UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-4228
VICTOR KENTON CATLETT,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CR-02-56)
Submitted: August 11, 2004
Decided: September 13, 2004
Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Christopher D. Janelle, SUTTON & JANELLE, P.L.L.C., Martins-
burg, West Virginia, for Appellant. Thomas E. Johnston, United
States Attorney, Thomas O. Mucklow, Assistant United States Attor-
ney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. CATLETT
OPINION
PER CURIAM:
Victor Kenton Catlett appeals his jury convictions for multiple
drug trafficking offenses. We affirm. Catlett was convicted of con-
spiracy to distribute cocaine, marijuana, oxycontin, and oxycodone, in
violation of 21 U.S.C. §§ 846 and 841(b)(1)(B) (2000); distribution
of marijuana, in violation of 21 U.S.C. § 841(a)(1) (2000); and distri-
bution of cocaine, in violation of § 841(a)(1). Catlett was sentenced
to 128 months in prison.
On appeal, Catlett first argues that a "fatal variance" occurred
between the conspiracy charge in his superseding indictment and the
evidence adduced at his trial. Catlett presented this fatal variance
argument in a post-judgment motion for a new trial, which the district
court denied. We review the district court’s decision for an abuse of
discretion. See United States v. Campbell, 977 F.2d 854, 860 (4th Cir.
1992). The district court abuses its discretion when its decision on the
issue presented is "arbitrary or irrational." United States v. Rawle, 845
F.2d 1244, 1247 (4th Cir. 1988).
A "variance" occurs when the evidence presented at trial differs
materially from the facts alleged in the indictment. United States v.
Kennedy, 32 F.3d 876, 883 (4th Cir. 1994). However, a variance is
not grounds for reversal unless it prejudices the defendant by either
surprising him at trial and hindering the preparation of his defense, or
by exposing him to the danger of a second prosecution for the same
offense. United States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999).
Guided by these principles, we have thoroughly reviewed the submis-
sions of the parties and conclude that no "fatal variance" from the
superseding indictment occurred in this case. See United States v.
Queen, 132 F.3d 991, 999-1000 (4th Cir. 1997).
Catlett next asserts that the district court erred in admitting evi-
dence of a voluntary statement that he gave to California police in
1992. Specifically, Catlett argues that the statement was inadmissible
under Fed. R. Evid. 404(b). Rule 404(b) prohibits the admission of
evidence solely to prove a defendant’s bad character, but such evi-
dence may be "admissible for other purposes, such as proof of motive,
UNITED STATES v. CATLETT 3
opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident." Fed. R. Evid. 404(b). Rule 404(b) only
applies to acts extrinsic to the crimes charged. Where testimony is
admitted as to acts intrinsic to the crimes charged, and is not admitted
solely to demonstrate bad character, it is admissible. See United States
v. Chin, 83 F.3d 83, 87-88 (4th Cir. 1996). Applying these principles
to the instant case, we conclude that Catlett’s voluntary 1992 state-
ment provided relevant evidence of the conduct charged in the super-
seding indictment. Thus, the district court did not act in an arbitrary
or irrational manner in its decision to admit this evidence at trial. See
United States v. Loayza, 107 F.3d 257, 263-64 (4th Cir. 1997); Rawle,
845 F.2d at 1247.
Lastly, Catlett argues that the district court erred in permitting the
trial testimony of two California police officers. Catlett’s trial was
scheduled to begin on August 26, 2003. The Government filed its ini-
tial witnesses and exhibits list on July 23, 2003. The Government
filed a supplemental witness list on July 28, 2003, and an amended
witness list on July 29, 2003. The Government then filed a supple-
mental discovery disclosure and a fourth witness list on August 20,
2003. The fourth witness list included the names and office locations
of Delbert Gray and Lloyd Winstead, the California policemen who
were involved in the events leading up to the 1992 statement. On
August 21, 2003, Catlett filed a motion in limine to preclude Gray and
Winstead from testifying, arguing that these witness were disclosed
too close to the start of the trial. The district court denied this motion
and the trial began, as previously scheduled, on August 26, 2003.
As noted, we review the decision to admit or exclude evidence for
an abuse of the court’s discretion; the relevant inquiry therefore is
whether the district court’s exercise of discretion was arbitrary or irra-
tional. See United States v. Ellis, 121 F.3d 908, 926 (4th Cir. 1997);
Rawle, 845 F.2d at 1247. Evidentiary rulings are also subject to
review for harmless error under Fed. R. Crim. P. 52. See United
States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997). Having reviewed
the chronology of events and the materials before us, we conclude
that the decision to admit the testimony of Gray and Winstead was not
an abuse of discretion. Moreover, the case Catlett relies on for this
point of error, United States v. Walton, 602 F.2d 1176 (4th Cir. 1979),
is inapposite. In Walton, this Court expressed concern because the
4 UNITED STATES v. CATLETT
Government’s key witness was placed in a witness protection pro-
gram with no means of access to defense counsel, the witness’ where-
abouts were unknown, and the Government denied defense counsel’s
specific request to interview the witness. See Walton, 602 F.2d at
1179. No such facts are present in the instant case.
For the foregoing reasons, we affirm Catlett’s convictions. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid in the decisional process.
AFFIRMED