United States v. McBride

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 10-5162
FREDRICK LAMAR MCBRIDE,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, Senior District Judge.
(2:09-cr-01223-PMD-1)

Argued: January 26, 2012

Decided: April 23, 2012

Before WILKINSON, GREGORY, and KEENAN,
Circuit Judges.

Affirmed in part, reversed in part, and remanded by published
opinion. Judge Keenan wrote the majority opinion, in which
Judge Gregory joined. Judge Wilkinson wrote an opinion con-
curring in part and dissenting in part.
2 UNITED STATES v. MCBRIDE
COUNSEL

ARGUED: Jessica Ann Salvini, SALVINI & BENNETT,
LLC, Greenville, South Carolina, for Appellant. Jeffrey
Mikell Johnson, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee. ON
BRIEF: William N. Nettles, United States Attorney, Matthew
J. Modica, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Car-
olina, for Appellee.

OPINION

BARBARA MILANO KEENAN, Circuit Judge:

In this appeal in a criminal case, we principally consider
whether there was reasonable, articulable suspicion to detain
the defendant’s vehicle, whether the duration of the detention
was unreasonable, and whether certain prior "bad act" evi-
dence was admissible. Fredrick Lamar McBride was tried by
a jury and convicted of (1) possession of cocaine with intent
to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(C); (2) being a felon in possession of a firearm, in vio-
lation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and (3) know-
ingly using and carrying a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1). We
hold that the detention of the defendant’s vehicle was valid,
but that the district court improperly admitted certain prior
"bad act" evidence of McBride’s statements showing his
knowledge of crack cocaine and his willingness to manufac-
ture and distribute it. Accordingly, we affirm in part, reverse
in part, and remand the case to the district court.

I.

A.

At 6:15 p.m. on August 12, 2009, Lieutenant Phillip Ardis
and Agent Harold Kennedy III, undercover officers of the
 UNITED STATES v. MCBRIDE 3
Clarendon County Sheriff’s Office in South Carolina, drove
by the Nu Vibe Club (the club), an establishment with which
Ardis was familiar. In his decades in law enforcement, Ardis
had driven by the club many times, and recalled that it gener-
ally did not open until about midnight. He became interested,
therefore, when he observed two cars in the club’s parking lot
in the early evening.

Ardis also had personal knowledge of past criminal activity
at the club. In 2007, he had been involved in an investigation
regarding drug activity there. According to his information at
that time, certain men were known to deliver illegal drugs to
the club.

Based on this information and the unusual hour for activity
at the club, Ardis and Kennedy decided to observe the club
from a nearby automobile dealership. While looking through
binoculars at the club’s parking lot, the officers saw four vehi-
cles stop at the club for varying lengths of time over the
course of an hour. When the last vehicle, a blue Ford Explorer
truck, entered the lot, a black male in a white tee shirt imme-
diately came out from the club and walked with the driver of
the blue truck, a Hispanic male, to a black Cadillac SLS auto-
mobile that also was parked in the lot. The men conversed
briefly, and opened the Cadillac SLS’s passenger door.
Although Ardis suspected that the pair was engaging in a drug
transaction, he could not see their hands, and did not observe
the men exchange anything between them. The black male
then returned to the club, and the Hispanic male returned to
his blue truck.

Following this interaction, the blue truck left the club and
drove by the officers’ location. It was raining at that time, and
although the blue truck’s windshield wipers were in motion,
the truck’s headlights were not activated, in violation of South
Carolina law. On this basis, the officers initiated a traffic stop.
When the driver of the truck was unable to produce a valid
driver’s license, he was placed under arrest. As the officers
4 UNITED STATES v. MCBRIDE
were escorting the passenger from the truck, they observed a
black bag, which was found to contain a large amount of cash.1

Based on the evidence retrieved from the blue truck, and
his observations of the activity in the club’s parking lot, Ardis
decided to investigate the activity inside the club. He and
Kennedy entered the club and were met at the door by the
man who had been speaking earlier with the driver of the blue
truck. At this closer range, Ardis recognized the man as
McBride, whom he knew from a prior narcotics investigation.

Four other men were in the club at that time. Ardis recog-
nized two of them, also from prior narcotics investigations.
Ardis announced to the handful of patrons that the sheriff’s
office was conducting an investigation. He informed the
patrons that after they provided him with identification and a
description of the vehicle in which they had arrived, they
would be free to leave. However, Ardis also informed the
patrons that the vehicles in the parking lot were being
detained by the police.

At this time, Kennedy left the club temporarily, and, while
crossing the parking lot, observed that the engine of a
champagne-colored Cadillac Escalade was running, and a
man was sitting in the passenger seat. Kennedy reentered the
club and provided this information to Ardis. They returned to
the parking lot and opened the Escalade’s door. Inside they
noticed that the center console of the vehicle was stuffed with
money to the extent that the armrest could not fully close. The
officers thereafter escorted the man into the club.

After returning inside the club, Ardis began to record the
patrons’ information. Although McBride did not produce any
identification, he stated that he was the owner of the black
Cadillac SLS. Upon recording this information, and the infor-
1
The bag later was determined to contain $9,101.
 UNITED STATES v. MCBRIDE 5
mation from the other five patrons, Ardis told all six men that
they were free to leave. None left at that time.

Ardis returned to the parking lot and conferred with the
sheriff, who had arrived at the scene. When Ardis asked the
sheriff for authorization to request a canine narcotics unit
from a nearby jurisdiction to inspect the vehicles,2 he learned
that such a unit was already en route from neighboring Flor-
ence County. Ardis reentered the club and stated again that
the patrons were free to leave, but that their vehicles were
being detained so that the canine unit could check them.

McBride’s demeanor changed noticeably upon hearing that
a canine unit soon would be arriving. According to Ardis,
McBride "got very[,] very loud, nervous, [began] pacing back
and forth, [and was] sweating profusely." At that time, con-
trary to his earlier statement, McBride denied ownership of
the black Cadillac SLS. Next, McBride informed the officers
that he intended to leave, provided the keys to the club to a
patron with instructions to lock the club after all the patrons
had left, walked out of the bar, and began walking away from
the club.

Following McBride’s departure, a canine narcotics unit
arrived at the club about 55 minutes after the vehicles first
were detained. At that time, a dog trained in narcotics detec-
tion "alerted" on the black Cadillac SLS.

Using this information, and other details from the investi-
gation, the officers obtained a search warrant for the black
Cadillac SLS. A search of the vehicle revealed a photograph
of McBride, his driver’s license, $1,500 in cash on the floor-
board behind the driver’s seat, a loaded nine-millimeter semi-
automatic pistol in the glove compartment, and a "tin foil"
package containing two plastic bags of white powder cocaine
totaling 373.85 grams.
2
Clarendon County does not have its own canine narcotics unit.
6 UNITED STATES v. MCBRIDE
B.

