Filed: Dec. 02, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4167 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. REMONE LEON ROBINSON, a/k/a Ramone Leon Robinson, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:08-cr-00020-RLV-DSC-1) Argued: September 23, 2011 Decided: December 2, 2011 Before KING, SHEDD, and FLOYD, Circuit Judges. Affirmed by unpublished per cu
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4167 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. REMONE LEON ROBINSON, a/k/a Ramone Leon Robinson, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:08-cr-00020-RLV-DSC-1) Argued: September 23, 2011 Decided: December 2, 2011 Before KING, SHEDD, and FLOYD, Circuit Judges. Affirmed by unpublished per cur..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4167
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
REMONE LEON ROBINSON, a/k/a Ramone Leon Robinson,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:08-cr-00020-RLV-DSC-1)
Argued: September 23, 2011 Decided: December 2, 2011
Before KING, SHEDD, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Elizabeth Anne Blackwood, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee. ON BRIEF: Claire J.
Rauscher, Director, Kevin A. Tate, Assistant Federal Defender,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After conducting a traffic stop, officers arrested Remone
Leon Robinson for driving without a license. They secured him
in the back of a patrol car and proceeded to search his vehicle.
The officers ultimately found crack cocaine in a compartment in
the driver’s seat. They also recovered a firearm in the road
along the route Robinson was driving. A jury convicted Robinson
of possession with intent to distribute crack cocaine, but
acquitted him of two firearm charges. At his sentencing
hearing, the district court upwardly departed on the ground that
Robinson’s criminal history category substantially
underrepresented his likelihood of committing other crimes.
Robinson appealed, raising four issues. He argues that the
district court erred in denying his motion to suppress, in
upwardly departing, in failing to make findings of fact or state
conclusions of law when denying his motion to suppress, and in
allowing the introduction of testimony about a prior arrest
during which the arresting officer recovered a firearm and drugs
on his person. We affirm.
I.
A.
In the early morning hours of May 2, 2003, Officers Richard
Lee Whitman and Patrick Lynn Clark were conducting a routine
2
property check at an apartment complex in Catawba County, North
Carolina. While standing next to their marked patrol cars, they
observed Robinson, who was driving a Cadillac, begin to pull
into the apartment complex’s parking lot. When Robinson’s
headlights shone upon the officers and their patrol cars, he
immediately swerved to leave the parking lot, almost striking
the curb. Based on his actions, the officers suspected he might
be impaired and decided to pursue him.
Officer Whitman drove to catch up with Robinson. At one
point, he estimated Robinson to have increased his speed to 65
mph in a 35 mph zone. As Officer Whitman followed Robinson, he
ran over a hard, metal-like object in the roadway. Eventually,
Officer Whitman caught up with Robinson and conducted a stop
with Officer Clark providing backup.
After Robinson stopped, Officer Whitman approached the
driver’s side and requested his license. Robinson responded
that he did not have one. Officer Whitman placed Robinson under
arrest for driving without a license, handcuffed him, and
secured him in the back of his patrol car. At that time,
Officer Whitman called another officer, Officer Mark Duncan, and
asked him to find the hard object he ran over in his car,
suspecting it might have been a firearm.
With Robinson secured in the back of the patrol car,
Officer Whitman returned to Robinson’s vehicle to conduct a
3
search incident to arrest. He searched all areas of the car to
determine if there was anything illegal in it. Although he
observed a digital scale sitting on the front passenger seat, he
found nothing illegal. At some point thereafter, Officer Duncan
notified Officer Whitman that he found a firearm in the road.
Officer Whitman called a canine officer to bring his drug-
sniffing dog. The canine officer walked the drug-sniffing dog
around the car, and the dog alerted to the backside of the
automobile on the driver’s side. The canine officer opened up
the driver’s door, and the dog alerted to the driver’s seat,
where Officer Whitman discovered a small compartment holding a
sandwich baggie that contained crack cocaine.
B.
On April 25, 2008, a grand jury returned a three-count
indictment, charging Robinson with possession with intent to
distribute at least five grams of crack cocaine, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(B), possession of a firearm in
furtherance of a drug-trafficking offense, in violation of 18
U.S.C. § 924(c), and possession of a firearm as a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). The case first
went to trial on November 17, 2008, but it ended in a mistrial
the next day.
4
Prior to his retrial, Robinson filed a motion to suppress.
