Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and submitted Sept. 16, 1999.
Appeal from the United States District Court for the District of Arizona, Richard M. Bilby, District Judge, Presiding.
Before CANBY and SILVERMAN, Circuit Judges, and SNYDER, District Judge.
The Honorable Christina A. Snyder, United States District Judge for the Central District of California, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir. R. 36-3.
Warren Strubbe appeals his jury conviction and sentence for conspiracy to distribute and to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii)(II), and 846, and for possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii)(II).
Appellant proceeded to trial by jury on December 10, 1996. The government, through testimony by cooperating witnesses Luis Arciniega, Frank Arciniega, Guillermo Owen, Troy Barlous and others, provided evidence that Strubbe had participated in a conspiracy to distribute and possess with intent to distribute cocaine by storing cocaine in his apartment, transporting cocaine in his vehicle to other locations, and bringing cars to other members of the conspiracy for inspection to determine whether they were appropriate to transport cocaine. During the trial, appellant objected to the trial court's receipt of testimony which the appellant contended constituted evidence of prior bad acts. Appellant also moved for mistrial based on the admission of prior bad act testimony. The trial court overruled appellant's objections and denied appellant's motions for mistrial. At the close of evidence, appellant moved for a judgment of acquittal and the trial court denied appellant's motion.
Proceedings in this matter were stayed for over four years during the pendency of an interlocutory appeal on an evidentiary matter raised by one of the codefendants.
The jury found appellant guilty on both counts. Thereafter, the district court sentenced appellant to a term of 188 months. Appellant filed his appeal of the conviction and sentence in Court of Appeals case no. 97-10319. During the pendency of this appeal, the parties agreed that the district court mistakenly applied the United States Sentencing Guidelines ("Sentencing Guidelines") in effect at the time of sentencing, rather than the Sentencing Guidelines in effect at the time of the offense. By agreement of the parties, appellant filed a motion to remand and suspend appeal, which this court construed as a motion for summary reversal of his sentence. By order dated December 31, 1997, this court vacated appellant's sentence and remanded to the district court for resentencing consistent with United States v. Johns, 5 F.3d 1267, 1270-72 (9 th Cir.1993).
On March 23, 1998, the district court resentenced appellant to 151 months. Appellant filed his appeal of the resentence on March 25, 1998, in Court of Appeals case no. 98-10178.
By order dated May 15, 1998, this court granted appellant's unopposed motion to reinstate appeal no. 97-10319, to consolidate the appeal with appeal no. 98-10178, and to withdraw argument V of the opening brief in no. 97-10319.
On appeal, Strubbe contends that the district court erred in various respects. First, he contends that the district court erred in admitting evidence of prior "bad acts" for which no notice was given in advance of trial as required by Fed.R.Evid. 404(b). Strubbe next contends that the district court erred in denying his motions for mistrial and for judgment of acquittal. Third, Strubbe contends that there was not sufficient evidence to support his conviction, and that all of the foregoing exceptions create cumulative error such that his conviction should be reversed. Finally, Strubbe contends that the district court committed error in Case No. 97-10319 by refusing to resentence him de novo following this Court's remand order therein and by refusing to consider whether it had discretion to depart from his guideline sentencing range as a result of alleged aberrant conduct.
Strubbe contends that the district court erred by admitting testimony by government witness Guillermo Owen that "hinted the appellant may have stolen a car or burglarized Owen's home," and smoked crack cocaine. Strubbe also contends that the district court erred in admitting the testimony of government witness Frank Arciniega regarding three prior drug deals with appellant, which had occurred well before the alleged conspiracy.
