                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 28 2013

                                                                        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. 11-50413

              Plaintiff - Appellee,              D.C. No. 3:09-cr-01114-DMS-1

  v.
                                                 MEMORANDUM *
CARLOS FIGUEROA - GAONA,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                       Argued and Submitted March 5, 2013
                              Pasadena, California

Before: PAEZ and WATFORD, Circuit Judges, and KENNELLY, District Judge.**


       There was sufficient evidence to convict Carlos Figueroa-Gaona of

possessing the handgun and the methamphetamine. A video filmed approximately

one month prior to Figueroa’s arrest shows a man whom the jury could rationally

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
conclude was Figueroa removing a handgun from a gun box and identifying the

handgun as his own. The handgun and the gun box are similar to those the police

recovered when they searched Figueroa’s home, and it was in the gun box that both

the handgun and the methamphetamine were found. A jury could rationally

conclude that the handgun and gun box in the video were the same as those found

in the bedroom closet and that the methamphetamine found with the handgun was

also Figueroa’s. Moreover, the items were found beneath men’s shirts in the

bedroom closet of a one-bedroom home, and Figueroa was the only adult male

resident of that home. All this evidence, taken together and viewed “in the light

most favorable to the prosecution,” Jackson v. Virginia, 443 U.S. 307, 319 (1979),

was sufficient for a rational trier of fact to have found beyond a reasonable doubt

that Figueroa constructively possessed both the handgun and the

methamphetamine. See United States v. Terry, 911 F.2d 272, 278 (9th Cir. 1990).

      The district court did not abuse its discretion in admitting the video evidence

of the prior methamphetamine sale. This evidence tended to show Figueroa’s

intent to distribute the methamphetamine found in his home and his specialized

knowledge of drug transactions, both of which are permissible reasons for which

evidence of prior drug transactions may be used. See United States v.

Mehrmanesh, 689 F.2d 822, 832 (9th Cir. 1982). The district court’s instructions


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to the jury, which tracked the language of Federal Rule of Evidence 404(b),

sufficiently explained the limited purposes for which this evidence could be

considered. See United States v. Hinton, 31 F.3d 817, 822–23 (9th Cir. 1994).

And the district court did not err in balancing, pursuant to Federal Rule of

Evidence 403, the probative value of the evidence against the danger of unfair

prejudice.

      The government properly argued at trial that the February 5, 2009 video

could be used as direct evidence of Figueroa’s possession of the handgun.

Contrary to Figueroa’s assertion, the district court did not limit the video’s

admissibility solely to proving the drug possession charge. The evidence that

Figueroa previously displayed and claimed ownership of the handgun was not

limited under Rule 404(b) because it was direct evidence that Figueroa committed

the continuous offense of unlawfully possessing the handgun. See United States v.

Horodner, 993 F.2d 191, 193 (9th Cir. 1993).

      AFFIRMED.




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                                                                            FILED
United States v. Figueroa-Gaona                                              MAR 28 2013
No. 11-50413                                                             MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

KENNELLY, District Judge, dissenting:

      I respectfully dissent from the panel’s determination that the district court

did not abuse its discretion in admitting the evidence of Figueroa-Gaona’s prior

methamphetamine sale.

      Figueroa-Gaona was charged with, among other things, possession of

methamphetamine with intent to distribute, based on law enforcement’s discovery

on March 11, 2009 of about 33 grams of methamphetamine in a closet in the home

where he lived. The critical disputed issue in this case involved the question of

possession.

      The district court allowed the government to introduce evidence that

Figueroa-Gaona sold about 27 grams of methamphetamine to an informant on

February 5, 2009. The government filed a motion in limine in which it contended

that the prior sale was “relevant toward proving Defendant’s intent to distribute the

methamphetamine found in his home [on] March 11, 2009.” The government’s

argument that the evidence was not unfairly prejudicial was rather conclusory, to

say the least; it argued simply that “[t]he Defendant is charged with possessing

methamphetamine with the intent to distribute it, therefore, there is nothing unfair

about evidence that he distributed methamphetamine.” The government also

                                          1
argued that “an appropriate limiting instruction on the use of prior drug distribution

activity as other act evidence weighs in favor of the admission of such evidence.”

      We do not have the benefit of the district court’s reasoning in admitting the

evidence. The court’s oral ruling was even more conclusory than the government’s

motion:

      The fourth motion is the 404(b) motion. The tentative here is to grant
      as to the February 5, ‘09 incident. I would adopt the arguments that
      are set forth in the government’s briefing.

      It seems to me that that event meets the criteria, is probative and
      material of the various elements that are involved in this case. And it
      is fair and appropriate 404(b) evidence.

The district court did not address the issue of unfair prejudice under Rule 403,

beyond stating that it adopted the government’s argument. The court did not even

mention that Rule, let alone the balancing that it requires. Immediately after the

passage just quoted, the court referred to Rule 403, but it did so in excluding a

separate item of evidence, specifically an incident in January 1999.

      I seriously question whether the evidence of the prior sale was properly

admissible under Rule 404(b) to prove Figueroa-Gaona’s intent to distribute the

methamphetamine found on March 11, 2009; it seems to me that this was classic

propensity evidence and inadmissible under Rule 404(b) for that reason. But

assuming the prior sale was proper evidence of intent, the district court nonetheless



                                           2
abused its discretion in admitting it, in my view. The court did not conduct a

sufficient Rule 403 balancing of the evidence’s potential for unfair prejudice,

which was significant, against its probative value. See United States v. Curtin, 489

F.3d 935, 957 (9th Cir. 2007) (en banc) (holding that a “court does not properly

exercise its balancing discretion under Rule 403 when it fails to place on the scales

and personally examine and evaluate all that it must weigh”). I do not believe that

it was sufficient for the court simply to adopt the government’s argument given the

entirely conclusory nature of that argument. In its argument, the government made

no attempt to balance the pertinent factors; rather, it stated only that there was

“nothing unfair” about the evidence. This statement, which is what the district

court adopted without further analysis, disregards the undeniable potential for

unfair prejudice that Figueroa-Gaona faced from the admission of evidence of a

very recent methamphetamine sale.

      Finally, I do not believe that the limiting instruction that the district court

gave cured the erroneous admission of this evidence. I respectfully dissent.




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