Based on the evidence seized from the Cadillac SLS, the
government secured a three-count indictment charging
McBride with the crimes for which he ultimately was con-
victed. Before trial, McBride filed a motion to suppress the
evidence found in the Cadillac SLS. He asserted that the
detention of his vehicle before the arrival of the canine narcot-
ics unit was not supported by reasonable suspicion, in viola-
tion of his Fourth Amendment rights. McBride alternatively
contended that, even if the seizure was supported by reason-
able suspicion, the duration of the detention was unreason-
able. After conducting a hearing, the district court denied
McBride’s motion.

Also before trial, the government filed notice of its intent
to introduce prior "bad act" evidence, as evidence of
McBride’s guilt for the crimes charged, under Rule 404(b) of
the Federal Rules of Evidence. This prior "bad act" evidence
was based on an encounter between McBride and a confiden-
tial police informant named Burnell Blanding, who had
attempted to purchase cocaine base, or "crack," from
McBride. Although McBride filed a motion in limine seeking
to exclude this prior "bad act" evidence, this issue was not
resolved before trial.

McBride pleaded not guilty, and his case was tried before
a jury in the district court. The government introduced its evi-
dence through stipulations and through the testimony of two
witnesses. The prosecution’s primary witness, Ardis, focused
his testimony on the events of August 12, 2009. The govern-
ment also elicited testimony from him, over McBride’s objec-
tion, regarding the method by which powder cocaine is used
to produce crack cocaine.

Following this testimony, the district court denied
McBride’s motion in limine to exclude the "bad act" evidence
involving McBride’s encounter with Blanding in 2008, and
 UNITED STATES v. MCBRIDE 7
stated that the court would give the jury a limiting instruction
restricting consideration of that evidence. In accordance with
this ruling, the jury heard evidence that on January 14, 2008,
the police used Blanding in an attempt to purchase crack
cocaine from McBride in an encounter that was captured in a
video recording. Blanding testified that on that day, the police
equipped him with audio and video surveillance devices to
record the encounter with McBride at McBride’s residence.

According to Blanding’s testimony, when he arrived at
McBride’s house and asked McBride if he had "anything,"
McBride responded that he had "no pieces," referring to por-
tions of crack cocaine costing twenty dollars. McBride
explained that his current batch of crack cocaine was still
"wet," meaning that it was in the process of being heated, and
explained that his prior batch had not rendered correctly.
McBride also stated that he needed to contact "his man"
regarding the possibility of acquiring more cocaine, and rec-
ommended that Blanding return in a few hours. When Bland-
ing asked if he could procure crack cocaine from someone
other than McBride, McBride responded that he was "about
the only one [who has] something around there." At the end
of Blanding’s direct testimony, the government played four
minutes of the video recording of Blanding’s encounter with
McBride.

McBride neither testified nor called any witnesses on his
behalf. However, McBride’s attorney elicited testimony from
Blanding on cross-examination to the effect that the events at
McBride’s home on January 14, 2008 were unrelated to the
activities that took place at the club on August 12, 2009.

After the close of the evidence, the district court instructed
the jury. Included among these instructions was a limiting
instruction stating that the jury could consider the testimony
of McBride’s prior bad acts for the limited purpose of consid-
ering his "knowledge, his intent, and/or his absence of mis-
take" concerning the crimes charged. In this instruction, the
8 UNITED STATES v. MCBRIDE
district court also cautioned the jury that they were not to use
the evidence to consider prior crimes that McBride may have
committed. The jury returned a guilty verdict on each of the
three counts in the indictment, and the district court sentenced
McBride to serve a total of 235 months’ imprisonment.
McBride appeals.

II.

McBride raises two arguments challenging the district
court’s denial of his motion to suppress the evidence found in
the Cadillac SLS. First, he asserts that the authorities did not
have a reasonable, articulable suspicion to detain his vehicle.
Second, he contends that the duration of the detention, about
55 minutes, was unreasonable under the circumstances. We
address these arguments in turn.

We review the district court’s factual findings regarding the
motion to suppress for clear error, and the court’s legal con-
clusions de novo. United States v. Edwards, 666 F.3d 877,
882 (4th Cir. 2011). When, as here, a motion to suppress has
been denied, we view the evidence in the light most favorable
to the government. Id.

A.

McBride argues that the officers’ detention of the Cadillac
SLS was not supported by reasonable, articulable suspicion.
We disagree.

An officer who imposes a detention for investigatory pur-
poses "must be able to point to specific and articulable facts
which, taken together with rational inferences from those
facts, reasonably warrant that intrusion." Terry v. Ohio, 392
U.S. 1, 21 (1968). A detention requires more than an "incho-
ate and unparticularized suspicion or ‘hunch,’" but it does not
require probable cause. Id. at 27. This reasonable suspicion
standard, which the Supreme Court applied to persons in
 UNITED STATES v. MCBRIDE 9
Terry, is equally applicable to investigative detentions of per-
sonal property. United States v. Place, 462 U.S. 696, 702
(1983).

Courts must employ a commonsense and contextual
approach in evaluating the validity of an investigatory deten-
tion. See Ornelas v. United States, 517 U.S. 690, 695-96
(1996); United States v. Branch, 537 F.3d 328, 336 (4th Cir.
2008). Thus, the term "reasonable suspicion" should be
viewed as a "nontechnical" concept, which incorporates the
"factual and practical considerations of everyday life" in
which prudent persons act. Ornelas, 517 U.S. at 695; Branch,
537 F.3d at 336.

We consider the totality of the circumstances, which
requires us to evaluate the "cumulative information available"
to the detaining officer, rather than engaging in "piecemeal
refutation" of the individual facts upon which the officer
relied during the Terry stop. Branch, 537 F.3d at 337 (citing
United States v. Arvizu, 534 U.S. 266, 273 (2002) and United
States v. Whitehead, 849 F.2d 849, 858 (4th Cir. 1988)). A set
of factors, each of which individually would be consistent
with innocent activity could, when considered together, pro-
duce a reasonable suspicion of criminal activity. See United
States v. Sokolow, 490 U.S. 1, 9 (1989). Additionally, acts
that may appear innocuous in certain contexts may suggest
criminal activity under other circumstances. Branch, 537 F.3d
at 336.

We turn now to review the facts known to the officers
before they announced the detention of the Cadillac SLS.
Those facts included that Ardis was familiar with the club,
and knew that the club had been a site of past drug activity.
Although such a history is an articulable fact insufficient to
establish reasonable suspicion standing alone, "‘an area’s dis-
position toward criminal activity is an articulable fact’ that
may be considered along with more particularized factors to
support reasonable suspicion." United States v. Sprinkle, 106
10 UNITED STATES v. MCBRIDE
F.3d 613, 617 (4th Cir. 1997) (quoting United States v.
Moore, 817 F.2d 1105, 1107 (4th Cir. 1987)); see Illinois v.
Wardlow, 528 U.S. 119, 124 (2000). Further, the club’s prior
history was not the only aspect of the venue suggesting that
criminal activity may be afoot. Ardis’ suspicions also were
aroused by the volume of activity at the club in the early eve-
ning hours when the club usually was closed.

