                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

possession of a firearm by a convicted felon.                       He was sentenced

to a total of 372 months’ imprisonment.                          The sole issue on

appeal is whether the district court erred in permitting the

Government to cross-examine Morton concerning his prior robbery

convictions.      We affirm.

            A    district       court’s   evidentiary       rulings          are   reviewed

for abuse of discretion.            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).                         “A trial court’s

exercise    of     such     discretion         is       entitled        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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in conformity therewith.”                    Fed. R. Evid. 404(b). *          Accordingly,

“the       prosecution         may     not     introduce    evidence       of    extrinsic

offenses      to    demonstrate         the    defendant’s      propensity       to    commit

unlawful      acts      or     to    prove     that   the   defendant     committed       the

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

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

marks omitted).              Evidence of extrinsic offenses, “may, however,

be   admissible         for    other     purposes,      such    as    proof     of    motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.”                       Fed. R. Evid. 404(b).              The

admission      of       such        evidence    requires     “reasonable        notice     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.                       We conclude that Morton’s

receipt       of    a    pre-plea        investigation         report     detailing      his

criminal       history         and     Morton’s       pre-trial      motion     in    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    admission      of   evidence    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.       United States v. Queen, 132 F.3d 991, 997 (4th Cir.

1997).     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    marks   omitted),     cert.

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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    is    not      substantially           outweighed      by     unfair

prejudice.       Although       approximately           thirty      years     have    passed

since Morton was convicted of committing the prior robberies,

those    convictions      are      similar        to   the    charged     offenses,      and

Morton spent much of the intervening time incarcerated.                                   See

United   States    v.    Kelly,       510     F.3d     433,    437     (4th    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

intervening nine years in prison”).

            Finally,      Morton       contends         that     the     district       court

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.                               See United

States    v.    Verduzco,       373     F.3d       1022,     1030      (9th    Cir.     2004)

(declining to reach Rule 609 argument upon resolution of Rule

404(b)   argument       because       “[i]f       evidence     is    properly       admitted



                                              5
under one rule, then improper admission under the second rule is

harmless”).

              Based on the foregoing, we affirm the judgment of the

district    court.     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




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