UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4884
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERMOT D. SPENCE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:08-cr-00068-F-5)
Submitted: May 27, 2011 Decided: June 10, 2011
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Kousouros, LAW OFFICES OF JAMES KOUSOUROS, New York, New
York, for Appellant. George E.B. Holding, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dermot D. Spence was convicted by a jury of conspiracy
to distribute and possess with intent to distribute 100
kilograms or more of marijuana, in violation of 21 U.S.C.
§§ 841(a), 846 (2006), and distribution and possession with
intent to distribute of 100 kilograms or more of marijuana and
aiding and abetting, in violation of 18 U.S.C. § 2 (2006) and 21
U.S.C. § 841(a). Spence appeals his conviction, arguing that
the district court abused its discretion by admitting under Fed.
R. Evid. 404(b) the specific facts underlying Spence’s 2004
arrest in Pennsylvania for possession of marijuana. We affirm.
We review a district court’s evidentiary rulings for
abuse of discretion. United States v. Basham, 561 F.3d 302, 325
(4th Cir.), cert denied, 130 S. Ct. 3353 (2010). A district
court abuses its discretion when its decision to admit evidence
was arbitrary and irrational. United States v. Weaver, 282 F.3d
302, 313 (4th Cir. 2002). A district court’s evidentiary
rulings are subject to review for harmless error under Fed. R.
Crim. P. 52. United States v. Abu Ali, 528 F.3d 210, 231 (4th
Cir. 2008).
Federal Rule of Evidence 404(b) provides that
“[e]vidence of other crimes . . . is not admissible to prove the
character of a person in order to show action in conformity
therewith.” The evidence may, however, be admissible for other
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purposes, such as proof of motive, intent, preparation, plan, or
knowledge, if it is (1) relevant to an issue other than
character, (2) necessary, and (3) reliable. Basham, 561 F.3d at
326. “Rule 404(b) is an inclusive rule, admitting all evidence
of other crimes or acts except that which tends to prove only
criminal disposition.” Id. (internal quotation marks omitted).
Federal Rule of Evidence 403 provides that “relevant
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice.” The damage that
probative evidence can inflict on a defendant’s case is no basis
for excluding the evidence, however; only when that evidence
results in unfair prejudice, such as an appeal to the jury’s
emotion, and that prejudice “substantially outweighs the
probative value of the evidence,” must it be excluded. Basham,
561 F.3d at 327. Where the jury is given a limiting
instruction, any fear that the jury will improperly use the
evidence subsides. United States v. Branch, 537 F.3d 328, 342
(4th Cir. 2009). Moreover, the introduction of inadmissible
Fed. R. Evid. 404(b) evidence may be found harmless when it is
clear beyond a reasonable doubt that a guilty verdict would have
been returned notwithstanding the evidence’s admission. United
States v. McMillon, 14 F.3d 948, 955 (4th Cir. 1994). After
thoroughly reviewing the record, we conclude that the district
court did not abuse its discretion in admitting the challenged
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evidence. Moreover, even were we to conclude that the district
court erred, its limiting instruction, coupled with the
persuasive evidence against Spence, rendered any error harmless.
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
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