Free Other Notice - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona BRIAN G. LARSON Assistant U.S. Attorney Arizona State Bar No. 015863 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-04-0982-PHX-SRB Plaintiff, v. Pedro Meza-Ochoa, Defendant. The government hereby submits its notice to introduce the following evidence at trial under Rule 404(b) of the Federal Rules of Evidence. GOVERNMENT'S NOTICE OF INTENT TO USE OTHER ACTS EVIDENCE

I.

INTRODUCTION.

A. Statement of Facts. Defendant Pedro Meza Ochoa is charged with conspiracy to possess with the intent to distribute heroin in violation of 21 U.S.C. §§ 846; 841(a)(1) and (b)(1)(A), possession with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A), possession of a firearm in relation to a Narcotics Offense in violation of 18 U.S.C. § 924(c), and alien in possession of a handgun in violation of 18 U.S.C. § 922(g)(5). The following is a brief summary of the facts that gave rise to the Indictment. The defendant was arrested during a controlled sale of narcotics to an undercover officer (UCO). The UCO had made contact with co-defendant Quinonez-Cervantes, a person that could set up the purchase of narcotics. The UCO purchased heroin from co-defendant Beltran-Meza on two

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1 occasions through Quinonez-Cervantes. He purchased a total 1239.6 grams of heroin. On the 2 second sale, agents observed defendant Meza-Ochoa performing what they believed to be 3 counter-surveillance around the parking lot where the transaction was to take place. The 4 defendant admitted to being present for both sales and that he was to be paid $100.00 each time 5 to be there. He did not explain why he was there. He had a 9mm handgun on the passenger side 6 floor of the vehicle. He stated that he had it for his protection when interviewed. 7 8 B. Other Acts Evidence the Government Intends to Use at Trial.

9 Prior Offense of Possession with Intent to Distribute Cocaine and Methamphetamine. 10 On February 8, 2002, Phoenix Police Department Officers arrested defendant Meza-Ochoa

11 for possession of cocaine for sale and other offenses. The officers stopped a car that the 12 defendant was traveling in for a traffic violation. The defendant was asked to get out of the car. 13 Agents observed the defendant trying to hide something under his shirt that looked like

14 packages of narcotics. The agents searched the defendant and discovered two "½" kilogram 15 packages of cocaine. The defendant also had a 9mm handgun in his belt. The defendant failed 16 to appear for his hearings and a warrant is currently active for his arrest on these charges. 17 18 II. THE PRIOR OFFENSE EVIDENCE IS ADMISSIBLE UNDER RULE 404(b). 19 Under Rule 404(b), evidence of a defendant's other crimes, wrongs, or acts may not be

20 admitted solely to prove that the person's conduct during the charged incident is in conformity 21 with his conduct on a different occasion. Fed. R. Evid. 404(b). Other acts evidence is 22 admissible, however, for other purposes, such as proving motive, opportunity, intent, 23 preparation, plan, knowledge, identity, or absence of mistake or accident. Id. Under a four-part 24 test used to decide whether other acts evidence may be admitted under Rule 404(b), a district 25 court must determine whether: "(1) sufficient evidence exists for the jury to find that the 26 defendant committed the other acts; (2) the other acts are introduced to prove a material issue 27 in the case; (3) the other acts are not too remote in time; and (4) if admitted to prove intent, the 28
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1 other acts are similar to the offense charged." United States v. Murillo, 255 F.3d 1169, 1175 (9th 2 Cir. 2001). If this test is satisfied, the court should admit the evidence unless its prejudicial 3 impact substantially outweighs its probative value. Fed. R. Evid. 403. Here, the disputed 4 evidence satisfies the four prongs of the Rule 404(b) test, and its prejudicial impact does not 5 substantially outweigh its probative value. 6 7 8 A. There Is Sufficient Proof of the Prior Offense. Sufficient evidence must be adduced for a jury to "reasonably conclude that the [other] act

9 occurred and that the defendant was the actor." Huddleston v. United States, 485 U.S. 681, 689 10 (1988); see Fed. R. Evid. 104(b). The district court must find that a jury could reasonably make 11 such a determination by a preponderance of the evidence. United States v. Johnson, 132 F.3d 12 1279, 1283 (9th Cir. 1997). Here, proof of the prior offense at any pretrial hearing, if required, 13 will be: (1) police reports from Phoenix Police Officers regarding their encounter with and arrest 14 of Beltran-Meza and(2) the narcotics analyst's laboratory report results as to the nature and 15 weight of the white powdery substance found in the black box. If necessary, the Officers will 16 testify to their encounter with and arrest of Beltran-Meza. In addition, the narcotics analyst will 17 testify as the nature and weight of the white powdery substance if required. Thus, sufficient 18 evidence exists for a jury to reasonably conclude that it is more likely than not that Beltran-Meza 19 committed the offense of possession with intent to distribute cocaine and methamphetamine on 20 February 8, 2002. 21 B. The Prior Offense is Being Offered to Prove Material Issues in the Case. 22 The Government will offer the prior offense under Rule 404(b) to prove defendant Meza23 Ochoa's knowledge, intent, motive, opportunity, and absence of mistake or accident in 24 committing the charged offense. Because knowledge and intent are elements of the crime 25 charged, they are necessarily material issues in the case. See United States v. Plancarte-Alvarez, 26 366 F.3d 1058, 1062 (9th Cir. 2004); United States v. Basinger, 60 F.3d 1400, 1408 (9th Cir. 27 28
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1 1995); United States v. Arambula-Ruiz, 987 F.2d 599, 603 (9th Cir. 1993). Moreover, the Ninth 2 Circuit has "consistently held that evidence of a defendant's prior possession or sale of narcotics 3 is relevant under Rule 404(b) to issues of intent, knowledge, motive, opportunity, and absence 4 of mistake or accident in prosecutions for possession of . . . and intent to distribute narcotics." 5 United States v. Mehrmanesh, 689 F.2d 822, 832 (9th Cir. 1982); see also United States v. Santa 6 Cruz, 48 F.3d 1118, 1119 (9th Cir. 1995) (arrest for cocaine possession, which occurred twelve 7 weeks before, admitted to show knowledge for later cocaine possession). Admission of such 8 evidence has been found particularly appropriate where a defendant raises a defense of 9 innocence. See Santa-Cruz, 48 F.3d at 1120 (prior drug acts served to rebut claim that 10 defendant's "possession of the cocaine was accidental"); Arambula-Ruiz, 987 F.2d at 603 (noting 11 that evidence of prior conviction is appropriate where defense at trial is that defendant "was an 12 innocent bystander `at the wrong place at the wrong time'"). 13 Here, the Defendant's prior arrest for the same offense that he is presently charged with is