In the motion, he argued the traffic stop was unlawful. He also
maintained that the officers’ warrantless search of his
automobile was illegal. The search-incident-to-arrest exception
to the warrant requirement was inapplicable, he urged, because
the officers had secured him in the back of the patrol car at
the time of the search. He requested an evidentiary hearing on
the motion. The following day, Robinson also filed a motion in
limine to preclude the government from introducing evidence of
prior bad acts.
Robinson’s second trial began on January 7, 2009. At
trial, he requested that the district court rule on his motion
to suppress. The district court summarily denied it without
conducting an evidentiary hearing or making findings of fact or
stating conclusions of law. Robinson’s attorney, however,
failed to object to the summary nature of the denial.
During the trial, the district court allowed the government
to present testimony from Officer Clark about his prior arrest
of Robinson, subject to a limiting instruction. Immediately
following the limiting instruction, Officer Clark testified
that, on March 10, 2000, he arrested Robinson pursuant to an
outstanding warrant. He stated that he recovered a firearm and
crack cocaine during a pat-down of Robinson. The crack cocaine,
he recounted, was in a little, clear plastic bag located in
5
Robinson’s pants pocket. He testified that Robinson pleaded
guilty to a gun charge, but that drug charges were never
brought.
On January 9, 2009, the jury returned a verdict convicting
Robinson of the possession with intent to distribute charge and
acquitting him of the two firearm offenses.
Robinson subsequently filed a motion for a new trial. He
based the motion on Arizona v. Gant, 129 S. Ct. 1710 (2009),
which the Supreme Court decided after Robinson’s conviction, but
prior to his sentencing hearing. Robinson contended that, in
light of Gant, the officers’ search of his automobile was
unlawful and unjustified under the search-incident-to-arrest
exception. The district court denied the motion in an eight-
page order.
C.
Robinson’s Presentence Investigation Report (PSR) reflected
a criminal history category of VI. Its calculation of
Robinson’s criminal history included convictions for felony
possession of cocaine stemming from offenses occurring on June
5, 2000, and September 16, 2000 (2000 offenses). The PSR also
provided an offense level of 26. The government objected to the
PSR’s lack of a two-level enhancement for possession of a
firearm in connection with a drug offense. The district court
6
agreed with the government and assigned the two-level
enhancement, making Robinson’s offense level 28. As a result,
Robinson’s Sentencing Guidelines range was 140 to 175 months of
imprisonment.
Prior to Robinson’s sentencing hearing, the government
filed a motion for an upward departure, asserting that
Robinson’s criminal history category substantially
underrepresented his criminal history. The government requested
that the district court sentence Robinson as a de facto career
criminal, which would assign him an offense level of 37. In the
alternative, it asked the district court to move incrementally,
level-by-level, to a higher offense level of 33 to reflect
accurately Robinson’s criminal history.
At Robinson’s sentencing hearing on January 25, 2010, the
district court allowed the government to present evidence in
support of its motion. This evidence included, among other
things, evidence of the conduct underlying Robinson’s prior
convictions for felony possession of cocaine arising out of his
2000 offenses. The government produced an officer who arrested
Robinson for those offenses. The officer recounted that the
amount of crack cocaine recovered from Robinson in both
instances was sufficient to charge him with possession with
intent to distribute. A probation officer also testified that
7
Robinson was originally charged with possession with intent to
sell and deliver for both offenses.
After hearing the evidence, the district court granted the
government’s motion for an upward departure. It concluded by a
preponderance of the evidence that, with respect to the 2000
offenses, Robinson’s conduct actually amounted to possession
with intent to sell and deliver, even though he was convicted of
only felony possession. As a result, the district court
expressed concern about Robinson’s likelihood of recidivism.
The district court noted that it could sentence Robinson as a de
facto career criminal, but, in the interest of justice, the
court opted instead to move incrementally, level-by-level, to
assign Robinson an offense level of 33. Thus, the district
court sentenced Robinson to 293 months of incarceration and 8
years of supervised release.
II.
Robinson’s first contention is that the district court
erred in denying his motion to suppress and motion for a new
trial based on Arizona v. Gant.
When reviewing a district court’s ruling on a motion to
suppress, we will not disturb its factual findings unless they
are in clear error. United States v. Massenburg, 654 F.3d 480,
485 (4th Cir. 2011). Our review of legal determinations,
8
however, is de novo. Id. Furthermore, we review a district
court’s denial of a motion for a new trial for abuse of
discretion. United States v. Robinson,
627 F.3d 941, 948 (4th
Cir. 2010).
