United States v. Richard Romero

FILED

UNITED STATES COURT OF APPEALS OCT 16 2012

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA, No. 11-10198

Plaintiff - Appellee, D.C. No. 4:09-cr-00734-CKJ-

GEE-

v. District of Arizona, Tucson

RICHARD RYAN ROMERO,

Defendant - Appellant. ORDER AMENDING

MEMORANDUM DISPOSITION

UNITED STATES OF AMERICA, No. 11-10206

Plaintiff - Appellee, D.C. No. 4:09-cr-00734-CKJ-

GEE-

v.

JACK MARTIN VOSE,

Defendant - Appellant.

Before: CALLAHAN and WATFORD, Circuit Judges, and SINGLETON, Senior District Judge.*

The Memorandum Disposition filed on September 14, 2012, is amended as

follows:

* The Honorable James K. Singleton, Senior District Judge for the U.S. District Court for Alaska, sitting by designation. On page 2, footnote ** is added and reads, “The late John M. Roll, Chief

District Judge for the U.S. District Court for the District of Arizona, presided over

the trial in this matter. Sterling Johnson, Jr., Senior District Judge from the U.S.

District Court…

Dissenting opinion filed by Circuit Judge WATFORD.

MEMORANDUM ***

Richard Romero and Jack Vose were charged and convicted of conspiracy to possess with intent to distribute marijuana and possession with intent to distribute *811 marijuana. Vose was also charged and convicted of possession of a firearm in furtherance of a drug trafficking offense. They appeal their convictions, arguing that the district court abused its discretion in admitting an unsigned letter over their objections that the letter was inadmissible hearsay. Defendants also contend the district court erred in admitting evidence of Vose’s prior conviction for attempting to possess marijuana for sale. Because any error in admitting the unsigned letter was harmless, and because the district court did not err in admitting the evidence of Vose’s prior conviction, we affirm.

1. We review a district court’s ruling on evidentiary objections, including hearsay-based objections, for an abuse of discretion. United States v. Stinson, 647 F.3d 1196, 1210 (9th Cir.2011). The government’s only argument on appeal as to why the document was not inadmissible hearsay is that the note is the statement of a co-conspirator. However,…

dissenting:

In my view, Vose’s prior conviction should have been excluded under Rule 403. The prior conviction had (at best) minimal probative value on the elements of knowledge and intent. While knowledge and intent are always relevant, see United States v. Mayans, 17 F.3d 1174, 1182 (9th Cir.1994), no one disputed that whoever possessed the marijuana found in the house knew that the substance was marijuana. And no one disputed that whoever possessed the almost 400 kilos of marijuana surely possessed it with the intent to distribute it. We have previously recognized that where lack of knowledge is not the core defense theory, evidence of a pri- or conviction offered to prove knowledge is of “minimal probative value.” United States v. Vavages, 151 F.3d 1185, 1193 (9th Cir.1998). The same holds true with respect to the element of intent.

On the other side of the balance, the potential for unfair prejudice was great. The only element seriously contested here was possession. Vose’s defense was that he did not live at the house in question, was not involved in any drug distribution activity going on there, and thus did not possess the drugs found in the house. As to that element,…