                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT
                       ________________________

                              No. 09-4458
                       ________________________


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

EHREN VAN WART,

                  Defendant - Appellant.

                       _________________________

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:07-
cr-00492-RWT-1)
                    _________________________

Argued:   October 27, 2010             Decided: November 24, 2010
                     __________________________

Before TRAXLER, Chief Judge, DAVIS, Circuit Judge, and Damon J.
KEITH, Senior Circuit Judge of the United States Court of
Appeals for the Sixth Circuit, sitting by designation.
                   ___________________________

Affirmed by unpublished per curiam opinion.
                   ___________________________

ARGUED:   John  Edward   Davidson,  DAVIDSON   &   KITZMAN, PLC,
Charlottesville, Virginia, for Appellant.     Justin S. Herring,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
Barbara Skalla, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
                   ___________________________

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Appellant Ehren Van Wart was indicted in the District of

Maryland for possession of a firearm and ammunition after having

been    convicted    of   a   felony,   in   violation   of     18    U.S.C.   §

922(g)(1). The charge arose from the seizure of a loaded firearm

and additional ammunition from Van Wart’s bedroom by officers

executing     an    arrest    warrant   issued    in   Virginia.      In   close

proximity to a box of ammunition, officers also discovered and

seized a set of handcuffs that had been placed on Van Wart two

weeks     earlier    in   connection     with    his   arrest    by    Virginia

authorities, from whom Van Wart had escaped while handcuffed.

       Prior to trial, Van Wart moved in limine to exclude the

handcuffs and the testimonial evidence explaining how he had

come into possession of the handcuffs. The district court denied

the motion and a jury convicted Van Wart. On appeal, Van Wart

contends that the district court committed prejudicial error in

admitting the challenged evidence. We affirm.



                                        I.

                                        A.

        On September 1, 2007, two Stafford County, Virginia law

enforcement officers responded to a report of two individuals

causing a disturbance at a hotel. When the officers arrived,

they encountered two men at the hotel counter, Van Wart and his

                                        2
friend, Kofi Agbemble. As the officers approached, Van Wart,

smelling heavily of alcohol, yelled profanities at the officers

and became confrontational. Eventually, the officers sought to

arrest Van Wart for public intoxication and disorderly conduct.

When Van Wart continued to be combative, one of the officers

employed his taser to subdue him. After Van Wart was temporarily

controlled,      the     other    officer,         Deputy    Sheriff       J.C.    Wright,

handcuffed Van Wart.

       The officers placed Van Wart in a secure police vehicle

with   a     partition       separating    the     front     from    the    back.       After

Deputy Wright placed Van Wart into the vehicle, both officers

returned to the hotel to conclude their investigation. When the

officers returned to the parking lot, Van Wart had escaped from

the vehicle. A video recording of the location showed Van Wart

escaping from the rear driver’s side of the police vehicle and

calmly walking away with the handcuffs dangling from one wrist.

                                          B.

       Two    weeks     later,    on    September     14,     2007,    armed      with     an

arrest       warrant     issued    in     Virginia,     a     fugitive      task        force

undertook a search for Van Wart at a condominium apartment owned

by Van Wart in Temple Hills, Maryland. The officers found three

people present in the apartment: (1) Van Wart, who was in the

bedroom;      (2)      Van    Wart’s    girlfriend,         Tawana    Rose;       and    (3)

Agbemble. The officers observed evidence of drug activity in the

                                               3
apartment as they took Van Wart into custody; accordingly, they

applied for and obtained a search warrant. Upon executing the

search warrant, officers found and seized from a bedroom closet

a fully-loaded Cobray MAC-11 pistol and additional ammunition.

Officers also found the handcuffs (identified by serial number)

that had been used to secure Van Wart in Virginia two weeks

earlier, as well as numerous other items that belonged to Van

Wart.

                                             C.

      Van Wart was indicted in one count for illegal possession

of    a      firearm      and   ammunition            in     violation   of    18    U.S.C.

