Grable

MEMORANDUM *

Kirk Grable was convicted of being a *671 felon in possession of a firearm, in violation of 18 U.S.C. § 922 (g)(1), and of possession of a machine gun, in violation of 18 U.S.C. § 922 (o), after several firearms were found in the bedroom of his then-girlfriend, Matrona Nevzuroff (“Matrona”), on March 10, 2001. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

The district court did not abuse its discretion when it admitted under Federal Rules of Evidence 403 and 404(b) two prior acts in 1996 and 1997 in which Grable stored firearms at the Nevzuroff family trailer. Evidence of the two incidents was proper under United States v. Murillo, 255 F.3d 1169 (9th Cir.2001), which articulates a four-part test the district court must use to determine the admissibility of other acts evidence. Id. at 1175 . The government provided sufficient evidence that Grable committed the conduct constituting both incidents. The evidence was directly material to whether Grable had control over weapons found at the Nevzuroff home, and whether Matrona assisted Grable in hiding weapons in her bedroom. The incidents were not too remote in time, and were substantially similar to…

dissenting.

I respectfully dissent. I do not believe that the evidence regarding Kirk Grable’s character should have been admitted in his trial.

*672 (1) Grable first challenges evidence of a prior bad act, discharging a firearm outside his girlfriend’s family’s trailer. The police were summoned, but before they arrived, Grable’s girlfriend Matrona asked him to pass the firearm through the window so she could hide it in her bedroom. Grable challenges the admission of this evidence under Federal Rule of Evidence 404(b).

Under Rule 404(b), a prior bad act is admissible if relevant to prove the defendant’s modus operandi. Matrona testified that she had no role in hiding the guns underlying the current conviction, other than ignoring one she encountered. The 404(b) evidence therefore shows a different modus operandi than the one the government alleged at trial with regard to the crime of conviction. No other basis for admitting this evidence has been suggested. The evidence was therefore inadmissible.

(2) Grable’s second objection is to evidence of another prior bad act, involving Matrona’s father finding a backpack with a gun inside it in the trailer. The only suggestion that…