NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 3 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-30053
Plaintiff-Appellee, D.C. No. 4:20-cr-00058-BMM-2 v.
RICK JOHN MORALES, Jr., MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding
Submitted February 10, 2023** Portland, Oregon
Before: MURGUIA, Chief Judge, and FORREST and SUNG, Circuit Judges.
Rick John Morales, Jr., appeals the district court’s denial of his (1) motion in
limine to exclude evidence under Federal Rule of Evidence 404(b), and (2) motion
to dismiss the indictment for a violation of his Sixth Amendment right to a speedy
trial. We have jurisdiction under 28 U.S.C. § 1291. For the reasons below, we
* 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). 1 affirm.
1. The district court did not abuse its discretion in denying Morales’s
motion in limine to exclude “other bad act” evidence under Rule 404(b).1 United
States v. Ramos-Atondo, 732 F.3d 1113, 1121 (9th Cir. 2013). Under that rule,
evidence of other acts is not admissible to prove character but may be admissible
for other purposes, including proving motive and identity. Fed. R. Evid. 404(b).
Other-act evidence is admissible under Rule 404(b) 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 defendant committed the other act; and (4) (in
cases where knowledge and intent are at issue) the act is similar to the offense
charged.” United States v. Mayans, 17 F.3d 1174, 1181 (9th Cir. 1994); see also
United States v. Lague, 971 F.3d 1032, 1038 (9th Cir. 2020).
In this case, the district court permitted the government to introduce
evidence of an altercation between Morales, the victim, and a third party that
occurred at the victim’s home on the day before the charged assault in this case.
Morales contends that the district court abused its discretion because, in Morales’s
view, this evidence of the prior altercation did not tend to prove any material point.
1 The government also contends that the district court properly admitted the other- act evidence because it is inextricably intertwined with the charged crimes. We need not decide that issue because we conclude the evidence was admissible under Rule 404(b).
2 We disagree. We “afford broad discretion to a district court’s evidentiary rulings,”
and that is “particularly true with respect to Rule 403 since it requires an ‘on-the-
spot balancing of probative value and prejudice, potentially to exclude as unduly
prejudicial some evidence that already has been found to be factually relevant.’”
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008) (quoting 1 S.
Childress & M. Davis, Federal Standards of Review § 4.02, p. 4–16 (3d ed. 1999)).
The evidence of the prior altercation was relevant to proving Morales’s motive and
involvement in the crime, which Morales disputed. See, e.g., United States v.
Bowman, 720 F.2d 1103, 1105 (9th Cir. 1983) (“Although the victim in the prior
case was not involved here, there was a sufficient factual relationship between the
two incidents to render the prior conviction relevant to the issue of [the
defendant’s] motive for the assault upon [the victim].”). The evidence makes it
more probable that Morales participated in the alleged assault because he felt he
had been “set up” by the victim. Morales also contends that the evidence of the
prior altercation was dissimilar to the charged crime of assault. Even assuming that
knowledge and intent are at issue, so that similarity is required, the prior altercation
and the charged crime of assault are sufficiently similar because they involved
some of the same parties at the same location. See United States v. Berckmann, 971
F.3d 999, 1002 (9th Cir. 2020).
Morales alternatively contends that the district court abused its discretion by
3 failing to determine whether the prior-altercation evidence’s probative value was
“substantially outweighed” by the risk of undue prejudice. Fed. R. Evid. 403. We
disagree. Although the district court did not explicitly “recite the Rule 403 test
when balancing the probative value of evidence against its potential for unfair
prejudice,” it did not need to, because we “can conclude, based on a review of the
record, that the district court considered Rule 403’s requirements.” United States v.
Gomez, 725 F.3d 1121, 1129 (9th Cir. 2013) (internal quotation marks and citation
omitted). During the hearing on Morales’s motion in limine, counsel for Morales
thoroughly argued that the evidence was unduly prejudicial and should be excluded
under Rule 403, and the court expressly discussed both the probative value of the
evidence, and its potential for undue prejudice.2
The district court acted within its broad discretion when it concluded that the
evidence’s probative value was not “substantially outweighed” by the risk of undue
prejudice. Fed. R. Evid. 403. The evidence was highly probative of Morales’s
motive and state of mind at the time of the charged assault. Additionally, the court
mitigated any risk of unfair prejudice by offering to give a limiting instruction to
the jury explaining that the evidence could be considered only for proper purposes.
