UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5057
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICTOR WHITE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:06-cr-00575-WDQ-1)
Submitted: December 16, 2008 Decided: January 20, 2009
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph R. Conte, LAW OFFICES OF J. R. CONTE, P.L.L.C.,
Washington, D.C., for Appellant. Rod J. Rosenstein, United
States Attorney, Bryan M. Giblin, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Victor White appeals his jury convictions for
possession with intent to distribute cocaine and heroin and
possession of a firearm by a convicted felon. On appeal, he
asserts that the district court erred in admitting evidence of
his prior heroin conviction under Fed. R. Evid. 404(b). We
affirm.
Under Rule 404(b), prior bad acts evidence: (1) must
be relevant to an issue other than character, such as intent;
(2) must be necessary to prove an element of the crime charged;
(3) must be reliable; and (4) its probative value must not be
substantially outweighed by its prejudicial nature. See United
States v. Siegel, 536 F.3d 306, 317-20 (4th Cir. 2008); see also
United States v. Queen, 132 F.3d 991, 994-95 (4th Cir. 1997)
(recognizing that Rule 404(b) is a “rule of inclusion”). Rule
404(b) decisions by the district court are discretionary and
will not be overturned unless arbitrary or irrational. See
United States v. Powers, 59 F.3d 1460, 1464 (4th Cir. 1995).
Moreover, even if a district court errs under Rule 404(b), a
resulting conviction must be upheld if we conclude that it is
beyond a reasonable doubt that the jury verdict would have been
the same absent the error. United States v. Williams, 461 F.3d
441, 448-49 (4th Cir. 2006).
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Because White pled not guilty to the crimes with which
he was charged, he placed his mental state in issue, and the
Government was authorized to offer evidence of prior bad acts
tending to establish his intent and knowledge regarding the
drugs found in the apartment where he stayed on a regular basis.
See United States v. Mark, 943 F.2d 444, 448 (4th Cir. 1991)
(holding that, when extrinsic act evidence is “sufficiently
related” to the charged offense, the evidence is relevant to
show that the defendant “possessed the same state of mind in the
commission of both”). Since White denied involvement with the
drugs, his prior heroin-related trafficking conviction was
relevant to establish his knowledge of the heroin trade (which
also corroborated his confession to the officers) and his intent
to sell the drugs at issue. See United States v. Hodge, 354
F.3d 305, 312 (4th Cir. 2004); see also United States v. Branch,
537 F.3d 328, 341-42 (4th Cir. 2008) (upholding admissibility of
prior conviction for possession with intent to distribute
cocaine base as evidence of intent and knowledge in later
prosecution for cocaine base possession and distribution),
petition for cert. filed (Nov. 20, 2008) (No. 08-7360).
Although White also argues that the probative value of
the prior bad acts evidence was substantially outweighed by its
prejudicial effect, we conclude that the district court’s
limiting instruction to the jury, as well as the initial Rule
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404(b) notice that was given to White by the Government, was
sufficient to reduce any prejudicial effect the evidence may
have had. See Queen, 132 F.3d at 997. Finally, even if we were
to find that the district court erred in admitting White’s prior
bad acts evidence because the prior conviction was not probative
of his intent or knowledge, considering the substantial evidence
of White’s guilt, our review of the record convinces us that the
verdict would have been the same absent any error. See
Williams, 461 F.3d at 448-49.
Accordingly, we affirm White’s conviction. 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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