                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4208


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

WARDELL R. BROWN,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:07-cr-00234-PJM-1)


Submitted:   September 15, 2010           Decided:     October 22, 2010


Before KING and      AGEE,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Lauren E. Case, Ariel S.
Glasner, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, Emily N. Glatfelter, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A jury convicted Wardell R. Brown of possession of a

firearm after being convicted of a felony, in violation of 18

U.S.C. § 922(g)(1) (2006).              On appeal, Brown argues that the

district court abused its discretion in admitting evidence under

Fed. R. Evid. 404(b) that, in 1996 and 1997, Brown possessed a

firearm.        For    the    following      reasons,     we    reject       Brown’s

contention and affirm.

            Rule 404(b) states that “[e]vidence of other crimes,

wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity therewith.”                         Fed.

R. Evid. 404(b).       Such evidence “may, however, be admissible for

other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.”      Id.     Furthermore, “[t]o be admissible under Rule

404(b), evidence must be (1) relevant to an issue other than

character; (2) necessary; and (3) reliable.”                   United States v.

Siegel, 536 F.3d 306, 317 (4th Cir. 2008) (internal quotation

marks and citation omitted).            “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.   Young,    248    F.3d    260,   271-72    (4th     Cir.    2001)       (internal

quotation     marks   and    citation    omitted),    and,     “[a]s    a    rule   of



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inclusion, the rule’s list is not exhaustive.”                         United States v.

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

             “Evidence sought to be admitted under Rule 404(b) must

also satisfy [Fed. R. Evid.] Rule 403[] . . .”                         Siegel, 536 F.3d

at 319.     Under Rule 403, “damage to a defendant’s case is not a

basis for excluding probative evidence” because “[e]vidence that

is     highly    probative       invariably       will     be   prejudicial          to   the

defense.”        United States v. Grimmond, 137 F.3d 823, 833 (4th

Cir. 1998).           “Rule 403 only requires suppression of evidence

that    results       in   unfair      prejudice--prejudice            that    damages     an

opponent        for    reasons    other     than     its    probative         value,      for

instance,       an    appeal     to    emotion,    and     only       when    that    unfair

prejudice substantially outweigh[s] the probative value of the

evidence.”           United States v. Mohr, 318 F.3d 613, 619-20 (4th

Cir. 2003) (internal quotation marks and citation omitted).

             Brown contends that the Government’s evidence that he

possessed a firearm in 1996 and 1997 was offered to prove his

bad character and was thus inadmissible under Rule 404(b).                                 In

contrast, the Government contends that the evidence, which was

admitted with a limiting instruction, was admissible to prove

Brown’s    knowledge       and    intent     to   possess       the    firearm       in   this

case.

             The Government may prove the possession element in a

§ 922(g)        prosecution           by   showing       actual       or      constructive

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possession of the firearm.              United States v. Moye, 454 F.3d 390,

395    (4th    Cir.    2006).          “‘Actual       possession’        is   defined      as

‘[p]hysical . . . control over property.’”                        Id. (quoting Black’s

Law Dictionary 1201 (8th ed. 2004)).                          Constructive possession

exists when the evidence shows “that the defendant intentionally

exercised      dominion       and   control        over     the   firearm,    or    had   the

power and intention to exercise dominion and control over the

firearm.”          United States v. Scott, 424 F.3d 431, 435-36 (4th

Cir. 2005).

              In      cases      like     Brown’s,           involving        constructive

possession, evidence of prior firearm possession is admissible

to    show    knowledge       and   intent.         See,     e.g.,   United     States     v.

McCarson, 527 F.3d 170, 173-74 (D.C. Cir. 2008); United States

v. Moran, 503 F.3d 1135, 1143-46 (10th Cir. 2007); United States

v. Strong, 415 F.3d 902, 904-06 (8th Cir. 2005); United States

v. Brown, 961 F.2d 1039, 1042 (2d Cir. 1992).                           Such evidence is

admissible because, “in cases where a defendant is charged with

unlawful possession of something, evidence that he possessed the

same or similar things at other times is often quite relevant to

his   knowledge       and     intent    with       regard    to   the   crime      charged.”

United States v. Cassell, 292 F.3d 788, 793 (D.C. Cir. 2002)

(internal quotation marks and citation omitted).                          Our review of

the trial transcript leads us to conclude that the evidence of

Brown’s gun possession in 1996 and 1997 was admissible under

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Rule 404(b) to prove Brown constructively possessed the firearm

involved in the instant offense.

              Brown      argues    in     the       alternative         that    the     evidence

nonetheless        was   inadmissible         because        of    the    passage       of    time

between      his    prior   gun        possession         and     the    instant       case   and

because of its failure to meet Rule 403’s balancing test.                                       We

disagree.      The passage of time did not require exclusion of this

relevant, probative evidence.                   See Moran, 503 F.3d at 1145-46;

Strong, 415 F.3d at 905-06.                   Moreover, “because [Brown] denied

he had knowledge of the [revolver], the prior conviction had

clear probative value in rebutting this defense.”                                     Moran, 503

F.3d    at    1145-46.           Thus,     the       evidence       “undercut          [Brown’s]

argument      at    trial       that    the     [firearm]         belonged       to     [someone

else].”      McCarson, 527 F.3d at 174; see also Moran, 503 F.3d at

1146    (same);     Strong,       415    F.3d       at    906   (same).         Finally,       the

district court reduced the risk of unfair prejudice by giving

limiting     instructions         to    the     jury,      explaining          that    the    jury

could     consider        the     evidence          only     in     determining          Brown’s

knowledge and intent.             See Queen, 132 F.3d at 997.

              We therefore conclude that the district court did not

abuse its discretion in admitting the challenged evidence.                                    See

United States v. Delfino, 510 F.3d 468, 470 (4th Cir. 2007)

(stating      standard      of     review).              Accordingly,      we     affirm      the

district     court’s      judgment.           We     dispense       with       oral     argument

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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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