United States v. Evelio Cervantes-Conde

MEMORANDUM

Appellant Evelio Cervantes-Conde (“Cervantes-Conde”) appeals his jury trial conviction for cocaine offenses ( 21 U.S.C. §§ 846 , 841(a)(1) and 841(b)(l)(A)(ii)(II)), contesting the introduction of prior bad act evidence under Federal Rule of Evidence 404(b). Reviewing the district court’s evi-dentiary rulings for abuse of discretion, United States v. Lozano, 623 F.3d 1055, 1059 (9th Cir.2010), we affirm.

Prior bad act evidence “may be admitted if: (1) the evidence tends to prove a material point; (2) the other act is not too remote in time; (3) the evidence is sufficient to support a finding that defendant committed the other act; and (4) (in certain cases) the act is similar to the offense charged.” United States v. Romero, 282 F.3d 683, 688 (9th Cir.2002) (internal quotation marks omitted). Cervantes-Conde’s prior bad acts were admissible to refute a material point, namely his defense that he was merely an innocent bystander. See United States v. Howell, 231 F.3d 615, 628-29 (9th Cir.2000) (admissible to counter claim of being “merely present” at scene with “innocent motives”); see also United States v. Plancarte-Alvarez, 366 F.3d 1058, 1062 (9th Cir.2004)…