Opinion
No. 06-10549.
Argued and Submitted June 14, 2007.
Filed July 30, 2007.
Thomas C. Simon, Esq., Office of the U.S. Attorney, Phoenix, AZ, for Plaintiff-Appellee.
Gerald A. Williams, Federal Public Defender's Office, Phoenix, AZ, for Defendant-Appellant.
Appeal from the United States District Court for the District of Arizona, Neil V. Wake, District Judge, Presiding. D.C. No. CR-05-00252-NVW.
Before: SCHROEDER, Chief Circuit Judge, CANBY and McKEOWN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appellant Jerome Stanley Carlos was convicted of assault with a deadly weapon and assault resulting in serious bodily injury. On appeal, Carlos argues that the district court improperly admitted evidence of his gang membership. He contends its probative value was substantially outweighed by its unfair prejudice.
The gang evidence was properly admitted. Carlos and the victim belonged to the same gang, and the government's theory was that Carlos was retaliating against the victim's trying to leave the gang. The evidence was thus probative and necessary to flesh out the circumstances surrounding the crime for which Carlos was charged. See United States v. Dota, 33 F.3d 1179, 1185 (9th Cir. 1994) (holding that evidence of defendant's mafia connections is probative to establish context). The prejudice did not substantially outweigh the evidence's probative value. See United States v. Abel, 469 U.S. 45, 54-55, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984) (holding that evidence of gang membership was admissible under Federal Rule of Evidence 403).
The conviction is AFFIRMED.