir. 1992).

      Because the district court “undertook a careful and considered balancing of

the probative value of the [prior conviction] and the potential for unfair prejudice

to the defendant” and “gave careful limiting instructions to the jury to minimize the

prejudicial impact to the defendant . . . . we cannot say that the court abused its

discretion in admitting evidence of [Kalac’s prior conviction].” United States v.

Mehrmanesh, 689 F.2d 822, 831 (9th Cir. 1982).

      Even if the prior conviction should not have been admitted, any error was

harmless. The jury heard evidence that Kalac sped off when a police officer asked

him to stop and that Kalac crashed the car he was driving after a brief, high-speed


                                           3
chase. A search of the car revealed a backpack stuffed behind the driver’s seat

containing a loaded gun and ammunition, drugs, drug paraphernalia, a drug ledger

with Kalac’s name on the inside cover, a scale, an ID in a different name bearing

Kalac’s photograph, plastic baggies with smiley face emblems and “4:20” on them,

and two cell phones. Kalac’s print was found on the drug ledger. Text messages

recovered from one of the phones showed requests for drugs. Other evidence thus

“amply supported a finding of guilty knowledge,” and admission of the prior

conviction did not taint the verdict. See United States v. Hardy, 289 F.3d 608, 613

(9th Cir. 2002).

      AFFIRMED.




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