UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 95-5626

NATHANIEL HOOVER,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CR-94-137)

Argued: April 10, 1998

Decided: May 27, 1998

Before WILKINS and NIEMEYER, Circuit Judges, and
CHAMBERS, United States District Judge for the
Southern District of West Virginia,
sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Eric David Placke, Assistant Federal Public Defender,
Greensboro, North Carolina, for Appellant. Kenneth Michel Smith,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee. ON BRIEF: Louis C. Allen, III, Federal Public Defender,
John Stuart Bruce, Deputy Federal Public Defender, Greensboro,
North Carolina, for Appellant. Mark T. Calloway, United States
Attorney, Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Nathaniel Hoover appeals his convictions for carjacking, see 18
U.S.C. § 2119 (Supp. IV 1993), using or carrying a firearm during
and in relation to a crime of violence, see 18 U.S.C.A. § 924(c)(1)
(West Supp. 1998), and being a felon in possession of a firearm, see
18 U.S.C.A. § 922(g)(1) (West Supp. 1998). Hoover argues primarily
that the district court erred in failing to conduct a hearing outside the
presence of the jury regarding the voluntariness of his confession and
in admitting evidence in violation of Federal Rule of Evidence
404(b). Finding no reversible error, we affirm.

I.

On the evening of August 13, 1993, Hoover and an accomplice,
Arthur Torrence McIlwaine, accosted David Wayne Charlton as he
obtained money from an automated teller machine (ATM) in Char-
lotte, North Carolina. McIlwaine robbed Charlton of his ATM card
and wallet, forced him to divulge his personal identification number,
and retrieved money from the ATM. Hoover, who was armed with a
.380 pistol, then forced Charlton to the ground. Hoover and McIl-
waine subsequently drove away in Charlton's automobile and used
the ATM card to obtain additional funds from various locations. On
August 15, Charlotte police officer Michael Tommy Mauldin
observed the stolen vehicle and questioned its driver, Darryl Donnell
Murray. Murray informed Officer Mauldin that he had gotten the
automobile from McIlwaine. Murray further related that McIlwaine
stated that he and Hoover had stolen it from the owner.

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Almost one year later, Special Agent Brian Roepe of the Federal
Bureau of Investigation (FBI) contacted Hoover and requested to
speak with him regarding the alleged carjacking. When Hoover
arrived for the interview, agents informed him that he was not under
arrest and was free to leave at any time. After the agents stated that
they believed he was involved in the offense, Hoover confessed.

II.

In appealing his convictions, Hoover first maintains that the district
court erred in failing to conduct a hearing outside the presence of the
jury concerning the voluntariness of his confession. See 18 U.S.C.A.
§ 3501(a) (West 1985). We conclude that Hoover waived his right to
a hearing on the voluntariness of his confession and failed to show
cause to excuse the waiver.

Section 3501(a) provides that prior to the admission of a confession
into evidence, "the trial judge shall, out of the presence of the jury,
determine any issue as to voluntariness." Id. Despite this seemingly
mandatory statutory command, this court has held that § 3501(a) does
not require a district court, sua sponte, to hold a hearing on voluntari-
ness. See United States v. Wilson, 895 F.2d 168, 173 (4th Cir. 1990)
(per curiam). Rather, the onus rests on the defendant to raise the issue
in a timely fashion. See United States v. Miller , 987 F.2d 1462, 1464
(10th Cir. 1993). In order to do so, a defendant must challenge the
voluntariness of the confession prior to trial. See id. at 1464-65 (hold-
ing that defendant who did not challenge the voluntariness of a con-
fession until the fourth day of trial after the confession had been
admitted had waived the right to a hearing under§ 3501(a)); Wilson,
895 F.2d at 173 (ruling that a request for a hearing on the voluntari-
ness of a confession on the day of trial was untimely); see also Fed.
R. Crim. P. 12(b)(3) (providing that motions to suppress evidence
must be made prior to trial).

