US v. rendon-Duarte, No. 06-30200 (3-21-07). An interesting and troubling opinion. The interesting part concerns 404(b); the troubling part is sentencing and a categorical intepretation. The defendant was charged with being a prohibited possessor. Guns were found on the passanger side of the car in which he was the passanger; his girlfriend was driving. She first said the guns and car were hers; at trial, she changed her story and said they were defendant's. The government, seemingly to guild the lilly, introduced two prior instances of guns being found in cars in which the defendnat was driving. Once stashed in the roof; the second time in the car after an accident. The 9th held that such 404(b) introduction was error because the prior incidents did not show "knowing" possession. The guns were just found in the car he was driving or had driven! The "knowing" element was missing, and not connected here. The 9th held it was harmless because the defendant had bought the guns earlier that day, put them in his waistband, gotten into the car, and the guns were found on his side. Oh yes, he gave a false name and D.O.B. to the police and tried to get his girlfriend to say the guns were hers. (A question raised by another summary is whether the case would have differed if the character evidence had been constituionalized, i.e., the burden of proof lessened). In sentencing, the defendant was found to have a prior crime of violence, being an assault in the third degree. The review was by plain error, where the 9th held the statute's language abou physical assault or fear of settled the matter, although glossing over the "reckless" prong, and the acts that could have caused that.