United States v. Harvey ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4645
FRED JULIAN HARVEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-97-2)
Submitted: July 31, 1998
Decided: September 11, 1998
Before ERVIN, WILLIAMS, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Gregory J. Ramage, Raleigh, North Carolina, for Appellant. Janice
McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Jane J. Jackson, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Fred Julian Harvey was convicted of conspiracy to possess with
intent to distribute heroin, cocaine base, and cocaine, as well as two
substantive drug charges, in violation of 21 U.S.C.A. §§ 841(a)(1),
846 (West 1981 & Supp. 1998). Harvey appeals his convictions con-
tending that the district court erred in permitting witnesses to testify
about drug transactions with Harvey that significantly predated the
time period charged in the indictment. He contends that the evidence
was more prejudicial than probative and was remote in time. Finding
no error, we affirm.
A district court's decision to admit Fed. R. Evid. 404(b) evidence
is discretionary and should not be disturbed unless arbitrary and irra-
tional. See United States v. Greenwood, 796 F.2d 49, 53 (4th Cir.
1986). In this case, the court admitted testimony regarding Harvey's
prior conduct to illustrate the context of the crime, to show a common
plan, and to prove the absence of mistake or accident. The witnesses
testified to prior drug transactions they personally conducted with
Harvey. This testimony provided the relationships, prior behavior,
and motivations that formed the basis for the charged conduct. After
a careful review of the record, we find that the court's decision was
not an abuse of discretion. See United States v. Rhodes, 779 F.2d
1019, 1031 (4th Cir. 1985); United States v. Heyward, 729 F.2d 297,
301 n.2 (4th Cir. 1984); see also United States v. Simtob, 901 F.2d
799, 807-08 (9th Cir. 1990) (drug convictions over ten years old were
more probative than prejudicial regarding issue of predisposition).
It is within the trial court's discretion to balance the potential preju-
dice to a criminal defendant against the probative nature of any evi-
dence, including Rule 404(b) evidence. Fed. R. Evid. 403. In this
case, the court made reasonable efforts to limit any potential prejudice
by giving several limiting instructions informing the jury that they
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should not consider the prior offenses as evidence of the defendant's
propensity to commit the crimes charged. Accordingly, the evidence
was properly admitted.
We therefore affirm the judgment of the district court. We dispense
with oral argument, because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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