United States v. Randal McLean

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4335
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RANDAL MCLEAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:10-cr-00373-GLR-1)
Argued: May 15, 2014 Decided: August 12, 2014
Before KING, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: William A. Mitchell, Jr., BRENNAN MCKENNA MANZI SHAY
LEVAN CHARTERED, Greenbelt, Maryland, for Appellant. John
Francis Purcell, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury sitting in the United States District Court for the
District of Maryland at Baltimore found Randal McLean guilty of
one count of possession with intent to distribute cocaine,
21 U.S.C. § 841(a), and not guilty of possession of ammunition
by a convicted felon, 18 U.S.C. § 922(g)(1). The district court
sentenced him to 120 months’ imprisonment, followed by three
years of supervised release. McLean then filed this timely
appeal. We have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742.
McLean presents two questions in this appeal. The first is
whether the district court committed reversible error in denying
his motion to suppress evidence that officers seized from him
while making a warrantless arrest. The second is whether the
district court committed reversible error in granting the
government’s motion to admit evidence of two of McLean’s prior
drug convictions. Not identifying any reversible error, we
affirm the judgment of the district court.
I.
A.
As the district court detailed in its oral ruling denying
McLean’s motion to suppress, Detective Stephen Mays, who had
been working with the Baltimore Police Department for
2
approximately eight years and is experienced in the field of
narcotics, received information on March 2, 2010, from a
confidential source that illegal narcotics were being stored in
a vacant house on the even-numbered side of the 2200 block of
Guilford Avenue and that someone was taking those narcotics in
and out of the house. The confidential source was an individual
who had been arrested for his alleged involvement in narcotics.
The district court determined that the source had not
established his reliability and that Mays did not promise him
anything in exchange for the information that he provided. The
district court stated, however, that it assumed that the source
was hoping to benefit by providing the information.
The next morning, at around 7:30 AM, which was consistent
with the time that the confidential source suggested that there
might be drug activity at the vacant house, Mays and his
partners went to the area and hid themselves on the third floor
of another vacant building nearby where they had—except for the
distance—“a relatively unimpeded view” of the rear door of 2204
Guilford Avenue. Mays had binoculars with him, which gave a
better—but not perfect—view of what was occurring. Although not
in the judge’s oral order, the record reveals that Officer Craig
Streett also participated in surveilling McLean on March 3,
2010.
3
At approximately 8:00 AM, the officers observed someone
later identified as McLean. He was wearing a gray sweatshirt,
blue jeans, and possibly a hat. McLean came from the right side
of the alley beside the house and entered the rear yard. He
appeared to use a key or in some other way unlock what appeared
to be a padlock—or some other mechanism—that was securing the
rear door of 2204 Guilford Avenue. He then entered the house
and exited after about thirty seconds. The district court found
this to be consistent with entering the house to retrieve
something. The officers next observed him secure the door and
then exit the yard while talking on his cell phone.
At about 9:00 AM, both Mays and Detective Adam Lattanzi saw
McLean enter the rear alley behind 2204 Guilford Avenue with
another individual. While the other individual remained in the
alley, McLean again used a key or in some other manner unlocked
the rear door, entered the house, remained just long enough to
retrieve something, exited, and locked the door. McLean then
approached the other individual in the alley and removed from
his shirt what Mays thought to be narcotics packaging and handed
it to the other individual.
McLean and the other individual moved along the left side
of the alley, and McLean motioned with his hand for someone to
come to him. Two other individuals came in from Guilford
4
Avenue, passed McLean, and approached the other individual who
was with McLean. After that, as stated by the district court,
Both Detective Mays, and to some extent Officer
Lattanzi, but particularly Detective Mays with the
binoculars, were able to observe approximately
simultaneous transactions, exchanges of what appeared
to be currency, bill form, from the two new
individuals, and in turn, they were given small
objects retrieved from the package that Mr. McLean had
given the other individual.
Mr. McLean walked out towards Guilford. All three
followed at some point shortly thereafter.
Based on these observations, the district court determined that
the officers had probable cause to arrest McLean in that,
considering the officers’ observations and experience, and based
on the totality of the circumstances, they reasonably believed
that McLean was involved in illegal narcotics transactions.
The officers located and arrested McLean without an arrest
warrant around 23rd Street and Barclay Street. While arresting
McLean, they found a key on him that fit the padlock on the back
door of 2204 Guilford Avenue.
