Clements

MEMORANDUM ***

We affirm Joseph Danielle Clements’ conviction because the district court did not commit any reversible evidentiary or sentencing errors.

As an initial matter, we are troubled by the government’s failure to abide by its agreement to provide notice of its intent to use evidence of Clements’ “prior bad acts.” Federal Rule of Evidence 404(b) requires such notice, and the government independently promised Clements that it would do so. The government is held to a high standard in fulfilling its promises, and it is clear that it overlooked its duty to do so here. Nonetheless, the district court did not abuse its discretion in ruling that the government was not barred by its failure to provide Rule 404(b) notice. See United States v. Erickson, 75 F.3d 470, 478 (9th Cir.1996).

The district court did abuse its discretion, however, in admitting Tony MeCullah’s testimony about Clements’ pri- or gun possession, but the error was harmless. The evidence fell within the ambit of Rule 404(b), and McCullah’s testimony did not prove any material element of the charged offenses before the jury. Nonetheless, the testimony was brief and unlikely to have prejudicially influenced the…