                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-5057


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

VICTOR WHITE,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:06-cr-00575-WDQ-1)


Submitted:    December 16, 2008             Decided:   January 20, 2009


Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joseph R. Conte, LAW OFFICES OF J. R. CONTE, P.L.L.C.,
Washington, D.C., for Appellant. Rod J. Rosenstein, United
States Attorney, Bryan M. Giblin, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Victor    White    appeals       his   jury      convictions     for

possession    with    intent   to   distribute      cocaine    and   heroin   and

possession of a firearm by a convicted felon.                   On appeal, he

asserts that the district court erred in admitting evidence of

his prior heroin conviction under Fed. R. Evid. 404(b).                        We

affirm.

             Under Rule 404(b), prior bad acts evidence: (1) must

be relevant to an issue other than character, such as intent;

(2) must be necessary to prove an element of the crime charged;

(3) must be reliable; and (4) its probative value must not be

substantially outweighed by its prejudicial nature.                  See United

States v. Siegel, 536 F.3d 306, 317-20 (4th Cir. 2008); see also

United States v. Queen, 132 F.3d 991, 994-95 (4th Cir. 1997)

(recognizing that Rule 404(b) is a “rule of inclusion”).                      Rule

404(b) decisions by the district court are discretionary and

will   not   be   overturned   unless       arbitrary   or   irrational.      See

United States v. Powers, 59 F.3d 1460, 1464 (4th Cir. 1995).

Moreover, even if a district court errs under Rule 404(b), a

resulting conviction must be upheld if we conclude that it is

beyond a reasonable doubt that the jury verdict would have been

the same absent the error.          United States v. Williams, 461 F.3d

441, 448-49 (4th Cir. 2006).



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            Because White pled not guilty to the crimes with which

he was charged, he placed his mental state in issue, and the

Government was authorized to offer evidence of prior bad acts

tending    to    establish      his     intent       and    knowledge        regarding    the

drugs found in the apartment where he stayed on a regular basis.

See United States v. Mark, 943 F.2d 444, 448 (4th Cir. 1991)

(holding    that,       when    extrinsic          act    evidence      is    “sufficiently

related” to the charged offense, the evidence is relevant to

show that the defendant “possessed the same state of mind in the

commission of both”).                Since White denied involvement with the

drugs,     his    prior     heroin-related               trafficking        conviction    was

relevant to establish his knowledge of the heroin trade (which

also corroborated his confession to the officers) and his intent

to sell the drugs at issue.                    See United States v. Hodge, 354

F.3d 305, 312 (4th Cir. 2004); see also United States v. Branch,

537 F.3d 328, 341-42 (4th Cir. 2008) (upholding admissibility of

prior     conviction      for        possession          with   intent       to   distribute

cocaine    base    as     evidence       of    intent       and   knowledge        in    later

prosecution       for    cocaine        base       possession         and    distribution),

petition for cert. filed (Nov. 20, 2008) (No. 08-7360).

            Although White also argues that the probative value of

the prior bad acts evidence was substantially outweighed by its

prejudicial       effect,       we     conclude          that   the     district     court’s

limiting instruction to the jury, as well as the initial Rule

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404(b) notice that was given to White by the Government, was

sufficient to reduce any prejudicial effect the evidence may

have had.    See Queen, 132 F.3d at 997.          Finally, even if we were

to find that the district court erred in admitting White’s prior

bad acts evidence because the prior conviction was not probative

of his intent or knowledge, considering the substantial evidence

of White’s guilt, our review of the record convinces us that the

verdict    would   have    been   the   same    absent   any   error.    See

Williams, 461 F.3d at 448-49.

            Accordingly,     we    affirm      White’s   conviction.      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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