When the officers entered the house to secure it, they
observed drugs in plain view. They then obtained two search
warrants. Although not in the district court’s oral order, from
the record we know that the two warrants were for the vacant
house at 2204 Guilford Avenue and McLean’s home, located at 313
E. 23rd Street. We also glean from the record that McLean’s
home was about a one-half block from where McLean was arrested
5
and just one block north of 2204 Guilford Avenue. Moreover, the
record reveals that during the police officers’ search of 2204
Guilford Avenue, they recovered drugs, ammunition, and drug
packaging materials. Officers also recovered drug packaging
materials from 313 E. 23rd Street.
B.
Before trial, the government filed a motion to admit
evidence under Federal Rule of Evidence 404(b) that McLean had
previously been convicted of three drug-law violations in the
same area as the one charged here. On April 22, 1999, he was
convicted of distribution and possession with intent to
distribute cocaine, arising from a July 1, 1998, arrest. Then,
on September 15, 2004, he was convicted of distribution of
heroin stemming from a January 19, 2004, arrest. And, on
September 15, 2005, McLean was convicted of distribution of
cocaine resulting from a February 13, 2004, arrest. The
government ultimately entered evidence of only the January 19,
2004, and February 13, 2004, arrests and subsequent convictions.
McLean raises two contentions to the evidence used against
him, which we address in turn below.
6
II.
First, McLean contends that the district court erred in
denying his motion to suppress evidence that the officers seized
from him while making a warrantless arrest. When we consider
the denial of a suppression motion, we review the district
court’s factual findings for clear error and its legal
determinations de novo. United States v. Kelly, 592 F.3d 586,
589 (4th Cir. 2010). Because we view the facts in the light
most favorable to the prevailing party, here we view the facts
in the light most favorable to the government. See United
States v. Black, 707 F.3d 531, 534 (4th Cir. 2013). “We
particularly defer to a district court’s credibility
determinations, for ‘it is the role of the district court to
observe witnesses and weigh their credibility during a pre-trial
motion to suppress.’” United States v. Abu Ali, 528 F.3d 210,
232 (4th Cir. 2008) (quoting United States v. Murray, 65 F.3d
1161, 1169 (4th Cir. 1995)).
“Under the Fourth Amendment, if supported by probable
cause, an officer may make a warrantless arrest of an individual
in a public place.” United States v. Humphries, 372 F.3d 653,
657 (4th Cir. 2004). “Probable cause” sufficient to justify an
arrest requires “facts and circumstances within the officer’s
knowledge that are sufficient to warrant a prudent person, or
one of reasonable caution, in believing, in the circumstances
7
shown, that the suspect has committed, is committing, or is
about to commit an offense.” Michigan v. DeFillippo, 443 U.S.
31, 37 (1979). Our review focuses on what evidence was
presented, not what evidence was not presented. United States
v. McCoy, 513 F.3d 405, 412 (4th Cir. 2008). When considering
the totality of the circumstances, it is proper to consider an
officer’s practical experience and the inferences the officer
may draw from that experience. Ornelas v. United States, 517
U.S. 690, 700 (1996). “[T]he probable-cause standard does not
require that the officer’s belief be more likely true than
false.” Humphries, 372 F.3d at 660.
“Probable cause is a flexible standard that simply requires
‘a reasonable ground for belief of guilt’ and ‘more than bare
suspicion.’” United States v. Ortiz, 669 F.3d 439, 444 (4th
Cir. 2012) (quoting Brinegar v. United States, 338 U.S. 160, 175
(1949)). “[T]he probable-cause standard is a practical,
nontechnical conception that deals with the factual and
practical considerations of everyday life on which reasonable
and prudent men, not legal technicians, act.” Maryland v.
Pringle, 540 U.S. 366, 370 (2003) (quoting Illinois v. Gates,
462 U.S. 213, 231 (1983)) (internal quotation marks omitted).
“[P]robable cause is a fluid concept—turning on the assessment
of probabilities in particular factual contexts—not readily, or
8
even usefully, reduced to a neat set of legal rules.” Gates,
462 U.S. at 232.
Here, McLean maintains that, although the officers may have
had reasonable suspicion to stop him, they did not have probable
cause to arrest him. The Supreme Court has “described
reasonable suspicion simply as ‘a particularized and objective
basis’ for suspecting the person stopped of criminal activity.”
