UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
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No. 09-4458
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EHREN VAN WART,
Defendant - Appellant.
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Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:07-
cr-00492-RWT-1)
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Argued: October 27, 2010 Decided: November 24, 2010
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Before TRAXLER, Chief Judge, DAVIS, Circuit Judge, and Damon J.
KEITH, Senior Circuit Judge of the United States Court of
Appeals for the Sixth Circuit, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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ARGUED: John Edward Davidson, DAVIDSON & KITZMAN, PLC,
Charlottesville, Virginia, for Appellant. Justin S. Herring,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
Barbara Skalla, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Ehren Van Wart was indicted in the District of
Maryland for possession of a firearm and ammunition after having
been convicted of a felony, in violation of 18 U.S.C. §
922(g)(1). The charge arose from the seizure of a loaded firearm
and additional ammunition from Van Wart’s bedroom by officers
executing an arrest warrant issued in Virginia. In close
proximity to a box of ammunition, officers also discovered and
seized a set of handcuffs that had been placed on Van Wart two
weeks earlier in connection with his arrest by Virginia
authorities, from whom Van Wart had escaped while handcuffed.
Prior to trial, Van Wart moved in limine to exclude the
handcuffs and the testimonial evidence explaining how he had
come into possession of the handcuffs. The district court denied
the motion and a jury convicted Van Wart. On appeal, Van Wart
contends that the district court committed prejudicial error in
admitting the challenged evidence. We affirm.
I.
A.
On September 1, 2007, two Stafford County, Virginia law
enforcement officers responded to a report of two individuals
causing a disturbance at a hotel. When the officers arrived,
they encountered two men at the hotel counter, Van Wart and his
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friend, Kofi Agbemble. As the officers approached, Van Wart,
smelling heavily of alcohol, yelled profanities at the officers
and became confrontational. Eventually, the officers sought to
arrest Van Wart for public intoxication and disorderly conduct.
When Van Wart continued to be combative, one of the officers
employed his taser to subdue him. After Van Wart was temporarily
controlled, the other officer, Deputy Sheriff J.C. Wright,
handcuffed Van Wart.
The officers placed Van Wart in a secure police vehicle
with a partition separating the front from the back. After
Deputy Wright placed Van Wart into the vehicle, both officers
returned to the hotel to conclude their investigation. When the
officers returned to the parking lot, Van Wart had escaped from
the vehicle. A video recording of the location showed Van Wart
escaping from the rear driver’s side of the police vehicle and
calmly walking away with the handcuffs dangling from one wrist.
B.
Two weeks later, on September 14, 2007, armed with an
arrest warrant issued in Virginia, a fugitive task force
undertook a search for Van Wart at a condominium apartment owned
by Van Wart in Temple Hills, Maryland. The officers found three
people present in the apartment: (1) Van Wart, who was in the
bedroom; (2) Van Wart’s girlfriend, Tawana Rose; and (3)
Agbemble. The officers observed evidence of drug activity in the
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apartment as they took Van Wart into custody; accordingly, they
applied for and obtained a search warrant. Upon executing the
search warrant, officers found and seized from a bedroom closet
a fully-loaded Cobray MAC-11 pistol and additional ammunition.
Officers also found the handcuffs (identified by serial number)
that had been used to secure Van Wart in Virginia two weeks
earlier, as well as numerous other items that belonged to Van
Wart.
C.
Van Wart was indicted in one count for illegal possession
of a firearm and ammunition in violation of 18 U.S.C.
§ 922(g)(1). Prior to trial, Van Wart moved in limine to exclude
evidence of the handcuffs and the circumstances of his Virginia
arrest and escape, citing Federal Rules of Evidence 404(b) and
403. The district court denied Van Wart’s motion. Specifically,
the district court found that in light of the apparent defense
to be offered at trial, i.e., that although Van Wart owned the
residence he did not live there, the evidence relating to Van
Wart’s possession of the handcuffs was highly probative of Van
Wart’s dominion and control over the bedroom of the apartment
and of the items found there, including the firearm and
ammunition. The district court made clear, however, that it
expected the government to keep its interrogation of the
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Virginia officer involved in the prior arrest, Deputy Wright,
“relatively brief” and “concise.” 1
At trial, Deputy Wright described the Stafford County
arrest and Van Wart’s escape from the law enforcement vehicle
without a significant objection from the defense. Then, on
cross-examination, defense counsel elicited further details
about the Stafford County arrest.
Van Wart’s friend, Agbemble, testified as a witness for the
government that sometime before the Virginia arrest, he had
moved into the Temple Hills condominium. Agbemble further
testified, however, that he slept on the couch in the living
room and kept his personal belongings in the living room closet.
According to Agbemble, Van Wart also lived in the condominium
and slept in the bedroom.
Notably, when the government sought to question Agbemble as
to the manner in which Van Wart travelled from Virginia to the
condominium apartment, the defense objected. However, the
district court stated that the defense’s cross-examination of
1
The district court stated:
I believe your interrogation of this witness
should be relatively brief and concise and not go into
the facts into any great description of how he was
drunk and disorderly. . . . I don’t want to have the
question of whether he was drunk and disorderly in
Stafford County tried in this case.