See Berckmann, 971 F.3d at 1004 (evidence of prior acts of domestic violence was
2 Morales argued only that the evidence was prejudicial and did not raise any of the other Rule 403 factors.
4 not unfairly prejudicial when court gave limiting instruction on three separate
occasions).
2. The district court did not err in denying Morales’s motion to dismiss
the indictment for violation of the Speedy Trial Act.3 The Speedy Trial Act excepts
from the seventy-day speedy trial clock “[a]ny period of delay resulting from
the . . . unavailability of . . . an essential witness.” 18 U.S.C. § 3161(h)(3)(A). A
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 3 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-30053
Plaintiff-Appellee, D.C. No. 4:20-cr-00058-BMM-2 v.
RICK JOHN MORALES, Jr., MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding
Submitted February 10, 2023** Portland, Oregon
Before: MURGUIA, Chief Judge, and FORREST and SUNG, Circuit Judges.
Rick John Morales, Jr., appeals the district court’s denial of his (1) motion in
limine to exclude evidence under Federal Rule of Evidence 404(b), and (2) motion
to dismiss the indictment for a violation of his Sixth Amendment right to a speedy
trial. We have jurisdiction under 28 U.S.C. § 1291. For the reasons below, we
* 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). 1 affirm.
1. The district court did not abuse its discretion in denying Morales’s
motion in limine to exclude “other bad act” evidence under Rule 404(b).1 United
States v. Ramos-Atondo, 732 F.3d 1113, 1121 (9th Cir. 2013). Under that rule,
evidence of other acts is not admissible to prove character but may be admissible
for other purposes, including proving motive and identity. Fed. R. Evid. 404(b).
Other-act evidence is admissible under Rule 404(b) 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 defendant committed the other act; and (4) (in
cases where knowledge and intent are at issue) the act is similar to the offense
charged.” United States v. Mayans, 17 F.3d 1174, 1181 (9th Cir. 1994); see also
United States v. Lague, 971 F.3d 1032, 1038 (9th Cir. 2020).
In this case, the district court permitted the government to introduce
evidence of an altercation between Morales, the victim, and a third party that
occurred at the victim’s home on the day before the charged assault in this case.
Morales contends that the district court abused its discretion because, in Morales’s
view, this evidence of the prior altercation did not tend to prove any material point.
1 The government also contends that the district court properly admitted the other- act evidence because it is inextricably intertwined with the charged crimes. We need not decide that issue because we conclude the evidence was admissible under Rule 404(b).
2 We disagree. We “afford broad discretion to a district court’s evidentiary rulings,”
and that is “particularly true with respect to Rule 403 since it requires an ‘on-the-
spot balancing of probative value and prejudice, potentially to exclude as unduly
prejudicial some evidence that already has been found to be factually relevant.’”
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008) (quoting 1 S.
Childress & M. Davis, Federal Standards of Review § 4.02, p. 4–16 (3d ed. 1999)).
The evidence of the prior altercation was relevant to proving Morales’s motive and
involvement in the crime, which Morales disputed. See, e.g., United States v.
Bowman, 720 F.2d 1103, 1105 (9th Cir. 1983) (“Although the victim in the prior
case was not involved here, there was a sufficient factual relationship between the
two incidents to render the prior conviction relevant to the issue of [the
defendant’s] motive for the assault upon [the victim].”). The evidence makes it
more probable that Morales participated in the alleged assault because he felt he
had been “set up” by the victim. Morales also contends that the evidence of the
prior altercation was dissimilar to the charged crime of assault. Even assuming that
knowledge and intent are at issue, so that similarity is required, the prior altercation
and the charged crime of assault are sufficiently similar because they involved
some of the same parties at the same location. See United States v. Berckmann, 971
F.3d 999, 1002 (9th Cir. 2020).