Here, Hoover raised no challenge to the voluntariness of his con-
fession until the midst of trial. He therefore waived the issue by pre-
senting it to the district court in an untimely fashion. Moreover,
because Hoover offered no cause for the lateness of the objection, he
was not entitled to relief from the waiver. See Fed. R. Crim. P. 12(f);
see also Wilson, 895 F.2d at 173 (observing that"[t]he district court

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should grant relief [from a waiver] only if there is a showing of cause
for the noncompliance and a showing of resulting prejudice").
Accordingly, Hoover cannot now claim that the district court erred in
failing to conduct a hearing in accordance with§ 3501(a).

III.

During trial, the Government elicited testimony from McIlwaine
that earlier in the evening, he and Hoover had attempted to collect a
debt from a mutual acquaintance, John Hallman. When Hallman
refused to pay, McIlwaine shot him with Hoover's firearm. In
response to Hoover's objection to this testimony, the Government
asserted that the testimony was offered only to show that Hoover's
weapon was operable. The district court then instructed the jury that
McIlwaine's testimony regarding the shooting of Hallman was "ad-
missible solely for the purpose of establishing, if you find that it does,
the .380 pistol this man described indeed operated as a firearm is
designed to operate and is not admissible for any other purpose." J.A.
76 (emphasis added). Hoover now argues that the district court erred
in admitting this evidence. See Fed. R. Evid. 404(b).

Subject to the general limitations of relevance and prejudice, Rule
404(b) permits the admission of evidence of prior crimes, wrongs, or
acts of the defendant unless "offered to prove`the character of a per-
son in order to show action in conformity therewith.'" United States
v. Queen, 132 F.3d 991, 994 (4th Cir. 1997) (quoting Fed. R. Evid.
404(b)), cert. denied, ___ U.S.L.W. ___ (U.S. Apr. 27, 1998) (No.
97-8487); see id. at 994-95 (recognizing that Rule 404(b) is "a rule
of inclusion"). In order to be admissible, evidence of a prior act must
be relevant to an issue other than character; necessary to establish an
essential part of the offense or the context of the offense; and reliable.
See United States v. Powers, 59 F.3d 1460, 1464 (4th Cir. 1995); see
also Queen, 132 F.3d at 995.

Assuming without deciding that the district court erred in admitting
the challenged testimony, any error was harmless. See United States
v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997) (noting that erroneous
evidentiary rulings are subject to review for harmlessness under Fed-
eral Rule of Criminal Procedure 52). In the first place, there was over-
whelming evidence of Hoover's guilt, including his own confession.

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See United States v. Heater, 63 F.3d 311, 325 (4th Cir. 1995) (holding
erroneous evidentiary ruling harmless when "a wealth of testimony"
established the defendant's guilt). Moreover, immediately following
McIlwaine's testimony regarding the shooting, the district court
issued a clear limiting instruction that the jury was not to consider the
testimony for any purpose other than establishing the operable condi-
tion of the firearm. See United States v. Love , 134 F.3d 595, 603 (4th
Cir. 1998) (basing determination that evidentiary error was harmless
on the issuance of a limiting instruction by the district court and
observing that "[w]e generally presume that a jury will follow cau-
tionary instructions regarding potentially prejudicial evidence").
Under these circumstances, we can "say with fair assurance, after
pondering all that happened without stripping the erroneous action
from the whole, that the judgment was not substantially swayed by
the error." Brooks, 111 F.3d at 371 (internal quotation marks omit-
ted).

IV.

In sum, we conclude that Hoover waived his right to a hearing out-
side the presence of the jury regarding the voluntariness of his confes-
sion and that the admission of evidence that McIlwaine shot an
individual with Hoover's firearm, if erroneous, was harmless.*
Accordingly, we affirm.

AFFIRMED
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*We have carefully examined Hoover's other allegations of error and
find them to be without merit.

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