                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4196


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RICO DUVALL COLE, III,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:07-cr-00257-AW-1)


Submitted:   April 16, 2010                   Decided:   May 6, 2010


Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Sapna Mirchandani, Staff
Attorney,   Greenbelt,  Maryland,   for   Appellant.     Rod J.
Rosenstein, United States Attorney, Mara B. Zusman, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Rico Duvall Cole appeals his conviction and sentence

for possession of a firearm by a felon, in violation of 18

U.S.C. § 922(g)(1) (2006) (Count 1), and possession of a firearm

with the serial number obliterated, in violation of 18 U.S.C.

§ 922(k) (2006) (Count 2).             On appeal, Cole asserts that the

district court abused its discretion in admitting facts under

Fed.    R.   Evid.    404(b)   regarding     Cole’s    prior   gun     charges   and

abused its discretion in denying Cole’s motions for continuance

and motion to reopen the case.           We affirm.

               Cole first challenges the district court’s reliance on

Rule 404(b) to admit into evidence two handguns seized during a

prior search of Cole’s apartment, which formed the basis of a

prior state gun conviction.            One of the seized handguns had its

serial number scratched off.               Cole contends that because the

Government’s theory of the case was that Cole had actual, not

constructive, possession of the handgun, Cole’s prior possession

of a handgun with an obliterated serial number was irrelevant,

and unduly prejudicial.

               Under Fed. R. Evid. 404(b), evidence of a defendant’s

prior    bad    acts,    though   inadmissible        to   prove   a   defendant’s

character       and     “action   in    conformity         therewith,”     may   be

admissible to prove “motive, opportunity, intent, preparation,

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

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Therefore,       such    evidence            is    admissible       “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.”                        United States v. Hodge, 354 F.3d

305, 312 (2004).          We review the admission of evidence under Rule

404(b)     for   abuse        of   discretion.              Id.       After      reviewing       the

record,     we   find     that         the    district       court      did     not    abuse     its

discretion in admitting this evidence under Rule 404(b).

             Next, Cole argues that the district court abused its

discretion in denying two motions for a continuance.                                   The first

such motion was raised in the morning of the first day of trial

immediately before the trial was to commence, in order to secure

the presence of Antonia Chambers, a witness who allegedly would

testify to the presence of several youths in the vicinity of

Cole’s     car   while        he   slept          inside,    immediately          prior    to    his

arrest.

             The       second      motion         was     raised   on     the     third    day   of

trial, immediately prior to closing arguments.                                   In the second

motion,     Cole       sought      a    one-week          continuance,          to    secure     the

testimony of both Chambers and Gale Walls.                                  Cole argued that

Cole’s sister had just been contacted by Chambers, informing her

that Chambers was back in town.                         Additionally, Cole argued that,

if   the    trial       was     continued           for     another     week,        Walls’s     own



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criminal trial would have concluded and she would have been able

to testify without fear of incriminating herself.

          “A trial court’s denial of a continuance is reviewed

for abuse of discretion; even if such an abuse is found, the

defendant must show that the error specifically prejudiced her

case in order to prevail.”      United States v. Williams, 445 F.3d

724, 739 (4th Cir. 2006).      Where a defendant seeks a continuance

to secure the presence of a witness, the defendant must prove

(1) the identity of the witness; (2) what his testimony will be;

(3) that the witness may likely be secured if the court grants a

continuance; and (4) the defendant has exercised due diligence

to obtain the witness’s attendance for the trial.              See United

States v. Clinger, 681 F.2d 221, 223 (4th Cir. 1982).               After

reviewing the record, we find that the district court did not

abuse its discretion in denying Cole’s motions for continuances.

          Finally, Cole challenges the district court’s denial

of his motion to reopen the evidence.         We review the district

court’s   decision   whether    to   reopen   a   case   for    abuse   of

discretion.   United States v. Abbas, 74 F.3d 506, 510-11 (4th

Cir. 1996).    In order to determine whether a district court

abused its discretion in declining to reopen a case to admit new

evidence, this court considers:

     (1) whether the party moving to reopen provided a
     reasonable explanation for failing to present the
     evidence  in  its   case-in-chief; (2) whether the

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      evidence was relevant, admissible, or helpful to the
      jury; and (3) whether reopening the case would have
      infused   the  evidence   with  distorted  importance,
      prejudiced the opposing party’s case, or precluded the
      opposing party from meeting the evidence.

Id. at 511; see also United States v. Nunez, 432 F.3d 573, 579

(4th Cir. 2005) (setting out standard); United States v. Peay,

972 F.2d 71, 73 (4th Cir. 1992) (same).                After reviewing the

record,   we    find   that   the   district   court   did   not   abuse   its

discretion in refusing to reopen the case after the court had

issued its instructions to the jury.

           Accordingly, we affirm the district court’s judgment.

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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