The activity that occurred between persons in the club’s
parking lot also supported a finding of reasonable suspicion.
Ardis testified that, in his experience, the brief exchange
between McBride and the driver of the blue truck, which
occurred beside the Cadillac SLS, was consistent with a drug
transaction. Although standing alone, this inference would not
support a reasonable suspicion, the discovery of $9,101 in the
blue truck after the traffic stop provided corroborating evi-
dence supporting Ardis’ initial suspicion.

Ardis’ contact with McBride is another factor supporting a
finding of reasonable suspicion. Although from a distance
Ardis could not identify the man interacting with the driver of
the blue truck, Ardis could discern that the man had a dark
complexion and was wearing a white shirt. Ardis testified that
once he was in the club, he noticed that McBride was the only
person who fit that description. Ardis also was aware that
McBride previously had engaged in drug dealing, and that
other club patrons who were present likewise had been
involved in drug activity in the past.

In sum, the officers observed unexplained traffic at an
unusual hour at a location having a history of drug activity.
The officers also saw McBride, who they knew to have
engaged in drug transactions in the past, engaged in what
appeared to be a drug transaction with another individual who
was found shortly thereafter in possession of over $9,000.
Further, McBride was found in the company of other men
known to have been involved in the drug trade. These factors,
taken together, were sufficient to establish reasonable, articul-
 UNITED STATES v. MCBRIDE 11
able suspicion for the officers’ detention of the Cadillac SLS
on the ground that it may have contained illegal drugs.3

B.

McBride alternatively asserts, however, that even if the
detention of his Cadillac SLS was supported by reasonable
suspicion, the duration of the detention pending the arrival of
the canine unit was unreasonable. Therefore, McBride argues,
what may have started as a lawful detention of his vehicle
became, over the course of almost an hour, a seizure unsup-
ported by probable cause. We disagree, and conclude that the
55-minute period between the beginning of the detention and
the arrival of the canine narcotics unit did not result in an
unlawful seizure of the Cadillac SLS.

1.

The reasonableness of a detention pending a "canine sniff"
first was addressed by the Supreme Court in United States v.
Place, and that decision continues to inform our analysis.
There, the authorities approached the defendant in the Miami,
Florida, airport on suspicion that he was transporting narcot-
ics in his luggage. 462 U.S. at 698. Although the defendant
gave the law enforcement officers consent to search his bag-
gage, the officers declined and instead contacted Drug
Enforcement Administration (DEA) agents at LaGuardia Air-
port in New York, the airport to which the defendant was
traveling, and informed the agents of their suspicions. Id.

The DEA agents confronted the defendant upon his arrival,
3
While both parties also refer to the large amount of money in the con-
sole of the champaign Cadillac Escalade as evidence that could support
reasonable suspicion, that money was not observed by the authorities until
after Ardis announced to the patrons in the club that their vehicles were
being detained. Therefore, the officers’ discovery of that money is not ger-
mane to our analysis.
12 UNITED STATES v. MCBRIDE
and informed him that they were detaining his luggage until
they could obtain a search warrant. Id. at 699. The DEA
agents also told the defendant that he could accompany them
if he wished, but that he was free to leave. Id. The defendant
declined to join the agents, who took the luggage to another
airport, where it was subjected to a "sniff test" for narcotics
by a trained dog, which alerted positively. Id. The period from
the initial detention of the defendant’s luggage to the positive
alert by the dog lasted about 90 minutes. Id. A later search of
the defendant’s luggage revealed more than one kilogram of
cocaine. Id.

The Supreme Court instructed that when considering the
intrusion created by an investigative detention, courts must
"balance the nature and quality of the intrusion on the individ-
ual’s Fourth Amendment interests against the importance of
the governmental interests alleged to justify the intrusion." Id.
at 703. As the Court explained, such an intrusion may vary in
both nature and extent. Id. at 705.

The nature of the intrusion in Place, a "canine sniff," was
particularly limited. Id. at 707. The Court noted that it was
"aware of no other investigative procedure that is so limited
both in the manner in which the information is obtained and
in the content of the information revealed by the procedure."
Id. The extent of the intrusion, however, posed a greater con-
cern to the Court.

First, the Court addressed the impact on the defendant aris-
ing from the detention of his property. Although noting that
the seizure of personal property may be less intrusive than the
seizure of a person, the Court stated that such was not the case
in the defendant’s situation. Id. at 708. With respect to lug-
gage within a traveler’s immediate possession, a seizure "in-
trudes on both the suspect’s possessory interest in his luggage
as well as his liberty interest in proceeding with his itinerary."
Id.
 UNITED STATES v. MCBRIDE 13
Second, the Court addressed the length of the detention,
placing special emphasis on the agents’ lack of diligence in
pursuing the investigation. Id. at 709. The Court observed that
the DEA agents had been informed of the suspicious situation
shortly after the defendant boarded the airplane in Miami, and
therefore had ample time to arrange for an investigation at
LaGuardia Airport upon his arrival. Id. Such action, the Court
noted, would have minimized the intrusion to the defendant.
Id. The DEA agents, however, failed to exercise this level of
diligence, extending the investigatory detention longer than
was necessary under the circumstances. Id. Additionally, the
Court stated that it had never approved of a detention as long
as 90 minutes, and declined to do so in that case. Id. at 709-
10. Accordingly, the Court held that the length of the deten-
tion of the defendant’s luggage under those circumstances
qualified as an unreasonable seizure. Id. at 710.

2.

Although the method of analysis employed in Place is
applicable here, we conclude that the circumstances of the
detention of McBride’s vehicle compel a different result. Both
the nature and the extent of the detention of the Cadillac SLS
differ significantly from the detention of the defendant’s lug-
gage in Place. We note at the outset that the detention of an
automobile, like the detention of a traveler’s luggage, may
prove particularly intrusive in certain situations. In this case,
however, those circumstances are not present.

The defendant in Place was in transit at the time of the
detention and, thus, the DEA agents restricted the defendant’s
course of travel. Conversely, the officers in the present case
did not impede McBride during any travel, because McBride
already had arrived at his club. Therefore, the seizure of his
automobile under these circumstances was significantly less
intrusive than would have been the case in a roadside deten-
tion. See United States v. Yang, 345 F.3d 650, 653-54 (8th
14 UNITED STATES v. MCBRIDE
Cir. 2003) (allowing for a more extended detention once
defendant was allowed to drive to a more secure location).

