                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 13-4335


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

RANDAL MCLEAN,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:10-cr-00373-GLR-1)


Argued:   May 15, 2014                     Decided:   August 12, 2014


Before KING, WYNN, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: William A. Mitchell, Jr., BRENNAN MCKENNA MANZI SHAY
LEVAN CHARTERED, Greenbelt, Maryland, for Appellant.       John
Francis Purcell, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       A jury sitting in the United States District Court for the

District of Maryland at Baltimore found Randal McLean guilty of

one    count    of     possession     with       intent   to     distribute      cocaine,

21 U.S.C. § 841(a), and not guilty of possession of ammunition

by a convicted felon, 18 U.S.C. § 922(g)(1).                       The district court

sentenced him to 120 months’ imprisonment, followed by three

years    of    supervised      release.          McLean   then     filed    this   timely

appeal.        We    have     jurisdiction        under   28     U.S.C.     §   1291     and

18 U.S.C. § 3742.

        McLean presents two questions in this appeal.                      The first is

whether the district court committed reversible error in denying

his motion to suppress evidence that officers seized from him

while making a warrantless arrest.                    The second is whether the

district       court    committed     reversible          error     in     granting      the

government’s motion to admit evidence of two of McLean’s prior

drug    convictions.          Not   identifying       any      reversible       error,   we

affirm the judgment of the district court.



                                             I.

                                             A.

       As the district court detailed in its oral ruling denying

McLean’s motion to suppress, Detective Stephen Mays, who had

been     working       with     the    Baltimore          Police     Department          for

                                             2
approximately eight years and is experienced in the field of

narcotics,     received      information      on   March     2,     2010,    from    a

confidential source that illegal narcotics were being stored in

a vacant house on the even-numbered side of the 2200 block of

Guilford Avenue and that someone was taking those narcotics in

and out of the house. The confidential source was an individual

who had been arrested for his alleged involvement in narcotics.

The     district     court    determined      that     the    source        had     not

established his reliability and that Mays did not promise him

anything in exchange for the information that he provided.                          The

district court stated, however, that it assumed that the source

was hoping to benefit by providing the information.

      The next morning, at around 7:30 AM, which was consistent

with the time that the confidential source suggested that there

might    be   drug   activity     at    the   vacant   house,       Mays    and     his

partners went to the area and hid themselves on the third floor

of another vacant building nearby where they had—except for the

distance—“a       relatively unimpeded view” of the rear door of 2204

Guilford Avenue.        Mays had binoculars with him, which gave a

better—but not perfect—view of what was occurring.                    Although not

in the judge’s oral order, the record reveals that Officer Craig

Streett    also    participated    in    surveilling       McLean    on     March    3,

2010.



                                         3
       At   approximately    8:00   AM,     the   officers    observed    someone

later identified as McLean.            He was wearing a gray sweatshirt,

blue jeans, and possibly a hat.             McLean came from the right side

of the alley beside the house and entered the rear yard.                       He

appeared to use a key or in some other way unlock what appeared

to be a padlock—or some other mechanism—that                  was securing the

rear door of 2204 Guilford Avenue.                He then entered the house

and exited after about thirty seconds.              The district court found

this   to    be    consistent   with   entering     the     house   to   retrieve

something.        The officers next observed him secure the door and

then exit the yard while talking on his cell phone.

       At about 9:00 AM, both Mays and Detective Adam Lattanzi saw

McLean enter the rear alley behind 2204 Guilford Avenue with

another individual.         While the other individual remained in the

alley, McLean again used a key or in some other manner unlocked

the rear door, entered the house, remained just long enough to

retrieve something, exited, and locked the door.                    McLean then

approached the other individual in the alley and removed from

his shirt what Mays thought to be narcotics packaging and handed

it to the other individual.

       McLean and the other individual moved along the left side

of the alley, and McLean motioned with his hand for someone to

come   to   him.      Two   other   individuals      came    in   from   Guilford



                                        4
Avenue, passed McLean, and approached the other individual who

was with McLean.         After that, as stated by the district court,

      Both Detective Mays, and to some extent Officer
      Lattanzi, but particularly Detective Mays with the
      binoculars,   were   able   to    observe  approximately
      simultaneous transactions, exchanges of what appeared
      to   be  currency,   bill   form,   from  the   two  new
      individuals, and in turn, they were given small
      objects retrieved from the package that Mr. McLean had
      given the other individual.

