                               NOT FOR PUBLICATION

                       UNITED STATES COURT OF APPEALS                                  FILED
                               FOR THE NINTH CIRCUIT                                    SEP 27 2011

                                                                                   MOLLY C. DWYER, CLERK
                                                                                     U.S. COURT OF APPEALS

 UNITED STATES OF AMERICA,                             No. 10-30164

                Plaintiff - Appellee,                  D.C. No. 2:09-cr-00262-RSL

   v.
                                                       MEMORANDUM*
 LEONEL MARIN-TORRES,

                Defendant - Appellant.


                      Appeal from the United States District Court
                        for the Western District of Washington
                       Robert S. Lasnik, District Judge, Presiding

                       Argued and Submitted September 1, 2011
                                Seattle, Washington

Before: HAWKINS, BEA, and MURGUIA, Circuit Judges,

        Defendant-Appellant Leonel Marin-Torres (“Marin-Torres”) was convicted

of three counts: possession with intent to distribute crack cocaine in violation of 21

U.S.C. § 841 (a)(1) and (b)(1)(B)(iii), carrying a firearm during and in relation to a

drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A), and being a felon



         *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Marin-Torres

appeals the district court's denial of his motion to suppress and the court’s decision

to admit evidence of prior bad acts.

      We affirm the district court's ruling on the motion to suppress. Denials of

motions to suppress are reviewed de novo. United States v. Meek, 366 F.3d 705,

711 (9th Cir. 2004). The two 911 calls placed by Glennice Arvin in this case had

as many, if not more, indicia of reliability as the 911 call in United States v. Terry-

Crespo, 356 F.3d 1170 (9th Cir. 2004). Additionally, the officers had reasonable

and articulable suspicion that criminal activity may have been afoot and that

Marin-Torres posed a safety threat when they stopped and frisked him. The

totality of circumstances gave the police reasonable and articulable suspicion that

Marin-Torres was an armed drug dealer who posed a threat to them and others.

      Marin-Torres also argues that the district court erred in admitting evidence

under Rule 404(b) and Rule 403 of the Federal Rules of Evidence, that he had

previously distributed drugs in exchange for sex and that he had used his gun to

threaten a woman in connection with such a transaction. Such rulings are

ordinarily reviewed for abuse of discretion. United States v. Chea, 231 F.3d 531,

534 (9th Cir. 2000). Separately, Marin-Torres also argues that the district court

applied the wrong standard because, at the time of the motion for mistrial, the court


                                           2
referenced the relevance of the evidence rather than its probative value as required

under Rule 403.

      The prior bad act evidence at issue was probative and admissible on the

issue of Marin-Torres’s intent, knowledge and motive in possessing the drugs and

the firearm. See United States v. Mehrmanesh, 689 F.2d 822, 832 (9th Cir. 1982).

Moreover, we need not decide whether the district court committed error in either

admitting the prior bad evidence in question or in weighing the Rule 403 factors

because the record clearly indicates that any potential error by the district court

was harmless. United States v.Vizcarra-Martinez, 66 F.3d 1006, 1016-17 (9th Cir.

1995). Given the overwhelming amount of evidence against Marin-Torres

presented at trial and the insufficiency of his defense, the evidence to which he

objects did not impact the jury’s verdict.

      The district court’s denial of the appellant’s motion to suppress and decision

to admit the prior bad act evidence are, therefore, AFFIRMED.




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