The length of the detention in the present case concededly
was not brief. However, this detention of less than one hour
was of materially shorter duration than the 90-minute deten-
tion at issue in Place. See also United States v. White, 42 F.3d
457, 460 (8th Cir. 1994) (80 minute wait for canine narcotics
unit was reasonable). Moreover, unlike the agents in Place,
the officers here were diligent in their investigation. Shortly
after Ardis informed the club’s patrons of the official decision
to detain the vehicles in the club’s parking lot, the sheriff
requested the assistance of the nearest canine narcotics unit.
In the context of this 55-minute detention, the absence of a
canine unit in Clarendon County does not weigh against a
finding that the investigation was diligent.

Based on these considerations, we conclude that the length
of time that McBride’s vehicle was detained was reasonable
given the officers’ diligence in pursuing their investigation.
We therefore hold that the district court did not err in denying
McBride’s motion to suppress the evidence found in the Cad-
illac SLS.

III.

McBride next challenges the district court’s decision admit-
ting the prior "bad act" evidence. He argues that the admis-
sion of testimony of events that occurred eighteen months
before the crimes charged, which showed his attempted man-
ufacture of crack cocaine and his willingness to sell crack
cocaine, violated Federal Rule of Evidence 404(b). We review
the admission of this evidence for abuse of discretion. United
States v. Hodge, 354 F.3d 305, 312 (4th Cir. 2004). Upon our
review, we hold that the evidence was improperly admitted.

At the time of McBride’s trial, Rule 404(b) provided, in rel-
evant part:
 UNITED STATES v. MCBRIDE 15
Other Crimes, Wrongs, or Acts.-Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in con-
formity therewith. It may, however, be admissible
for other purposes, such as proof of motive, opportu-
nity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident . . . .4

Fed. R. Evid. 404(b).

The purposeful exclusion of such prior "bad act" evidence
is not grounded in its irrelevance. Instead, the general inad-
missibility of such evidence is based on the danger that this
type of evidence will overly influence the finders of fact and
thereby persuade them "to prejudge one with a bad general
record and deny him a fair opportunity to defend against a
particular charge." Michelson v. United States, 335 U.S. 469,
475-76 (1948); United States v. Hernandez, 975 F.2d 1035,
1038 (4th Cir. 1992).

Although prior "bad act" evidence is inadmissible under
Rule 404(b) to demonstrate a defendant’s bad character, such
4
Although it is not germane to our analysis, we note that Rule 404(b)
was amended in December 2011 to read:
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the
character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence
may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident. On request by a defen-
dant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any
such evidence that the prosecutor intends to offer at trial; and
(B) do so before trial—or during trial if the court, for good
cause, excuses lack of pretrial notice.
16 UNITED STATES v. MCBRIDE
evidence is not always barred from the trial altogether. The
Rule itself provides a number of exceptions allowing for the
admission of prior "bad act" evidence, including evidence of
"proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, [and] absence of mistake or accident."
Fed. R. Evid. 404(b).

As our cases illustrate, a trial court’s analysis of these com-
peting considerations presents a continuing challenge. See
United States v. Johnson, 617 F.3d 286, 296 (4th Cir. 2010)
(comparing United States v. Mark, 943 F.2d 444, 448 (4th
Cir. 1991), which held that prior drug-transaction testimony
in a drug conspiracy case was admissible under Rule 404(b),
with Hernandez, 975 F.2d at 1040, which held that prior drug-
transaction testimony in a drug conspiracy case was inadmis-
sible under Rule 404(b)). Because the danger inherent in
admitting prior "bad act" evidence is that it will be considered
impermissibly as evidence of character, we have developed
certain criteria governing admission of this type of evidence.

We have provided a four-factor test for courts to consider
when determining the admissibility of prior "bad acts" evi-
dence:

(1) The evidence must be relevant to an issue, such
as an element of an offense, and must not be offered
to establish the general character of the defendant. In
this regard, the more similar the prior act is (in terms
of physical similarity or mental state) to the act
being proved, the more relevant it becomes. (2) The
act must be necessary in the sense that it is probative
of an essential claim or an element of the offense. (3)
The evidence must be reliable. And (4) the evi-
dence’s probative value must not be substantially
outweighed by confusion or unfair prejudice in the
sense that it tends to subordinate reason to emotion
in the factfinding process.
 UNITED STATES v. MCBRIDE 17
Johnson, 617 F.3d at 296-97 (quoting United States v. Queen,
132 F.3d 991, 997 (4th Cir. 1997)); see United States v.
Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988). In addition to
these four factors, we also have stated that other protection
against the misuse of prior "bad act" evidence is provided by
(1) the requirement that a criminal defendant receive prior
notice of the government’s intent to introduce such evidence,
and (2) the requirement of a limiting jury instruction explain-
ing the purpose for which the prior "bad act" evidence may be
considered. See Queen, 132 F.3d at 997.

We also note that not all prior "bad act" evidence is encom-
passed by Rule 404(b). Evidence of uncharged conduct aris-
ing out of the same series of transactions as the charged
offense, and evidence that "served to complete the story of the
crime on trial," do not qualify as evidence of "other crimes"
subject to scrutiny under Rule 404(b). United States v. Ken-
nedy, 32 F.3d 876, 886 (4th Cir. 1994).

In the present context, we first observe that the prior "bad
act" evidence at issue plainly falls within the realm of Rule
404(b). The events of January 14, 2008 did not arise out of the
same series of transactions as the events that transpired at the
club. Similarly, nothing that occurred at McBride’s residence
in January 2008 was necessary to "complete the story" of the
crimes alleged at the club. We turn, therefore, to consider the
four-factor test employed in Johnson and Queen.

We note that there is no question regarding the reliability
of the prior "bad act" evidence at issue here. The audio and
video materials are particularly accurate representations of the
past events and, thus, there can be no real concern that the
prior events were being recalled inaccurately or in a biased
fashion. Reliability, however, is but one of the four factors
that we consider.

The factors of relevance and necessity, as applied to the
challenged evidence, rest on far less firm ground. These two
18 UNITED STATES v. MCBRIDE
factors, which embody overlapping concerns, are often con-
sidered in tandem. See Johnson, 617 F.3d at 297; Hodge, 354
F.3d at 312; United States v. Bailey, 990 F.2d 119, 124 (4th
Cir. 1993).

For evidence to be relevant, it must be "sufficiently related
to the charged offense." Rawle, 845 F.2d at 1247 n.3 (citing
United States v. Shackleford, 738 F.2d 776, 779 (4th Cir.
1984)). The more closely that the prior act is related to the
charged conduct in time, pattern, or state of mind, the greater
the potential relevance of the prior act. See Johnson, 617 F.3d
at 297; see also United States v. Cabrera-Beltran, 660 F.3d
742, 755 (4th Cir. 2011) ("conduct charged in the indictment
was exceedingly similar" to prior act conduct (emphasis
added)). And, of particular import to this case, we have held
that the "fact that a defendant may have been involved in drug
activity in the past does not in and of itself provide a suffi-
cient nexus to the charged conduct where the prior activity is
not related in time, manner, place, or pattern of conduct."
Johnson, 617 F.3d at 297.

