                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 23 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 09-10450

              Plaintiff - Appellee,               D.C. No. 2:08-cr-01523-MHM-1

  v.
                                                  MEMORANDUM *
WEBSTER W. NORRIS, III,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                    Mary H. Murguia, District Judge, Presiding

                            Submitted March 14, 2011 **
                             San Francisco, California

Before: PAEZ, BERZON, and BEA, Circuit Judges.

       Defendant-Appellant Webster Norris, III appeals his conviction for one

count of second-degree murder, in violation of 18 U.S.C. §§ 1153 and 1111, and

one count of assault resulting in serious bodily injury, in violation of 18 U.S.C.


        *
             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).
§§ 1153 and 113(a)(6). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

      Norris challenges the admission into evidence of testimony about his 1997

conviction for driving under the influence (DUI); his two prior arrests for DUI in

2007; and his completion of 36 hours of State of Arizona DUI Advanced Chemical

Dependency Lectures in 2003, all to show that he knew the dangers of driving

under the influence and therefore exhibited malice aforethought when he chose to

disregard those dangers by driving under the influence of alcohol on September 20,

2008, striking and killing a cyclist who was on the side of the road. Norris

contends the prosecutor’s reference to these prior bad acts during closing

arguments further exacerbated any prejudice from them.

      The district court correctly analyzed the evidence under Federal Rule of

Evidence 404(b), as Norris concedes, and under Rule 403. The evidence was

admissible to prove Norris’s state of mind—that he knew the dangers of driving

under the influence, and consciously disregarded those dangers when he drove

after drinking on the day in question, recklessly disregarding the threat his actions

posed to the victim’s life. United States v. Verduzco, 373 F.3d 1022, 1027 (9th

Cir. 2004). Additionally, the district court gave a limiting instruction to the jury

that this was the only purpose for which they were to consider such evidence.


                                           2
When reviewing evidence challenged under Rule 403, “we must presume that

juries will follow the district court’s limiting instructions.” United States v.

Mende, 43 F.3d 1298, 1302 (9th Cir. 1995).

         In United States v. Loera, 923 F.2d 725, 729 (9th Cir. 1991), the defendant

was convicted of one count of assault resulting in serious bodily injury, in violation

of 18 U.S.C. § 113(f), and he appealed. We affirmed, holding that the district court

correctly allowed evidence of prior DUIs into evidence to prove malice

aforethought for murder in the second degree, which was also charged in the

Indictment. Id. Although Loera—like Norris—argued that evidence of his prior

convictions should have been excluded as unfairly prejudicial, we disagreed,

particularly because the district court—like the district court here—gave the jury

limiting instructions as to the use of the prior convictions. Therefore, we hold that

the district court conducted the balancing Rule 403 requires. It did not abuse its

discretion by determining that any prejudice that would result from admission of

the prior acts did not substantially outweigh their probative value. Moreover,

Norris did not object to the prosecutor’s comments in summation, and he has not

established that the prosecutor’s references to the prior acts amounted to plain

error.




                                            3
      Finally, if admission of any of the disputed evidence was an abuse of

discretion under Rule 403, the error was harmless. There was a great deal of

evidence of guilt in the case, and the district court gave a detailed limiting

instruction as to the evidence in dispute. Thus, it is more likely than not that if any

error occurred, it did not affect the verdict. See United States v. Gonzalez-Flores,

418 F.3d 1093, 1099 n.3 (9th Cir. 2005).

      AFFIRMED.




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