United States v. Quinones

106 F. App'x 618

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 13, 2004
• Docket: No. 03-50203
• Status: Published

Opinions

MEMORANDUM

**

Defendant Anthony Quinones appeals his conviction of conspiracy to possess methamphetamine with intent to distribute, in violation of 21 U.S.C. § 846, and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1).

1. Defendant argues that the district court erred when it permitted the Government in its rebuttal case to introduce evidence of his 1999 state-court conviction for possession of methamphetamine. He argues that the 1999 conviction was not relevant to a disputed issue at trial and, therefore, was not admissible under Federal Rule of Evidence 404(b). We review de novo the relevance of evidence of other acts to the crime charged. United States v. Castillo, 181 F.3d 1129, 1134 (9th Cir. 1999).

Evidence of Defendant’s 1999 conviction for possession of methamphetamine was relevant because it tended to establish knowledge, which is a necessary element of a narcotics conspiracy. United States v. Montgomery, 150 F.3d 983, 1001 (9th Cir. 1998). Defendant’s theory of defense, which he supported with testimony of two witnesses, was that he was “merely present” in the same location as the drugs, but was not an active participant in any conspiracy to distribute them. Accordingly, he placed at issue the question of his knowledge; an earlier conviction of possessing the same drug was relevant to that issue.

Even assuming (without deciding) that the trial court erred in instructing the jury that the evidence also was relevant to Defendant’s intent, any such error was harmless beyond a reasonable doubt.

2. Defendant argues for the first time in his reply brief that the 1999 conviction was not listed in the Government’s Information Establishing Prior Narcotics Felony Conviction and that offering this evidence therefore violated 21 U.S.C. § 851. This argument was waived, both because Defendant failed to raise it in the district court, United States v. Van Doren, 182 , 1083 (9th Cir.1999), and because he failed to raise it in his Opening Brief, Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.