                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 22 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50409

              Plaintiff - Appellee,              D.C. No. 3:11-cr-03396-BEN-1

  v.
                                                 MEMORANDUM*
JULIO CESAR MORALES-BELTRAN,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                        Argued and Submitted July 10, 2013
                               Pasadena, California

Before: WARDLAW, BYBEE, and NGUYEN, Circuit Judges.

       Julio Morales-Beltran appeals his conviction for importation of marijuana, in

violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction under 28 U.S.C.

§ 1291 and we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1.     The district court did not abuse its discretion in admitting evidence of

Morales-Beltran’s 2000 arrest for marijuana importation. Evidence of a

defendant’s prior bad acts may be admitted under Federal Rule of Evidence 404(b)

if (1) the evidence tends to prove a material point; (2) the prior act is not too

remote in time; (3) the evidence is sufficient to support a finding that the defendant

committed the other act; and (4) the act is similar to the offense charged. United

States v. Banks, 514 F.3d 959, 976 (9th Cir. 2008). Where, as here, the evidence is

offered to prove knowledge, “the prior act need not be similar to the charged act as

long as the prior act was one which would tend to make the existence of the

defendant’s knowledge more probable than it would be without the evidence.”

United States v. Lozano, 623 F.3d 1055, 1059 (9th Cir. 2010) (per curiam).

      The district court did not abuse its discretion by concluding that the

circumstances surrounding Morales-Beltran’s 2000 arrest were similar to those

underlying the charged offense. Both times, he attempted to smuggle the same

amount (approximately forty pounds) of the same substance (marijuana) in the

same mode of transportation (his vehicle) through the same port of entry (Otay

Mesa). It is of no moment that the marijuana was hidden in his vehicle’s bumper

in 2000, whereas this time it was hidden in his vehicle’s gas tank.




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      We recognize that the two incidents are not close in time; Morales-Beltran’s

prior arrest occurred eleven years prior to the charged offense. However, “where

prior acts were similar to those charged, previous decisions have upheld admission

of evidence of acts up to twelve years old.” United States v. Smith, 282 F.3d 758,

769 (9th Cir. 2002) (quoting United States v. Rude, 88 F.3d 1538, 1550 (9th Cir.

1996)) (alteration omitted). Here, as in Smith, because the prior act is “similar to

and probative of the charges” against Morales-Beltran, its “eleven year vintage is

not fatal.” Id.; see also United States v. Ross, 886 F.2d 264, 267 (9th Cir. 1989)

(holding that acts occurring thirteen years before the acts in the instant case were

not too remote, given the similarity of the offenses). Accordingly, the district court

did not abuse its discretion by holding that this evidence was admissible under

Rule 404(b).

      Evidence admissible under Rule 404(b) may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice. United States

v. Flores-Blanco, 623 F.3d 912, 919 (9th Cir. 2010). Here, the disputed evidence

had significant probative value with respect to Morales-Beltran’s knowledge. See

United States v. Plancarte-Alvarez, 366 F.3d 1058, 1063 (9th Cir. 2004). Further,

the district court minimized any danger of unfair prejudice by advising the

jury—on two separate occasions—that evidence of Morales-Beltran’s 2000 arrest


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could be used only to establish his intent, motive, opportunity, preparation, plan,

knowledge, absence of mistake, or absence of accident. Id.; see also Flores-

Blanco, 623 F.3d at 920. Admission of this evidence therefore did not run afoul of

Rule 403.

      2.     Nor did the district court abuse its discretion by admitting expert

testimony regarding the retail and wholesale value of the marijuana seized from his

truck. First, admission of this evidence did not violate Federal Rules of Evidence

402 and 403. As Morales-Beltran acknowledges, the government introduced

evidence that he transported approximately $40,000 worth of marijuana as support

for its theory that Morales-Beltran knew the drugs were concealed in his vehicle.

We have repeatedly found evidence regarding the street value of illegal drugs

admissible where, as here, it was introduced to prove a defendant’s knowledge

and/or intent. See United States v. Ogbuehi, 18 F.3d 807, 812 (9th Cir. 1994)

(citation omitted) (“DEA agents can testify as to the street value of narcotics, and

counsel can argue reasonable inferences from it.”); United States v. Kearney, 560

F.2d 1358, 1369 (9th Cir. 1977); Gaylor v. United States, 426 F.2d 233, 235 (9th

Cir. 1970) (finding that “evidence [of the street value of cocaine] was properly

admitted as refuting the possibility that a stranger could have placed such a

valuable cargo in a vehicle in the hope that the vehicle could be followed and the


                                          -4-
cocaine later recovered in the United States”); United States v.

Hernandez-Valenzuela, 431 F.2d 707, 707 (9th Cir. 1970) (per curiam).

Accordingly, the district court did not abuse its discretion in finding this evidence

relevant and admissible under Rules 402 and 403.

      Morales-Beltran also argues that the introduction of this evidence violated

Federal Rule of Evidence 704. However, because the government’s witness did

not “draw the ultimate inference or conclusion for the jury and the ultimate

inference or conclusion does not necessarily follow from the testimony[,]” United

States v. Morales, 108 F.3d 1031, 1038 (9th Cir. 1997) (en banc), admission of this

testimony did not violate Rule 704(b). There was therefore no abuse of discretion.

      3.     Lastly, Morales-Beltran claims that the prosecutor committed

misconduct by suggesting in closing arguments (1) that, given the high value of the

drugs, it was unlikely that someone randomly picked Morales-Beltran’s truck to

smuggle the drugs into the United States; and (2) that this scenario was also

unlikely because, given that the drugs were hidden in a hidden compartment in the

gas tank, whoever put the drugs there would have faced a number of logistical

hurdles in retrieving them once Morales-Beltran entered the United States.

      Because Morales-Beltran failed to raise this objection at trial, we review this

claim for plain error. See United States v. Wright, 625 F.3d 583, 610 (9th Cir.


                                          -5-
2010). Contrary to what Morales-Beltran asserts, the challenged statements did not

invoke the sort of expert testimony regarding the structure and modus operandi of

drug organizations we deemed impermissible in United States v. Vallejo, 237 F.3d

1008 (9th Cir. 2001), amended by 246 F.3d 1150 (9th Cir. 2001), and its progeny.

Nor did the prosecutor’s arguments rest on facts not in evidence or improper

vouching; rather, they were based on reasonable inferences as to Morales-Beltran’s

knowledge which were drawn directly from evidence in the record. Such

statements do not “cross the line of impropriety.” United States v. Hermanek, 289

F.3d 1076, 1100 (9th Cir. 2002). Accordingly, we find that no error—let alone

plain error—occurred.

      AFFIRMED.




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