J. BLAINE ANDERSON, Circuit Judge:
German Hernandez-Miranda was convicted of importing heroin, possession of heroin with intent to distribute, and making a false claim of United States citizenship. He appeals, claiming that the district court erred by giving an instruction on flight, admitting evidence on the amount of his bond forfeiture and prior conviction, and imposing consecutive sentences.
On September 4, 1976, German Hernandez-Miranda (Miranda) was stopped while driving his car through the Port of Entry at San Ysidro, California, from Mexico to California. When asked about his citizenship by a customs inspector, Miranda replied that he and his son, who was riding with him, were United States citizens.
At the customs inspector's request, Miranda opened the trunk of the car and the deck plate to the spare tire compartment. After pulling a brown paper bag out from under the fender well near the spare tire, the customs inspector noticed two other bags. One contained approximately one pound of brown Mexican heroin, the other contained approximately two pounds of procaine, a heroin "cutting" substance.
The customs inspector asked Miranda what was in the bags and he responded: "I just got the car. I just bought the car."
On September 15, 1976, a three-count indictment was filed against Miranda. Count I charged him with illegal importation of heroin in violation of 21 U.S.C. §§ 952, 960,
Miranda was released from custody on October 13, 1976, when a $50,000.00 bond was posted on his behalf. The bond consisted of a $30,000.00 cash bond and a $20,000.00 corporate surety bond. The corporate surety bond was secured by trust deeds on the houses of Miranda's brother and sister, who served as sureties.
Miranda's trial date was scheduled for February 15, 1977. Beginning on February 11, 1977, cash was substituted for the property which secured the bonds. When Miranda failed to appear for his scheduled trial, the bonds posted on his behalf were forfeited. Evidence surrounding this failure to appear or "flight" was introduced at his trial.
Miranda was re-arrested in January of 1978. On April 12, 1978, a jury returned a guilty verdict on all three counts which had been filed against him in 1976. On May 22, 1978, Miranda was sentenced to fifteen years on the heroin counts, and three years on the immigration count. The three-year sentence was ordered to run consecutively to the fifteen-year sentence.
THE FLIGHT INSTRUCTION
On appeal, Miranda makes three arguments as to why the trial court erred by giving the flight instruction.
We agree with Miranda that in some cases the flight instruction should not be given unless the defendant has fled immediately after the commission of a crime. However, this immediacy requirement generally only becomes important in those cases where the defendant does not know, or his knowledge is doubtful, about the charges and accusations made against him.
Jackson, supra, 572 F.2d at 641. In the present case, Miranda obviously knew about the charges against him. He had already been arrested, arraigned, pled not guilty, and then fled a few days prior to his scheduled jury trial. Conversely, even if we held that the immediacy requirement must be satisfied before giving the flight instruction in every case, we would find that it was satisfied here where the flight occurred immediately prior to the defendant's scheduled jury trial. Flight immediately after the commission of a crime, or immediately prior to trial, both support an inference of consciousness of guilt.
We also agree with Miranda that other reasons might support his decision to take flight, but this in itself does not make the flight instruction improper. After all, as part of the court's flight instruction, the jury was told that there may have been many reasons totally consistent with innocence showing why Miranda did not appear at his first scheduled trial. See n.3, supra (complete text of court's instructions on flight); 1 E. Devitt and C. Blackmar, Federal Jury Practice and Instructions, 3rd ed. (West 1977), § 15.08.
Miranda's claim that the flight instruction should have included the reasonable doubt instruction is raised for the first time on appeal, thus limiting our review to the plain error standard of Fed.R.Crim.P. 52(b). We are aware of no authority which has held that flight must be proven beyond a reasonable doubt before the jury can consider it.
AMOUNT OF BOND FORFEITURE
Miranda contends that it was error to admit, over objection, evidence of the amount and nature of the bond which he forfeited by his failure to appear. The Government does not fully address this issue in its brief except to make conclusory assertions that this was "strong evidence" and "highly probative" of consciousness of guilt in connection with his flight. We are unable to establish any chain of logic in support of the Government's argument. Although we believe that the evidence concerning the amount of the forfeited bond should not have been admitted, we hold that its admission was not reversible error. The evidence added nothing significant to facts that were before the jury showing Miranda's flight to avoid trial.
