United States v. Privette , 358 F. App'x 398 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4115
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HENRY RAYFORD PRIVETTE, JR., a/k/a H.R. Privette, a/k/a Ray
Picard, d/b/a Carolina Furniture, Incorporated, d/b/a
carolinafurniture.com, d/b/a Henry Ray Furniture Export,
Incorporated, d/b/a Carolina Furniture Factory Direct from
High Point, NC, Incorporated, d/b/a Miller Burns
International Home Furnishings, Ltd.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (7:07-cr-00133-BO-1)
Submitted: December 7, 2009 Decided: December 22, 2009
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Henry Rayford Privette, Jr., appeals his convictions
for wire fraud, in violation of 18 U.S.C.A. § 1343 (West Supp.
2009). Privette argues that the district court abused its
discretion under Fed. R. Evid. 404(b) by allowing the government
to present evidence of Privette’s prior state charges. For the
reasons that follow, we affirm.
This court typically reviews evidentiary rulings for
abuse of discretion. United States v. Perkins, 470 F.3d 150,
155 (4th Cir. 2006). An abuse of discretion occurs only when
“the trial court acted arbitrarily or irrationally in admitting
evidence.” United States v. Williams, 445 F.3d 724, 732 (4th
Cir. 2006) (internal quotation marks and citation omitted).
Although not admissible to prove the defendant’s
character, evidence of other crimes may be admitted to prove
“motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Fed. R. Evid.
404(b). Rule 404(b) is an inclusionary rule, allowing evidence
of other crimes or acts to be admitted, except that which tends
to prove only criminal disposition. See United States v. Queen,
132 F.3d 991, 994-95 (4th Cir. 1997). For such 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
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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). Where the trial judge gives a
limiting instruction on the use of 404(b) evidence, the chance
that the jury will improperly use the evidence is reduced.
Queen, 132 F.3d at 997.
An element of wire fraud is the intent to defraud. 18
U.S.C.A. § 1343. The evidence that Privette had previously pled
nolo contendere to similar state charges, involving similar
facts, was relevant to his state of mind when making promises to
the victims. The district court did not abuse its discretion by
concluding the challenged evidence was relevant and necessary to
prove intent, reliable, and more probative than prejudicial.
Accordingly, because the evidence of Privette’s prior
state convictions was properly admitted, 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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