§ 922(g)(1). Prior to trial, Van Wart moved in limine to exclude

evidence of the handcuffs and the circumstances of his Virginia

arrest and escape, citing Federal Rules of Evidence 404(b) and

403. The district court denied Van Wart’s motion. Specifically,

the district court found that in light of the apparent defense

to be offered at trial, i.e., that although Van Wart owned the

residence he did not live there, the evidence relating to Van

Wart’s possession of the handcuffs was highly probative of Van

Wart’s dominion and control over the bedroom of the apartment

and     of    the    items      found    there,         including     the     firearm      and

ammunition.         The   district      court         made   clear,   however,      that    it

expected       the     government       to    keep         its   interrogation      of     the



                                                  4
Virginia officer involved in the prior arrest, Deputy Wright,

“relatively brief” and “concise.” 1

     At    trial,       Deputy    Wright    described       the     Stafford    County

arrest and Van Wart’s escape from the law enforcement vehicle

without    a     significant      objection      from    the   defense.       Then,    on

cross-examination,         defense       counsel       elicited    further     details

about the Stafford County arrest.

     Van Wart’s friend, Agbemble, testified as a witness for the

government       that   sometime     before      the    Virginia    arrest,     he    had

moved     into    the    Temple    Hills        condominium.       Agbemble    further

testified, however, that he slept on the couch in the living

room and kept his personal belongings in the living room closet.

According to Agbemble, Van Wart also lived in the condominium

and slept in the bedroom.

     Notably, when the government sought to question Agbemble as

to the manner in which Van Wart travelled from Virginia to the

condominium       apartment,       the     defense      objected.     However,        the

district court stated that the defense’s cross-examination of
     1
         The district court stated:

          I believe your interrogation of this witness
     should be relatively brief and concise and not go into
     the facts into any great description of how he was
     drunk and disorderly. . . . I don’t want to have the
     question of whether he was drunk and disorderly in
     Stafford County tried in this case.

J.A. 56.



                                            5
Deputy Wright had opened the door to such questioning because

the “cross-examination really went into great detail about the

[Virginia arrest].” Consequently, the district court overruled

the   defense    objection      and   allowed    Agbemble     to    testify     to   a

conversation he had had with Van Wart regarding how the latter

returned to the condominium apartment from Virginia.

      After Agbemble’s testimony, the government called several

officers who were at the Temple Hills condominium apartment to

testify concerning the execution of the search warrant and the

seized   items    tying    Van   Wart    to   the   residence       and   its    sole

bedroom.

      The   defense     called    one   witness,       Van   Wart’s   girlfriend,

Tawana   Rose.   Rose     testified     about    her    relationship      with   Van

Wart, generally insisting that, although she and Van Wart stayed

at the condominium several days a week, Van Wart did not live at

the condominium.

      Pursuant     to     the    parties’       agreement      on     a   limiting

instruction,     the    district      court     instructed     the    jury      about

“evidence of other acts allegedly committed by the defendant.”

Specifically, the instruction read:

      That evidence was admitted solely for the limited
      purpose of showing the context in which the weapon was
      found. I want to emphasize to you that you are not to
      consider that evidence for any other purpose, and you
      are only to return a verdict as to the charge
      contained in the indictment.


                                         6
The    court      also       explained   actual    possession   as   compared   to

indirect/constructive              possession,     and   sole    possession      as

compared to joint possession.



                                          II.

       We      review    a    district   court’s   admission    of   evidence   for

abuse of discretion. United States v. Perkins, 470 F.3d 150, 155

(4th Cir. 2006) (citing United States v. Gray, 405 F.3d 227, 238

(4th Cir. 2005)); see also United States v. Hodge, 354 F.3d 305,

312 (4th Cir. 2004).              “A court has abused its discretion if its

decision ‘is guided by erroneous legal principles’ or ‘rests

upon       a   clearly       erroneous   factual   finding.’”   Brown   v.   Nucor

Corp., 576 F.3d 149, 161 (4th Cir. 2009) (quoting Westberry v.

Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999)). 2




       2
       When a party does not preserve an argument in the district
court, we review only for plain error. United States v. Lynn,
592 F.3d 572, 577 (4th Cir. 2010); United States v. Massenburg,
564 F.3d 337, 342-43 (4th Cir. 2009)). It seems clear that, as
reflected in its pre-trial ruling, the district court intended
to permit the government to introduce only limited evidence
explaining how Van Wart came into possession of the handcuffs.
See supra p. 5 and n.1. Despite the district court’s narrow
ruling on the defense’s pretrial motion in limine, counsel
arguably abandoned the defense objection once the trial
commenced by failing to act on the district court’s unmistakable
intention to limit the government’s interrogation of Deputy
Wright and by its probing questioning of Deputy Wright on cross-
examination. As the government has not urged us to apply plain
error review, however, we need not determine whether it applies.