A. Did the district court err at trial?
With regard to his claim that the evidence of prior bad acts was improperly received into evidence, Strubbe argues that such evidence is inadmissible under Fed.R.Evid. 404(b), that the government did not give him adequate notice of its intention to use 404(b) evidence prior to trial, and that the district court failed properly to weigh the prejudicial effect of the evidence prior to admitting it. The government argues that the evidence at issue was evidence of prior acts that are inextricably intertwined with the charged crime. United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012-13 (9 th Cir.1995); United States v. Williams, 989 F.2d 1061, 1070 (9 th Cir.1993); United States v. Soliman, 813 F.2d 277 (9 th Cir.1987). As such, the government asserts that it was not required to provide notice that it intended to rely on the subject evidence in advance of trial. In the alternative, the government contends that if notice was required pursuant to Rule 404(b), the failure to provide such notice in advance of trial was cured when notice was provided during trial.
The court determines de novo whether testimony is "other crimes" evidence under Fed.R.Evid. 404(b). United States v. Andaverde, 64 F.3d 1305, 1314 (9 th Cir.1995). The district court's determination to admit evidence under Rule 404(b) is reviewed for abuse of discretion. United States v. Nelson, 137 F .3d 1094, 1106 (9 th Cir.), cert. denied, 119 S.Ct. 232 (1998).
Rule 404(b) provides that notice during trial may be proper if the court excuses pretrial notice on a showing of good cause. In the present case it appears that some of the prior bad acts here at issue, and particularly the evidence of three prior alleged drug deals, preceded the commencement of the conspiracy charged in this case, and that such evidence is therefore not inextricably intertwined conduct. Accordingly, Rule 404(b) notice should have been provided by the government to defendant prior to trial. Assuming that Rule 404(b) notice was required to be given, it appears that the district court impliedly excused the failure to provide such notice in advance of trial. Further, the record does not reveal that appellant made any attempt to show that late notice prejudiced him in any way. We conclude that appellant has failed to demonstrate he suffered any prejudice as a consequence of the late Rule 404(b) notice in this case.
Strubbe's other claimed errors at trial may be addressed more summarily. The record does not support Strubbe's assertion that any evidence was received that suggested that he had stolen a car or had committed any burglary, nor does the record support Strubbe's contention that Guillermo Owen testified that appellant smoked crack cocaine. Similarly, the district court did not err in denying Strubbe's motion for judgment of acquittal. Viewing the evidence most favorably to the government, as this Court is required to do pursuant to Fed. R.Crim. Pro. Rule 29, it cannot be said that there was insufficient evidence to support the conviction. Similarly, given the court's findings herein, it cannot be said that cumulative error justifies reversal of the conviction below.
B. Did the district court err in not resentencing appellant de novo following this court's limited remand in 97-10319?
Strubbe also argues that the district court erred in declining to resentence him de novo. He asserts that the first sentence was vacated in full, rather than in part, thereby requiring reapplication of the requirements of Fed. R.Crim. Pro., Rule 32. Thus, he argues that, rather than merely recalculating on the basis of information gathered at the original hearing, the district court should have given him an opportunity to present additional evidence to persuade the court to depart downward, pursuant to Koon v. United States, 116 S.Ct. 2035 (1996).
When a district court has exceeded its authority in imposing a sentence, the general practice of this court is to "vacate the entire sentence and remand for resentencing." United States v. Ponce, 51 F.3d 820, 826 (9 th Cir.1995). Generally, the resentencing is de novo, unless there is "clear evidence" that the remand order contained an express or implied limit on the scope of resentencing. United States v. Caterino, 29 F.3d 1390, 1394-95 (9 th Cir.1994). Thus, the propriety of the scope of resentencing on remand turns on whether "the district court's authority was abridged by any express or implied limits in the remand order." Ponce, 51 F.3d at 826 (quoting Caterino, 29 F.3d at 1394).
In the present case the remand order does not contain any express or implied limiting language. Thus, it appears that the district court should have granted appellant's motion for resentencing de novo. We therefore vacate appellant's sentence and remand for sentencing.
Strubbe further asserts that the district court erred in failing to recognize its discretion at the time of the original sentencing in appeal no. 97-10319 to find that his acts constituted aberrant conduct. Because we remand with instructions to sentence appellant de novo, this ground for appeal is rendered moot.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR SENTENCING.