US v. Melvin Morton

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00401-RDB-4. Copies to all parties and the district court/agency. [998763700].. [10-5158]

Appeal: 10-5158

Document: 39

Date Filed: 01/12/2012

Page: 1 of 6

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5158

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MELVIN DEAN MORTON,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(1:08-cr-00401-RDB-4)

Submitted:

December 22, 2011

Decided:

January 12, 2012

Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Gary A. Ticknor, Elkridge, Maryland, for Appellant.
Rod J.
Rosenstein, United States Attorney, James G. Warwick, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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Document: 39

Date Filed: 01/12/2012

Page: 2 of 6

PER CURIAM:
Following

a

jury

trial,

Melvin

Dean

Morton

was

convicted of conspiracy to commit robbery, robbery, possession
of

a

firearm

in

furtherance

of

a

crime

of

possession of a firearm by a convicted felon.
to a total of 372 months’ imprisonment.

violence,

and

He was sentenced

The sole issue on

appeal is whether the district court erred in permitting the
Government to cross-examine Morton concerning his prior robbery
convictions.
A

We affirm.
district

court’s

for abuse of discretion.

evidentiary

rulings

are

reviewed

United States v. Byers, 649 F.3d 197,

206, 213 (4th Cir. 2011), cert. denied, __ S. Ct. __, 2011 WL
4344656 (U.S. Oct. 17, 2011) (No. 11-6371).
exercise

of

such

discretion

is

entitled

“A trial court’s
to

substantial

deference,” United States v. Myers, 589 F.3d 117, 123 (4th Cir.
2009) (internal quotation marks omitted), and will be upheld
unless the court “acts arbitrarily or irrationally, fails to
consider judicially recognized factors constraining its exercise
of discretion, relies on erroneous factual or legal premises, or
commits an error of law.”

United States v. Delfino, 510 F.3d

468, 470 (4th Cir. 2007).
Rule 404(b) of the Federal Rules of Evidence prohibits
the admission of “[e]vidence of other crimes, wrongs, or acts
. . . to prove the character of a person in order to show action
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Date Filed: 01/12/2012

Fed. R. Evid. 404(b). *

in conformity therewith.”
“the

prosecution

offenses

to

unlawful

acts

may

not

demonstrate
or

to

Page: 3 of 6

the

prove

introduce

evidence

defendant’s
that

the

Accordingly,
of

propensity

defendant

crime[s] with which he is presently charged.”

extrinsic
to

commit

committed

the

United States v.

Powers, 59 F.3d 1460, 1464 (4th Cir. 1995) (internal quotation
marks omitted).
be

admissible

Evidence of extrinsic offenses, “may, however,
for

other

purposes,

such

as

proof

of

motive,

opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.”
admission

of

such

evidence

Fed. R. Evid. 404(b).

requires

“reasonable

notice

The
in

advance of trial, or during trial if the court excuses pretrial
notice on good cause shown.”

Id.

Morton argues that the Government violated Rule 404(b)
by failing to provide adequate notice of its intent to admit
evidence of his prior convictions.
receipt

of

criminal

a

pre-plea

history

and

We conclude that Morton’s

investigation
Morton’s

report

pre-trial

detailing

motion

in

his

limine

regarding these convictions evidence sufficient actual notice.
See United States v. Basham, 561 F.3d 302, 327 n.12 (4th Cir.
2009)

(concluding

defendant

had

*

sufficient

notice

where

he

Rule 404(b) was amended, effective December 1, 2011.
Citations in this opinion to the Federal Rules of Evidence refer
to the rules in effect at the time of Morton’s trial.

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objected

to

Date Filed: 01/12/2012

admission

of

evidence

Page: 4 of 6

before

Government

reached

relevant line of questioning).
Next, Morton contends that the district court erred in
admitting evidence of his prior convictions because there was no
basis for doing so under Rule 404(b).

Morton argues that the

prior convictions could not be used to show intent because the
offenses occurred almost thirty years ago and that the minimal
probative value of his prior convictions was outweighed by their
immense prejudicial effect.

Morton also asserts none of the

other grounds for admission under Rule 404(b) is applicable.
Evidence of prior bad acts is admissible under Rule
404(b)

when

the

evidence

is

relevant,

necessary

to

prove

an

element of the offense, and reliable, and when the probative
value of the evidence is not substantially outweighed by unfair
prejudice.
1997).

United States v. Queen, 132 F.3d 991, 997 (4th Cir.

We conclude that Morton’s prior four convictions were

relevant to his state of mind in light of his duress defense
because

they

stemmed

from

robberies

that,

upon

cross-

examination, Morton admitted he committed voluntarily.

Queen,

132 F.3d at 996 (stating that earlier acts are probative if
“similar in nature to the charged acts”); see United States v.
Ceballos, 605 F.3d 468, 470 (8th Cir. 2010) (“Numerous courts
have found that 404(b) evidence may be admitted to refute a
duress

defense.”)

(internal

quotation
4

marks

omitted),

cert.

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Date Filed: 01/12/2012

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denied, 131 S. Ct. 437 (2010); United States v. King, 879 F.2d
137, 139 (4th Cir. 1989) (discussing duress defense).

Further,

the evidence of Morton’s prior convictions is reliable, and its
probative

value

prejudice.

is

not

Although

substantially

approximately

outweighed

thirty

years

by

unfair

have

passed

since Morton was convicted of committing the prior robberies,
those

convictions

are

similar

to

the

charged

offenses,

Morton spent much of the intervening time incarcerated.
United

States

v.

Kelly,

510

F.3d

433,

437

(4th

and
See

Cir.

2007)

(holding that conviction occurring twenty-two years prior was
admissible

because

similarities

between

charged

offense

and

prior crime were significant and lapse of time alone did not
render conviction inadmissible); Queen, 132 F.3d at 998 (finding
nine-year-old evidence of intent probative despite lapse of time
“particularly

when

the

defendant

has

spent

many

of

those

district

court

intervening nine years in prison”).
Finally,

Morton

contends

that

the

improperly admitted evidence of his prior convictions under Fed.
R. Evid. 609.

Because admission of this evidence was proper

under Rule 404(b), we need not reach this issue.
States

v.

Verduzco,

373

F.3d

1022,

1030

(9th

See United
Cir.

2004)

(declining to reach Rule 609 argument upon resolution of Rule
404(b)

argument

because

“[i]f

evidence

5

is

properly

admitted

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Date Filed: 01/12/2012

Page: 6 of 6

under one rule, then improper admission under the second rule is
harmless”).
Based on the foregoing, we affirm the judgment of the
district
facts

court.

and

materials

legal
before

We

dispense

with

oral

argument

contentions

are

adequately

the

and

argument

court

because

presented

would

not

the

in

the

aid

the

decisional process.
AFFIRMED

6