United States v. Michael Reisewitz

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 13, 2018
• Docket: 17-10095
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 13 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10095

Plaintiff-Appellee, D.C. No. 2:16-cr-00973-GMS-2 v.

MICHAEL REISEWITZ, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona G. Murray Snow, District Judge, Presiding

Submitted April 10, 2018** San Francisco, California

Before: D.W. NELSON, W. FLETCHER, and FISHER, Circuit Judges.

Michael Reisewitz appeals from his jury conviction of Possession with

Intent to Distribute Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(l) and

(b)(l)(B)(vii), and Conspiracy to Possess with Intent to Distribute

* 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). Methamphetamine, in violation of 21 U.S.C. §§ 846, 84l(a)(l) and (b)(l)(B)(vii).

Reisewitz argues that the district court erred when it admitted evidence of his 2010

state conviction for Possession of Dangerous Drugs (methamphetamine) for Sale

and Possession of Drug Paraphernalia. “We review a district court’s admission of

evidence under Federal Rule of Evidence 404(b) for an abuse of discretion.”

United States v. Romero, 282 F.3d 683, 688 (9th Cir. 2002). We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

Although evidence of prior bad acts is not admissible to show that the

defendant has bad character and is prone to criminal activity, it may be introduced

to show motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident. Fed. R. Evid. 404(b). Rule 404(b) evidence may

be admitted if (1) the evidence tends to prove a material point, (2) the prior act is

not too remote in time, (3) the evidence is sufficient to support a finding that the

defendant committed the other act, and (4) when the defendant’s knowledge and

intent are at issue, the act is similar to the offense charged. United States v. Vo,

413 F.3d 1010, 1018 (9th Cir. 2005). When evidence of a prior act is offered to

prove knowledge, the prior act “need not be similar to the charged act as long as

the prior act was one which would tend to make the existence of the defendant’s

knowledge more probable than it would be without the knowledge.” United States

2 v. Arambula–Ruiz, 987 F.2d 599, 603 (9th Cir. 1993) (quoting United States v.

Ramirez–Jiminez, 967 F.2d 1321, 1326 (9th Cir. 1992)). “If the evidence meets

this test under Rule 404(b), the court must then decide whether the probative value

is substantially outweighed by the prejudicial impact under Rule 403.” Romero,

282 F.3d at 688 (9th Cir. 2002) (quoting United States v. Chea 231 F.3d 531, 534

(9th Cir. 2000)).

Reisewitz only challenges the first and fourth prongs by claiming that his

prior conviction was not relevant to his knowledge that there was

methamphetamine hidden under the backseat of his co-defendant Pillatos’s car.

“Those two prongs, in cases like this, are essentially one and the same: similarity is

necessary to indicate knowledge and intent because it can furnish the link between

knowledge gained in the prior act and the claimed ignorance of some fact in the

offense charged.” United States v. Mayans, 17 F.3d 1174, 1182 (9th Cir. 1994)

(citation and internal quotation marks omitted). The fact that Reisewitz’s “defense

was non-participation does not render the issue of knowledge irrelevant.” Id.

“But while the relevance of knowledge can be established at this level of

generality, the government still bears the burden of proving a logical connection

between [Reisewitz’s] purported involvement in [selling small amounts of

methamphetamine as the ‘neighborhood drug dealer’] and a material fact at issue in

3 the crime with which he was charged.” Id. at 183. Contrary to the government’s

arguments, there is no “logical thread” between Reisewitz’s knowledge that a

package of methamphetamine was secreted under the backseat of co-defendant

Pillatos’s car as part of a drug importation conspiracy and his conviction for selling

small amounts of methamphetamine because “[common] experience does not

permit that connection between the two events to be made.”1 United States v.

Hernandez-Miranda, 601 F.2d 1104, 1108 (9th Cir. 1979) (holding that the district

court abused its discretion by admitting evidence that the defendant had previously

been convicted of smuggling marijuana in a backpack in a subsequent prosecution

for smuggling heroin in a car when defendant claimed no knowledge of the heroin

in the car); see also United States v. Garcia-Orozco, 997 F.2d 1302, 1304 (9th. Cir.

1993) (holding that “there is no logical basis from which to infer that

Garcia–Orozco knew that the Suburban contained drugs because drugs were found

in a car in which he was previously a passenger”).

Regardless, any error in admitting evidence of the prior conviction was

harmless because “it is not probable that the evidence materially affected the

1 As Reisewitz points out, knowledge that there is something hidden under someone’s backseat is different from the question of specialized knowledge, i.e., whether Reisewitz would know that a package of white substance is methamphetamine or not. 4 jurors’ verdict.” Arambula-Ruiz, 987 F.2d at 605. At trial, it was revealed that

Pillatos had four prior convictions for drugs or drug trafficking and had previously

worked as a confidential informant in Mohave County. After the border patrol

agents discovered a pound of methamphetamine hidden in the backseat, Reisewitz

told the agents that he did not know Pillatos, did not have a cellphone, and was

only hitchhiking. However, Pillatos’s testimony implicating both him and

Reisewitz in the conspiracy and describing their travel paths was corroborated by

cell phone data showing communications between Pillatos and Reisewitz, as well

as communications between Pillatos and other conspirators; Wal-Mart video

footage showing Reisewitz walking toward Pillatos’s car; and video footage and

documentation showing Reisewitz’s border crossings. Further, the district court

provided a limiting instruction to the jury. See United States v. Holler, 108 F.3d

1061, 1067 (9th Cir. 2005) (finding that error was harmless because of the

substantial evidence supporting defendant’s guilt and the district court’s limiting

instruction), overruled on other grounds by United States v. Larson, 495 F.3d

1094, 1100–01 (9th Cir. 2007) (en banc). The prosecutor also emphasized to the

jury that the prior conviction should not be used to conclude that because

Reisewitz “did it once, he must have done it again. You know, once a drug dealer,

5 always a drug dealer.” Any error in admitting evidence of the 2010 conviction was

therefore harmless.

AFFIRMED.