                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            DEC 26 2019
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    18-10129

              Plaintiff-Appellee,                D.C. No.
                                                 2:16-cr-01377-ROS-2
 v.

THINTINUS NOSETH TAYLOR,                         MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Roslyn O. Silver, District Judge, Presiding

                    Argued and Submitted November 13, 2019*
                            San Francisco, California

Before: THOMAS, Chief Judge, and TASHIMA and WARDLAW, Circuit Judges.

      Thintinus Taylor appeals his conviction under 28 U.S.C. §§ 922(g) and

924(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Because the

parties are familiar with the factual and procedural history, we need not recount it

here. We review sufficiency of the evidence claims by viewing the evidence in the

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
light most favorable to the prosecution and affirm if any rational juror could have

found the elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979). We review a district court’s admission of Rule 404(b)

evidence for abuse of discretion. United States v. Carrasco, 257 F.3d 1045, 1048

(9th Cir. 2001).

                                           I

      Viewing the evidence in the light most favorable to the government, see

Jackson, 443 U.S. at 319, the district court properly denied Taylor’s motions for a

directed verdict. Based on testimony from federal and local law enforcement

agents describing the location of firearms and ammunition in areas of the home

Taylor shared with his wife, as well as testimony that Taylor’s personal effects

were found in close proximity to the firearms and ammunition, a rational juror

could have reasonably inferred Taylor’s possession of the firearms and

ammunition. The firearms-related cellphone evidence also indicated that the

defendant had knowledge of the firearms and intended to control them. Though

the officers testified that items belonging to Taylor’s wife were also found in close

proximity to the firearms, on deferential appellate review, there was sufficient

evidence for a rational juror to convict Taylor.




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                                           II

      The district court did not abuse its discretion in admitting evidence from

Taylor’s cell phone. The district court properly admitted contemporaneous

messages sent by Taylor to lay the foundation for the firearms-related messages

and to rebut Taylor’s claim that his wife had sent the incriminating messages.

These messages indicated that Taylor possessed the firearms in August of 2015,

three months before his arrest for the present offense. The evidence satisfies the

test for the admission of Rule 404(b) evidence. See United States v. Bailey, 696

F.3d 794, 799 (9th Cir. 2012). The district court properly concluded that the

probative value of the cellphone evidence outweighed the risk of unfair prejudice,

and the district court mitigated the risk of unfair prejudice with two limiting

instructions. See United States v. Cherer, 513 F.3d 1150, 1159 (9th Cir. 2008).

We therefore conclude that the district court did not abuse its discretion in

admitting the Rule 404(b) evidence.

                                          III

      Viewed in the context of the entire trial, the prosecutor’s use of the word

“felon” in his opening statement and use of the word “felony” in a question to an

agent did not constitute reversible misconduct. Though the use of the term after

the district court barred it was error, the use of the language was incidental.


                                           3
Viewed in the entire context of the trial, we conclude it did not have a material

effect on the verdict given the strength of the other evidence against Taylor. See

United States v. Cabrera, 201 F.3d 1243, 1246 (9th Cir. 2000). Thus, we conclude

any error was harmless.

      AFFIRMED.




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