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  • NINTH CIRCUIT UPHOLDS ADMISSION OF PRIOR BAD ACTS EVIDENCE

    Posted on October 19th, 2010 zshapiro No comments

    Robert Lozano, Sr. was tried and convicted for attempted possession of marijuana for sale in Barrow, Alaska. The charges were based on the controlled delivery of a package sent to him from California.

    At the trial, the government introduced evidence, including marijuana, found in a probation search 1 of his residence eight months prior to the controlled delivery. Lozano objected. But the admission was upheld by both the trial court and the appellate court.

    Federal Rule of Evidence Rule 404(b)

    provides that the district court may admit evidence of prior bad acts if it (1) tends to prove a material point; (2) is not too remote in time; (3) is based upon sufficient evidence; and, (4) in some cases, is similar to the offense charged.

    The Ninth Circuit found that the marijuana seized in the probation search met the criteria. It proves that Lozano knew what marijuana was. Eight months is not too distant in time. Money smelling of marijuana, in the earlier search, was found in Lozano’s room and therefore it was backed by sufficient evidence. Finally, marijuana was found in both the probation search and the controlled delivery. But even if it was admissible under Role 404(b) its probative value must substantially outweigh by the danger of unfair prejudice for it to be admissible under Federal Rule of Evidence 404. The court found that “evidence of prior drug distribution is clearly probative of Lozano’s intent and knowledge, and prejudice was limited by a cautionary instruction” 2

    Based upon Ninth Circuit precedent the court found that probable cause was not necessary to seize the marijuana. Only a reasonable suspicion is necessary and that existed based upon questions, such as do they search packages for drugs asked of the postmaster by Lozano 3 prior to the delivery. 4

    Finally the court found that the 22 hours that passed between the seizure of the marijuana and its search by a drug smelling dog in Fairbanks was reasonable based upon the dog not being available in Barrow.

    Notes:

    1. Lozano lived with his son who was on probation ↩
    2. If anyone really believes that a jury listens to a cautionary instruction telling them not to use the fact that marijuana was found in Lozano’s house at an earlier time as evidence of guilt in a later controlled delivery I have a bridge to sell them. ↩
    3. Barrow is a town of 4000 people, they don’t forget questions easily. ↩
    4. What a big mouth he has. ↩
    Cannabis, Fourth Amendment, Marijuana, Probation, Search and seizure , , , Leave a Reply

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