US v. Dermot D. Spence, No. 10-4884 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4884 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DERMOT D. SPENCE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:08-cr-00068-F-5) Submitted: May 27, 2011 Decided: June 10, 2011 Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. James Kousouros, LAW OFFICES OF JAMES KOUSOUROS, New York, New York, for Appellant. George E.B. Holding, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dermot D. Spence was convicted by a jury of conspiracy to distribute kilograms or §§ 841(a), and possess more 846 of with marijuana, (2006), and intent in to distribute violation distribution and of 21 100 U.S.C. possession with intent to distribute of 100 kilograms or more of marijuana and aiding and abetting, in violation of 18 U.S.C. § 2 (2006) and 21 U.S.C. § 841(a). Spence appeals his conviction, arguing that the district court abused its discretion by admitting under Fed. R. Evid. 404(b) the specific facts underlying Spence s arrest in Pennsylvania for possession of marijuana. 2004 We affirm. We review a district court s evidentiary rulings for abuse of discretion. United States v. Basham, 561 F.3d 302, 325 (4th Cir.), cert denied, 130 S. Ct. 3353 (2010). A district court abuses its discretion when its decision to admit evidence was arbitrary and irrational. 302, 313 (4th Cir. 2002). United States v. Weaver, 282 F.3d A district court s evidentiary rulings are subject to review for harmless error under Fed. R. Crim. P. 52. United States v. Abu Ali, 528 F.3d 210, 231 (4th Cir. 2008). Federal Rule of Evidence 404(b) provides that [e]vidence of other crimes . . . is not admissible to prove the character of a person in order to show action in conformity therewith. The evidence may, however, be admissible for other 2 purposes, such as proof of motive, intent, preparation, plan, or knowledge, if it is (1) relevant to an character, (2) necessary, and (3) reliable. 326. issue other than Basham, 561 F.3d at Rule 404(b) is an inclusive rule, admitting all evidence of other crimes or acts except that which tends to prove only criminal disposition. Id. (internal quotation marks omitted). Federal Rule of Evidence 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. The damage that probative evidence can inflict on a defendant s case is no basis for excluding the evidence, however; only when that evidence results in unfair prejudice, such as an appeal to the jury s emotion, and that prejudice substantially outweighs probative value of the evidence, must it be excluded. 561 F.3d at instruction, 327. any Where fear that the the jury jury is will given a the Basham, limiting improperly use the evidence subsides. United States v. Branch, 537 F.3d 328, 342 (4th Cir. 2009). Moreover, the introduction of inadmissible Fed. R. Evid. 404(b) evidence may be found harmless when it is clear beyond a reasonable doubt that a guilty verdict would have been returned notwithstanding the evidence s admission. United States v. McMillon, 14 F.3d 948, 955 (4th Cir. 1994). After thoroughly reviewing the record, we conclude that the district court did not abuse its discretion in admitting the challenged 3 evidence. court Moreover, even were we to conclude that the district erred, its limiting instruction, coupled with the persuasive evidence against Spence, rendered any error harmless. Accordingly, 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 4
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