Ornelas, 517 U.S. at 696 (quoting United States v. Cortez, 449
U.S. 411, 417–18 (1981)). Here, the officers did not merely
suspect McLean of criminal activity. Instead, based on their
experience and observations, as well as the inferences that they
could draw, they reasonably believed that he had committed a
crime.
As the district court held, and as detailed above, a
confidential source informed the officers that illegal drug
activity was taking place in the 2200 block of Guilford Avenue.
The next morning, they set up surveillance in the area and were
able to watch McLean with “a relatively unimpeded view,” as the
district court termed it, while he twice unlocked and entered
the rear door of 2204 Guilford Avenue just long enough to
retrieve something. The second time he did so, he retrieved
something that appeared to be drug packaging. He then handed
the package off to another person. After that, McLean signaled
two others to come to him. The person with the package and the
9
two individuals whom McLean had just motioned over to him had
hand-to-hand exchanges wherein the person with the package
handed the two individuals something from the package and they
handed to him bill currency. Based on the officers’ experience,
observations, and reasonable inferences that they could draw, we
think it was entirely reasonable for the officers to think that
McLean had committed a felonious drug crime. As such, the
district court was correct in concluding that McLean’s
warrantless arrest did not violate the Fourth Amendment.
Consequently, the district court was also correct in holding
that the evidence that the officers seized from McLean while
making the warrantless arrest should not be suppressed.
McLean’s attempt to compare and contrast this case with
other reasonable-suspicion and probable-cause cases is of no aid
to his appeal. “[T]he Supreme Court has observed that because
the reasonable-suspicion determination is such a multi-faceted,
fact-intensive inquiry, ‘one determination will seldom be a
useful precedent for another.’” McCoy, 513 F.3d at 412 n.4
(quoting Ornelas, 517 U.S. at 698). It follows that the same is
true in probable-cause cases. Having studied the cases that
McLean has asked us to consider, we conclude that they fail to
provide any useful precedent to support his argument. Thus, we
will not attempt here to distinguish them.
10
III.
A.
Next, McLean maintains that the district court committed
reversible error when it granted the government’s motion to
admit Rule 404(b) evidence of two of McLean’s prior felony drug-
distribution convictions. This is so, according to McLean,
because the prior bad acts occurred six years before the charged
conduct here, they were irrelevant and unnecessary to prove the
crime charged, they confused the jury, and they unfairly
prejudiced him. We review a district court’s determination of
the admissibility of evidence under Rule 404(b) for abuse of
discretion. United States v. McBride, 676 F.3d 385, 395 (4th
Cir. 2012).
“Rule 404(b) prohibits evidence of other crimes or bad acts
committed by the defendant if offered ‘solely to prove a
defendant’s bad character, but such evidence may be admissible
for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.’” United States v. Moore, 709 F.3d 287,
295 (4th Cir. 2013) (quoting United States v. Byers, 649 F.3d
197, 206 (4th Cir. 2011)) (internal quotation marks omitted).
“Rule 404(b) is a rule of inclusion, admitting all evidence of
other crimes or acts except that which tends to prove only
11
criminal disposition.” Id. (quoting Byers, 649 F.3d at 206)
(internal quotation marks omitted).
We have outlined a four-factor test that must be satisfied
before a court can properly admit prior bad acts evidence under
Rule 404(b):
(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 evidence’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. Queen, 132 F.3d 991, 997 (4th Cir. 1997). The
fourth factor underscores the requirement that all admitted
Rule 404(b) evidence must satisfy Rule 403. United States v.
Williams, 740 F.3d 308, 314 (4th Cir. 2014).
B.
As is relevant here, police arrested McLean on January 19,
2004, for selling four gel caps of heroin to undercover police
officer Christopher Talley in the area of Barclay Street and
20th Street, two blocks from the 2200 block of Guilford Avenue.
They also obtained a total of sixty-six additional gel caps of
heroin and seventeen vials of cocaine stashed nearby. As a
12
result, on September 15, 2004, McLean was convicted of
distribution of heroin. Police also arrested McLean on February
13, 2004, for selling two black top vials of cocaine in the area
of the 2100 block of Barclay Street, which is approximately two
blocks from the 2200 block of Guilford Avenue. They found six
additional black top vials of cocaine and $427 in McLean’s right
shirt pocket. Consequently, on September 15, 2005, McLean was
convicted of distribution of cocaine.
C.
McLean contests that the Rule 404(b) evidence failed to
meet the first, second, and fourth requirements for admission of
the Rule 404(b) evidence as set forth in Queen. He does not
dispute that it meets the third factor.