Robinson maintains that the search of his vehicle was
unconstitutional in light of Arizona v. Gant. In Gant, the
Supreme Court held that “[p]olice may search a vehicle incident
to a recent occupant’s arrest only if the arrestee is within
reaching distance of the passenger compartment at the time of
the search or it is reasonable to believe the vehicle contains
evidence of the offense of arrest.” 129 S. Ct. at 1723.
Robinson notes that, because the officers had secured him in the
patrol car when they searched his vehicle, he was not within
reaching distance of the vehicle’s passenger compartment. He
also observes that the officers arrested him for driving without
a suspended license, so it was not reasonable for them to
believe that his vehicle contained evidence of the offense of
arrest. Thus, he insists, the warrantless search of his vehicle
was unconstitutional, and because the subsequently seized drugs
and digital scale were fruits of the illegal search, they must
be suppressed.
The Supreme Court’s recent decision in Davis v. United
States, 131 S. Ct. 2419 (2011), and our even more recent
decision in United States v. Wilks, 647 F.3d 520 (4th Cir.
9
2011), foreclose Robinson’s contentions. * In Davis, the Supreme
Court held that “searches conducted in objectively reasonable
reliance on binding appellate precedent are not subject to the
exclusionary rule.” 131 S. Ct. at 2423-24. It determined that
such searches fall within the good-faith exception to the
exclusionary rule.
Id. at 2434. Thus, the Court declined to
apply the exclusionary rule when an officer’s search incident to
arrest of an automobile complied with prevailing judicial
precedent at the time, but was subsequently deemed
unconstitutional by Gant.
Id. at 2425-26, 2434. Since Davis,
we have recognized that, prior to Gant, our precedent allowed
*
We note that the parties filed their briefs before the
Supreme Court decided Davis. After the Court issued its opinion
in Davis and we decided Wilks, we requested supplemental
briefing on the effect of those two opinions on this case. In
his supplemental brief, Robinson insists that the government
waived its ability to rely on these decisions by failing to
raise the good-faith exception at the district court and in its
opening brief. At the district court, however, the government
observed in its response to the motion for a new trial that
Officer Whitman’s search was based on the prevailing
interpretation of New York v. Belton, 453 U.S. 454 (1981), that
such searches were valid. Furthermore, in the government’s
opening brief, it made the point that Officer Whitman’s search
was based on binding precedent at the time and that the
enforcement of the exclusionary rule would serve no deterrent
purpose. Under these circumstances, we decline to find the
government waived its ability to rely on Davis and Wilks.
Furthermore, although the district court did not rely on the
good-faith exception in denying the motion to suppress, we note
that we may affirm the district court on any grounds apparent
from the record. See United States v. Smith,
395 F.3d 516, 519
(4th Cir. 2005).
10
officers to conduct a search incident to arrest of the passenger
compartments of an automobile even though its recent occupant
was detained in the patrol car at the time. Wilks, 647 F.3d at
522. We held that where an officer’s search incident to arrest
was lawful under that precedent at the time of the search, “per
Davis, the exclusionary rule does not apply.”
Id. at 524.
As in Wilks, there is no doubt that the officers’ search of
Robinson’s vehicle was a lawful search incident to arrest under
our precedent at the time. See United States v. Milton, 52 F.3d
78, 80 (4th Cir. 1995) (holding that an officer could conduct a
lawful search incident to arrest of the passenger compartments
of a vehicle even after its recent occupant had been arrested
and separated from the vehicle). The Supreme Court decided Gant
on April 21, 2009, almost six years after the search in
question. Because the officers conducted their search in
objectively reasonable reliance on binding appellate precedent
that was valid at the time, the exclusionary rule does not
apply. The district court, therefore, did not err in denying
the motion to suppress or abuse its discretion in denying the
motion for a new trial.
III.
Robinson asserts that the district court erred in granting
an upward departure based on its determination that his criminal
11
history category substantially underrepresented his criminal
history or the likelihood that he would commit other crimes.
Specifically, he challenges the district court’s consideration
of the conduct underlying his 2000 offenses in deciding to
depart upwardly.
Our review of a district court’s decision to depart
upwardly is limited to ensuring that it “acted reasonably both
with respect to its decision to impose such a sentence and with
respect to the extent of the divergence from the sentencing
range.” United States v. McNeill, 598 F.3d 161, 166 (4th Cir.
