United States v. Yang Zou ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10501
Plaintiff-Appellee, D.C. No.
1:16-cr-00021-RVM-1
v.
YANG ZOU, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of the Northern Mariana Islands
Ramona V. Manglona, District Judge, Presiding
Submitted June 14, 2019**
Honolulu, Hawaii
Before: THOMAS, Chief Judge, and CALLAHAN and CHRISTEN, Circuit
Judges.
Defendant-Appellant Yang Zou appeals his conviction for possession of
methamphetamine with the intent to distribute, as well as his 97-month sentence.
We affirm.
*
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).
1. Zou argues that the district court erred in admitting “other acts”
evidence in allowing prosecution witness Chen Yang Zang to testify that Zou was
one of his methamphetamine suppliers during the time of the current charge.1 We
review the district court’s evidentiary rulings for abuse of discretion. United States
v. Alvarez, 358 F.3d 1194, 1205 (9th Cir. 2004). “Evidence of a crime, wrong or
other act is not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.” Fed. R.
Evid. 404(b)(1). However, “[t]his evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).
To determine admissibility of evidence under Federal Rule of Evidence
404(b), the government carries the burden, United States v. Arambula-Ruiz, 987
F.2d 599, 602–03 (9th Cir. 1993), to establish:
(1) the evidence tends to prove a material point; (2) the other act
is not too remote in time; (3) the evidence is sufficient to support a
finding that defendant committed the other act; and (4) (in certain
cases) the act is similar to the offense charged.
United States v. Bailey, 696 F.3d 794, 799 (9th Cir. 2012) (citation omitted).
Zou was convicted for possessing methamphetamine with the intent to
distribute. There was evidence that on April 16, 2016, in response to a report of
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Defense objected to the admissibility of Chen’s testimony. The court
overruled the objection and gave the jury limiting instructions.
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suspicious activity at Best Sunshine casino, the Commonwealth Casino
Commission enforcement officer followed Zou into the public restroom, saw Zou
enter the handicap stall, heard him move the trashcan and flush the toilet, and then
followed him out of the casino. A cleaning attendant had been cleaning the
restroom when Zou entered. After Zou left the restroom, the attendant checked the
trash can in the handicap stall and found something wrapped in plastic. He opened
the plastic wrap to find two red Marlboro cigarette boxes containing small Ziploc
bags of what appeared to be drugs. It was later confirmed that the Ziploc bags
contained approximately 40 grams of 97% pure methamphetamine. Two of the
eight fingerprints on the exterior plastic wrap matched those of Zou.
Chen testified at trial that he started selling methamphetamine in 2014 and
that Zou was one of his suppliers. According to Chen, Zou supplied Chen with
methamphetamine three or four times every month, from September 2015 until
July 2016. Each time, Zou provided Chen with an average of 50 grams of
methamphetamine concealed in red Marlboro cigarette boxes and charged Chen
$8,000 U.S. dollars, which equated to about $160 per gram. Chen sold the drugs
for about $220 per gram.
Chen’s testimony was directly relevant to Zou’s charge. First, intent or
knowledge are material elements of the crime of possessing methamphetamine
with intent to distribute. 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii). Second, the
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evidence of Zou previously supplying methamphetamine to Chen from September
2015 until July 2016 is not too remote because it “occurred during the pendency of
the [events of April 16, 2016] with which [defendant] is charged.” United States v.
Romero, 282 F.3d 683, 688 (9th Cir. 2002). Third, Chen’s testimony is sufficient
to support a finding that Zou committed the other act. See id. (describing the third
prong of the Rule 404(b) test as a “low threshold” that may be satisfied by the
testimony of a single witness). Fourth, even though “similarity is not always a
prerequisite to admissibility under Rule 404(b)[,]” Arambula-Ruiz, 987 F.2d at
603, the other acts evidence here was very similar to the current charge—supplying
methamphetamine in a Marlboro cigarette box with the intent to sell.
Accordingly, the government met its burden to establish the admissibility of
Chen’s testimony under Rule 404(b). See United States v. Curtin, 489 F.3d 935,
944 (9th Cir. 2007) (en banc) (Rule 404(b) “is a rule of inclusion—not exclusion”).
2. Zou also contends that the district court abused its discretion in not
excluding the evidence under Rule 403. Zou argues that the evidence “inflamed
the jury against Zou” and the prosecutor’s closing remark that “that’s what he
does” was unfairly prejudicial. Relevant evidence “may [be] exclude[d] . . . if its
probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing of the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid.
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403.
The evidence here was probative because it showed Zou intended to
distribute the methamphetamine, knew that the Marlboro boxes contained
methamphetamine, and did not mistakenly place his fingerprints on the exterior
plastic wrap of the Marlboro boxes. Any prejudice that may have occurred was
minimized by the district court’s limiting instructions to the jury both before
Chen’s testimony and at the close of evidence. See United States v. Flores-Blanco,
623 F.3d 912, 920 (9th Cir. 2010) (finding that the evidence was probative of
knowledge and intent and that any prejudice was minimized by the district court’s
limiting instruction to the jury). The district court did not abuse its discretion by
admitting Chen’s testimony.
3. Zou further argues that even if the evidence was inadmissible, the
error was not harmless. Given the weight of the evidence against Zou, even if the
admissibility of Chen’s testimony was error, it was harmless. See Bailey, 696 F.3d
at 802–03 (explaining reversal is not required if “there is a ‘fair assurance’ of
harmlessness or, stated otherwise, unless it is more probable than not that the error
did not materially affect the verdict” (quoting United States v. Morales, 108 F.3d
1031, 1040 (9th Cir. 1997) (en banc)).
AFFIRMED.
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