United States v. Jesus Malagon ( 2020 )

FILED
NOT FOR PUBLICATION
NOV 12 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30112
Plaintiff-Appellee, DC No. 1:18-cr-0059-BLW
v.
MEMORANDUM*
JESUS JAVIER MALAGON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill,District Judge, Presiding
Submitted October 29, 2020**
Portland, Oregon
Before: TASHIMA, GRABER, and IKUTA, Circuit Judges.
Jesus Malagon was convicted following a jury trial on three counts:
unlawful possession of firearms, 18 U.S.C. § 922(g)(1); possession of marijuana
with intent to distribute, 21 U.S.C. § 841(a)(1); and possession of a firearm in
*
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).
furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). Malagon
contends that the district court abused its discretion in admitting evidence of other
acts under Federal Rule of Evidence 404(b). We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
The district court did not abuse its discretion in admitting evidence of
Malagon’s arrest on marijuana charges eighteen months prior to his arrest for the
charges at trial. See United States v. Hardrick, 766 F.3d 1051, 1055 (9th Cir.
2014) (admission of evidence under Rule 404(b) is reviewed for an abuse of
discretion). The district court carefully considered the relevant factors in deciding
to admit the evidence of the 2016 incident: the evidence was relevant to prove
Malagon’s intent or knowledge regarding the drugs and other paraphernalia
discovered in his car, was similar to the evidence discovered in the charged offense
and was based on sufficient evidence, and was not too remote in time from the
2018 charge. See id. (“The proponent of the 404(b) evidence must show that the
evidence ‘(1) proves a material element of the offense for which the defendant is
now charged, (2) if admitted to prove intent, is similar to the offense charged, (3) is
based on sufficient evidence, and (4) is not too remote in time.’” (quoting United
States v. Ramirez-Robles, 386 F.3d 1234, 1242 (9th Cir. 2004)).
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The district court also carefully balanced the probative value of the evidence
against the danger of unfair prejudice and gave the jury a limiting instruction. See
United States v. Cherer, 513 F.3d 1150, 1159 (9th Cir. 2008) (“[T]he risk of unfair
prejudice, which the court reduced by delivering a limiting instruction, did not
substantially outweigh the probative value of the evidence.”). In addition, the
government reiterated the limited purpose of the 2016 evidence in its closing
argument. See United States v. Young, 573 F.2d 1137, 1140 (9th Cir. 1978)
(limiting instructions and government argument stressing limited purpose of
evidence adequately minimized prejudice).
The judgment is AFFIRMED.
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