McBride was indicted for possession of cocaine with the
intent to distribute for events that occurred on August 12,
2009. The evidence provided by Blanding was unrelated in
time, place, pattern, or manner to the conduct for which
McBride was indicted. Certainly, the events of January 14,
2008 were not "exceedingly similar" to the events that tran-
spired at the club. The incident involving Blanding occurred
one and one-half years before the events at the club. While
this timeframe is not dispositive, such a significant passage of
time had the effect of attenuating any relevance that could be
afforded to the evidence.

We further observe that McBride was not charged in this
case with manufacturing crack cocaine, or even with posses-
sion with intent to distribute crack cocaine. Although this dif-
ference in type of narcotic, standing alone, would not merit
exclusion of the evidence, it is yet another distinction separat-
 UNITED STATES v. MCBRIDE 19
ing the events of January 14, 2008 from the events of August
12, 2009.

Additionally, the prior "bad acts" that occurred on January
14, 2008, involving McBride’s attempted manufacture of
crack cocaine and his expressed willingness to sell crack
cocaine, bear no discernible relationship to the charge of pos-
session of cocaine with the intent to distribute for which
McBride was on trial. The government was not attempting to
prove that the cocaine in McBride’s possession was to be used
for the manufacture of crack cocaine. The government also
failed to identify any connection between the location of the
January 14, 2008 transaction, McBride’s residence, and the
club where the activities occurred on August 12, 2009.

We note that, in other cases involving narcotics in which
we have upheld the admission of prior "bad act" evidence, we
have identified a linkage between the prior-act evidence and
the drug crimes charged in the indictment. Compare Rawle,
845 F.2d at 1245-46, 1248 (evidence of prior use of tractor
trailers to transport marijuana from southern states to north-
eastern states was sufficiently linked to charged conduct of
conspiracy to use tractor trailers to transport marijuana from
southern states to northeastern states), and Cabrera-Beltran,
660 F.3d at 755 ("same drugs were sold in similar quantities
and transported in a similar manner," once even using the
same vehicle), with Johnson, 617 F.3d at 298 (testimony held
inadmissible that defendant sold drugs five years before the
beginning of the conspiracy alleged in the indictment to per-
sons unrelated to the conspiracy), and Hernandez, 975 F.2d
at 1037-38, 1041 (testimony held inadmissible that six months
before the conduct alleged in Washington-area drug distribu-
tion conspiracy case, the defendant stated she "knew a special
recipe for cooking crack" because she used to "sell that in
New York").

The type of linkage supporting admission of such evidence
is notably absent in this case. Instead, the Blanding evidence
20 UNITED STATES v. MCBRIDE
is relevant primarily to establish McBride’s character as a
"drug dealer." This is the very type of evidence that the limi-
tation imposed by Rule 404(b) was designed to exclude. See
United States v. Sanders, 964 F.2d 295, 299 (4th Cir. 1992).

Similarly, the government’s argument regarding the "neces-
sity" for Blanding’s testimony is not persuasive. The govern-
ment correctly contends that McBride’s plea of not guilty
required that the prosecution prove beyond a reasonable doubt
each element of the crimes, including McBride’s intent. While
this statement of the law is accurate, it does not provide a gen-
eral license for the use of essentially unrelated prior "bad act"
evidence.

We have held that evidence is "necessary," for purposes of
establishing an exception under Rule 404(b), when that evi-
dence "is an essential part of the crimes on trial" or when that
evidence "furnishes part of the context of the crime." Rawle,
845 F.2d at 1247 n.4 (citations and quotation marks omitted).
Although a defendant’s plea of not guilty places at issue all
elements of the charged crimes, Bailey, 990 F.2d at 123, "this
does not throw open the door to any sort of other crimes evi-
dence." Id. (citing Hernandez, 975 F.2d at 1039-40).

Two of our prior decisions provide helpful examples show-
ing the type of connection required to find that the prior "bad
act" evidence is "necessary" to prove the crime for which a
defendant is on trial. In Rawle, the defendant was charged
with a violation of the Travel Act, 18 U.S.C. § 1952, in con-
nection with his participation in a marijuana importation con-
spiracy. 845 F.2d at 1245. We held that evidence of prior,
similar marijuana importation by the defendant was admissi-
ble, because this evidence was necessary to demonstrate "a
continuous course of conduct," an essential element of the
Travel Act. Id. at 1248.

Likewise, in United States v. Wells, the defendant was
charged with interference with Internal Revenue Service
 UNITED STATES v. MCBRIDE 21
agents. 163 F.3d 889, 892 (4th Cir. 1998). We held that evi-
dence of the defendant’s participation in a tobacco fraud and
tax evasion scheme several years earlier was admissible,
because this evidence provided context for the interference
charge. Id. at 896. The defendant’s attempt to evade convic-
tion for the prior crimes had led to the charge of interference.

In the present case, however, Blanding’s testimony failed
to serve a comparable role in McBride’s trial, and was not
"necessary" to establish McBride’s intent regarding the events
at the club. The events of January 14, 2008 did not provide
any context regarding the events of August 12, 2009, and
none of the charges against McBride required proof of ongo-
ing activity in order to secure a conviction. Additionally, the
government did not present a basis for concluding that Bland-
ing’s testimony was an essential part of the crimes on trial.
See Wells, 163 F.3d at 896.

Instead, the use of Blanding’s testimony more closely par-
allels the improper use of prior "bad act" evidence that we
considered in Hernandez and Johnson. In Hernandez, the
defendant was being tried for conspiracy to distribute and to
possess with intent to distribute cocaine. The district court
admitted prior "bad act" evidence showing that, more than six
months before the acts alleged in the indictment, the defen-
dant had told a person charged in an unrelated narcotics case
that she had learned in New York a recipe to increase the
quantity of crack cocaine while selling that drug there. Id. at
1037. Although the district court instructed the jury that it
should consider the testimony only as evidence of the defen-
dant’s intent, we nevertheless held that the evidence was
admitted improperly because it was not connected to the
cocaine the defendant was charged with conspiring to sell,
and the evidence served merely to depict the defendant as an
experienced drug dealer. Id. at 1041.

Similarly, in Johnson, a defendant was charged and con-
victed of conspiracy to possess with intent to distribute
22 UNITED STATES v. MCBRIDE
cocaine. At issue was the district court’s admission of prior
"bad act" evidence showing that five years earlier, a person
had purchased one kilogram of cocaine per week from the
defendant. 617 F.3d at 291. After this evidence was presented
in the government’s case in chief, the district court gave a
limiting instruction restricting the jury’s consideration of the
evidence. Id. at 297. We held that the district court improperly
admitted this evidence because it related to conduct that had
occurred almost five years before the events for which the
defendant was on trial and was not related, either directly or
indirectly, to the charged conspiracy. Id. at 298.

