UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4196
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICO DUVALL COLE, III,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:07-cr-00257-AW-1)
Submitted: April 16, 2010 Decided: May 6, 2010
Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Sapna Mirchandani, Staff
Attorney, Greenbelt, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Mara B. Zusman, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rico Duvall Cole appeals his conviction and sentence
for possession of a firearm by a felon, in violation of 18
U.S.C. § 922(g)(1) (2006) (Count 1), and possession of a firearm
with the serial number obliterated, in violation of 18 U.S.C.
§ 922(k) (2006) (Count 2). On appeal, Cole asserts that the
district court abused its discretion in admitting facts under
Fed. R. Evid. 404(b) regarding Cole’s prior gun charges and
abused its discretion in denying Cole’s motions for continuance
and motion to reopen the case. We affirm.
Cole first challenges the district court’s reliance on
Rule 404(b) to admit into evidence two handguns seized during a
prior search of Cole’s apartment, which formed the basis of a
prior state gun conviction. One of the seized handguns had its
serial number scratched off. Cole contends that because the
Government’s theory of the case was that Cole had actual, not
constructive, possession of the handgun, Cole’s prior possession
of a handgun with an obliterated serial number was irrelevant,
and unduly prejudicial.
Under Fed. R. Evid. 404(b), evidence of a defendant’s
prior bad acts, though inadmissible to prove a defendant’s
character and “action in conformity therewith,” may be
admissible to prove “motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.”
2
Therefore, such evidence is admissible “if the evidence is
(1) relevant to an issue other than the general character of the
defendant; (2) necessary to prove an element of the charged
offense; and (3) reliable.” United States v. Hodge, 354 F.3d
305, 312 (2004). We review the admission of evidence under Rule
404(b) for abuse of discretion. Id. After reviewing the
record, we find that the district court did not abuse its
discretion in admitting this evidence under Rule 404(b).
Next, Cole argues that the district court abused its
discretion in denying two motions for a continuance. The first
such motion was raised in the morning of the first day of trial
immediately before the trial was to commence, in order to secure
the presence of Antonia Chambers, a witness who allegedly would
testify to the presence of several youths in the vicinity of
Cole’s car while he slept inside, immediately prior to his
arrest.
The second motion was raised on the third day of
trial, immediately prior to closing arguments. In the second
motion, Cole sought a one-week continuance, to secure the
testimony of both Chambers and Gale Walls. Cole argued that
Cole’s sister had just been contacted by Chambers, informing her
that Chambers was back in town. Additionally, Cole argued that,
if the trial was continued for another week, Walls’s own
3
criminal trial would have concluded and she would have been able
to testify without fear of incriminating herself.
“A trial court’s denial of a continuance is reviewed
for abuse of discretion; even if such an abuse is found, the
defendant must show that the error specifically prejudiced her
case in order to prevail.” United States v. Williams, 445 F.3d
724, 739 (4th Cir. 2006). Where a defendant seeks a continuance
to secure the presence of a witness, the defendant must prove
(1) the identity of the witness; (2) what his testimony will be;
(3) that the witness may likely be secured if the court grants a
continuance; and (4) the defendant has exercised due diligence
to obtain the witness’s attendance for the trial. See United
States v. Clinger, 681 F.2d 221, 223 (4th Cir. 1982). After
reviewing the record, we find that the district court did not
abuse its discretion in denying Cole’s motions for continuances.
Finally, Cole challenges the district court’s denial
of his motion to reopen the evidence. We review the district
court’s decision whether to reopen a case for abuse of
discretion. United States v. Abbas, 74 F.3d 506, 510-11 (4th
Cir. 1996). In order to determine whether a district court
abused its discretion in declining to reopen a case to admit new
evidence, this court considers:
(1) whether the party moving to reopen provided a
reasonable explanation for failing to present the
evidence in its case-in-chief; (2) whether the
4
evidence was relevant, admissible, or helpful to the
jury; and (3) whether reopening the case would have
infused the evidence with distorted importance,
prejudiced the opposing party’s case, or precluded the
opposing party from meeting the evidence.
Id. at 511; see also United States v. Nunez, 432 F.3d 573, 579
(4th Cir. 2005) (setting out standard); United States v. Peay,
972 F.2d 71, 73 (4th Cir. 1992) (same). After reviewing the
record, we find that the district court did not abuse its
discretion in refusing to reopen the case after the court had
issued its instructions to the jury.
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
5