United States v. Ruffy Alvarez

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 20, 2023
• Docket: 22-30094
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-30094

Plaintiff-Appellee, D.C. No. 3:19-cr-00103-SLG-MMS-1 v.

RUFFY ALVAREZ, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Alaska Sharon L. Gleason, Chief District Judge, Presiding

Submitted November 16, 2023** Seattle, Washington

Before: McKEOWN and GOULD, Circuit Judges, and BENNETT,*** District Judge.

Ruffy Alvarez appeals his jury conviction for distribution of a controlled

substance under 21 U.S.C. §§ 841(a), 841(b)(1)(A). He argues that the district

* 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). *** The Honorable Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. court erred under Federal Rule of Evidence 404(b) in allowing the government to

prove intent and knowledge at his 2021 trial by introducing evidence of Alvarez’s

2001 conviction under 21 U.S.C. § 846 for conspiracy to distribute.

We review admissions of prior convictions under Rule 404(b) for abuse of

discretion. See U.S. v. Berckmann, 971 F.3d 999, 1001-02 (9th Cir. 2020). We

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

1. Alvarez contests the similarity and recency of his 2001 conviction,

elements that the government must meet in order to introduce a prior

conviction under Rule 404(b).1 Fed. R. Evid. 404(b); see Berckmann,

971 F.3d at 1002. The Ninth Circuit has “consistently held that evidence

of a defendant’s prior possession or sale of narcotics is relevant under

Rule 404(b) to issues of intent…[or] knowledge… for possession of,

importation of, and intent to distribute narcotics.” See U.S. v. Vo, 413

F.3d 1010, 1018 (9th Cir. 2005) (quoting U.S. v. Mehrmanesh, 689 F.2d

822, 832 (9th Cir. 1982)).

a. Whether a prior drug-related conviction is sufficiently similar is

primarily concerned with the nature of the activity undertaken. Id.

Evidence of a prior conviction is admissible to prove knowledge

1 On appeal, Alvarez does not challenge the materiality or sufficiency of his prior conviction. See Berckmann, 971 F.3d at 1002.

2 where it “would tend to make the existence of the defendant’s

knowledge more probable….” Id. The district court explained that

Alvarez’s prior conviction and the crime for which he was on trial

both involved the distribution of illegal narcotics. Both cases

involved large quantities of drugs associated with sale and resale, not

small quantities associated with personal use. In both circumstances

leading to the charges, Alvarez participated in a broad network that

brought the substances into Anchorage, Alaska. The parallel nature of

the activities was sufficient to provide a jury reason to believe that

Alvarez had knowledge about how to conduct the sale in question.

See id. The district court did not abuse its discretion by finding the

prior conviction to be similar.

b. Our law does not establish a bright line that determines the number of

years after which a prior conviction becomes too remote in time to

introduce as evidence. See U.S. v. Johnson, 132 F.3d 1279, 1283 (9th

Cir. 1997); U.S. v. Spillone, 879 F.2d 514, 519 (9th Cir. 1989). We

have affirmed the admission of prior convictions from at least 13

years prior and have tended to accept those on the outer edge of these

limits when similarities between the acts and an intent-based

admissibility theory make the prior conviction particularly probative.

3 See Johnson, 132 F.3d at 1283; Spillone, 879 F.2d at 519; see, e.g., Vo,

413 F.3d at 1017; U.S. v. Ross, 886 F.2d 264, 267 (9th Cir. 1989).

Alvarez’s 15-year-old conviction falls within this range of permissibly

proximate circumstances. The need for temporal proximity lessens as

similarities increase, as here, where both cases involve the distribution

of narcotics in quantities beyond those associated with personal use,

which is particularly instructive in a case where knowledge and intent

are at issue. See Johnson, 132 F.3d at 1283; Spillone, 879 F.2d at 519.

The district court did not abuse its discretion to weigh the facts on the

record against this context and ultimately admit Alvarez’s 2001

conviction.

c. The probative value of the prior conviction still needs to outweigh the

prejudice to the defendant. Fed. R. Evid. 403. See Berckmann, 971

F.3d at 1004; Vo, 413 F.3d at 1018. To contest the probative value of

the prior conviction on appeal, Alvarez makes two points: one, that he

did not contest his knowledge or intent; and two, that admission was

not necessary. To the first point, much of the evidence Alvarez

presented for his defense at trial could have cast doubt on his intent or

knowledge. Second, its necessity was not an absolute prerequisite to

its admission. See Fed. R. Evid. 403, 404(b); U.S. v. Simtob, 901 F.2d

4 799, 807-08 (9th Cir. 1990). Rather, the question is whether its

probative value is substantially outweighed by its prejudicial value.

As in Simtob, Alvarez’s jury could evaluate the prior conviction in the

context of other facts on the record, including Alvarez’s recorded

conversations, in effect watering down the prejudicial value of the

prior conviction. Cf. id. To mitigate any residual, unfair prejudicial

damage, the district court issued a protective instruction to the jury

mid-trial. See Spillone, 879 F.2d at 520.

d. Balancing the above, the district court did not abuse its discretion in

admitting evidence of Alvarez’s prior conviction. See Fed. R. Evid.

403, 404(b); Berckmann, 971 F.3d at 1004; Vo, 413 F.3d at 1018;

Simtob, 901 F.2d at 808.

AFFIRMED.