14 highly suggestive of his knowledge that he possessed and intent to possess heroin on the charged 15 occasion, and of his opportunity to engage in such an offense. Furthermore, his prior intent to 16 distribute cocaine is probative of his intent to distribute heroin on the charged occasion. 17 Moreover, the prior offense makes it more likely that the defendant's assistance with the 18 possession of heroin on October 3, 2002 was not a mistake or accident. 19 20 21 C. The Prior Offense Was Not Remote in Time. The prior offense occurred only tow and a half years prior to the commission of the charged

22 offense. Thus, the prior offense clearly was not remote in time. See, e.g., United States v. 23 Houser, 929 F.2d 1369, 1373 (9th Cir. 1990) (holding that a conviction four years before was 24 not too remote in time; likewise, other uncharged drug transactions within a year of the offense 25 were not too remote), overruled on other grounds by Buford v. United States, 532 U.S. 59 26 (2001). 27 28
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D. The Prior Offense Was Similar to the Charged Offense. The prior offense was very similar to the charged offense. In both instances, the defendant

3 was involved in a transaction with other people. Both offenses involved a substantial amount 4 of drugs. He possessed a gun in both cases. The United States recognizes that he was not in 5 possession of the narcotics during the charged conduct. However, he admitted to being present 6 at both transactions and that he was paid to be present. He was assisting by providing counter7 surveillance in the charged matter. In the previous matter he was attempting to hide the 8 narcotics when he was stopped as a passenger in the car. It is clear that the conduct is similar. 9 10 11 E. Rule 403 Does Not Bar Admission of the Evidence Rule 403 states that despite the relevancy of evidence, it may be inadmissible based on the

12 "danger of unfair prejudice." Fed. R. Evid. 403. Unfair prejudice results when evidence 13 "`provokes an emotional response in the jury or otherwise tends to affect adversely the jury's 14 attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the 15 crime charged.'" United States v. Johnson, 820 F.2d 1065, 1069 (9th Cir. 1987) (quoting United 16 States v. Bailleaux, 685 F.2d 1105, 1111 (9th Cir. 1982)). Evidence is not unfairly prejudicial 17 because it tends to convince the jury of the defendant's guilt; it is only when the evidence moves 18 the jury on a basis unrelated to the merits of the case that it is prejudicial. See id. Furthermore, 19 the use of a limiting instruction can dissipate any possible prejudice. See, e.g., United States v. 20 Smith, 282 F.3d 758, 769 n.4 (9th Cir. 2002) (holding that the district court did not abuse its 21 discretion under Rule 403 by admitting other acts evidence, where the court instructed the jury 22 that it could consider the prior act "only as it bears on . . . Smith's intent or knowledge[,] and for 23 no other purpose"). 24 Here, evidence of defendant Meza-Ochoa's prior offense is prejudicial but not unfairly so.

25 The possession of cocaine and a handgun is not so shocking as to inflame the jury or arouse 26 unwanted prejudices. On the other hand, the evidence is highly probative of knowledge, intent, 27 motive, opportunity, and absence of mistake or accident with respect to the present offense. 28
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1 Moreover, if the court finds it necessary, a limiting instruction to the jury will serve to diminish 2 the prejudicial effect of the evidence. Therefore, the evidence is admissible under Rule 404(b). 3 4 III. CONCLUSION. 5 For the foregoing reasons, the Government respectfully requests that it be permitted to

6 introduce evidence of Defendant's prior offense based on Rule 404(b) of the Federal Rules of 7 Evidence. 8 9 10 11 12 13 14 15 16 CERTIFICATE OF SERVICE 17
:

Respectfully submitted this 3rd day of October, 2005. PAUL K. CHARLTON United States Attorney District of Arizona

S/ Brian G. Larson BRIAN G. LARSON Assistant U.S. Attorney

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:

I hereby certify that on __October 3, 2005__, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Robert Bruce Stirling Brandon Cotto

I hereby certify that on ___October 3, 2005__, I served the attached document by mail on the following, who are not registered participants of the CM/ECF System: Nicholas Merlin Alcock Alcock & Associates PC 411 N Central Ave., Ste 500 Phoenix, AZ 85005

S/ Lea R. Lucy LEA R LUCY

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