                                            7
                                     III.

     We do not understand Van Wart to contend that evidence of

his possession of the handcuffs (or the manner in which he came

into possession of them) was wholly irrelevant. Such evidence

clearly was relevant to the issue of Van Wart’s access to, his

presence in, and his dominion and control over, the bedroom of

the condominium apartment where the firearm and ammunition were

found. Rather, the gravamen of Van Wart’s contention before us

is   that   the   district   court    misapplied   the   balancing   tests

applicable under Rules 404(b) and 403 in admitting the evidence.

We discern no abuse of discretion.



                                      IV.

     Federal Rule of Evidence 404(b) provides that evidence of

prior bad acts may be admissible for purposes other than “to

prove the character of a person in order to show action in

conformity therewith.” Fed. R. Evid. 404. 3 Such “other purposes”

     3
         Rule 404(b) provides:

      Evidence of other crimes, wrongs, or acts is not
      admissible to prove the character of a person in order
      to show action in conformity therewith. It 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).


                                       8
include      “proof    of   motive,      opportunity,        intent,    preparation,

plan, knowledge, identity, or absence of mistake or accident.”

Id.; Hodge, 354 F.3d at 311-12. We have explained that evidence

of prior bad acts is admissible pursuant to Rule 404(b) if the

evidence is (1) relevant to an issue other than the general

character of the defendant; (2) necessary to prove an element of

the charged offense; and (3) reliable. Hodge, 354 F.3d at 311-

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

1997).

      Evidence is relevant if it has “any tendency to 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.” Fed. R. Evid. 401.                         Evidence

is necessary where, “considered in the light of other evidence

available to the government, it is an essential part of the

crimes on trial or where it furnishes part of the context of the

crime.” Queen, 132 F.3d at 998 (quoting United States v. Mark,

943   F.2d    444,    448   (4th   Cir.        1991).    Finally,   “[e]vidence      is

reliable      for     purposes     of     Rule     404(b)     “unless    it    is   so

preposterous that it could not be believed by a rational and

properly instructed juror.” United States v. Siegel, 536 F.3d

306, 319 (4th Cir. 2008)(quoting United States v. Aramony, 88

F.3d 1369, 1378 (4th Cir. 1996)).



                                           9
      Importantly, Rule 404(b) is “an inclusive rule, admitting

all evidence of other crimes or acts except that which tends to

prove only criminal disposition.” United States v. Rooks, 596

F.3d 204, 211 (4th Cir. 2010) (quoting United States v. Young,

248 F.3d 260, 271-72 (4th Cir. 2001). Further, limiting jury

instructions explaining the purpose for admitting prior bad acts

evidence    and   advance   notice   of     the   intent   to   introduce   such

evidence provide additional protection to defendants and weigh

in favor of admissibility. See Hodge, 354 F.3d at 312 (citing

Queen, 132 F.3d at 997); United States v. Branch, 537 F.3d 328,

342 (4th Cir. 2008).

      To be sure, the probative value of relevant evidence must

not be substantially outweighed by the danger that it will cause

unfair prejudice. See Fed. R. Evid. 403; Queen, 132 F.3d at 997.

The “mere fact that the evidence will damage the defendant’s

case is not enough – the evidence must be unfairly prejudicial,

and   the   unfair    prejudice      must     substantially      outweigh   the

probative value of the evidence.” United States v. Williams, 445

F.3d 724, 730 (4th Cir. 2006) (emphasis in original) (quoting

United States v. Hammon, 381 F.3d 316, 341 (4th Cir. 2004)).

Evidence is considered to be unfairly prejudicial “when there is

a genuine risk that the emotions of a jury will be excited to

irrational behavior, and . . . this risk is disproportionate to



                                      10
the    probative    value       of    the   offered     evidence.”       Id.    (quoting

United States v. Aramony, 88 F.3d 1369, 1378 (4th Cir. 1996)).

       “It is not an easy thing to overturn a Rule 403 ruling on

appeal.” United States v. Udeozor, 515 F.3d 260, 264 (4th Cir.