1.
McLean argues that the Rule 404(b) evidence admitted in his
case was not relevant. As to this factor, he asserts that both
of the incidents occurred more than six years before the instant
conduct. He also states that the January 19, 2004, arrest
concerned a direct sale of heroin—not cocaine, as is the case
here—to an undercover police officer, and that the February 13,
2004, arrest involved a direct sale of cocaine to an undercover
officer.
13
“For evidence to be relevant, it must be ‘sufficiently
related to the charged offense.’” McBride, 676 F.3d at 397(quoting United States v. Rawle, 845 F.2d 1244, 1247 n.3 (4th
Cir. 1988)). “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.” Id. We have
also held that geographic proximity is a proper consideration in
determining the relevance of Rule 404(b) evidence. See Byers,
649 F.3d at 208.
Of course, the “fact that a defendant may have been
involved in drug activity in the past does not in and of itself
provide a sufficient nexus to the charged conduct where the
prior activity is not related in time, manner, place, or pattern
of conduct.” McBride, 676 F.3d at 397 (quoting United States v.
Johnson, 617 F.3d 286, 297 (4th Cir. 2010)) (internal quotation
marks omitted). “[E]vidence, to be relevant, ‘need only to have
any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.’” Byers,
649 F.3d at 208 (quoting United States v. Aramony, 88 F.3d 1369,
1377 (4th Cir. 1996)). According to the district court, “There
are sufficient similarities between [the two prior drug
offenses] as well as the present instance to establish that the
evidence is relevant.” We agree.
14
First, the January 19, 2004, arrest involved a stash
location, as did the instant offense. Thus, this fact goes to
the manner of McLean’s criminal conduct. Second, the
January 19, 2004, drug charge was for the sale of four gel caps
of heroin, and the February 13, 2004, drug charge involved black
top vials of cocaine. Although the drugs in the January 19,
2004, arrest were different than those for the instant arrest,
“the relevance of the evidence ‘derives from the defendant’s
having possessed the same state of mind in the commission of
both the extrinsic act and the charged offense.’” United States
v. Mark, 943 F.2d 444, 448 (4th Cir. 1991) (quoting United
States v. Dothard, 666 F.2d 498, 502 (11th Cir. 1982)). The
Rule 404(b) evidence is relevant here on the same basis: the
state-of-mind requirement, which includes both the knowledge and
intent components, is the same for both of the prior drug
convictions and the drug charge here. Stated differently,
evidence that McLean previously had the state of mind—the
knowledge and intent—to distribute illegal drugs is probative
and thus relevant to whether he had the knowledge and intent to
commit the crime charged here. And third, both of the prior
drug transactions occurred within approximately two blocks of
2204 Guilford Avenue such that they were in close geographic
proximity to the crime charged here.
15
It is true that the two prior drug acts were not closely
related in time to the crime charged here. But that is just one
consideration. Nevertheless, although the prior drug crimes
were not closely related in time, in this instance, evidence of
the prior drug convictions six years earlier did help
demonstrate a fourth reason that we find the Rule 404(b)
evidence relevant: a pattern of drug trafficking activity in the
same general area over an extended period of time. Thus,
because the prior acts are closely related to the charged
conduct in regards to manner, state of mind, place, and pattern,
we conclude that the Rule 404(b) evidence is relevant.
2.
McLean also maintains that the Rule 404(b) evidence
admitted against him at trial was unnecessary. “We have held
that evidence is ‘necessary,’ for purposes of establishing an
exception under Rule 404(b), when that evidence ‘is an essential
part of the crimes on trial’ or when that evidence ‘furnishes
part of the context of the crime.’” McBride, 676 F.3d at 398(quoting Rawle, 845 F.2d at 1247 n.4). “Although a defendant’s
plea of not guilty places at issue all elements of the charged
crimes, ‘this does not throw open the door to any sort of other
crimes evidence.’” Id. (citation omitted) (quoting United
States v. Bailey, 990 F.2d 119, 123 (4th Cir. 1993)). Here,
16
McLean placed the elements of knowledge and intent in play with
his plea of not guilty. See Mark, 943 F.2d at 448.