Like the evidence improperly admitted in Hernandez and
Johnson, the evidence before us was unrelated to the crimes
charged, and, thus, in no case could be considered "necessary"
to prove the element of McBride’s intent. Additionally,
because we determine that Blanding’s testimony was unre-
lated to the crimes for which McBride was being tried, and
thus was not probative of his intent with regard to the charged
offenses, we necessarily conclude under the fourth factor of
our test set forth in Johnson and Queen that admission of this
prior "bad act" evidence resulted in unfair prejudice and
potential for confusion. Blanding’s testimony labeled
McBride to the jury as a manufacturer and dealer of crack
cocaine, and this label was all the more prejudicial given that
McBride was not indicted for any crime involving either the
manufacture or distribution of crack cocaine.

Blanding’s testimony also had the effect of confusing the
issues. It is undisputed that neither crack cocaine nor the man-
ufacture of illegal drugs was in any way necessary to prove
the counts in the indictment. Thus, Blanding’s testimony did
not naturally fit in the context of the government’s case and,
in its attempt to lay the foundation for Blanding’s testimony,
the government had to range far afield from the issues rele-
vant to the case.

At the close of its direct examination of Ardis, the govern-
ment asked, "are you familiar or aware of how crack cocaine
 UNITED STATES v. MCBRIDE 23
is made?" This question was unrelated to the charges in the
indictment, and Ardis’ affirmative response and digression
discussing the manufacture, cost, and street value of crack
cocaine necessarily distracted the jury from its task of consid-
ering the evidence concerning the charges for which McBride
was on trial.

Accordingly, the present case is not a situation in which the
"bad act" evidence admitted against the defendant "was only
prejudicial because it was so highly probative." See Queen,
132 F.3d at 998. Rather, the evidence was inherently prejudi-
cial in the absence of any plausible probative value, and the
effect of the evidence, if not its purpose, was merely to brand
McBride before the jury as a manufacturer and distributor of
crack cocaine. We conclude, therefore, that the admission of
this prior "bad act" evidence was error.5

IV.

Having concluded that the prior "bad act" evidence was
improperly admitted against McBride, we must now address
the impact of that error on McBride’s trial. In cases of non-
constitutional error, the appropriate test of harmlessness in the
context of Rule 404(b) is whether we can say "with fair assur-
ance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not
substantially swayed by the error." United States v. Madden,
38 F.3d 747, 753 (4th Cir. 1994) (quoting Kotteakos v. United
States, 328 U.S. 750, 765 (1946)). In applying this test, we
have stated that the question is not simply "whether we
believe that irrespective of the error there was sufficient
5
This error was not cured by the issuance of a limiting instruction. A
jury instruction, while a required condition for the admission of any evi-
dence pursuant to Rule 404(b), does not necessarily rescue the use of oth-
erwise inadmissible evidence. See Johnson, 617 F.3d at 298. We conclude
that this is especially true in a case such as this, in which the prior "bad
act" testimony lacked plausible probative value.
24 UNITED STATES v. MCBRIDE
untainted evidence to convict but, more stringently, whether
we believe it highly probable that the error did not affect the
judgment." United States v. Ince, 21 F.3d 576, 583 (4th Cir.
1994) (citations and internal quotation marks omitted). See
also United States v. Ibisevic, ___ F.3d ___, ___, 2012 U.S.
App. LEXIS 5288, at *16-*17 (4th Cir. 2012).

We are unable to conclude in this case that it is highly
probable that the error did not affect the jury’s judgment. See
Ince, 21 F.3d at 583; Ibisevic, ___ F.3d at ___, 2012 U.S.
App. LEXIS 5288, at *17. If we were to set aside Blanding’s
testimony and Ardis’ related testimony (the Blanding evi-
dence), it is clear that the government presented sufficient evi-
dence from which a jury could have convicted McBride of the
crimes charged. However, we are not permitted to excise this
inadmissible evidence from our consideration. See Madden,
38 F.3d at 753. We must be mindful that the jury was pre-
sented testimony that effectively branded McBride as a "drug
manufacturer" and "crack cocaine dealer," based on events
completely unrelated to the offenses for which he was being
tried. The highly prejudicial nature of this testimony pre-
cludes us from concluding that it is highly probable that the
error did not affect the jury’s judgment regarding McBride’s
drug charges. Accordingly, we conclude that the district
court’s error in admitting the Blanding evidence cannot be
classified as harmless.

Because the admission of the Blanding evidence was not
harmless error, we now assess its impact on the individual
charges on which McBride was convicted. See Sanders, 964
F.2d at 299-300. Count 1 of the indictment charged McBride
with possession with intent to distribute cocaine. Count 3
charged him with use of a firearm in furtherance of a drug
trafficking crime. Both these counts required evidence of
McBride’s intended drug distribution to support a conviction.
Because his intended drug distribution was the very subject
corrupted by the Blanding evidence, the convictions with
regard to Counts 1 and 3 cannot stand.
 UNITED STATES v. MCBRIDE 25
We conclude, however, that the Blanding evidence did not
infect the remaining count on which McBride was convicted.
Evidence of McBride’s intended drug distribution was unre-
lated to Count 2, the charge of being a felon in possession of
a firearm. In fact, McBride stipulated that he was a convicted
felon, and his possession of a handgun was established with-
out dispute at the trial. Accordingly, we hold that McBride’s
conviction with respect to Count 2 is unaffected by our deter-
mination that the prior "bad act" evidence was improperly
admitted.

V.

We therefore affirm the district court’s order denying
McBride’s suppression motion. We affirm McBride’s convic-
tion with respect to Count 2 of the indictment, but vacate his
sentence. We reverse McBride’s convictions with respect to
Counts 1 and 3, and remand the case to the district court for
further proceedings consistent with this opinion.6

AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED

WILKINSON, Circuit Judge, concurring in part and dissent-
ing in part:

This ruling seeks to reorder the balance between trial and
appellate courts. The majority regrettably pulls the trial pro-
cess away from both the trial court and the jury, substituting
its own assessment of the relevance and weight of the defen-
dant’s prior criminal activity. By holding that the defendant’s
"expressed willingness to sell crack cocaine bear[s] no dis-
cernible relationship to the charge of possession of cocaine
with the intent to distribute," ante at 19, the majority departs
6
We have reviewed McBride’s remaining assignments of error and con-
clude that they have no merit.
26 UNITED STATES v. MCBRIDE
from established law in no fewer than five circuits spanning
more than thirty years.

Our sister circuits have wisely recognized that assessing
whether a defendant’s prior transactions in different narcotics
are relevant to the charged offenses is an intensely factual
question. They have wisely understood that the courts of
appeals owe significant deference first to the district court’s
discretion on whether the evidence should be admitted and
then to the jury’s determination about how much weight it
should receive. But appellant seems to think that circuit courts
are better suited to these tasks. I can find no error, and cer-
tainly not one that amounts to an abuse of discretion, in the
admission of Blanding’s testimony about prior narcotics
transactions with the defendant. I therefore respectfully dis-
sent from Parts III and IV of the majority opinion.*

I.