2008). Where the evidence is probative, “the balance under Rule

403 should be struck in favor of admissibility, and evidence

should be excluded only sparingly.” United States v. Lentz, 524

F.3d 501, 525 (4th Cir. 2008) (quoting Aramony, 88 F.3d at 1378;

see also Udeozor, 515 F.3d at 264-65 (“Rule 403 is a rule of

inclusion, generally favoring admissibility.”).                      Put simply, a

district      court’s    decision      to    admit   evidence     over    a    Rule    403

objection      “will     not     be    overturned       except    under        the    most

extraordinary      circumstances,           where    that   discretion         has    been

plainly abused.” Udeozor, 515 F.3d at 265 (internal quotation

marks omitted).

       Here, the district court did not abuse its discretion in

admitting evidence of Van Wart’s possession of the handcuffs,

including the evidence of the circumstances of how he came to be

in    possession    of    the    handcuffs        during    the   Virginia       arrest.

Evidence of the arrest and how Van Wart obtained the handcuffs

found in the condominium apartment was highly probative on the

issue    of    whether    Van    Wart       knowingly    exercised       dominion      and

control over the bedroom (and thus the contents thereof) and

significantly aided the government in meeting its burden to show

                                             11
Van Wart’s possession of the nearby firearm. This is especially

true in light of the defense offered at trial, namely, that Van

Wart did not reside in the apartment and used it only sparingly.

       The    disputed     evidence       was     legally   “necessary”       because

possession of the firearm was the only issue at trial and items

located near the firearm provided context to the possession of

the firearm itself.         “That the evidence was not critical to the

prosecution’s       case   against    [a     defendant]     does     not    render    it

unnecessary      for   purposes      of    Rule    404(b).”    United       States    v.

Rooks, 596 F.3d 204, 211 (4th Cir. 2010).                   This is because the

“necessary” prong “focuses on whether the evidence is necessary

in the sense that it is probative of an essential claim or an

element of the offense.” Id. at 211-12 (quoting Queen, 132 F.3d

at 997. Therefore, the evidence was “necessary.”

       Finally, the reliability of the testimony of Deputy Wright

has not been put into question. Indeed, Van Wart suggests no

reason why the deputy’s reliability was damaged.

       In    sum,   Rule    404(b)’s       requirements       were    met    and     the

evidence was properly admitted under the rule.                       This conclusion

is reinforced by Rule 404(b)’s inclusive nature. The bar against

prior bad acts is meant to exclude evidence “of other crimes or

acts    except      that    which         tends     to   prove       only    criminal

disposition.” Rooks, 596 at 211 (emphasis added).



                                           12
        Nor did the district court abuse its discretion in finding

that    the      danger   of     unfair     prejudice         did     not       substantially

outweigh the probative value of the evidence.                         All incriminating

evidence is prejudicial to some extent. The inquiry under Rule

403 is whether the evidence had the potential to cause unfair

prejudice       and    whether     the     danger       of    such    unfair        prejudice

substantially outweighs any probative value of the evidence.

        The presence of the handcuffs in Van Wart’s bedroom, as

illuminated       by    the    circumstances        surrounding           his     arrest    and

escape from arrest in Virginia, were probative of possession of

the firearm found in the same room, the ultimate issue at trial.

There    was     no    “genuine    risk    that     the      emotions       of    [the]    jury

[would] be excited to irrational behavior.” Lentz, 524 F.3d at

525    (quoting       Aramony,    88    F.3d   at      1378).   The       government       even

noted    that     drunk   and     disorderly       conduct      is    “just       barely    the

thing you . . . do to get arrested.”                      Furthermore, the district

court’s limiting instruction mitigated the risk of any prejudice

because     it     clarified      the     issues       for    which       the     jury    could

properly consider. United States v. White, 405 F.3d 208, 213

(4th    Cir.     2005).    Accordingly,          the    court       did     not    abuse    its

discretion in admitting evidence of the Stafford County arrest.




                                            13
                                       V.

      For the reasons set forth, we hold that the district court

did not err when it admitted evidence of Van Wart’s possession

of   the   handcuffs   or   of   the   manner   in   which   he   came   into

possession of the handcuffs. Accordingly, the judgment is



                                                                  AFFIRMED.




                                       14
