United States v. Michael Charlnoes , 617 F. App'x 839 ( 2015 )

FILED
NOT FOR PUBLICATION
OCT 29 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50304
Plaintiff - Appellee, D.C. No. 3:13-cr-02876-MMA-1
v.
MEMORANDUM*
MICHAEL JOHN CHARLNOES,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted October 22, 2015**
Pasadena, California
Before: RAWLINSON and NGUYEN, Circuit Judges and PONSOR,*** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Michael A. Ponsor, Senior District Judge for the U.S.
District Court for Massachusetts, sitting by designation.
Defendant Michael Charlnoes appeals his jury conviction for importation of
methamphetamine and cocaine in violation of 12 U.S.C. §§ 952, 960. We have
jurisdiction under 28 U.S.C. § 1291. We affirm.
1. The district court did not abuse its discretion by admitting evidence of
Charlnoes’s prior possession of methamphetamine at the border under Federal Rule
of Evidence 404(b). The prior incident was recent (approximately two weeks prior
to his arrest), related to a material issue in the case (his knowledge and absence of
mistake or accident), was supported by sufficient proof (the testimony of the
Customs and Border Protection officer who was present), and its probative value
was not outweighed by the danger of unfair prejudice. See United States v.
Arambula-Ruiz, 987 F.2d 599, 602 (9th Cir. 1993) (describing requirements for
evidence admitted under Fed. R. Evid. 404(b)). The district court also properly
instructed the jury to consider the evidence only for that limited purpose.
2. Even if the prosecutor’s comment during opening statement that
Charlnoes “decided that he would take the risk” of smuggling was improper, it was
harmless in light of the strength of the evidence and the trial court’s jury
instructions not to consider opening statements as evidence. See United States v.
Jones, 592 F.2d 1038, 1043-44 (9th Cir. 1979). The evidence amply demonstrated
Charlnoes’s knowledge, including that he was the driver, sole occupant, and owner
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of the car containing 20 pounds of methamphetamine and cocaine worth over
$100,000, hidden in a secret compartment that was accessible only from the
interior of the car.
AFFIRMED.
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