                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JUN 04 2013
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS


                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-10178

              Plaintiff - Appellee,              D.C. No. 5:10-cr-00344-DLJ-1

  v.
                                                 MEMORANDUM *
REYNALDO PEDREGON, Jr.,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Northern District of California
                 D. Lowell Jensen, Senior District Judge, Presiding

                        Argued and Submitted May 17, 2013
                             San Francisco, California

Before: McKEOWN and WATFORD, Circuit Judges, and ZILLY, Senior District
Judge.**

       Defendant Reynaldo Pedregon, Jr., appeals his conviction of possession with

intent to distribute 50 grams or more of methamphetamine in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii). At trial, the government introduced

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9 th Cir. R. 36-3.
       **
             The Honorable Thomas S. Zilly, Senior District Judge for the U.S.
District Court for the Western District of Washington, sitting by designation.
evidence that Defendant had previously been convicted of conspiracy to distribute

methamphetamine for the purpose of proving knowledge and intent. Defendant

contends that the district court abused its discretion in admitting this evidence. We

affirm.

      We review for abuse of discretion a district court’s admission of evidence

under Federal Rule of Evidence 404(b). United States v. Ramirez-Robles, 386 F.3d

1234, 1240 (9th Cir. 2004). This Court also reviews for abuse of discretion the

district court’s balancing of the probative value of evidence against its prejudicial

effect under Federal Rule of Evidence 403. Id. at 1243.

      The district court did not abuse its discretion by admitting the Defendant’s

prior conviction for conspiracy to distribute methamphetamine because it was

probative of Defendant’s knowledge of drug distribution and intent to distribute

the methamphetamine, both of which are permissible reasons for which evidence

of prior drug transactions may be used. The law in this Circuit has long been

established that evidence of a prior conviction of a similar crime is admissible

under Rule 404(b) to prove knowledge and intent. See, e.g., United States v. Vo,

413 F.3d 1010, 1018 (9th Cir. 2005) (“We 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, knowledge, motive, opportunity, and absence of mistake or

accident in prosecutions for possession of, importation of, and intent to distribute
narcotics.”) (quoting United States v. Mehrmanesh, 689 F.2d 822, 832 (9th Cir.

1982)). The prior conviction was relevant to Defendant’s intent, was similar to the

crime charged, and was not too remote. United States v. Romero, 282 F.3d 683,

688 (9th Cir. 2002).

      The district court also did not abuse its discretion in finding that the

probative value of the prior conviction outweighed any prejudicial effect. “The

decision to admit potentially prejudicial evidence under Rule 403 is ‘committed to

the sound discretion of the trial court.’” Boyd v. City and Cnty. of S.F., 576 F.3d

938, 948 (9th Cir. 2009) (quoting United States v. Blitz, 151 F.3d 1002, 1008 (9th

Cir. 1998)). Rule 403 was properly applied “‘[a]s long as it appears from the

record as a whole that the trial judge adequately weighed the probative value and

prejudicial effect of proffered evidence before its admission.’” United States v.

Verduzco, 373 F.3d 1022, 1029 n.2 (9th Cir. 2004) (quoting United States v.

Sangrey, 586 F.2d 1312, 1315 (9th Cir. 1978)). Evidence that a court has admitted

certain evidence of prior bad acts, “but barred other evidence because it was too

prejudicial” is sufficient to demonstrate that the court conducted the required Rule

403 balancing. United States v. Cherer, 513 F.3d 1150, 1158-59 (9th Cir. 2008).

      Here, the government sought to introduce both a redacted copy of the

judgment from Defendant’s prior conviction and a factual synopsis of the charges

in that case. The district court ruled that the redacted judgment was admissible
under Rule 404(b), but that the factual synopsis of the prior charge was more

prejudicial than probative under Rule 403 and therefore inadmissible except as

impeachment or rebuttal. The record reflects that the district court properly

considered the probative value versus the prejudicial effect of the evidence under

Rule 403 and admitted only the evidence that it concluded was more probative than

prejudicial. Additionally, the district court mitigated the risk of unfair prejudice by

instructing the jury that evidence of the prior conviction could be considered “only

for its bearing, if any, on the question of the Defendant’s intent, knowledge,

absence of mistake or absence of accident, and for no other purpose.”

      The dissent states that Defendant’s prior conviction had minimal probative

value as to knowledge and intent because he did not dispute those issues at trial.

