UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4719
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HAROLD ANTHONY TROUT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:08-cr-01055-HFF-1)
Submitted: February 18, 2010 Decided: March 12, 2010
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Falkner Wilkes, Greenville, South Carolina, for Appellant.
W. Walter Wilkins, United States Attorney, Dean A. Eichelberger,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harold Anthony Trout appeals his convictions under the
Computer Fraud and Abuse Act, 18 U.S.C.A. § 1030 (West 2000 &
Supp. 2009), and the Electronic Communications Privacy Act, 18
U.S.C.A. § 2511 (West 2000 & Supp. 2009). The conduct
underpinning the indictment occurred while Trout was a county
councilman and involved his access to and use of information
covertly obtained from the computer of the county administrator,
Joseph Kernell, as a consequence of Trout’s use of a “spyware”
software program. On appeal, Trout argues that the district
court improperly allowed the Government to present testimony
regarding prior bad acts, because the evidence was not relevant
and only served to prejudice the jury.
This court typically reviews evidentiary rulings for
abuse of discretion. United States v. Perkins, 470 F.3d 150,
155 (4th Cir. 2006). However, as Trout did not object to the
evidence in the district court, we review the admission of
evidence for plain error. United States v. Olano, 507 U.S. 725,
731 (1993). To show plain error, the appellant must demonstrate
“that an error occurred, that the error was plain, and that the
error affected his substantial rights.” United States v.
Muhammad, 478 F.3d 247, 249 (4th Cir. 2007).
Although not admissible to prove the defendant’s
character, evidence of other wrongs may be admitted to prove
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“motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Fed. R. Evid.
404(b). Acts “intrinsic to” the crime are not subject to Rule
404’s restrictions. United States v. Siegel, 536 F.3d 306, 316
(4th Cir. 2008). “Evidence of uncharged conduct is not ‘other
crimes’ evidence subject to Rule 404 if the uncharged conduct
‘arose out of the same series of transactions as the charged
offense, or if [evidence of the uncharged conduct] is necessary
to complete the story of the crime on trial.’” Id. (quoting
United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994))
(alteration in original). In other words, the Government may
“provide context relevant to the criminal charges.” United
States v. Cooper, 482 F.3d 658, 663 (4th Cir. 2007). Having
carefully reviewed the record, we hold that the evidence
pertaining to Trout’s history with the other council members,
Kernell, and other county staff is intertwined with and provided
context to Trout’s conduct underlying the charges.
Further, even considering the admissibility of the
evidence of Trout’s pattern of conduct on the county council
pursuant to the terms of Rule 404(b), the district court did not
plainly err. Rule 404(b) is an inclusionary rule, allowing
evidence of other crimes or acts to be admitted, except evidence
that tends to prove only criminal disposition. See United
States v. Queen, 132 F.3d 991, 994-95 (4th Cir. 1997). For such
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evidence to be admissible, it must be “(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 (4th Cir. 2004).
Additionally, the probative value of the evidence must not be
substantially outweighed by its prejudicial effect. Id. (citing
Fed. R. Evid. 403). After reviewing the record and the parties’
arguments, we hold that the evidence Trout challenges was not
barred by Rule 404(b).
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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