J.A. 56.
5
Deputy Wright had opened the door to such questioning because
the “cross-examination really went into great detail about the
[Virginia arrest].” Consequently, the district court overruled
the defense objection and allowed Agbemble to testify to a
conversation he had had with Van Wart regarding how the latter
returned to the condominium apartment from Virginia.
After Agbemble’s testimony, the government called several
officers who were at the Temple Hills condominium apartment to
testify concerning the execution of the search warrant and the
seized items tying Van Wart to the residence and its sole
bedroom.
The defense called one witness, Van Wart’s girlfriend,
Tawana Rose. Rose testified about her relationship with Van
Wart, generally insisting that, although she and Van Wart stayed
at the condominium several days a week, Van Wart did not live at
the condominium.
Pursuant to the parties’ agreement on a limiting
instruction, the district court instructed the jury about
“evidence of other acts allegedly committed by the defendant.”
Specifically, the instruction read:
That evidence was admitted solely for the limited
purpose of showing the context in which the weapon was
found. I want to emphasize to you that you are not to
consider that evidence for any other purpose, and you
are only to return a verdict as to the charge
contained in the indictment.
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The court also explained actual possession as compared to
indirect/constructive possession, and sole possession as
compared to joint possession.
II.
We review a district court’s admission of evidence for
abuse of discretion. United States v. Perkins, 470 F.3d 150, 155
(4th Cir. 2006) (citing United States v. Gray, 405 F.3d 227, 238
(4th Cir. 2005)); see also United States v. Hodge, 354 F.3d 305,
312 (4th Cir. 2004). “A court has abused its discretion if its
decision ‘is guided by erroneous legal principles’ or ‘rests
upon a clearly erroneous factual finding.’” Brown v. Nucor
Corp., 576 F.3d 149, 161 (4th Cir. 2009) (quoting Westberry v.
Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999)). 2
2
When a party does not preserve an argument in the district
court, we review only for plain error. United States v. Lynn,
592 F.3d 572, 577 (4th Cir. 2010); United States v. Massenburg,
564 F.3d 337, 342-43 (4th Cir. 2009)). It seems clear that, as
reflected in its pre-trial ruling, the district court intended
to permit the government to introduce only limited evidence
explaining how Van Wart came into possession of the handcuffs.
See supra p. 5 and n.1. Despite the district court’s narrow
ruling on the defense’s pretrial motion in limine, counsel
arguably abandoned the defense objection once the trial
commenced by failing to act on the district court’s unmistakable
intention to limit the government’s interrogation of Deputy
Wright and by its probing questioning of Deputy Wright on cross-
examination. As the government has not urged us to apply plain
error review, however, we need not determine whether it applies.
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III.
We do not understand Van Wart to contend that evidence of
his possession of the handcuffs (or the manner in which he came
into possession of them) was wholly irrelevant. Such evidence
clearly was relevant to the issue of Van Wart’s access to, his
presence in, and his dominion and control over, the bedroom of
the condominium apartment where the firearm and ammunition were
found. Rather, the gravamen of Van Wart’s contention before us
is that the district court misapplied the balancing tests
applicable under Rules 404(b) and 403 in admitting the evidence.
We discern no abuse of discretion.
IV.
Federal Rule of Evidence 404(b) provides that evidence of
prior bad acts may be admissible for purposes other than “to
prove the character of a person in order to show action in
conformity therewith.” Fed. R. Evid. 404. 3 Such “other purposes”
3
Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order
to show action in conformity therewith. It may,
however, 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).
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include “proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.”
Id.; Hodge, 354 F.3d at 311-12. We have explained that evidence
of prior bad acts is admissible pursuant to Rule 404(b) 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. Hodge, 354 F.3d at 311-
12; see also United States v. Queen, 132 F.3d 991, 997 (4th Cir.
1997).
Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.” Fed. R. Evid. 401. Evidence
is necessary where, “considered in the light of other evidence
available to the government, it is an essential part of the
crimes on trial or where it furnishes part of the context of the
crime.” Queen, 132 F.3d at 998 (quoting United States v. Mark,
943 F.2d 444, 448 (4th Cir. 1991). Finally, “[e]vidence is
reliable for purposes of Rule 404(b) “unless it is so
preposterous that it could not be believed by a rational and
properly instructed juror.” United States v. Siegel, 536 F.3d
306, 319 (4th Cir. 2008)(quoting United States v. Aramony, 88
F.3d 1369, 1378 (4th Cir. 1996)).
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Importantly, Rule 404(b) is “an inclusive rule, admitting
all evidence of other crimes or acts except that which tends to
prove only criminal disposition.” United States v. Rooks, 596
F.3d 204, 211 (4th Cir. 2010) (quoting United States v. Young,
248 F.3d 260, 271-72 (4th Cir. 2001). Further, limiting jury
instructions explaining the purpose for admitting prior bad acts
evidence and advance notice of the intent to introduce such
evidence provide additional protection to defendants and weigh
in favor of admissibility. See Hodge, 354 F.3d at 312 (citing
Queen, 132 F.3d at 997); United States v. Branch, 537 F.3d 328,
342 (4th Cir. 2008).
