UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4231
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HARRY M. BURTON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (CR-
03-395-JFM)
Submitted: October 31, 2005 Decided: November 21, 2005
Before WILKINSON, WILLIAMS, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Howard L. Cardin, CARDIN & GITOMER, P.A., Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Stephanie A.
Gallagher, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Harry M. Burton, Jr. appeals his conviction for being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1) (2000). Finding no error, we affirm.
Burton claims the district court erred when it denied his
motion to suppress evidence because the probation violation warrant
that led to his arrest and accompanying discovery of the evidence
was improperly issued. This court reviews the district court’s
factual findings underlying a motion to suppress for clear error
and the district court’s legal determinations de novo. Ornelas v.
United States, 517 U.S. 690, 699 (1996).
Burton claims that his arrest for a handgun violation was
not sufficient to violate his state probation. One of the
conditions of his probation was that he obey all laws. While it is
apparently routine practice in Maryland for probation officers to
wait for pending charges to be adjudicated before issuing an arrest
warrant, such practice is not required by law. See Dean v. State,
434 A.2d 552, 555 (1981) (“[I]t is not necessary that a conviction
precede a determination that the probationer has violated a
condition of probation requiring him to obey all laws.”). Burton’s
arrest for a handgun violation coupled with the belief of local law
enforcement authorities that he was a danger to the public and in
personal danger provided the basis for the issuance of the
probation violation warrant. The district court did not err in
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denying Burton’s motion to suppress because the probation office
lawfully issued the arrest warrant.
Burton also claims that the district court erred when it
denied his request to have his probation officer, Irita Pack,
testify at trial. The decision to admit evidence is reviewed on
appeal for an abuse of the trial court’s discretion; the relevant
inquiry therefore is whether the district court’s exercise of
discretion was “arbitrary or irrational.” See United States v.
Ellis, 121 F.3d 908, 926 (4th Cir. 1997). Pack would have
testified that sheriffs typically serve probation violation
warrants, not police officers, as occurred in this case. However,
Pack would also have had to testify that the reason police officers
served the warrant was because they believed Burton was a dangerous
individual. The district court denied Burton’s request because it
thought Pack’s testimony would be highly prejudicial to Burton.
The district court also ruled that Pack’s testimony would have very
little relevance or materiality at trial. The limited probative
value of the testimony was outweighed by the danger of prejudice in
testimony that Burton was a dangerous individual. The district
court did not act arbitrarily or irrationally when it denied
Burton’s request to have Pack testify.
Burton finally claims that a stipulation entered into
evidence describing his prior convictions for illegal possession of
a firearm prejudiced the jury. Our review is for an abuse of the
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trial court’s discretion. See Ellis, 121 F.3d at 926. Admission
of evidence of other bad acts is prohibited solely to prove a
defendant’s bad character, but such evidence may be 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). For such evidence to be
admissible under Rule 404(b), it must be “(1) relevant to an issue
other than the general character of the defendant; (2) necessary to
prove an element of the charge offense; and (3) reliable.” United
States v. Hodge, 354 F.3d 305, 313 (4th Cir. 2004).
The three prior convictions identified in the stipulation
were relevant to the current case because all the convictions were
for illegal possession of a firearm. The stipulations about
Burton’s prior acts were entered into evidence to help prove an
element of the offense, specifically that Burton knowingly
possessed the firearm in his closet. The fact that Burton had
previously possessed firearms suggested that he had the requisite
knowledge and intent to possess the firearm.
Burton claims that the probative value of his prior acts
was substantially outweighed by their prejudicial nature. The
probative value of evidence admitted under Fed. R. Evid. 404(b)
must not be substantially outweighed by its prejudicial nature.
Hodge, 354 F.3d at 312 (citing Fed. R. Evid. 403). We have held
that Fed. R. Evid. 403 requires exclusion of evidence only in those
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instances where the trial judge believes “that there is a genuine
risk that the emotions of the jury will be excited to irrational
behavior, and that this risk is disproportionate to the probative
value of the offered evidence.” United States v. Van Metre, 150
F.3d 339, 351 (4th Cir. 1998).
Burton objected to the introduction of the prior acts
evidence, but once the district court agreed to admit the evidence,
Burton helped write the stipulation.* The Government and Burton
agreed to exclude details regarding the circumstances of his prior
offenses and included only an identification of the convictions in
the stipulation in order to minimize the prejudicial effect. The
risk of unfair prejudice was addressed by the parties and the
district court through limiting instructions to the jury explaining
in detail that the jury was not to consider the prior acts as
evidence of propensity, but instead they could only consider those
convictions for their relevance to the issues of knowledge and
absence of mistake. Those “cautionary or limiting instructions
generally obviate any such prejudice” of properly admitted evidence
of prior acts. United States v. Powers, 59 F.3d 1460, 1467 (4th
Cir. 1995). On these facts, we conclude the district court did not
*
Burton claimed that the prejudicial nature of the prior acts
is evident because the first two juries to hear his case were
unable to reach a verdict and only after the entry of the
stipulations was the third jury able to reach a verdict. However,
all three juries heard the stipulation, so the stipulation affected
the juries equally.
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abuse its discretion when it admitted the evidence of Burton’s
prior firearm convictions.
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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