“Significantly,” however, “courts must determine whether
prior bad acts evidence is ‘necessary’ under Rule 404(b) in
‘light of other evidence available to the government.’” Byers,
649 F.3d at 209 (quoting Queen, 132 F.3d at 998). It follows,
then, that the necessity for the Rule 404(b) evidence to
establish an issue decreases as non-Rule 404(b) evidence to
establish that issue increases. Id. “[I]f the Rule 404(b)
evidence is entirely cumulative to other non-Rule 404(b)
evidence available to the government, the Rule 404(b) evidence
may not meet the necessity prong.” United States v. Lighty, 616
F.3d 321, 354 (4th Cir. 2010).
The core of McLean’s defense strategy was that the officers
had arrested the wrong person. As such, the district court held
that the Rule 404(b) evidence was necessary to establish
McLean’s identity. The district court held that the evidence
was also necessary to demonstrate McLean’s knowledge and intent
to commit the charged crime.
In his mistaken-identity claim, McLean made much of the
fact that the confidential source who first told the officers
about the drugs that were stored and transported from a vacant
house in the 2200 block of Guilford Avenue failed to give a
17
description of the person or persons who allegedly were dealing
the drugs:
Defense
Counsel: So there was no description of the
particular physical description of the
person or persons? There was no
description of complexion or build or
height or weight?
Mays: No.
McLean also challenged Mays’s recollection of what type of
sweatshirt the person entering the house was wearing, whether
Mays saw the person unlock the back door of the house with a
key, whether the person was using a cellphone, and whether the
object that the person passed to the other individual was
actually drugs.
So first, evidence of the prior bad acts was necessary to
establish that the officers had not arrested the wrong person.
By asserting his mistaken-identity claim, McLean made it
necessary for the government to introduce evidence of his prior
drug convictions, which, as described above, were closely
related to the charged conduct in regards to manner, state of
mind, place, and pattern. Because of these similarities, the
government employed this evidence to help demonstrate that it
was McLean, and not someone else, whom Mays and his partners
observed engaging in illegal drug transactions on the morning of
March 3, 2010. And second, the Rule 404(b) evidence was
18
necessary to help establish McLean’s knowledge and intent.
Having called into question his identity as the person who was
dealing drugs from 2204 Guilford Avenue, McLean effectively
challenged the government’s assertion that he had the requisite
knowledge and intent to commit the crime. Thus, he cannot now
be heard to argue that the government’s evidence of his prior
two drug convictions, which go to knowledge and intent, were
unnecessary.
Although the government presented other evidence to support
McLean’s conviction, its other evidence was not such that it
made the Rule 404(b) evidence unnecessary.
3.
Finally, McLean contends that the admission of the Rule
404(b) evidence that he had twice been convicted of drug
distribution charges was unfairly prejudicial to him, thereby
contravening Rule 403. And, as such, according to McLean, the
district court abused its discretion by admitting it.
We have long held, however, that we will not disturb the
district court’s decision whether to admit evidence under
Rule 403 “except under ‘the most extraordinary of
circumstances,’ where that discretion has been plainly abused.”
United States v. Simpson, 910 F.2d 154, 157 (4th Cir. 1990)
(quoting United States v. Heyward, 729 F.2d 297, 301 n.2 (4th
19
Cir. 1984) (internal quotation marks omitted)). “Such an abuse
occurs only when it can be said that the trial court acted
‘arbitrarily’ or ‘irrationally in admitting evidence.” Id.(quoting Garraghty v. Johnson, 830 F.2d 1295, 1298 (4th Cir.
1987); United States v. Masters, 622 F.2d 83, 88 (4th Cir.
1980)).
“[W]e are reluctant to question a trial court’s judgment
under Rule 403, and for good reason. Trial judges are much
closer to the pulse of a trial than we can ever be and broad
discretion is necessarily accorded them.” Id. (first alteration
omitted) (brackets omitted) (internal quotation marks omitted).
“Nonetheless, when, after review of the record, we are left with
a firm conviction that an abuse of discretion has occurred that
has worked to the prejudice of a defendant, we must reverse.”
Id. “Of course, in one sense all incriminating evidence is
inherently prejudicial. ‘The proper question under Rule 404(b),
however, is whether such evidence has the potential to cause
undue prejudice, and if so, whether the danger of such undue
prejudice substantially outweighs its probative value.’” United
States v. Boyd, 53 F.3d 631, 637 (4th Cir. 1995) (quoting Mark,
943 F.2d at 449).
“A criminal defendant . . . cannot deny knowledge of drug
trafficking or an intent to traffic in drugs and at the same
time preclude the admission of the government’s evidence of
20
prior occasions when he willingly trafficked in drugs.” Sparks
v. Gilley Trucking Co., 992 F.2d 50, 52 (4th Cir. 1993).