To be sure, the probative value of relevant evidence must
not be substantially outweighed by the danger that it will cause
unfair prejudice. See Fed. R. Evid. 403; Queen, 132 F.3d at 997.
The “mere fact that the evidence will damage the defendant’s
case is not enough – the evidence must be unfairly prejudicial,
and the unfair prejudice must substantially outweigh the
probative value of the evidence.” United States v. Williams, 445
F.3d 724, 730 (4th Cir. 2006) (emphasis in original) (quoting
United States v. Hammon, 381 F.3d 316, 341 (4th Cir. 2004)).
Evidence is considered to be unfairly prejudicial “when there is
a genuine risk that the emotions of a jury will be excited to
irrational behavior, and . . . this risk is disproportionate to
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the probative value of the offered evidence.” Id. (quoting
United States v. Aramony, 88 F.3d 1369, 1378 (4th Cir. 1996)).
“It is not an easy thing to overturn a Rule 403 ruling on
appeal.” United States v. Udeozor, 515 F.3d 260, 264 (4th Cir.
2008). Where the evidence is probative, “the balance under Rule
403 should be struck in favor of admissibility, and evidence
should be excluded only sparingly.” United States v. Lentz, 524
F.3d 501, 525 (4th Cir. 2008) (quoting Aramony, 88 F.3d at 1378;
see also Udeozor, 515 F.3d at 264-65 (“Rule 403 is a rule of
inclusion, generally favoring admissibility.”). Put simply, a
district court’s decision to admit evidence over a Rule 403
objection “will not be overturned except under the most
extraordinary circumstances, where that discretion has been
plainly abused.” Udeozor, 515 F.3d at 265 (internal quotation
marks omitted).
Here, the district court did not abuse its discretion in
admitting evidence of Van Wart’s possession of the handcuffs,
including the evidence of the circumstances of how he came to be
in possession of the handcuffs during the Virginia arrest.
Evidence of the arrest and how Van Wart obtained the handcuffs
found in the condominium apartment was highly probative on the
issue of whether Van Wart knowingly exercised dominion and
control over the bedroom (and thus the contents thereof) and
significantly aided the government in meeting its burden to show
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Van Wart’s possession of the nearby firearm. This is especially
true in light of the defense offered at trial, namely, that Van
Wart did not reside in the apartment and used it only sparingly.
The disputed evidence was legally “necessary” because
possession of the firearm was the only issue at trial and items
located near the firearm provided context to the possession of
the firearm itself. “That the evidence was not critical to the
prosecution’s case against [a defendant] does not render it
unnecessary for purposes of Rule 404(b).” United States v.
Rooks, 596 F.3d 204, 211 (4th Cir. 2010). This is because the
“necessary” prong “focuses on whether the evidence is necessary
in the sense that it is probative of an essential claim or an
element of the offense.” Id. at 211-12 (quoting Queen, 132 F.3d
at 997. Therefore, the evidence was “necessary.”
Finally, the reliability of the testimony of Deputy Wright
has not been put into question. Indeed, Van Wart suggests no
reason why the deputy’s reliability was damaged.
In sum, Rule 404(b)’s requirements were met and the
evidence was properly admitted under the rule. This conclusion
is reinforced by Rule 404(b)’s inclusive nature. The bar against
prior bad acts is meant to exclude evidence “of other crimes or
acts except that which tends to prove only criminal
disposition.” Rooks, 596 at 211 (emphasis added).
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Nor did the district court abuse its discretion in finding
that the danger of unfair prejudice did not substantially
outweigh the probative value of the evidence. All incriminating
evidence is prejudicial to some extent. The inquiry under Rule
403 is whether the evidence had the potential to cause unfair
prejudice and whether the danger of such unfair prejudice
substantially outweighs any probative value of the evidence.
The presence of the handcuffs in Van Wart’s bedroom, as
illuminated by the circumstances surrounding his arrest and
escape from arrest in Virginia, were probative of possession of
the firearm found in the same room, the ultimate issue at trial.
There was no “genuine risk that the emotions of [the] jury
[would] be excited to irrational behavior.” Lentz, 524 F.3d at
525 (quoting Aramony, 88 F.3d at 1378). The government even
noted that drunk and disorderly conduct is “just barely the
thing you . . . do to get arrested.” Furthermore, the district
court’s limiting instruction mitigated the risk of any prejudice
because it clarified the issues for which the jury could
properly consider. United States v. White, 405 F.3d 208, 213
(4th Cir. 2005). Accordingly, the court did not abuse its
discretion in admitting evidence of the Stafford County arrest.
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V.
For the reasons set forth, we hold that the district court
did not err when it admitted evidence of Van Wart’s possession
of the handcuffs or of the manner in which he came into
possession of the handcuffs. Accordingly, the judgment is
AFFIRMED.
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