                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 29 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50304

              Plaintiff - Appellee,              D.C. No. 3:13-cr-02876-MMA-1

 v.
                                                 MEMORANDUM*
MICHAEL JOHN CHARLNOES,

              Defendant - Appellant.


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

                           Submitted October 22, 2015**
                               Pasadena, California

Before: RAWLINSON and NGUYEN, Circuit Judges and PONSOR,*** Senior
District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Michael A. Ponsor, Senior District Judge for the U.S.
District Court for Massachusetts, sitting by designation.
      Defendant Michael Charlnoes appeals his jury conviction for importation of

methamphetamine and cocaine in violation of 12 U.S.C. §§ 952, 960. We have

jurisdiction under 28 U.S.C. § 1291. We affirm.

      1. The district court did not abuse its discretion by admitting evidence of

Charlnoes’s prior possession of methamphetamine at the border under Federal Rule

of Evidence 404(b). The prior incident was recent (approximately two weeks prior

to his arrest), related to a material issue in the case (his knowledge and absence of

mistake or accident), was supported by sufficient proof (the testimony of the

Customs and Border Protection officer who was present), and its probative value

was not outweighed by the danger of unfair prejudice. See United States v.

Arambula-Ruiz, 987 F.2d 599, 602 (9th Cir. 1993) (describing requirements for

evidence admitted under Fed. R. Evid. 404(b)). The district court also properly

instructed the jury to consider the evidence only for that limited purpose.

      2. Even if the prosecutor’s comment during opening statement that

Charlnoes “decided that he would take the risk” of smuggling was improper, it was

harmless in light of the strength of the evidence and the trial court’s jury

instructions not to consider opening statements as evidence. See United States v.

Jones, 592 F.2d 1038, 1043-44 (9th Cir. 1979). The evidence amply demonstrated

Charlnoes’s knowledge, including that he was the driver, sole occupant, and owner


                                           2
of the car containing 20 pounds of methamphetamine and cocaine worth over

$100,000, hidden in a secret compartment that was accessible only from the

interior of the car.

       AFFIRMED.




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