UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4492
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DANIEL DAVID,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:11-cr-00775-RBH-1)
Submitted: January 31, 2013 Decided: February 11, 2013
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Timothy W. Murphy, KOLB & MURPHY, LLC, Sumter, South Carolina,
for Appellant. William N. Nettles, United States Attorney,
William E. Day, II, Assistant United States Attorney, Lanny A.
Breuer, Assistant Attorney General, John D. Buretta, Deputy
Assistant Attorney General, Thomas E. Booth, DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel David was convicted of conspiracy to transport
and receive stolen goods in interstate commerce, 18 U.S.C.
§§ 371, 2314, 2315 (2006), and transporting in interstate
commerce stolen goods worth more than $5000, 18 U.S.C. § 2314.
The charges related to the theft of corn and soybean seeds,
chemicals, and a trailer from a Southern States store in
Bennettsville, South Carolina, and their transportation to North
Carolina. David was sentenced to forty-eight months on each
count, to run concurrently. He now appeals, claiming that the
admission of evidence of past crimes violated Fed. R. Evid.
404(b). We affirm.
I
At trial, one of David’s coconspirators, Willie Robert
Douglas, testified that he and David stole the seeds, chemicals,
and trailer on March 30, 2008, because David had a buyer in
North Carolina for the seeds. Douglas was not surprised when
David approached him about the plan because he and David had
previously stolen tractors in South Carolina and taken them to
North Carolina for sale. The district court interrupted
Douglas’ testimony and gave a limiting instruction concerning
the permissible use of “prior bad acts” testimony. Douglas then
identified photographs of the three tractors he and David had
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stolen. Douglas testified that he and David stored at least one
of the tractors at the residence of Howard Chavis in North
Carolina, then sold it to North Carolina resident Lynwood
Johnson.
The bulk of Douglas’ testimony addressed the Southern
States theft. Douglas testified that he and David drove around
in David’s Suburban, searching for a suitable place to rob.
After selecting the Southern States store, they broke through a
fence at the store, loaded the seed and chemicals on the
trailer, and left, with Douglas driving a pickup truck that
towed the trailer and David driving his Suburban. They drove to
the Chavis residence, where they left the stolen items. The
next day, David and Douglas drove Johnson to the Chavis property
so that Johnson could inspect the seeds, which he agreed to buy.
II
We review the admission of evidence for abuse of
discretion. United States v. Forrest, 429 F.3d 73, 79 (4th Cir.
2005).
“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.” Fed. R. Evid. 404(b). Such
evidence “may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan,
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knowledge, identity, or absence of mistake or accident.” Id.
Further, “[t]o be admissible under Rule 404(b), evidence must be
(1) relevant to an issue other than character; (2) necessary;
and (3) reliable.” United States v. Siegel, 536 F.3d 306, 317
(4th Cir. 2008) (internal quotation marks omitted). “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. Young, 248 F.3d 260,
271-72 (4th Cir. 2001) (internal quotation marks omitted). “As
a rule of inclusion, the rule’s list is not exhausting.” United
States v. Queen, 132 F.3d 991, 994-95 (4th Cir. 1997).
“Evidence sought to be admitted under Rule 404(b) must also
satisfy [Fed. R. Evid.] 403 . . . ,” Siegel, 536 F.3d at 319,
such that its probative value is not substantially outweighed by
its prejudicial value. Queen, 132 F.3d at 995.
We hold that evidence of the three tractor thefts was
properly admitted. Among other things, the evidence provided
context and background for the conspiracy, as the past dealings
among David, Johnson, and Douglas helped to explain why they
conspired to commit the Southern States robbery. See United
States v. Kennedy, 32 F.3d 876 (4th Cir. 1994) (holding that
Rule 404(b) does not restrict evidence of crimes that are
necessary to complete the story of the charged crime).
Additionally, in light of an alibi defense raised by David, the
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evidence was admissible under Rule 404(b) because it tended to
establish his identity as a conspirator.
Further, the evidence of the earlier thefts was not
unduly prejudicial. The majority of the testimony at trial
concerned the Southern States theft. Notably, the testimony of
Douglas — the United States’ chief witness — focused not on the
tractor thefts, but instead on the Southern States robbery.
Additionally, the jury is presumed to follow the judge’s
instructions, see United States v. Chong Lam, 677 F.3d 190, 204
(4th Cir. 2012), and the district court in this case gave an
appropriate limiting instruction concerning the role, if any,
that the earlier offenses should play in the jury’s
deliberations.
III
We therefore affirm. 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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