United States v. Cline, 4th Cir. (2006)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 05-4075
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus
OCTAVIUS S. CLINE, a/k/a Toby,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (CR-02-1358)
Submitted:
December 9, 2005
Decided:
March 1, 2006
Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Andrew Mackenzie, BARRETT MACKENZIE, L.L.C., Greenville, South

Carolina, Richard Warder, Greenville, South Carolina, for
Appellant.
Jonathan S. Gasser, Acting United States Attorney,
Regan A. Pendleton, Assistant United States Attorney, Greenville,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
PER CURIAM:
Octavius
S.
Cline
was
convicted
of
conspiracy
to
distribute and possess with intent to distribute fifty grams or

more of cocaine base, in violation of 21 U.S.C. 841(a)(1), 846
(2000). On appeal, Cline challenges the district courts ruling
permitting the Government to introduce evidence under Fed. R. Evid.
404(b) of drug possession on the date of his arrest, which was
after the dates charged in the indictment.
We affirm.
Cline argues that (1) the differences in time, place, and

people involved in the conspiracy and at the time of his arrest
make the admitted evidence irrelevant; (2) the evidence from the
arrest was not necessary because five witnesses described Clines
participation in the conspiracy; (3) there was no direct testimony
linking the seized drugs to the offense; (4) the marijuana found
was unreliable evidence; and (5) the probative value of this
evidence was outweighed by its prejudicial effect.
Review of a
district courts determination of the admissibility of evidence

under Rule 404(b) is for abuse of discretion.
Queen, 132 F.3d 991, 995 (4th Cir. 1997).
See United States v.
A district court will
not be found to have abused its discretion unless its decision to

admit evidence under Rule 404(b) was arbitrary or irrational.
United
States
v.
Haney,
914
F.2d
602,
607
(4th
Cir.
See
1990)
(upholding admission of evidence of similar prior bank robberies).

Evidentiary rulings are also subject to review for harmless error
- 2 -
under Fed. R. Crim. P. 52, and will be found harmless if the

reviewing court can conclude without stripping the erroneous
action from the whole, that the judgment was not substantially
swayed by the error.
United States v. Brooks, 111 F.3d 365, 371
(4th Cir. 1997) (quoting United States v. Heater, 63 F.3d 311, 325
(4th Cir. 1995)).
Evidence of other crimes is not admissible to prove bad
character or criminal propensity.
Fed. R. Evid. 404(b).
Such
evidence is admissible, however, to prove motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.
Id.; see Queen, 132 F.3d at 994.
Rule
404(b) is an inclusive rule, allowing evidence of other crimes or

acts except that which tends to prove only criminal disposition.
Queen, 132 F.3d at 994-95; United States v. Rawle, 845 F.2d 1244,
1247 (4th Cir. 1988).
Evidence of prior acts is admissible under
Rule 404(b) and Fed. R. Evid. 403 if the evidence is: (1) relevant
to an issue other than the general character of the defendant,
(2) necessary, (3) reliable, and (4) if the probative value of the
evidence is not substantially outweighed by its prejudicial effect.
Queen, 132 F.3d at 997.
Limiting jury instructions explaining the
purpose for admitting evidence of prior acts and advance notice of

the intent to introduce prior act evidence provide additional
protection to defendants.
Id.
- 3 -
Here,
the
evidence
was
not
submitted
to
infer
bad
character on Clines part but rather to rebut his contention that

he was not involved in a crack cocaine conspiracy.
The evidence
was relevant, necessary, reliable, and its probative value was not
outweighed by its prejudicial effect.
See Queen, 132 F.3d at 997.
The district court also gave a sufficient limiting instruction to

the jury.
Further, even if the admission of the evidence of
Clines subsequent drug possession was erroneous, we conclude that

the
error
significant.
was
harmless.
The
evidence
against
Cline
was
As this was not a close case factually, we conclude
with fair assurance that any error regarding the admission of

Clines subsequent possession did not affect the verdict.
See
Heater, 63 F.3d at 325.

We therefore affirm the judgment. We deny Clines motion
to file a pro se supplemental brief.
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 -

United States v. Cline, 4th Cir. (2006)

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Andrew Mackenzie, BARRETT MACKENZIE, L.L.C., Greenville, South

Unpublished opinions are not binding precedent in this circuit.

distribute and possess with intent to distribute fifty grams or

Cline argues that (1) the differences in time, place, and

district courts determination of the admissibility of evidence

See United States v.

A district court will

not be found to have abused its discretion unless its decision to

(upholding admission of evidence of similar prior bank robberies).

under Fed. R. Crim. P. 52, and will be found harmless if the

United States v. Brooks, 111 F.3d 365, 371

Fed. R. Evid. 404(b).

evidence is admissible, however, to prove motive, opportunity,

Id.; see Queen, 132 F.3d at 994.

404(b) is an inclusive rule, allowing evidence of other crimes or

Evidence of prior acts is admissible under

Limiting jury instructions explaining the

purpose for admitting evidence of prior acts and advance notice of

character on Clines part but rather to rebut his contention that

See Queen, 132 F.3d at 997.

The district court also gave a sufficient limiting instruction to

Further, even if the admission of the evidence of

Clines subsequent drug possession was erroneous, we conclude that

As this was not a close case factually, we conclude

with fair assurance that any error regarding the admission of

Heater, 63 F.3d at 325.

We dispense with oral

argument because the facts and legal contentions are adequately

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