“[W]hen intent to commit an act is an element of a crime, prior
activity showing a willingness to commit that act may be
probative.” Id.As observed above, police arrested McLean on January 19,
2004, for selling four gel caps of heroin to an undercover
police officer. They also recovered sixty-six additional gel
caps of heroin and seventeen vials of cocaine nearby. Police
also arrested McLean on February 13, 2004, for selling two black
top vials of cocaine and found six additional black top vials of
cocaine in McLean’s shirt pocket. But evidence presented at
trial showed that the amount of drugs involved in this case was
substantially more than the amounts for which he had been
previously charged. Here, he was also charged here with
possession of ammunition. Consequently, the scales tip in favor
of admitting the Rule 404(b) evidence inasmuch as the evidence
of McLean’s previous sales of lesser amounts of drugs were not
any more “sensational or disturbing,” Boyd, 53 F.3d at 637, than
what he was charged with here.
D.
To ameliorate any prejudice that might be visited upon a
defendant with the admission of Rule 404(b) prior bad act
21
evidence, two additional safeguards are available when
requested: (1) a limiting jury instruction that explains the
reason for admitting prior bad acts evidence and (2) a
requirement that the government, in a criminal case, must
provide advance notice that it intends to introduce Rule 404(b)
evidence. Queen, 132 F.3d at 997. “When Rule 404(b) is
administered according to these rules, it will not, we believe,
be applied to convict a defendant on the basis of bad character,
or to convict him for prior acts, or to try him by ambush.” Id.Instead, it permits “the admission of evidence about similar
prior acts that are probative of elements of the offense in
trial.” Id.Both safeguards are present here. First, just after the
detectives testified regarding McLean’s two prior drug
convictions, the district court gave the following limiting
instruction to the jury:
Ladies and gentlemen, you’ve just heard evidence that
the government has offered, testimony of three
witnesses. Specifically, Detective Collins, Sergeant
Talley, as well as Sergeant Rutkowski, I believe I’m
pronouncing it improperly. [The evidence is]
[i]ntended to show on a different occasion the
defendant engaged in conduct similar to the charges in
the indictment.
In that connection, let me remind you that the
defendant is not on trial for committing those prior
acts not alleged in the indictment. Accordingly, you
may not consider this evidence of the similar acts as
a substitute for proof that the defendant committed
the crime charged.
22
Nor may you consider the evidence as proof that the
defendant has bad character. The evidence of the other
similar acts was admitted for a much more limited
purpose, and you may consider it only for that limited
purpose.
If you find that the defendant did engage in that
other conduct, and if you find that other conduct has
sufficiently similar characteristics to that charged
in the indictment, then you may but you need not infer
that the defendant was the person who committed the
act charged in the relevant counts of the indictment.
That is, you may consider the prior act evidence as
evidence of identity.
Although not contained in the Joint Appendix, the government
asserts that the district court gave a similar admonition during
its closing instructions to the jury. McLean does not contest
otherwise.
And second, McLean was made aware in advance that the
government intended to introduce Rule 404(b) in its case against
him with its January 11, 2012, filing of its motion to admit
Rule 404(b) evidence. Thus, we conclude that evidence of
McLean’s two prior drug convictions was not used to convict
McLean “on the basis of bad character, or to convict him for
prior acts, or to try him by ambush.” Queen, 132 F.3d at 997.
As such, the district court did not err in granting the
government’s motion to admit evidence of two of McLean’s prior
drug convictions.
23
E.
McLean’s reliance on other cases from this Court to support
his argument that the district court erred in admitting the Rule
404(b) evidence is unavailing. This Court has held that
admission of Rule 404(b) evidence “should be considered with
meticulous regard to the facts of each case.” United States v.
Hernandez, 975 F.2d 1035, 1040 (4th Cir. 1992) (quoting United
States v. Baldivid, 465 F.2d 1277, 1290 (4th Cir. 1972)
(Sobeloff, J., concurring in part and dissenting in part)).
Simply stated, none of the cases cited by McLean present the
same factual scenario as what we are confronted with here. On
the facts of this case, the district court did not err in
admitting the Rule 404(b) evidence.
IV.
For these reasons, we find no reversible error and thus
affirm the judgment of the district court.
AFFIRMED
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