FILED
NOT FOR PUBLICATION MAR 23 2011
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. 09-10450
Plaintiff - Appellee, D.C. No. 2:08-cr-01523-MHM-1
v.
MEMORANDUM *
WEBSTER W. NORRIS, III,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Submitted March 14, 2011 **
San Francisco, California
Before: PAEZ, BERZON, and BEA, Circuit Judges.
Defendant-Appellant Webster Norris, III appeals his conviction for one
count of second-degree murder, in violation of 18 U.S.C. §§ 1153 and 1111, and
one count of assault resulting in serious bodily injury, in violation of 18 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§§ 1153 and 113(a)(6). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
Norris challenges the admission into evidence of testimony about his 1997
conviction for driving under the influence (DUI); his two prior arrests for DUI in
2007; and his completion of 36 hours of State of Arizona DUI Advanced Chemical
Dependency Lectures in 2003, all to show that he knew the dangers of driving
under the influence and therefore exhibited malice aforethought when he chose to
disregard those dangers by driving under the influence of alcohol on September 20,
2008, striking and killing a cyclist who was on the side of the road. Norris
contends the prosecutor’s reference to these prior bad acts during closing
arguments further exacerbated any prejudice from them.
The district court correctly analyzed the evidence under Federal Rule of
Evidence 404(b), as Norris concedes, and under Rule 403. The evidence was
admissible to prove Norris’s state of mind—that he knew the dangers of driving
under the influence, and consciously disregarded those dangers when he drove
after drinking on the day in question, recklessly disregarding the threat his actions
posed to the victim’s life. United States v. Verduzco, 373 F.3d 1022, 1027 (9th
Cir. 2004). Additionally, the district court gave a limiting instruction to the jury
that this was the only purpose for which they were to consider such evidence.
2
When reviewing evidence challenged under Rule 403, “we must presume that
juries will follow the district court’s limiting instructions.” United States v.
Mende, 43 F.3d 1298, 1302 (9th Cir. 1995).
In United States v. Loera, 923 F.2d 725, 729 (9th Cir. 1991), the defendant
was convicted of one count of assault resulting in serious bodily injury, in violation
of 18 U.S.C. § 113(f), and he appealed. We affirmed, holding that the district court
correctly allowed evidence of prior DUIs into evidence to prove malice
aforethought for murder in the second degree, which was also charged in the
Indictment. Id. Although Loera—like Norris—argued that evidence of his prior
convictions should have been excluded as unfairly prejudicial, we disagreed,
particularly because the district court—like the district court here—gave the jury
limiting instructions as to the use of the prior convictions. Therefore, we hold that
the district court conducted the balancing Rule 403 requires. It did not abuse its
discretion by determining that any prejudice that would result from admission of
the prior acts did not substantially outweigh their probative value. Moreover,
Norris did not object to the prosecutor’s comments in summation, and he has not
established that the prosecutor’s references to the prior acts amounted to plain
error.
3
Finally, if admission of any of the disputed evidence was an abuse of
discretion under Rule 403, the error was harmless. There was a great deal of
evidence of guilt in the case, and the district court gave a detailed limiting
instruction as to the evidence in dispute. Thus, it is more likely than not that if any
error occurred, it did not affect the verdict. See United States v. Gonzalez-Flores,
418 F.3d 1093, 1099 n.3 (9th Cir. 2005).
AFFIRMED.
4