FILED
NOT FOR PUBLICATION NOV 04 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-50507
Plaintiff - Appellee, D.C. No. CR-00-01047-SVW
v.
MEMORANDUM *
ANDREW HANTZIS,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted August 31, 2010
Pasadena, California
Before: O’SCANNLAIN, GOULD and M. SMITH, Circuit Judges.
Defendant-Appellant Andrew Hantzis challenges his conviction and
sentence for possessing with intent to distribute, and distributing, at least 50 grams
of methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii). The
district court sentenced him to concurrent terms of 211 months’ imprisonment, five
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.
years of supervised release, and a $4,000,000 fine. We have jurisdiction over the
final judgment of conviction under 28 U.S.C. § 1291.
Because the parties are familiar with the factual and procedural history of
this case, we do not recount additional facts, except as necessary to explain the
decision. In a separate opinion, we address Hantzis’s Sixth Amendment right to
counsel and alleged violations under Faretta v. California, 422 U.S. 806 (1975).
We now review Hantzis’s other assignments of error. We affirm.
First, evidence of Hantzis’s two prior state arrests for methamphetamine
trafficking was properly admitted under Federal Rule of Evidence 404(b) as
“[e]vidence of other crimes” to establish “proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake of accident.” There
is no requirement than an arrest must lead to a conviction in order to be admissible.
See, e.g., United States v. Scott, 767 F.2d 1308, 1311 (9th Cir. 1985).
Second, the admission of the prior arrest evidence was not unduly
prejudicial under Federal Rule of Evidence 403. Evidence of similar prior acts is
admissible to rebut defenses of entrapment and mere presence. See United States
v. Simtob, 901 F.2d 799, 807–08 (9th Cir. 1990). The district court also provided a
limiting instruction that mitigated potential prejudice. See, e.g., Townsend v.
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Knowles, 562 F.3d 1200, 1209 (9th Cir. 2009) (“The law presumes that the jury
follows the instructions given.”).
Third, the district court did not err in denying Hantzis’s motion for a new
trial based on an alleged Brady violation. See Brady v. Maryland, 373 U.S. 83, 87
(1963) (holding that the government is obliged to produce all “evidence favorable
to an accused” that is “material either to guilt or punishment”). The evidence
related to Hantzis’s drug supplier, Gallardo, was not favorable to Hantzis. The
police report was not favorable because it established only that Gallardo was
arrested on methamphetamine charges—a fact that both parties used at trial.
Furthermore, evidence of Gallardo’s arrest, through both the police report and the
phone call, was inculpatory because it supported the government’s theory that
Hantzis used a supplier to acquire and sell methamphetamine.
Fourth, the $4,000,000 fine was not excessive. The district court was
statutorily entitled to impose a fine twice the amount than what it actually fined
Hantzis. See, e.g., United States v. Bajakajian, 524 U.S. 321, 334 (1998) (holding
that a fine violates the Eighth Amendment “if it is grossly disproportional to the
gravity of a defendant’s offense”). Furthermore, the nature of Hantzis’s offense
reveals a substantial level of culpability. See id. at 337–39. Finally, there was
evidence that Hantzis was very wealthy, and as he refused to submit a financial
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affidavit, there was no evidence that a fine would “deprive [him] of his livelihood.”
Id. at 335.
AFFIRMED.
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