2010) (quoting United States v. Hernandez-Villanueva,
473 F.3d
118, 123 (4th Cir. 2007)) (internal quotation marks omitted),
aff’d on other grounds,
131 S. Ct. 2218 (2011). In assessing a
district court’s application of the Sentencing Guidelines, we
review its factual findings for clear error and legal
conclusions de novo. United States v. Hampton,
628 F.3d 654,
659 (4th Cir. 2010).
The Sentencing Guidelines allow for sentencing courts to
depart upwardly when “reliable information indicates that the
defendant’s criminal history category substantially under-
represents the seriousness of the defendant’s criminal history
or the likelihood that the defendant will commit other crimes.”
U.S.S.G. § 4A1.3(a)(1). District courts may upwardly depart
under § 4A1.3 even when the defendant already has a criminal
12
history category of VI. See id. § 4A1.3(a)(4)(B). In doing so,
they must “vertically traverse to successively higher offense
levels until [they] find[] a guideline range appropriate to the
case.”
McNeill, 598 F.3d at 166.
The United States Sentencing Commission drafted § 4A1.3(a)
“in classic catch-all terms for the unusual but serious
situation where the criminal history category does not
adequately reflect past criminal conduct or predict future
criminal behavior.” United States v. Lawrence, 349 F.3d 724,
730 (4th Cir. 2003). The Sentencing Guidelines elaborate that
“[t]he information described in [§ 4A1.3(a)] may include
information concerning the following” and proceed to set forth
five sources of information:
(A) Prior sentence(s) not used in computing the
criminal history category (e.g., sentences for foreign
and tribal offenses).
(B) Prior sentence(s) of substantially more than one
year imposed as a result of independent crimes
committed on different occasions.
(C) Prior similar misconduct established by a civil
adjudication or by a failure to comply with an
administrative order.
(D) Whether the defendant was pending trial or
sentencing on another charge at the time of the
instant offense.
(E) Prior similar adult criminal conduct not resulting
in a criminal conviction.
U.S.S.G. § 4A1.3(a)(2).
Robinson’s primary contention is that the district court’s
consideration of the conduct underlying his 2000 offenses was
13
improper because § 4A1.3(a)(2) does not allow for it. His
argument assumes that § 4A1.3(a)(2) provides an exhaustive list
of permissible bases for departing upwardly under § 4A1.3. Not
included in that list, he argues, are prior convictions where
the underlying conduct could have yielded a conviction for a
greater offense. Thus, he insists, it was improper for the
district court to consider that the conduct underlying his 2000
offenses actually amounted to possession with intent to sell and
deliver as opposed to felony possession, the lesser offense of
which he was convicted. He notes that § 4A1.3(a)(2)(E) allows
the district court to consider “[p]rior similar adult criminal
conduct not resulting in a criminal conviction,” but
distinguishes that provision on the basis that the 2000 offenses
resulted in convictions for felony possession.
Contrary to Robinson’s assumption, § 4A1.3(a)(2)’s list of
types of information courts can consider in upwardly departing
is not exhaustive; instead, it merely provides examples. See
U.S.S.G. § 1B1.1 cmt. 2 (“The term ‘includes’ is not
exhaustive . . . .”); United States v. Porter, 439 F.3d 845, 849
(8th Cir. 2006) (“The information which may be considered by a
district court when departing under § 4A1.3 is not limited to
those enumerated examples listed under § 4A1.3(a)(2).”); United
States v. McKenley,
895 F.2d 184, 186 (4th Cir. 1990) (noting
that the list provides a “broad, noninclusive range of
14
examples”). That list, therefore, did not bind the district
court in the types of information it could consider. The
district court was free to consider conduct underlying past
convictions in determining whether Robinson’s criminal history
category substantially underrepresented the seriousness of his
criminal history or the likelihood that he would commit other
crimes. See United States v. De Luna-Trujillo, 868 F.2d 122,
125 (5th Cir. 1989) (“‘[P]rior similar adult criminal conduct’
may indicate the seriousness of the past crimes and the
likelihood of future crimes whether or not it has resulted in
conviction.” (alteration in original)).
