United States v. Fernando Vizcarra-Martinez

57 F.3d 1506 UNITED STATES of America, Plaintiff-Appellee, v. Fernando VIZCARRA-MARTINEZ, Defendant-Appellant. No. 94-50281. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 4, 1995. Decided June 21, 1995. Appeal from the United States District Court for the Southern District of California. Lee Anne Mattson, San Diego, CA, for defendant-appellant. Bruce R. Castetter, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee. Before: MCKAY, * REINHARDT, FERNANDEZ, Circuit Judges. Opinion by Judge REINHARDT; Dissent by Judge FERNANDEZ. REINHARDT, Circuit Judge: 1 This appeal presents various factual and legal questions regarding the sentence and conviction of the defendant, Fernando Vizcarra-Martinez. Although we decline the defendant's invitation to reverse his conviction based upon the insufficiency of the evidence and find no merit in his claim that the evidence seized during the search of his car was improperly admitted, we conclude that the district court committed reversible error by admitting evidence of his drug use to prove that he conspired to possess and possessed hydriodic acid with knowledge that it would be used to manufacture methamphetamine.…

Opinion by Judge REINHARDT; Dissent by Judge FERNANDEZ.

This appeal presents various factual and legal questions regarding the sentence and conviction of the defendant, Fernando Vizcarra-Martinez. Although we decline the defendant’s invitation to reverse his conviction based upon the insufficiency of the evidence and find no merit in his claim that the evidence seized during the search of his car was improperly admitted, we conclude that the district court committed reversible error by admitting evidence of his drug use to prove that he conspired to possess and possessed hydriodic acid with knowledge that it would be used to manufacture methamphetamine. Because we reverse on this ground, we do not consider Vizcarra-Martinez’s remaining contentions regarding the district court’s evidentiary rulings and its sentencing decision.

*1509 I.

Vizcarra-Martinez was indicted with six other defendants. He was charged in Count I with conspiracy to wrongfully possess a listed chemical knowing and having reasonable cause to believe that it would be used to manufacture methamphetamine in violation of 21 U.S.C. §§ 841 (d)(2), 802(33), 802(34), 802(34)(X), and 846; he was also charged in…

dissenting:

I agree that the evidence was sufficient to sustain the verdict and that there was probable cause to search Vizcarra-Martinez’s car. However, I do not agree that it was prejudicial error to admit the small amount of methamphetamine that Vizcarra-Martinez had on his person when he was arrested.

Often we have even said that possession or use of a drug on a prior occasion is relevant to show the knowing possession of drugs on a second occasion. See United States v. Santa-Cruz, 48 F.3d 1118 (9th Cir.1995); United States v. Hegwood, 977 F.2d 492 (9th Cir.1992), ce rt. denied, — U.S. -, 113 S.Ct. 2348 , 124 L.Ed.2d 257 (1993); United States v. Milner, 962 F.2d 908 (9th Cir.), cert. denied, — U.S. -, 113 S.Ct. 614 , 121 L.Ed.2d 548 (1992); United States v. Marshall, 526 F.2d 1349 (9th Cir.1975), cert. denied, 426 U.S. 923 , 96 S.Ct. 2631 , 49 L.Ed.2d 376 (1976); United States v. Perez, 491 F.2d 167 (9th Cir.), cert. denied, 419 U.S. 858 , 95 S.Ct. 106 , 42 L.Ed.2d 92 (1974). It is true that those cases involved prior and current possession of drugs, whereas this ease involves possession of a drug and of a precursor chemical. It is also true that a person could possess a…