This is incorrect. Defendant went to trial on the charge of possession with intent to

distribute methamphetamine. At trial, the government had the burden of proving

beyond a reasonable doubt that Defendant (1) knowingly, (2) possessed more than

50 grams of methamphetamine, (3) with the intent to distribute it to another person.

Nowhere in the record does it reflect that Defendant did not dispute any element of

the crime, or that the government was otherwise relieved of its burden of proof.

      The dissent’s reliance on United States v. Vavages, 151 F.3d 1185 (9th Cir.

1998), is also misplaced. We are not bound by dicta—discussions that are

“unnecessary to the Court’s holdings,” Local 144 Nursing Home Pension Fund v.
Demisay, 508 U.S. 581, 592 n.5—in decisions from our court or any other court.

United States v. Pinjuv, 218 F.3d 1125, 1129 (9th Cir. 2000). In Vavages, we

expressly stated that it was unnecessary to reach the issue of whether the district

court abused its discretion in admitting evidence of the defendant’s prior

conviction. 151 F.3d at 1193. Significantly, we ultimately did not decide whether

the district court abused its discretion in admitting the prior offense. Id. at 1194.

      Even if the district court abused its discretion in admitting evidence of the

prior conviction, the error was not prejudicial. Given the weight of evidence

against Pedregon, it is more probable than not that the jury would have reached the

same verdict had evidence of the prior conviction been excluded. Obrey v.

Johnson, 400 F.3d 691, 701 (2005).

      Finally, Defendant challenges the sufficiency of the evidence. Because

Defendant failed to move for acquittal at trial, our review “is deferential, requiring

reversal only upon plain error or to prevent manifest injustice.” United States v.

Green, 592 F.3d 1057, 1065 (9th Cir. 2010). In this case, there was substantial

evidence to support the verdict.

      AFFIRMED.
                                                                             FILED
United States v. Pedregon, No. 12-10178                                       JUN 04 2013

                                                                         MOLLY C. DWYER, CLERK
WATFORD, Circuit Judge, dissenting:                                        U .S. C O U R T OF APPE ALS




      Pedregon’s prior conviction should have been excluded under Federal Rule

of Evidence 403. Although a defendant’s knowledge is always material, see

United States v. Mayans, 17 F.3d 1174, 1182 (9th Cir. 1994), evidence of a prior

conviction offered to prove knowledge is of “minimal probative value” when lack

of knowledge is not raised as a defense. United States v. Vavages, 151 F.3d 1185,

1193 (9th Cir. 1998). The same can be said for a prior conviction offered to prove

intent and “absence of mistake” when neither of those issues is contested at trial.

See United States v. Romero, 492 Fed. Appx. 809, 814 (9th Cir. 2012) (Watford, J.,

dissenting).

      Here, Pedregon’s conviction had minimal probative value as to knowledge,

intent, and absence of mistake because Pedregon did not dispute that whoever

possessed the methamphetamine found in his bedroom knew what the substance

was and possessed it with the intent to distribute. The only real issue in this case

was possession; Pedregon argued that the methamphetamine did not belong to him

but rather belonged to one of the other occupants of the house. As to that contested

issue, the prior conviction had no probative value except through “the classic

propensity inference that Rule 404(a) prohibits”: Pedregon was convicted of

dealing methamphetamine in the past, so he must be guilty again. Vavages, 151
F.3d at 1193–94. The potential that the jury would draw this unfairly prejudicial

inference from the prior conviction was extremely high, substantially outweighing

the conviction’s minimal probative value as to the undisputed elements of the

government’s case.

      I cannot conclude that it is more probable than not that the erroneously

admitted conviction had no effect on the jury’s verdict. United States v. Vizcarra-

Martinez, 66 F.3d 1006, 1017 (9th Cir. 1995). During closing arguments, the

government twice refuted Pedregon’s defense that the methamphetamine belonged

to someone else by encouraging the jury to draw propensity inferences from the

prior conviction: “[W]ould somebody else place an item worth $3,000 in

somebody else’s room. That doesn’t make sense. The evidence makes clear that

Pedregon went back to what he knew. . . . He went back to selling

methamphetamine.” “So then whose methamphetamine was it? . . . Pedregon

knows the distribution of methamphetamine. You know that. He’s the one in that

house that knows that.” In my view, the jury could well have done just what the

government asked it to do and reached a guilty verdict based on these propensity

inferences.




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