The information about the conduct underlying Robinson’s
2000 offenses provided the district court with a reasonable
basis for departing upwardly. The evidence demonstrated that
Robinson received lenient treatment for the offenses, which
indicated that the felony-possession convictions counted in his
criminal history category did not accurately reflect the
seriousness of the offenses. More importantly, however, the
information exposed the similarity between the conduct
underlying the 2000 offenses and the offense for which he was
being sentenced. The district court was sentencing Robinson for
his conviction of possession with intent to distribute crack
cocaine. By finding that Robinson had engaged in similar
conduct before—possession with intent to sell and deliver crack
15
cocaine—the district court reasonably found a likelihood that he
would engage in this conduct again. See id. (“The recidivist’s
relapse into the same criminal behavior . . . suggests an
increased likelihood that the offense will be repeated yet
again.”). Because Robinson’s criminal history category did not
reflect the similarity between the conduct underlying his 2000
offenses and the offense for which he was being sentenced, the
district court had a reasonable basis to depart upwardly to
ensure that it adequately represented the likelihood that he
would commit similar crimes in the future. See
id. (“While the
prior similar adult criminal conduct that has resulted in
conviction may have already been counted under section
4A1.2(e)(1) or (2) when computing the criminal-history category,
the similarity between the two offenses provides the district
court with additional reason to enhance the sentence under
section 4A1.3.”). Thus, § 4A1.3(a)(2) did not restrict the
district court in the type of information it could consider in
deciding whether to depart upwardly under § 4A1.3, and the
district court reasonably determined that the information
regarding the conduct underlying Robinson’s 2000 offenses
justified such an upward departure.
Robinson also suggests that the district court’s
consideration of the conduct underlying his 2000 offenses in
upwardly departing constitutes impermissible double counting.
16
He insists that the felony possession convictions resulting from
his 2000 offenses had already been counted in his criminal
history category and so it was improper to use them again as a
basis for upwardly departing.
The district court did not engage in double counting when
it departed upwardly based on the conduct underlying Robinson’s
2000 offenses, despite the fact that the resulting convictions
were counted in his criminal history category. “Double counting
occurs when a provision of the Guidelines is applied to increase
punishment on the basis of a consideration that has been
accounted for by application of another Guideline provision or
by application of a statute.” United States v. Reevey, 364 F.3d
151, 158 (4th Cir. 2004) (citing United States v. Rohwedder,
243
F.3d 423, 426-27 (8th Cir. 2001)). By definition, an upward
departure under § 4A1.3 is based on a finding that the
defendant’s criminal history category does not fully account for
the seriousness of the defendant’s criminal history or the
likelihood that he will commit further crimes. See U.S.S.G.
§ 4A1.3(a)(1); United States v. Dixon,
318 F.3d 585, 588-89 (4th
Cir. 2003) (“[B]y definition, this factor is not otherwise
accounted for in the criminal history calculation.”). The
district court decided that Robinson’s criminal history category
did not fully account for the likelihood that he would commit
other crimes because it did not consider the conduct underlying
17
his 2000 offenses, which was similar to the offense for which he
was being sentenced and for which he had received lenient
treatment. The district court upwardly departed to account
fully for this consideration. Because double counting occurs
only when a consideration has been fully accounted for in
another Sentencing Guidelines provision, Rohwedder, 243 F.3d at
426-27, the district court did not double count.
IV.
Robinson’s third argument is that the district court erred
by failing to hold an evidentiary hearing and make findings of
fact or conclusions of law when denying his motion to suppress.
Because Robinson failed to object to the district court’s
summary dismissal of his motion to suppress at trial, our review
is only for plain error. See United States v. McIver, 470 F.3d
550, 561 (4th Cir. 2006). To obtain relief under plain-error
review, he must demonstrate “(1) an error, (2) that is plain,
that not only (3) affects h[is] substantial rights, but also
(4) seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Brack,
651 F.3d 388, 392 (4th Cir. 2011). In the end, whether we
should correct a plain error is a matter left to our discretion.
United States v. Allen,
446 F.3d 522, 530 (4th Cir. 2006).
18
Federal Rule of Criminal Procedure 12(d) requires a
district court to “state its essential findings on the record”
when ruling on a pretrial motion that presents factual issues.
We have recognized “[w]hen material facts that affect the
resolution of a motion to suppress . . . are in conflict, the
appropriate way to resolve the conflict is by holding an
evidentiary hearing after which the district court will be in a
position to make findings.” United States v. Taylor, 13 F.3d
786, 789 (4th Cir. 1994). But even when a district court fails
to make explicit findings of fact, we assume it found all facts
in favor of the party who prevailed on the motion to suppress.
