UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4867
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ISHOC UTHMAN IBN-ABDU SALAAM,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:07-cr-00078-HEH)
Submitted: March 17, 2008 Decided: April 14, 2008
Before MICHAEL and MOTZ, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Robert P. Geary, Richmond, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, John S. Davis, Assistant United
States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On March 6, 2007, Ishoc Uthman Ibn-Abdu Salaam was
charged with one count of attempting to traffic in clothing and
footwear bearing counterfeit trademarks, in violation of 18
U.S.C.A. § 2320 (West 2000 and Supp. 2007). Following a one day
jury trial, Salaam was convicted of the sole count in the
indictment and sentenced to 18 months’ imprisonment.
Salaam timely noted his appeal and now argues that the
district court erred in admitting evidence of counterfeit CDs and
DVDs seized from his property. According to Salaam, the district
court erred in admitting this evidence because the counterfeit
clothing was not factually related or intertwined with the CDs and
DVDs and because admission of the CDs and DVDs was unduly
prejudicial as their number far exceeded the number of indicted
articles of clothing. Finding no error, we affirm.
Decisions regarding the admission or exclusion of
evidence are left to the sound discretion of the trial court and
will not be reversed absent an abuse of that discretion. United
States v. Russell, 971 F.2d 1098, 1104 (4th Cir. 1992). Federal
Rule of Evidence 404(b) provides that evidence of other bad acts is
inadmissible to prove a defendant’s character to show conduct in
conformity therewith, but is admissible to show “motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Fed. R. Evid. 404(b).
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This court has broadly construed the exceptions to the
inadmissibility of other bad acts. United States v. Powers, 59
F.3d 1460, 1464 (4th Cir. 1995). Rule 404(b) is “an inclusive
rule, admitting all evidence of other crimes or acts except that
which tends to prove only criminal disposition.” Powers, 59 F.3d
at 1464 (quoting Russell, 971 F.2d at 1106). We have found
evidence of other bad acts to be admissible if it meets the
following criteria:
(1) The evidence must be relevant to an issue, such as an
element of an offense, and must not be offered to
establish the general character of the defendant . . .
(2) The act must be necessary in the sense that it is
probative of an essential claim or an element of the
offense. (3) The evidence must be reliable. And (4) the
evidence’s probative value must not be substantially
outweighed by confusion or unfair prejudice in the sense
that it tends to subordinate reason to emotion in the
factfinding process.
United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997).
Turning to the first prong under Queen, evidence of
Salaam’s DVD and CD pirating is relevant if it is “sufficiently
related to the charged offense.” Powers, 59 F.3d at 1465 (quoting
United States v. Rawle, 845 F.2d 1244, 1247 n.3 (1988)). The more
similar the other bad act is (in terms of physical similarity or
mental state) to the act being proved, the more relevant it
becomes. Queen, 132 F.3d at 996. Here, the other bad acts
evidence Salaam sought to exclude was relevant to the charged
conduct as both involved trafficking in counterfeit goods whose
sales infringed on the intellectual property rights of the
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manufacturers. Accordingly, the other bad acts evidence was
relevant to the offense conduct.
Admission of the DVD and CD evidence also meets the
second prong of Queen. Title 18, section 2320 of the United States
Code criminalizes the intentional trafficking of goods and the
knowing use of a counterfeit mark in connection with such goods.
18 U.S.C. § 2320(a). The Government’s evidence of Salaam’s intent
was circumstantial, and Salaam’s most plausible defense was to
attack the mens rea requirement in § 2320. The large number of
counterfeit DVDs and CDs makes it less likely that Salaam was
unaware that the clothing was counterfeit, and thus, the DVD and CD
evidence was highly probative of his intent.
Also, admission of the other bad acts evidence meets the
third and fourth prongs of Queen. The record establishes that the
other act evidence was reliable, and there is no indication that
admission of the other bad acts evidence resulted in unfair
prejudice to Salaam. See United States v. Masters, 622 F.2d 83, 87
(4th Cir. 1980). Simply because the number of counterfeit CDs and
DVDs far exceeded the number of counterfeit articles of clothing
does not indicate that there was “a genuine risk that the emotions
of the jury [were] excited to irrational behavior.” Masters, 622
F.2d at 87.
Finally, the district court gave a proper limiting
instruction to the jury. Thus, any danger of unfair prejudice to
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Salaam was minimized. See Queen, 132 F.3d at 997. Accordingly, we
affirm the judgment of the district court. We dispense with oral
argument as 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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