US v. Randal McLean

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cr-00373-GLR-1 Copies to all parties and the district court/agency. [999413698].. [13-4335]

Appeal: 13-4335

Doc: 43

Filed: 08/12/2014

Pg: 1 of 24

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

Appeal: 13-4335

Doc: 43

Filed: 08/12/2014

Pg: 2 of 24

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

appeal.

supervised
We

have

release.

McLean

jurisdiction

under

then
28

filed
U.S.C.

this
§

timely

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.
district

court

committed

The second is whether the

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
2

Police

Department

for

Appeal: 13-4335

Doc: 43

Filed: 08/12/2014

Pg: 3 of 24

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

2010.

3

McLean

on

March

3,

Appeal: 13-4335

Doc: 43

At

Filed: 08/12/2014

approximately

8:00

Pg: 4 of 24

AM,

later identified as McLean.

the

officers

observed

someone

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
rear door of 2204 Guilford Avenue.

He then entered the house

and exited after about thirty seconds.
this

to

be

something.

consistent

with

was securing the

entering

The district court found
the

house

to

retrieve

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

4

came

in

from

Guilford

Appeal: 13-4335

Doc: 43

Filed: 08/12/2014

Pg: 5 of 24

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.
followed at some point shortly thereafter.

All three

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

observed drugs in plain view.
warrants.

house

to

secure

it,

they

They then obtained two search

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

Appeal: 13-4335

Doc: 43

Filed: 08/12/2014

Pg: 6 of 24

and just one block north of 2204 Guilford Avenue.

Moreover, the

record reveals that during the police officers’ search of 2204
Guilford

Avenue,

packaging

they

recovered

materials.

Officers

drugs,
also

ammunition,

recovered

drug

and

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.
convicted

of

distribution

and

On April 22, 1999, he was

possession

with

intent

distribute cocaine, arising from a July 1, 1998, arrest.
on

September

heroin

stemming

September
cocaine

15,

15,

2004,
from

2005,

resulting

a

he

January

McLean

from

was

a

was

convicted
19,

2004,

convicted

February

of

13,

of
2004,

Then,

distribution

arrest.

to

of

And,

on

distribution

of

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

Appeal: 13-4335

Doc: 43

Filed: 08/12/2014

Pg: 7 of 24

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.
the

denial

court’s

of

a

factual

suppression
findings

determinations de novo.
589 (4th Cir. 2010).

motion,

for

we

clear

When we consider

review

error

the

and

district

its

legal

United States v. Kelly, 592 F.3d 586,
Because we view the facts in the light

most favorable to the prevailing party, here we view the facts
in

the

States

light
v.

most

Black,

particularly

favorable
707

defer

F.3d
to

to
531,

a

the

government.

534

district

(4th

Cir.

court’s

See
2013).

United
“We

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

Appeal: 13-4335

shown,

Doc: 43

that

Filed: 08/12/2014

the

suspect

has

committed,

about to commit an offense.”
31,

37

(1979).

Our

Pg: 8 of 24

is

committing,

or

is

Michigan v. DeFillippo, 443 U.S.

review

focuses

on

what

presented, not what evidence was not presented.
v. McCoy, 513 F.3d 405, 412 (4th Cir. 2008).

evidence

was

United States

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.
U.S. 690, 700 (1996).
the

Ornelas v. United States, 517

“[T]he probable-cause standard does not

require

that

officer’s

belief

false.”

be

more

likely

true

than

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)).
nontechnical

“[T]he

probable-cause

conception

that

standard

deals

with

is
the

a

practical,

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

Appeal: 13-4335

Doc: 43

Filed: 08/12/2014

Pg: 9 of 24

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

confidential

district
source

court

held,

informed

the

and

as

officers

detailed
that

above,

illegal

a

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

retrieve something.

2204

Guilford

Avenue

just

long

enough

to

The second time he did so, he retrieved

something that appeared to be drug packaging.
the package off to another person.
two others to come to him.

He then handed

After that, McLean signaled

The person with the package and the
9

Appeal: 13-4335

Doc: 43

Filed: 08/12/2014

Pg: 10 of 24

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

district

committed

court

warrantless

was

arrest

a

felonious

correct
did

not

in

drug

crime.

concluding

violate

the

As

such,

that

Fourth

the

McLean’s
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

useful precedent for another.’”

seldom

be

a

McCoy, 513 F.3d at 412 n.4

(quoting Ornelas, 517 U.S. at 698).
true in probable-cause cases.

will

It follows that the same is

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.
will not attempt here to distinguish them.

10

Thus, we

Appeal: 13-4335

Doc: 43

Filed: 08/12/2014

Pg: 11 of 24

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 drugdistribution

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,

prejudiced him.

they

confused

the

jury,

and

they

unfairly

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

11

which

tends

to

prove

only

Appeal: 13-4335

Doc: 43

Filed: 08/12/2014

criminal disposition.”

Pg: 12 of 24

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).
fourth

factor

underscores

the

requirement

Rule 404(b) evidence must satisfy Rule 403.

that

all

The

admitted

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.
12

As a

Appeal: 13-4335

Doc: 43

result,

on

Filed: 08/12/2014

September

distribution of heroin.

15,

Pg: 13 of 24

2004,

McLean

was

convicted

of

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

Appeal: 13-4335

Doc: 43

“For

Filed: 08/12/2014

evidence

to

be

Pg: 14 of 24

relevant,

related to the charged offense.’”

it

must

be

‘sufficiently

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).
any

tendency

to

“[E]vidence, to be relevant, ‘need only to have
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)).
are

sufficient

According to the district court, “There

similarities

between

[the

two

prior

drug

offenses] as well as the present instance to establish that the
evidence is relevant.”

