FILED
NOT FOR PUBLICATION APR 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10497
Plaintiff - Appellee, D.C. No. 2:09-cr-01114-GMS-4
v.
MEMORANDUM*
FELIX PITA-MOTA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Submitted April 19, 2012**
San Francisco, California
Before: SCHROEDER, THOMAS, and GRABER, Circuit Judges.
Defendant Felix Pita-Mota appeals his criminal conviction for (1) conspiracy
to distribute and possess with intent to distribute 500 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), and
*
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. Fed. R. App. P. 34(a)(2).
846; (2) distribution and possession with intent to distribute 500 grams or more of
methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) and
841(b)(1)(A)(viii); (3) use of a firearm in furtherance of a drug transaction, in
violation of 18 U.S.C. § 924(c)(1)(A)(i); and (4) possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). We affirm.
1. Reviewing de novo,1 United States v. Parker, 651 F.3d 1180, 1182 (9th
Cir. 2011) (per curiam), we hold that sufficient evidence supported the jury
verdicts. "We engage in a two-step process when considering a defendant’s
challenge to the sufficiency of the evidence: we first construe the evidence in the
light most favorable to the prosecution, and we then determine whether any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt." United States v. Shetler, 665 F.3d 1150, 1163 (9th Cir. 2011)
(internal quotation marks omitted).
Viewed in the light most favorable to the prosecution, we easily conclude
that a "rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." Id. (internal quotation marks omitted). A rational
1
The parties dispute whether "de novo" review or "plain error" review
applies to our review of some of Defendant’s convictions. Because we reach the
same conclusion under either standard, we apply the standard more favorable to
Defendant and need not resolve that dispute.
2
jury could have concluded that Defendant was a participant in the conspiracy and
had a role of providing protection for the drug transaction. Defendant offers an
alternative story that suggests innocent explanations for this behavior, but nothing
required the jury to believe that version of the events.
2. Reviewing de novo whether the "prior acts" evidence falls within the
scope of Federal Rule of Evidence 404(b), United States v. Flores-Blanco, 623
F.3d 912, 919 n.3 (9th Cir. 2010), we hold that the district court did not err. The
four factors that guide our determination support that conclusion. See United
States v. Beckman, 298 F.3d 788, 794 (9th Cir. 2002) ("Other acts evidence is
admissible under Rule 404(b) if it (1) tends to prove a material point in issue; (2) is
not too remote in time; (3) is proven with evidence sufficient to show that the act
was committed; and (4) if admitted to prove intent, is similar to the offense
charged."). Evidence that, previously, Defendant drove a car with a hidden
compartment full of drugs and a gun, with a passenger who is an alleged co-
conspirator in this case, tends to disprove Defendant’s argument that he just
happened to be in the vicinity of the drug transaction with two guns in his car, after
having dropped the same co-conspirator off at the drug house and picked up
another passenger from that drug house.
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3. The district court did not abuse its discretion in declining to exclude the
"prior acts" evidence under Federal Rule of Evidence 403. See United States v.
Pineda-Doval, 614 F.3d 1019, 1035 (9th Cir. 2010) ("As long as it appears from
the record as a whole that the trial judge adequately weighed the probative value
and prejudicial effect of proffered evidence before its admission, the demands of
Rule 403 have been met." (internal quotation marks and ellipsis omitted)).
AFFIRMED.
4