UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4996
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEORGE CORNELIUS DAY, a/k/a Corn,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Walter D. Kelley, Jr.,
District Judge. (1:05-cr-00460-WDK)
Submitted: February 29, 2008 Decided: March 12, 2008
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert L. Jenkins, Jr., BYNUM & JENKINS, PLLC, Alexandria,
Virginia, for Appellant. Chuck Rosenberg, United States Attorney,
LeDora Knight, Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
George Cornelius Day appeals from his convictions for
conspiracy to distribute cocaine base, conspiracy to launder money,
and seven counts of money laundering. On appeal, he challenges the
admission of his prior conviction for possession with intent to
distribute cocaine. We affirm.
Day contends that he was denied the right to a fair trial
when the court admitted evidence of his prior conviction under Fed.
R. Evid. 404(b). Review of a district court’s determination of the
admissibility of evidence under Rule 404(b) is for abuse of
discretion. See United States v. Queen, 132 F.3d 991, 995 (4th
Cir. 1997). Evidence of other crimes is not admissible to prove
bad character or criminal propensity. Fed. R. Evid. 404(b). Such
evidence is admissible, however, to prove “motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Id.; see Queen, 132 F.3d at 994. Rule
404(b) is an inclusive rule, allowing evidence of other crimes or
acts except that which tends to prove only criminal disposition.
See Queen, 132 F.3d at 994-95.
Evidence of prior acts is admissible under Rule 404(b)
and Fed. R. Evid. 403 if the evidence is (1) relevant to an issue
other than the general character of the defendant, (2) necessary,
and (3) reliable, and if the probative value of the evidence is not
substantially outweighed by it prejudicial effect. Queen, 132 F.3d
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at 997. A limiting jury instruction explaining the purpose for
admitting evidence of prior acts and advance notice of the intent
to introduce evidence of prior acts provide additional protection
to defendants. See id.
The prior conviction for possession with intent to
distribute cocaine involved charges that Day and his wife were
stopped by police officers and cocaine was found in their car.
These charges are similar to one of the charges in the instant case
that Day and his wife transported (and caused to be transported)
drugs for distribution. See id. at 997 (“[T]he more similar the
prior act is (in terms of physical similarity or mental state) to
the act being proved, the more relevant it becomes.”). Thus, the
evidence was relevant to Day’s intent and the absence of a mistake.
In addition, the evidence was necessary to corroborate other
testimony that had been challenged on credibility grounds, and to
provide additional objective evidence that Day intended to join the
charged conspiracy with the intent to distribute cocaine.
Moreover, the admission of the conviction was not
excessively prejudicial because the conviction involved the same
type of drug and the conduct occurred in relatively the same time
period as the offenses charged in the indictment. See United
States v. Boyd, 53 F.3d 631, 637 (4th Cir. 1995) (holding there is
no unfair prejudice when the prior act is no more sensational or
disturbing than the evidence admitted directly supporting the
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crimes with which the defendant was charged). Further, the
Government gave advance notice of its intent to seek admission of
the conviction, and the district court conducted a balancing
analysis under Rule 403. After ruling that the evidence was
admissible, the court gave a limiting instruction both when the
evidence was admitted and at the close of evidence. Thus, any
danger of unfair prejudice to Day was minimized.* See Queen, 132
F.3d at 997. Because the court properly considered and applied the
appropriate evidentiary standards, we conclude that the district
court did not abuse its discretion in admitting the prior
conviction.
Accordingly, we affirm Day’s convictions. 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
*
Moreover, it is clear that the jury listened to and abided by
the court’s instructions. Although Day’s wife’s conviction was
also admitted at trial, she was acquitted of all charges.
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