We agree.
14

Appeal: 13-4335

Doc: 43

First,

Filed: 08/12/2014

the

January

19,

Pg: 15 of 24

2004,

arrest

location, as did the instant offense.
the

manner

of

McLean’s

criminal

involved

a

stash

Thus, this fact goes to
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.’”
v.

Mark,

943

F.2d

444,

448

(4th

Cir.

1991)

United States

(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,

convictions
evidence

and

that

is

the
McLean

the
drug

same

for

charge

both

here.

previously

had

the

of

the

Stated
state

prior

drug

differently,
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

Appeal: 13-4335

Doc: 43

Filed: 08/12/2014

Pg: 16 of 24

It is true that the two prior drug acts were not closely
related in time to the crime charged here.
consideration.

Nevertheless,

although

But that is just one

the

prior

drug

crimes

were not closely related in time, in this instance, evidence of
the

prior

demonstrate

drug
a

convictions

fourth

reason

six

years

that

we

earlier

find

the

did

Rule

help
404(b)

evidence relevant: a pattern of drug trafficking activity in the
same

general

because

the

area

over

an

prior

acts

are

extended

period

closely

of

related

time.

to

Thus,

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

admitted against him at trial was unnecessary.

404(b)

evidence

“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

(quoting

United

States v. Bailey, 990 F.2d 119, 123 (4th Cir. 1993)).

Here,

16

omitted)

Appeal: 13-4335

Doc: 43

Filed: 08/12/2014

Pg: 17 of 24

McLean placed the elements of knowledge and intent in play with
his plea of not guilty.
“Significantly,”
prior

bad

acts

See Mark, 943 F.2d at 448.

however,

evidence

is

“courts

must

‘necessary’

determine

under

Rule

404(b)

‘light of other evidence available to the government.’”
649 F.3d at 209 (quoting Queen, 132 F.3d at 998).
then,

that

establish

the

an

necessity

issue

for

decreases

the
as

establish that issue increases.
evidence

is

entirely

cumulative

Rule

non-Rule
Id.
to

404(b)
404(b)

whether
in

Byers,

It follows,
evidence

to

evidence

to

“[I]f the Rule 404(b)
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.
that

the

Rule

404(b)

McLean’s identity.

As such, the district court held

evidence

was

necessary

to

establish

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

Appeal: 13-4335

Doc: 43

Filed: 08/12/2014

Pg: 18 of 24

description of the person or persons who allegedly were dealing
the drugs:
Defense
Counsel:

So there was no description of
particular physical description of
person
or
persons?
There
was
description of complexion or build
height or weight?

Mays:
McLean

the
the
no
or

No.

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

18

Rule

404(b)

evidence

was

Appeal: 13-4335

Doc: 43

necessary

to

Filed: 08/12/2014

help

establish

Pg: 19 of 24

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
Rule 403

court’s
“except

decision
under

whether
‘the

to
most

admit

evidence

extraordinary

under
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

Appeal: 13-4335

Doc: 43

Filed: 08/12/2014

Pg: 20 of 24

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
20

the

government’s

evidence

of

Appeal: 13-4335

Doc: 43

Filed: 08/12/2014

Pg: 21 of 24

prior occasions when he willingly trafficked in drugs.”

Sparks

v.

1993).

Gilley

Trucking

Co.,

992

F.2d

50,

52

(4th

Cir.

“[W]hen intent to commit an act is an element of a crime, prior
activity

showing

probative.”

a

willingness

to

commit

that

act

may

be

Id.

As observed above, police arrested McLean on January 19,
2004,

for

selling

police officer.

four

gel

caps

of

heroin

to

an

undercover

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
previously

more

charged.

than

the

Here,

possession of ammunition.

amounts
he

was

for
also

which

he

charged

had

been

here

with

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
21

Rule

404(b)

prior

bad

act

Appeal: 13-4335

Doc: 43

evidence,

Filed: 08/12/2014

two

additional

Pg: 22 of 24

safeguards

are

available

when

requested: (1) a limiting jury instruction that explains the
reason

for

requirement

admitting
that

the

prior

bad

acts

government,

in

evidence

a

and

criminal

(2)

case,

a

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.
detectives
convictions,

testified
the

regarding

district

court

First, just after the

McLean’s
gave

the

two

prior

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

drug

Appeal: 13-4335

Doc: 43

Filed: 08/12/2014

Pg: 23 of 24

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)

McLean’s

evidence.

two

prior

drug

Thus,

we

conclude

convictions

was

not

that

evidence

used

to

of

convict

McLean “on the basis of bad character, or to convict him for
prior acts, or to try him by ambush.”
As

such,

the

district

court

did

not

Queen, 132 F.3d at 997.
err

in

granting

the

government’s motion to admit evidence of two of McLean’s prior
drug convictions.

23

Appeal: 13-4335

Doc: 43

Filed: 08/12/2014

Pg: 24 of 24

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.

(Sobeloff,

Baldivid,
J.,

465

concurring

F.2d
in

1277,

part

1290

and

(4th

dissenting

Cir.
in

1972)
part)).

Simply stated, none of the cases cited by McLean present the
same factual scenario as what we are confronted with here.

On

the

in

facts

of

this

case,

the

district

court

did

not

err

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

24