Three years prior to the incident involved in the present case, Miranda had been arrested and convicted for smuggling marijuana into the United States from Mexico. He had been one of six people backpacking approximately 80 kilograms of marijuana. Defense counsel tried to obtain a pretrial ruling excluding the evidence on the ground that its sole relevance was to prove a disposition to smuggle, a purpose flatly forbidden by the Evidence Code. When the Government offered the evidence as part of its case-in-chief, the district court overruled the objection on the ground that the evidence was relevant to prove Miranda's intent or knowledge, and thus fell within the exception of Fed.R.Evid. 404(b).
Rule 404(b) first restates the long-settled rule that evidence of prior or subsequent bad acts or crimes cannot be admitted when the sole relevancy is to show disposition to
When the Government offers evidence of prior or subsequent crimes or bad acts as part of its case-in-chief, it has the burden of first establishing relevance of the evidence to prove a fact within one of the exceptions to the general exclusionary rule of Rule 404(b) and thereafter of showing that the proper relevant evidence is more probative than it is prejudicial to the defendant. In this case, the Government failed to make the initial showing, and, therefore, the district court did not have occasion to balance the probative value against the prejudicial effect. The only contested issue in this case is whether Miranda knew that the concealed heroin was in the vehicle that he was driving. The sole similarity between the prior offense and the offense for which Miranda was on trial is smuggling contraband across the border. The Government persuaded the district court that the common thread of smuggling was enough to bring the prior offense within the exception of Rule 404(b). The theory was that a person who has shown an inclination to smuggle contraband across the border on one occasion may be inclined to do so on another. However, that is precisely the use of a prior bad act that is forbidden. ("The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice." Michelson v. United States, supra, 335 U.S. at 475-76, 69 S.Ct. at 219. See also United States v. Marques, 600 F.2d 742 (9th Cir. 1979).
To carry its burden of showing relevance within the exception to the general rule of inadmissibility, the Government was required to establish a logical basis from which to infer knowledge of the presence of heroin in the vehicle from evidence that Miranda had smuggled marijuana in a backpack on a prior occasion.
When a prior criminal act is relied upon to prove intent or knowledge, similarity between the two events must be shown to establish the threshold requirement of relevance. We can reasonably infer, for example, that a person who has knowingly carried marijuana in a backpack across the border on one occasion will know that he is carrying marijuana in his backpack when he is caught carrying marijuana in the same way as he crosses the border on a later
The Government only made a brief reference to the prior offense during closing argument.
Miranda claims that the three-year sentence for making a false claim of United States citizenship which was ordered to run consecutively to the fifteen-year sentence on the two heroin counts was improper. He argues that for sentences to properly run consecutive to one another, the actions and intent of the person convicted must be shown to result from distinct, successive criminal episodes rather than from a single transaction. In support of this contention, defendant cites the following cases: United States v. Stevens, 521 F.2d 334 (6th Cir.1975); United States v. Clements, 471 F.2d 1253 (9th Cir. 1972); Fuller v. United States, 132 U.S.App.D.C. 264, 407 F.2d 1199 (1968 (en banc)), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125; United States v. Ortiz-Martinez, 557 F.2d 214 (9th Cir. 1977); United States v. Oropeza, 564 F.2d 316 (9th Cir. 1977), cert. denied, 434 U.S. 1080, 98 S.Ct. 1276, 55 L.Ed.2d 788; United States v. Taxe, 572 F.2d 216 (9th Cir. 1978), cert. denied, 436 U.S. 918, 98 S.Ct. 2265, 56 L.Ed.2d 759.
The government correctly points out that none of these cases directly support Miranda's contention. Those cases which have found consecutive sentencing to have been improper dealt with situations where the charges involved separate offenses encompassing successive steps or grades which normally flow into the same criminal act. Stevens, supra, involved charges of possession with the intent to distribute and distribution
The immigration and heroin charges are not successive steps which normally follow in the same criminal act, nor are they different degrees or steps in the same criminal offense. The immigration offense is contained in a different statutory section than the heroin offenses, and each is designed to punish two separate types of criminal activity. The consecutive prison sentences were proper.
The judgment of conviction and sentence is AFFIRMED.
Reporter's Transcript (R.T.) 157-158.