                                                                           FILED
                           NOT FOR PUBLICATION                              SEP 11 2012

                                                                        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. 11-30233

              Plaintiff - Appellee,              D.C. No. 2:10-cr-02104-FVS-1

  v.
                                                 MEMORANDUM *
MICHAEL JOSEPH NAVARRO, AKA
Michael Joseph Allred,

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Eastern District of Washington
                Fred L. Van Sickle, Senior District Judge, Presiding

                        Argued and Submitted July 13, 2012
                               Seattle, Washington

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

       Appellant-Defendant Michael Navarro (“Navarro”) appeals his jury

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

§ 922(g)(1). He contends that he was prejudiced by two evidentiary errors at trial

and that the district court should have granted his motion for judgment of acquittal.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Navarro first argues that pursuant to the Federal Rules of Evidence, Rules

403 and 404(b), the district court should have excluded testimony about why law

enforcement stopped him on the street, because this was inadmissible “other act”

evidence. Such evidence, however, may be admitted without regard to Rule 404(b)

so long as it is necessary “to permit the prosecutor to offer a coherent and

comprehensible story regarding the commission of the crime.” United States v.

Vizcarra-Martinez, 66 F.3d 1006, 1012–13 (9th Cir. 1995). Here, the challenged

testimony was inextricably intertwined with Navarro’s arrest and provided the

context in which the charged crime occurred. See United States v. Collins, 90 F.3d

1420, 1428–29 (9th Cir. 1996). Thus, the district court did not err in admitting this

testimony. See United States v. DeGeorge, 380 F.3d 1203, 1220 (9th Cir. 2004).

      Navarro’s second argument is that the district court erred in admitting

evidence about his gang membership. The Government responds that defense

counsel opened the door to this evidence. The defense and not the Government

introduced evidence about gangs, suggesting that someone in the gang and not

Navarro had the gun. The district court allowed the evidence of Navarro’s gang

membership. While Navarro contends he did not open the door for evidence of his

own gang membership, we review for abuse of discretion and there is no clear

abuse. And even assuming that defense counsel did not open the door, and the


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district court abused its discretion in admitting the evidence, the admission of this

evidence was harmless. The Government presented eye-witness testimony about

Navarro’s flight from law enforcement, which led Navarro past the location where

the gun was found; law enforcement officers testified that no other individuals

were seen in the area during, or after, the pursuit; red fibers taken from the gun

were chemically and physically similar to a thread taken from the pocket of

Navarro’s red sweat pants; a thermal imaging device revealed that the gun had

been handled recently; and Navarro’s DNA profile could not be excluded from the

mixed DNA sample taken from the gun.

      Because there is sufficient evidence in the record to sustain the conviction,

the district court did not err in denying the motion for judgment of acquittal. See

United States v. Nevils, 598 F.3d 1158, 1164–65, 1168–69 (9th Cir. 2010) (en

banc); see also United States v. Yoshida, 303 F.3d 1145, 1151 (9th Cir. 2002).

      AFFIRMED.




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