United States v. Fernando Vizcarra-Martinez

66 F.3d 1006 42 Fed. R. Evid. Serv. 215 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. As Amended on Denial of Rehearing and Suggestion for Rehearing En Banc Sept. 21, 1995. Lee Anne Mattson, San Diego, CA, for defendant-appellant. Bruce R. Castetter, Assistant United States Attorney, San Diego, CA, for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before MONROE G. MCKAY, * REINHARDT, and FERNANDEZ, Circuit Judges. 1 Opinion by Judge REINHARDT; Dissent by Judge FERNANDEZ. ORDER 2 The opinion filed June 21, 1995, is amended as follows: 3 With these amendments to the opinion, the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. 4 The full court was advised of the suggestion for rehearing en banc and no judge of the court has requested a vote on it. 5 The petition for rehearing is denied and the suggestion for rehearing en banc is rejected. OPINION REINHARDT, Circuit Judge: 6 This appeal presents various…

Opinion by Judge REINHARDT; Dissent by Judge FERNANDEZ.

ORDER

The opinion filed June 21, 1995, is amended as follows:

With these amendments to the opinion, the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en bane and no judge of the court has requested a vote on it.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

OPINION

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 Vizearra-Martinez’s remaining contentions…

dissenting:

I agree that the evidence was sufficient to sustain the verdict and that there was probable cause to search Vizearra-Martinez’s ear. 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), cert. 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 case involves possession of a drag and of a precursor chemical. It is also true that a person could possess a…