FOR THE NINTH CIRCUIT S
UNITED STATES OF AMERICA, No. 05-10427
D.C. No. CR-04-01092-MHM
Plaintiff- Appellee,
V.
JUDGMENT
JESSE ALBERT ROBLES,
Defendant - Appellant.
Appeal from the United States District Court for the District of Arizona
(Phoenix).
This cause came on to be heard on the Transcript ofthe Record from the _
United States District Court for the District of Arizona (Phoenix) and was duly
submitted. _ .
On consideration whereof, it is now here ordered and adjudged by this
i Court, that the judgment of the said District Court in this cause be, and hereby is
AFFIRMED. l
Filed and entered 04/ 1 3/06
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NOT FOR PUBLICATION
UNITED STATES COURT or APPEALS F I D
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u.s. couar or APPEALS
UNITED STATES OF AMERICA, No. 05-10427
Plaintiff- Appellee, D.C. N0. CR-04-01092-MHM
v.
MEMORANDUM*
JESSE ALBERT ROBLES,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona _ _
Mary I-I. Murguia, District Judge, Presiding
Submitted April 7, 2006**
San Francisco, California l
Before: SILER""', BERZON, and BYBEE, Circuit Judges.
I Jesse Albert Robles appeals his juiy trial conviction for assault with a
dangerous weapon and assault resulting in serious bodily injury in violation of 18
°` This disposition is not appropriate for publication and may not be cited
to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
p M This panel unanimously finds this case Suitablefor decision without oral p
argument. See FED. R. APP. P. 34(a)(2).
M The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
Case 2:04—cr—01092-I\/IHIVI Document 47 Filed 05/05/2006 Page 2 of 4
U.S.C. §§ 1l3(a)(3), (6), and 1153. He argues that the district court abused its
U discretion under Federal Rule of Evidence 404(b) when it allowed the introduction
of evidence that Samuel Ludlow, the man whom Robles assaulted, had, roughly
eight years before, reported Robles to the police for vehicle theft. We affirm.
Rule 404(b) states that "[e]vidence of other crimes, wrongs, or acts [while]
not admissible to prove the character of a person in order to show action in
conformity therewith[,] . . . [is] admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident."’ FED. R. EVID. 404(b). As we have often stated, for evidence
to be admissible under Rule 404(b):
First, there must be sufficient evidence to support the jury’s finding that the
defendant committed the other [act]. Second, the other [act] must not be too
remote [in time]. Third, when admitted to prove intent, the prior act must be -
, similar. Finally, the prior act must be introduced in order to prove a
material element of the case.
United States v. Curtin, _F.3d;, 2006 WL 851755, *5 (9th Cir. 2006)
(alterations in original) (internal quotation marks and citations omitted); see also
United States v. Hadley, 918 F.2d 848, 850-51 (9th Cir. 1990) (same). When
evidence is admitted to prove motive pursuant to Rule 404(b), "[t]he prior
0 wrongful acts must establish a motive to commit the crime charged, not simply a
propensity to engage in criminal activity." United States v. Brown, 880 F.2d 1012,
. I ` Case 2:04-cr-01092-I\/IHIVI Document 47 Filed 05/05/2006 Page 3 of 4
1015 (9th Cir. 1989). Lastly, the probative value ofthe evidence must outweigh
its potential prejudicial impact. See United States v. Ross, 886 F.2d 264, 267 (9th
Cir. 1989). `
Here, the eight-year-old prior act was not too remote in time. See Hadley,
918 F.2d at 851 (ten years); Ross, 886 F.2d at 267 (thirteen years); see also United
States v. Spillone, 879 F.2d 514, 518 (9th Cir. 1989) (declining "to adopt an
inflexible rule excluding evidence of prior bad acts after a certain amount of time
A elapses"). Moreover, regardless ofthe lapse in time, the evidence was highly
probative of establishing the identity of Ludlow’s attacker and a motive for the
assault. See Brown, 880 F.2d at 1014-15. Lastly, the evidence did not establish
only criminal propensity on Robles’s part. It showed that Ludlow reported an
alleged crime, not that Robles was prosecuted or convicted for that crime. As
such, the probative value of the evidence outweighed any potential unfair
prejudice. See F ED. R. EVID. 403; Ross, 886 F.2d at 267. I
i AFFIRMED.
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