                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 08-4657


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

BRUCE KILGORE,

                 Defendant - Appellant.



                             No. 08-5200


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

TIMOTHY MOODY,

                 Defendant - Appellant.



Appeals from the United States District Court for the District
of Maryland, at Greenbelt.     Roger W. Titus, District Judge.
(8:06-cr-00066-RWT-11; 8:06-cr-00066-RWT-12)


Submitted:   September 16, 2010            Decided:   November 19, 2010


Before NIEMEYER, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Pat M. Woodward, Annapolis, Maryland; Timothy J. Sullivan, Brett
J. Cook, BRENNAN, SULLIVAN & MCKENNA, LLP, Greenbelt, Maryland,
for Appellants.    Rod J. Rosenstein, United States Attorney,
Barbara S. Skalla, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            In     these    consolidated        appeals,     Bruce     Kilgore       and

Timothy     Moody    appeal       their    convictions      for     one      count    of

conspiracy to distribute and possess with intent to distribute

five kilograms or more of cocaine and 1000 kilograms or more of

marijuana, in violation of 21 U.S.C. § 846 (2006).                     Kilgore also

appeals his sentence.         Finding no error, we affirm.

            Both    Appellants      claim      the   district      court     erred    by

admitting     evidence       of     them       discussing        murdering     a     co-

conspirator.        Moody also claims the court erred by admitting

evidence    of   his    involvement       in   the   conspiracy      that     extended

beyond the date indicated in the superseding indictment.                        Review

of   a   district    court’s      determination      of    the    admissibility       of

evidence under Rule 404(b) is for abuse of discretion.                               See

United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997).                            In

general, any evidence which tends to make the existence of a

fact of consequence to an issue in the case “more probable or

less probable” than without the evidence is relevant under Fed.

R. Evid. 401 and therefore generally admissible under Fed. R.

Evid. 402.       Evidence of other crimes is not admissible to prove

bad character or criminal propensity.                     Fed. R. Evid. 404(b).

Such     evidence      is   admissible,        however,     to     prove      “motive,

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

absence of mistake or accident.”                 Id.; see Queen, 132 F.3d at

                                           3
994.     Rule 404(b) is an inclusive rule, allowing evidence of

other    crimes         or   acts      except      that     which    tends    to    prove    only

criminal disposition.                See Queen, 132 F.3d at 994-95.

              Evidence of prior acts is admissible under Rule 404(b)

and Fed. R. Evid. 403 if the evidence is (1) relevant to an

issue     other         than     the    general         character      of    the     defendant,

(2) necessary, (3) reliable, and (4) if the probative value of

the evidence is not substantially outweighed by its prejudicial

effect.       Queen, 132 F.3d at 997.                       A limiting jury instruction

explaining the purpose for admitting evidence of prior acts and

advance notice of the intent to introduce evidence of prior acts

provide additional protection to defendants.                           See id.

              We    conclude           the    district       court     did    not    abuse    its

discretion         by    admitting           the    challenged       evidence.         In    both

instances, the evidence was intrinsic to the charged conspiracy

and     was   relevant           to     the        issues     of    intent,        motive,    and

opportunity.            Furthermore, the evidence highlighted the extent

to which both Appellants were committed to the conspiracy.

              Insofar           as     Moody        claims     that     evidence       of     him

continuing      in       the     conspiracy         after     the     “on    or    about”    date

charged in the indictment constructively amended the indictment

or was a fatal variance, we find no error.                                   “A constructive

amendment     to        an     indictment       occurs       when    . . .    the    government

(usually during its presentation of evidence and/or argument),

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the court (usually through its instructions to the jury), or

both, broadens the possible bases for conviction beyond those

presented to the grand jury.”                  United States v. Floresca, 38

F.3d 706, 710 (4th Cir. 1994).                 “A constructive amendment is a

fatal variance because the indictment is altered to change the

elements of the offenses charged, such that the defendant is

actually convicted of a crime other than that charged in the

indictment.”       United States v. Randall, 171 F.3d 195, 203 (4th

Cir. 1999) (internal quotation marks and citation omitted).                            A

constructive amendment is error per se, and, given the Fifth

Amendment     right   to     be    indicted     by   a    grand    jury,     “must    be

corrected     on   appeal,    even      when   not   preserved      by   objection.”

Floresca, 38 F.3d at 714.

            When considering a constructive amendment claim, “it

is the broadening [of the bases for a defendant’s conviction]

that is important - nothing more.”               Id. at 711.        The key inquiry

is whether the defendant has been tried on charges other than

those made in the indictment.             See id.        The beginning and ending

dates of a conspiracy are not elements of the offense, so proof

of different dates could never raise the specter of conviction

for a different crime.            See United States v. Hatten-Lubick, 525

F.3d 575, 581 (7th Cir. 2008); see also Queen, 132 F.3d at 999

(dates   of    conspiracy         are   not    substantive        elements    of     the

offense).      We conclude there was no constructive amendment to

                                           5
the    superseding             indictment.        We     further      note   the        jury    was

instructed that it could not convict Moody based solely on the

challenged evidence and that the evidence was admitted for the

purpose       of    providing       context      and       more    information       about       the

conspiracy.              See United States v. Paredes-Rodriguez, 160 F.3d

49, 56 (1st Cir. 1998) (any potential prejudice by the admission

of pre-conspiracy evidence was prevented by the court’s jury

instruction); United States v. Gonzalez, 661 F.2d 488, 492 (11th

Cir. 1981) (no constructive amendment when jury was instructed

that     it        was     limited       to    the       conspiracy      charged         in      the

indictment).              We    further       conclude      that     there   was        no     fatal

variance       to        the     indictment.             Moody      failed    to        show     his

substantial rights were violated.                        United States v. Kennedy, 32

F.3d 876, 883 (4th Cir. 1994).

               Moody’s claim that he was entitled to a mistrial or a

severance based on Kilgore’s testimony is without merit.                                       Moody

failed    to       show     Kilgore’s         testimony        prevented     the    jury        from

making    a    reliable          judgment      about     his      criminal   conduct.            See

United States v. Allen, 491 F.3d 178, 189 (4th Cir. 2007).                                       Nor

did    Kilgore’s          testimony      unveil      a     stark    contrast       in    defenses

asserted by the two Appellants.                          See United States v. Najjar,

300 F.3d 466, 474 (4th Cir. 2002).

               Kilgore          argues    that       the    district       court        erred     at

sentencing when it considered the differences between himself

                                                 6
and two co-defendants prior to finding that his sentence would

not    result    in     an   unwarranted      disparity.      See    18    U.S.C.

§ 3553(a)(6).         We     conclude   the    court   did    not    abuse    its

discretion as there was no “unwarranted” disparity.

            Accordingly, we affirm the convictions and sentences.

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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