A.

Appellant’s position overlooks simply this: that institu-
tional relationships are to law what personal relationships are
to life. And keeping the relationship of trial and appellate
courts free of unwarranted encroachments is essential to the
harmonious workings of our system. It is thus an article of
faith that "[a] district court is accorded a wide discretion in
determining the admissibility of evidence under the Federal
Rules." United States v. Abel, 469 U.S. 45, 54 (1984). The
majority pays lip service to our deferential review of the dis-
trict court’s evidentiary rulings, see ante at 14, but fails to
show any actual regard for the reasoned rulings of the trial
judge in this case. This court has been clear that the trial
court’s "determination [of admissibility] will not be over-
turned except under the most extraordinary of circumstances."
United States v. Heyward, 729 F.2d 297, 301 n.2 (4th Cir.

*I am pleased to concur in Parts I and II of the opinion.
 UNITED STATES v. MCBRIDE 27
1984). Evidence of a defendant’s prior bad acts is no excep-
tion. We must "defer to a trial court’s Rule 404(b) balancing
unless it is an arbitrary or irrational exercise of discretion."
United States v. Greenwood, 796 F.2d 49, 53 (4th Cir. 1986).

This standard of review is not some mere trope to be
recited in the opening stanza of discussion and then quickly
forgotten. It exists to protect the different functions of the trial
and appellate courts. "Judgments of evidentiary relevance and
prejudice are fundamentally a matter of trial management."
United States v. Benkahla, 530 F.3d 300, 309 (4th Cir. 2008).
They are made quickly on the spot, by "[t]rial judges . . .
much closer to the pulse of the trial than [the court of appeals]
can ever be." United States v. Tindle, 808 F.2d 319, 327 n.6
(4th Cir. 1986). The district court was "immersed in these
proceedings . . . and has far more familiarity with the matter
than we do." United States v. Rosen, 557 F.3d 192, 200 (4th
Cir. 2009). Thus, even if the court of appeals believes that
"[i]t is far from certain that the [evidence] is relevant," or that
it concerns "a matter that could be proven by other means,"
we nevertheless "may not substitute our judgment for that of
the trial court." Id. at 199-200; see also United States v.
Boros, 668 F.3d 901, 907 (7th Cir. 2012) ("We will not sub-
stitute our opinion for that of the trial judge merely because
we may be inclined to rule differently on the question of rele-
vancy." (internal quotations omitted)).

The Supreme Court has been clear that even if a rule of evi-
dence provides more limitations on admissibility than the gen-
eral guidelines present in Rules 401 and 402, it is for the
district court to apply those standards. See Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 142-43 (1997) (discussing admission of
scientific evidence). In reviewing the district court’s applica-
tion of evidentiary standards, the Court has continually
admonished the courts of appeals against "applying an overly
stringent review to that ruling [that] fail[s] to give the trial
court the deference that is the hallmark of abuse-of-discretion
review." Id. at 143 This court has heeded this caution with
28 UNITED STATES v. MCBRIDE
respect to Rule 404(b), acknowledging that "Notwithstanding
the greater care required in admitting evidence of prior acts,
we still review a district court’s determinations of the admis-
sibility of evidence under Rule 404(b) for abuse of discretion,
as we do generally for evidentiary rulings." United States v.
Queen, 132 F.3d 991, 995 (4th Cir. 1997). "Because the rule
recognizes the admissibility of prior crimes, wrongs, or acts,
with only the one stated exception, it is understood to be a
rule of inclusion." Id. at 994.

B.

Applying the Queen test to the evidence in this case illus-
trates how small a spot the appellant has on which to stand.
As the majority properly acknowledges, there is no question
that the evidence here is reliable. In fact, there were video and
audio recordings of Blanding’s transaction with the defendant.
Nor does the different chemical form of the narcotics—crack
versus powder cocaine -– make the evidence unfairly prejudi-
cial. "‘[B]ad acts’ evidence, admissible under Rule 404, is not
barred by Rule 403 where such evidence did not involve con-
duct any more sensational or disturbing than the crimes with
which the defendant was charged." United States v. Byers,
649 F.3d 197, 210 (4th Cir. 2011). The district judge was
nonetheless acutely aware that Blanding’s testimony was not
to be received as general character evidence. He steered the
prosecution’s questioning away from prejudicial subjects and
restricted it to the relevant foundation for the evidence. See
J.A. 210-13. The judge also gave a careful limiting instruction
to the jury. The majority considers this to be of no moment,
even though we have been clear that "where the trial judge
has given a limiting instruction on the use of Rule 404(b), the
fear that the jury may improperly use the evidence subsides."
Queen, 132 F.3d at 997.

So my colleagues must perforce focus on the question of
the relevance or probative value of the evidence. But this is
the least defensible ground for reversing the district court.
 UNITED STATES v. MCBRIDE 29
Embodied in Rule 401, "relevance typically presents a low
barrier to admissibility." United States v. Leftenant, 341 F.3d
338, 346 (4th Cir. 2003). Moreover, assessing relevance is at
the heart of the district court’s trial management function. It
is for this reason that "[t]he rules of evidence give trial judges
broad discretion in evaluating whether evidence is probative,
requiring only a ‘plus value’ to make it admissible." Queen,
132 F.3d at 997 (quoting Wigmore on Evidence, § 29, at 976
(Tillers rev. 1983)).

Here, the majority questions whether the evidence is rele-
vant to proving McBride’s intent to possess and distribute the
narcotics seized. But this is a distinctly factual inquiry espe-
cially suited for the discretion of the district court, since "the
use for which intent evidence is offered . . . should be consid-
ered with meticulous regard to the facts of each case." United
States v. Hernandez, 975 F.2d 1035, 1040 (4th Cir. 1992).
Appellate judges are ill-equipped to make that determination
from the cold record, conditioned as we are to focus more on
analogies to precedent rather than on the particularities of fact
on which such questions turn. Because factual permutations
are virtually endless and trial courts by training are especially
sensitized to their variation, the Supreme Court has been
quick to recognize that "[d]istrict courts have an institutional
advantage over appellate courts in making these sorts of
determinations." Koon v. United States, 518 U.S. 81, 98
(1996). In particular, the district court "has full knowledge of
the facts and gains insights not conveyed by the record." Gall
v. United States, 552 U.S. 38, 51 (2007).

Indeed, this case presents a perfect illustration of matters to
which the trial court was attuned that nonetheless eluded
appellate review. In United States v. Hernandez, 975 F.2d
1035 (4th Cir. 1992), on which the majority heavily relies and
discusses at great length, evidence of the defendant’s prior
narcotics activity was less relevant because intent was not an
issue in the case. The court noted that "Hernandez offered as
her defense the contention that she had not sold the crack in
30 UNITED STATES v. MCBRIDE
question . . . . She did not testify that she had in some way
sold or handled the crack but without the requisite knowledge
or intent; nor did she testify that she had never touched crack
or did not know what it was." Id. at 1039. Here, by contrast,
the district court expressly found that the evidence was rele-
vant to proving McBride’s knowledge and intent:

In this case I find that since we’re dealing with a sit-
uation in the club, the defendant’s denying knowl-
edge of—or apparently wants to deny or will put up
evidence later to or not—knowledge of the drugs in
his vehicle, knowledge of the activity going on in the
club, all of this. Lack of knowledge, possible mis-
take, not-being-mine type evidence indicates that the
Government should be allowed to put up proof that
it was knowingly and intentionally possessed. J.A.
188.

