United States v. Leonel Marin-Torres , 450 F. App'x 669 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 27 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-30164
Plaintiff - Appellee, D.C. No. 2:09-cr-00262-RSL
v.
MEMORANDUM*
LEONEL MARIN-TORRES,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted September 1, 2011
Seattle, Washington
Before: HAWKINS, BEA, and MURGUIA, Circuit Judges,
Defendant-Appellant Leonel Marin-Torres (“Marin-Torres”) was convicted
of three counts: possession with intent to distribute crack cocaine in violation of 21
U.S.C. § 841 (a)(1) and (b)(1)(B)(iii), carrying a firearm during and in relation to a
drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A), and being a felon
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Marin-Torres
appeals the district court's denial of his motion to suppress and the court’s decision
to admit evidence of prior bad acts.
We affirm the district court's ruling on the motion to suppress. Denials of
motions to suppress are reviewed de novo. United States v. Meek, 366 F.3d 705,
711 (9th Cir. 2004). The two 911 calls placed by Glennice Arvin in this case had
as many, if not more, indicia of reliability as the 911 call in United States v. Terry-
Crespo, 356 F.3d 1170 (9th Cir. 2004). Additionally, the officers had reasonable
and articulable suspicion that criminal activity may have been afoot and that
Marin-Torres posed a safety threat when they stopped and frisked him. The
totality of circumstances gave the police reasonable and articulable suspicion that
Marin-Torres was an armed drug dealer who posed a threat to them and others.
Marin-Torres also argues that the district court erred in admitting evidence
under Rule 404(b) and Rule 403 of the Federal Rules of Evidence, that he had
previously distributed drugs in exchange for sex and that he had used his gun to
threaten a woman in connection with such a transaction. Such rulings are
ordinarily reviewed for abuse of discretion. United States v. Chea, 231 F.3d 531,
534 (9th Cir. 2000). Separately, Marin-Torres also argues that the district court
applied the wrong standard because, at the time of the motion for mistrial, the court
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referenced the relevance of the evidence rather than its probative value as required
under Rule 403.
The prior bad act evidence at issue was probative and admissible on the
issue of Marin-Torres’s intent, knowledge and motive in possessing the drugs and
the firearm. See United States v. Mehrmanesh, 689 F.2d 822, 832 (9th Cir. 1982).
Moreover, we need not decide whether the district court committed error in either
admitting the prior bad evidence in question or in weighing the Rule 403 factors
because the record clearly indicates that any potential error by the district court
was harmless. United States v.Vizcarra-Martinez, 66 F.3d 1006, 1016-17 (9th Cir.
1995). Given the overwhelming amount of evidence against Marin-Torres
presented at trial and the insufficiency of his defense, the evidence to which he
objects did not impact the jury’s verdict.
The district court’s denial of the appellant’s motion to suppress and decision
to admit the prior bad act evidence are, therefore, AFFIRMED.
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