Morales alternatively contends that the district court abused its discretion by
3 failing to determine whether the prior-altercation evidence’s probative value was
“substantially outweighed” by the risk of undue prejudice. Fed. R. Evid. 403. We
disagree. Although the district court did not explicitly “recite the Rule 403 test
when balancing the probative value of evidence against its potential for unfair
prejudice,” it did not need to, because we “can conclude, based on a review of the
record, that the district court considered Rule 403’s requirements.” United States v.
Gomez, 725 F.3d 1121, 1129 (9th Cir. 2013) (internal quotation marks and citation
omitted). During the hearing on Morales’s motion in limine, counsel for Morales
thoroughly argued that the evidence was unduly prejudicial and should be excluded
under Rule 403, and the court expressly discussed both the probative value of the
evidence, and its potential for undue prejudice.2
The district court acted within its broad discretion when it concluded that the
evidence’s probative value was not “substantially outweighed” by the risk of undue
prejudice. Fed. R. Evid. 403. The evidence was highly probative of Morales’s
motive and state of mind at the time of the charged assault. Additionally, the court
mitigated any risk of unfair prejudice by offering to give a limiting instruction to
the jury explaining that the evidence could be considered only for proper purposes.
See Berckmann, 971 F.3d at 1004 (evidence of prior acts of domestic violence was
2 Morales argued only that the evidence was prejudicial and did not raise any of the other Rule 403 factors.
4 not unfairly prejudicial when court gave limiting instruction on three separate
occasions).
2. The district court did not err in denying Morales’s motion to dismiss
the indictment for violation of the Speedy Trial Act.3 The Speedy Trial Act excepts
from the seventy-day speedy trial clock “[a]ny period of delay resulting from
the . . . unavailability of . . . an essential witness.” 18 U.S.C. § 3161(h)(3)(A). A
witness is unavailable when “his whereabouts are known but his presence for trial
cannot be obtained by due diligence . . . .” 18 U.S.C. § 3161(h)(3)(B). The district
court found that Dr. Richardson was an essential witness and that the government
acted with due diligence in attempting to procure his presence for trial. We review
those factual findings for clear error. United States v. Mincoff, 574 F.3d 1186, 1192
(9th Cir. 2009).
The district court did not clearly err in finding that Dr. Richardson was an
essential witness. Dr. Richardson performed life-saving surgery on the victim after
the assault and would testify about the severity of his injuries, which is relevant to
proving the element of serious bodily injury. Morales argues that Dr. Richardson
was not an essential witness because his testimony would be cumulative to that of
another witness, Physician Assistant (PA) Hansen. We disagree. Although both
3 Morales does not argue on appeal that the continuance of the trial violated his constitutional right to speedy trial. See Barker v. Wingo, 407 U.S. 514, 536 (1972).
5 witnesses would testify to the same element (serious bodily injury), Dr.
Richardson’s testimony was qualitatively different from PA Hansen’s because PA
Hansen only provided care to the victim during his stay at a rehabilitation clinic.
Morales cites no authority that two witnesses’ overlapping testimony disqualifies
either as an essential witness for purposes of the Speedy Trial Act. Cf. United
States v. Miles, 290 F.3d 1341, 1350 (11th Cir. 2002) (“A witness may be deemed
essential for the purposes of the Act, even though the government could obtain a
conviction without his testimony.” (collecting cases)).
The district court also did not clearly err in finding that Dr. Richardson was
“unavailable” under the Act. The record establishes that the government promptly
communicated with Dr. Richardson about his availability to testify, and that Dr.
Richardson’s staff represented that he was not available until certain weeks in
October because of his surgery and on-call schedule.4 Morales contends that the
government failed to exercise due diligence because it accepted the staff’s
representation about Dr. Richardson’s availability without further inquiry, but
Morales does not dispute that Dr. Richardson was, in fact, unavailable. The record
sufficiently supports the district court’s finding that the government exercised due
diligence.
4 The government then offered two October trial dates, and Morales rejected the earlier date.
6 Because we conclude that no violation of the Speedy Trial Act occurred, we
need not address Morales’s contention that the statute required dismissal with
prejudice.
AFFIRMED.