As the district court recognized, the knowledge and intent
of McBride was central to the entire defense of his case. Inas-
much as Rule 404(b) explicitly recognizes disputed knowl-
edge and intent as grounds for admissibility, the district court
can hardly be faulted for its ruling here. The sort of factual
iterations noted by the district court make or break the case
for admissibility. They can be difficult for appellate judges to
divine, even though they may be second-nature to a seasoned
district judge whose familiarity with the case exceeds our
own. In this case, the district court proceeded conscientiously
through the same "four prong test" as the majority, J.A. 187,
and made a reasoned ruling on the record. I do not understand
how the majority can regard this painstaking inquiry as "an
arbitrary or irrational exercise of discretion." Greenwood, 796
F.2d at 53.

C.

In overturning the district court’s judgment, the majority
concludes that the evidence was irrelevant primarily because
 UNITED STATES v. MCBRIDE 31
the prior acts involved the manufacture and distribution of
crack cocaine rather than the possession of powder cocaine
with intent to distribute at issue in this case. But it is unclear
why this should make a difference. In requiring that prior bad
acts bear some resemblance to the crime at issue, we have
held that similarity may be demonstrated not only "through
physical similarity of the acts," Queen, 132 F.3d at 996, but
also "through the defendant’s indulging himself in the same
state of mind in the perpetration of both the extrinsic offense
and charged offenses." Id. It is irrelevant that the prior trans-
action involved the manufacture of narcotics for sale whereas
the instant offense was possession with intent to distribute.
This is not a distinction material to the requisite intent of the
defendant, such as when "[o]ne activity involves the personal
abuse of narcotics, the other the implementation of a commer-
cial activity for profit." United States v. Jenkins, 345 F.3d
928, 938 (6th Cir. 2003). If anything, evidence of prior drug
manufacturing is even more telling as to the defendant’s
knowledge and intent. Notwithstanding its disclaimer, see
ante at 19, the burden of the majority opinion is that the intent
to distribute narcotics varies substantially based on the partic-
ular preparation of the drug.

Our sister circuits have long expressly rejected this distinc-
tion. See United States v. Santiago, 566 F.3d 65, 72 (1st Cir.
2009) ("That the conviction was for powder cocaine (as the
jury was told) and some years before the present crack sale
lessened its weight, but the judge was still free to deem it
more probative than prejudicial."); United States v. Molina,
172 F.3d 1048, 1055 (8th Cir. 1999) ("The district court also
did not abuse its discretion by admitting evidence of the 1.4
grams of crack cocaine that was found in the bedroom Fraga
shared with Molina. Molina and Fraga were charged with dis-
tributing a mixture or substance containing powder cocaine.
Possession of crack, which is derived from cocaine powder,
is relevant to show the defendants’ knowledge of cocaine
based substances and further discredits Molina’s unwitting
bystander defense."); United States v. Hernandez, 84 F.3d
32 UNITED STATES v. MCBRIDE
931, 935 (7th Cir. 1996) ("Similarity is tougher, but given our
deferential standard of review, we concur in the district
court’s conclusion that the prior conviction was similar
enough for 404(b) purposes. Different drugs were involved,
but both incidents concerned distribution amounts of drugs.");
United States v. Hernandez, 896 F.2d 513, 522 (11th Cir.
1990) (The defendant’s prior narcotics activity was "distin-
guishable only in that the drug in the earlier conviction was
marijuana whereas this case involved cocaine. We do not
view this as a material distinction; the element of intent in the
extrinsic and charged offenses was the same."); United States
v. Batts, 573 F.2d 599, 603 (9th Cir. 1978) ("In this case the
[404(b)] evidence consisted of prior activity in drugs, albeit
a different drug. The connecting factor between the crime
charged here and the rebuttal evidence is the fact that the
crime here charges an intent to distribute (hashish) and the
rebuttal evidence discloses acts of negotiation leading up to
an act of distribution. Merely because the drugs involved are
different does not strip this conduct of its evidentiary value.").
The majority inexplicably departs from this weight of caselaw
locating the admission of this evidence well within the discre-
tion of the district court. I see no reason for us to diverge from
the sound approach of our fellow circuits, especially in this
case in which the district court’s exercise of its discretion was
so plainly reasonable.

II.

To the extent that the distinctions on which the majority
relies have any relevance, their "value or weight is [to be]
determined by the jury." Queen, 132 F.3d at 998. "Assessing
the probative value of [evidence] . . . is a matter . . . ulti-
mately, if the evidence is admitted, for the trier of fact." Abel,
469 U.S. at 54. It may be that the jury agreed with the majori-
ty’s view—we cannot know what, if any, weight it afforded
Blanding’s testimony—but the jury is to be the arbiter of such
questions, not the court of appeals. Indeed, even though the
jurors here both heard arguments from opposing counsel and
 UNITED STATES v. MCBRIDE 33
observed Blanding’s cross-examination on these issues, the
majority nevertheless supplants their judgment with its own.
This simply "betray[s] too much distrust of the ability of the
adversary process to reach just results when the evidence on
both sides is in." Benkahla, 530 F.3d at 310-11.

Sending this case back to the district court for a second
round diminishes the trial process. Retrials are like yester-
day’s breakfast—always stale and seldom satisfying. Wit-
nesses often try to remember what they said at the first trial
rather than their actual recollections of the events in question.
Everyone is farther removed from the events the trial process
is designed to reconstruct. "The very act of trying stale facts
may well, ironically, produce a second trial no more reliable
as a matter of getting at the truth than the first." Mackey v.
United States, 401 U.S. 667, 691 (1971) (Harlan, J., concur-
ring in part and dissenting in part).

It does more than merely inconvenience participants to put
them through the process twice. Retrials can be traumatic, and
criminal trials especially so, as witnesses are brought back for
a second time to relive troubling events. As for the jurors
here, it reduces to insignificance the time they spent in civic
duty listening to evidence and argument and weighing facts
whose accuracy is in no way questioned. The majority treads
no ground here that was not covered at trial, reviewed by the
district judge, and assessed by the jury in rendering a fair ver-
dict. I would let the verdict stand in full. The district court
applied proper legal standards, followed case law from ours
and other circuits, made a sound and considered evidentiary
inquiry, and admirably discharged its obligations throughout.
With all respect to my fine colleagues in the majority, the trial
court should be commended, not reversed.