                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 04 2010

                                                                         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. 05-50507

              Plaintiff - Appellee,               D.C. No. CR-00-01047-SVW

  v.
                                                  MEMORANDUM *
ANDREW HANTZIS,

              Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                       Argued and Submitted August 31, 2010
                               Pasadena, California

Before: O’SCANNLAIN, GOULD and M. SMITH, Circuit Judges.

       Defendant-Appellant Andrew Hantzis challenges his conviction and

sentence for possessing with intent to distribute, and distributing, at least 50 grams

of methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii). The

district court sentenced him to concurrent terms of 211 months’ imprisonment, five



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.
years of supervised release, and a $4,000,000 fine. We have jurisdiction over the

final judgment of conviction under 28 U.S.C. § 1291.

      Because the parties are familiar with the factual and procedural history of

this case, we do not recount additional facts, except as necessary to explain the

decision. In a separate opinion, we address Hantzis’s Sixth Amendment right to

counsel and alleged violations under Faretta v. California, 422 U.S. 806 (1975).

We now review Hantzis’s other assignments of error. We affirm.

      First, evidence of Hantzis’s two prior state arrests for methamphetamine

trafficking was properly admitted under Federal Rule of Evidence 404(b) as

“[e]vidence of other crimes” to establish “proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake of accident.” There

is no requirement than an arrest must lead to a conviction in order to be admissible.

See, e.g., United States v. Scott, 767 F.2d 1308, 1311 (9th Cir. 1985).

      Second, the admission of the prior arrest evidence was not unduly

prejudicial under Federal Rule of Evidence 403. Evidence of similar prior acts is

admissible to rebut defenses of entrapment and mere presence. See United States

v. Simtob, 901 F.2d 799, 807–08 (9th Cir. 1990). The district court also provided a

limiting instruction that mitigated potential prejudice. See, e.g., Townsend v.




                                          2
Knowles, 562 F.3d 1200, 1209 (9th Cir. 2009) (“The law presumes that the jury

follows the instructions given.”).

      Third, the district court did not err in denying Hantzis’s motion for a new

trial based on an alleged Brady violation. See Brady v. Maryland, 373 U.S. 83, 87

(1963) (holding that the government is obliged to produce all “evidence favorable

to an accused” that is “material either to guilt or punishment”). The evidence

related to Hantzis’s drug supplier, Gallardo, was not favorable to Hantzis. The

police report was not favorable because it established only that Gallardo was

arrested on methamphetamine charges—a fact that both parties used at trial.

Furthermore, evidence of Gallardo’s arrest, through both the police report and the

phone call, was inculpatory because it supported the government’s theory that

Hantzis used a supplier to acquire and sell methamphetamine.

      Fourth, the $4,000,000 fine was not excessive. The district court was

statutorily entitled to impose a fine twice the amount than what it actually fined

Hantzis. See, e.g., United States v. Bajakajian, 524 U.S. 321, 334 (1998) (holding

that a fine violates the Eighth Amendment “if it is grossly disproportional to the

gravity of a defendant’s offense”). Furthermore, the nature of Hantzis’s offense

reveals a substantial level of culpability. See id. at 337–39. Finally, there was

evidence that Hantzis was very wealthy, and as he refused to submit a financial


                                           3
affidavit, there was no evidence that a fine would “deprive [him] of his livelihood.”

Id. at 335.

       AFFIRMED.




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