United States v. Hernandez-Zamora

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 17 2026 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-7502 D.C. No.

Plaintiff - Appellee, 3:21-cr-00062-MAH-1 v.

MEMORANDUM*

ROLANDO HERNANDEZ-ZAMORA,

Defendant - Appellant.

Appeal from the United States District Court for the District of Alaska Marco A. Hernandez, District Judge, Presiding

Submitted August 10, 2026** Anchorage, Alaska

Before: CALLAHAN, BEA, and BUMATAY, Circuit Judges.

Rolando Hernandez-Zamora (“Hernandez-Zamora”) appeals his conviction for cyberstalking in violation of a protective order, in violation of 18 U.S.C. §§ 2261A(2)(A) and (B) and 2261(b)(6). Hernandez-Zamora argues that the

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

district court erred in admitting evidence of his prior two assault convictions under Federal Rule of Evidence (“Rule”) 404(b)(2). He also argues that even if the prior assaults were properly admitted under Rule 404(b), their probative value is substantially outweighed by their prejudicial effect in violation of Rule 403. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review the district court’s admission of evidence under Rule 404(b)(2)

and the district court’s evidentiary ruling under Rule 403 for abuse of discretion. See United States v. Jimenez-Chaidez, 96 F.4th 1257, 1264 (9th Cir. 2024) (noting Rule 404(b) standard of review); Rearden, LLC v. Walt Disney Pictures, 152 F.4th 1058, 1066 (9th Cir. 2025) (noting Rule 403 standard of review).

1. The district court did not abuse its discretion in admitting Hernandez-

Zamora’s two prior assault convictions. To be admissible under Rule 404(b)(2), prior-act evidence must satisfy four requirements: “(1) it must tend to prove a material issue; (2) the prior acts must not be too remote in time; (3) there must be sufficient evidence for a reasonable jury to conclude that the defendant committed the prior acts; and (4) when used to show knowledge and intent, the prior acts must be sufficiently similar to the charged offense.” Jimenez-Chaidez, 96 F.4th at 1264 (citations omitted).

Hernandez-Zamora argues that his prior convictions were (a) too remote in time, and (b) not sufficiently similar to his charged offense of cyberstalking to be

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admitted under Rule 404(b)(2). We disagree.

a. We have “not identified a particular number of years after which past conduct becomes too remote.” United States v. Johnson, 132 F.3d 1279, 1283 (9th Cir. 1997) (citation omitted). Rather, “[remoteness] depends on the theory that makes [the prior act] admissible and the similarity of the act to the current charge.” United States v. Iverson, 162 F.3d 1015, 1027 (9th Cir. 1998) (citation omitted) (emphasis added), see United States v. Vo, 413 F.3d 1010, 1019 (9th Cir. 2005) (“If the prior act evidence . . . is sufficiently similar to the charged conduct it may render it probative despite the passage of time.” (citation modified)).

In Johnson, we determined that if prior acts are sufficiently similar to a charged offense, the prior act evidence may be admitted despite occurring thirteen years earlier. 132 F.3d at 1283. Similarly, in United States v. Spillone, we blessed the admission of prior-acts-evidence even though the prior acts occurred “over ten years” prior. 879 F.2d 527, 519 (9th Cir. 1989). The same reasoning tracks here— given the similarity between Hernandez-Zamora’s prior assaults and the charged offense of cyberstalking, as discussed in more detail below, it was not error for the district court to admit the prior convictions despite the temporal gap. Indeed, the convictions here are less remote in time than the prior acts in Johnson and Spillone.

b. To satisfy the similarity prong of the Rule 404(b) analysis, “past conduct need not be identical to the conduct charged, but instead need only be similar

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enough to be probative of intent.” Johnson, 132 F.3d at 1283 (citations omitted). This court has further held that “[o]ther acts of domestic violence involving the same victim are textbook examples of evidence admissible under Rule 404(b), and courts have permitted this evidence” because “prior (and subsequent) acts of violence towards the identical victim can shed light on the mindset of the defendant during the charged crime, such as whether there was a grudge between the two, a desire for payback of some sort, or that the defendant had the intent to exert control over this particular victim through violence.” United States v. Berckmann, 971 F.3d 999, 1002 (9th Cir. 2020).

The circumstances of this case fit well within the Berckmann framework.

Here, both prior assaults involved the same victim and were being used to “shed light on the mindset of the defendant during the charged crime.” Id. Indeed, the testimony from Sanchez about these prior assaults occurred in the context of her testimony about her relationship with Hernandez-Zamora in the build-up to the charged crime. These prior acts were not being used to demonstrate violent tendencies but rather as evidence of Hernandez-Zamora’s mindset leading up to and during the charged offense.

2. Hernandez-Zamora next argues that even if the prior assaults were properly admitted under Rule 404(b), the danger of unfair prejudice of admitting the prior convictions substantially outweighs the probative value of that evidence

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in violation of Rule 403. We again disagree.

A court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice . . . or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. “Evidence is unfairly prejudicial if it makes a conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury’s attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged.” United States v. Haischer, 780 F.3d 1277, 1282 (9th Cir. 2015) (quotation marks and citation omitted).

Here, the evidence was admitted by way of limited testimony from Sanchez and though perhaps emotionally charged, it was directly connected to the question of Hernandez-Zamora’s guilt in the instant case. And as the district court properly put it, this evidence “helps explain the elements of the crime,” and therefore the probative value is not substantially outweighed by unfair prejudice. Moreover, the district court gave an appropriate limiting instruction about the proper purpose of the prior conviction before jury deliberation, thereby reducing the risk of unfair prejudice. See United States v. Sullivan, 159 F.4th 579, 590–91 (9th Cir. 2025), cert. denied, No. 25-1082, 2026 WL 1854998 (U.S. June 29, 2026) (holding that the facts within a plea agreement were not “likely to cause unfair prejudice, as they were subject to a limiting instruction by the district court”).

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Finally, Hernandez-Zamora argues that the prior convictions were impermissibly cumulative on the issue of intent. A district court has discretion in determining when evidence becomes “needlessly” cumulative and should therefore be excludable. See United States v. Skillman, 922 F.2d 1370, 1374 (9th Cir. 1990). Here, Hernandez-Zamora’s prior convictions were not needlessly cumulative. These prior assault convictions were evidence about the circumstances of Hernandez-Zamora’s relationship with Sanchez prior to the charged conduct that bore on his intent of the charged offense and demonstrated a decade-long course of conduct. Based on the evidence in the record, it cannot be said that this prior conviction evidence was needlessly cumulative. See id.

AFFIRMED.