See United States v. Cardwell,
433 F.3d 378, 388 (4th Cir.
2005). Consequently, we will uphold the district court’s
decision on appeal “if any reasonable view of the evidence,
looked at in the light most favorable to the government, will
sustain the denial.” United States v. Bethea,
598 F.2d 331,
333-34 (4th Cir. 1979). Although the better practice is for
district courts to state conclusions of law, Rule 12 does not
require them. See Fed. R. Crim. P. 12.
Robinson is unable to demonstrate a plain error that
affects his substantial rights. A reasonable view of the
evidence in this case, when viewed in the light most favorable
to the government, sustains the district court’s denial of
Robinson’s motion to suppress. Officer Whitman’s observance of
19
Robinson speeding and his and Officer Clark’s witnessing
Robinson’s swerving in the parking lot provided the officers
with adequate justification to conduct a lawful traffic stop.
Furthermore, as we have described, even if the evidence obtained
from Robinson’s vehicle was the fruit of an illegal search, the
exclusionary rule would not apply to require its suppression.
Thus, Robinson is unable to demonstrate a plain error that
adversely affects his substantial rights.
V.
Robinson’s final contention is that the district court
erred in allowing Officer Clark to testify about recovering a
firearm and drugs during his prior arrest of Robinson.
Our review of a district court’s decision to admit evidence
of prior bad acts under Federal Rule of Evidence 404(b) is for
abuse of discretion. United States v. Penniegraft, 641 F.3d
566, 574 (4th Cir. 2011). We will not reverse a district court
for admitting evidence of prior bad acts under Rule 404(b)
unless we find the “decision to admit [the] evidence . . . was
arbitrary and irrational.” United States v. Byers,
649 F.3d
197, 206 (4th Cir. 2011) (quoting United States v. Weaver,
282
F.3d 302, 313 (4th Cir. 2002)) (internal quotation marks
omitted).
20
Evidence of prior bad acts is admissible to prove “motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Fed. R. Evid. 404(b). It is
inadmissible when offered “to prove the character of a person in
order to show action in conformity therewith.” Id. We have
recognized that “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.”
Penniegraft,
641 F.3d at 574.
We have established essentially a four-part test for
determining the admissibility of evidence of prior bad acts
under Rule 404(b). See id. The evidence “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,’” and (4) “the probative value of the evidence
must not be substantially outweighed by its prejudicial effect.”
Id. (quoting United States v. Hodge,
354 F.3d 305, 312 (4th Cir.
2004)). To satisfy the first prong and demonstrate the
evidence’s relevance to an issue other than general character,
we require a sufficient nexus to exist between the prior act and
the charged crime. United States v. Johnson,
617 F.3d 286, 297
(4th Cir. 2010). Generally, they should be “related in time,
manner, place, or pattern of conduct.”
Id.
21
We are satisfied that Officer Clark’s testimony was
relevant to an issue other than Robinson’s general character.
The testimony was relevant to show, at the very least, absence
of mistake, which Robinson made an important issue by defending
on the ground that other people drove the Cadillac and that he
did not know the drugs were in it. There was a sufficient nexus
in manner and pattern of conduct between the acts described in
Officer Clark’s testimony and Robinson’s charged offense to
demonstrate this relevance. Officer Clark testified that, when
he arrested Robinson in 2000, he recovered a plastic baggie
holding crack cocaine. Similarly, Officer Whitman also
recovered crack cocaine in a small sandwich baggie. This
similarity suggested the absence of mistake. We therefore
determine that Officer Clark’s testimony was relevant to an
issue other than Robinson’s general character.
We likewise are of the opinion that Officer Clark’s
testimony satisfies the other three factors for determining the
admissibility of evidence of prior bad acts. It was necessary
to prove intent. See United States v. Rooks, 596 F.3d 204, 211-
12 (4th Cir. 2010) (noting that the “necessary” prong does not
require the evidence to be critical to the government’s case,
but instead focuses on whether it was “probative of an essential
claim or an element of the offense” (quoting United States v.
Queen,
132 F.3d 991, 997 (4th Cir. 1997)) (internal quotation
22
marks omitted)). The evidence, which involved testimony from a
police officer with personal knowledge, was reliable. Finally,
the prejudicial effect of Officer Clark’s testimony did not
outweigh its probative value, “especially in light of the
[district] court’s limiting instruction to the jury.” Id. at
212; see also United States v. Powers,
59 F.3d 1460, 1467-68
(4th Cir. 1995) (recognizing that a limiting instruction will
“generally obviate any . . . prejudice”). Thus, the district
court did not abuse its discretion in admitting Officer Clark’s
testimony.
VI.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
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