      Mr. McLean walked out towards Guilford.                      All three
      followed at some point shortly thereafter.

Based on these observations, the district court determined that

the   officers     had    probable   cause      to    arrest     McLean   in    that,

considering the officers’ observations and experience, and based

on the totality of the circumstances, they reasonably believed

that McLean was involved in illegal narcotics transactions.

      The officers located and arrested McLean without an arrest

warrant around 23rd Street and Barclay Street.                    While arresting

McLean, they found a key on him that fit the padlock on the back

door of 2204 Guilford Avenue.

      When   the   officers     entered       the   house   to   secure   it,   they

observed drugs in plain view.                 They then obtained two search

warrants.    Although not in the district court’s oral order, from

the record we know that the two warrants were for the vacant

house at 2204 Guilford Avenue and McLean’s home, located at 313

E. 23rd Street.          We also glean from the record that McLean’s

home was about a one-half block from where McLean was arrested

                                          5
and just one block north of 2204 Guilford Avenue.                           Moreover, the

record reveals that during the police officers’ search of 2204

Guilford    Avenue,        they       recovered     drugs,        ammunition,      and     drug

packaging   materials.             Officers        also    recovered       drug    packaging

materials from 313 E. 23rd Street.



                                              B.

      Before     trial,      the       government         filed    a     motion    to    admit

evidence under Federal Rule of Evidence 404(b) that McLean had

previously been convicted of three drug-law violations in the

same area as the one charged here.                        On April 22, 1999, he was

convicted      of    distribution            and    possession           with     intent    to

distribute cocaine, arising from a July 1, 1998, arrest.                                 Then,

on   September      15,    2004,       he   was    convicted        of    distribution      of

heroin    stemming        from    a    January      19,    2004,       arrest.      And,    on

September   15,     2005,        McLean     was    convicted        of    distribution      of

cocaine    resulting        from       a    February       13,    2004,     arrest.        The

government ultimately entered evidence of only the January 19,

2004, and February 13, 2004, arrests and subsequent convictions.

      McLean raises two contentions to the evidence used against

him, which we address in turn below.




                                               6
                                                II.

       First, McLean contends that the district court erred in

denying his motion to suppress evidence that the officers seized

from him while making a warrantless arrest.                             When we consider

the    denial    of     a    suppression         motion,       we   review    the   district

court’s      factual        findings        for        clear    error    and     its    legal

determinations de novo.                 United States v. Kelly, 592 F.3d 586,

589 (4th Cir. 2010).                 Because we view the facts in the light

most favorable to the prevailing party, here we view the facts

in    the   light     most    favorable          to    the     government.      See     United

States      v.   Black,      707     F.3d       531,    534    (4th   Cir.     2013).     “We

particularly          defer        to       a     district          court’s     credibility

determinations, for ‘it is the role of the district court to

observe witnesses and weigh their credibility during a pre-trial

motion to suppress.’”                United States v. Abu Ali, 528 F.3d 210,

232 (4th Cir. 2008) (quoting United States v. Murray, 65 F.3d

1161, 1169 (4th Cir. 1995)).

       “Under     the       Fourth      Amendment,        if     supported     by   probable

cause, an officer may make a warrantless arrest of an individual

in a public place.”             United States v. Humphries, 372 F.3d 653,

657 (4th Cir. 2004).               “Probable cause” sufficient to justify an

arrest requires “facts and circumstances within the officer’s

knowledge that are sufficient to warrant a prudent person, or

one of reasonable caution, in believing, in the circumstances

                                                 7
shown,     that    the    suspect    has     committed,     is    committing,       or    is

about to commit an offense.”                 Michigan v. DeFillippo, 443 U.S.

31,   37    (1979).         Our     review    focuses      on    what   evidence         was

presented, not what evidence was not presented.                         United States

v. McCoy, 513 F.3d 405, 412 (4th Cir. 2008).                        When considering

the totality of the circumstances, it is proper to consider an

officer’s practical experience and the inferences the officer

may draw from that experience.                    Ornelas v. United States, 517

U.S. 690, 700 (1996).             “[T]he probable-cause standard does not

require     that    the    officer’s       belief    be   more    likely     true    than

false.”     Humphries, 372 F.3d at 660.

      “Probable cause is a flexible standard that simply requires

‘a reasonable ground for belief of guilt’ and ‘more than bare

suspicion.’”        United States v. Ortiz, 669 F.3d 439, 444 (4th

Cir. 2012) (quoting Brinegar v. United States, 338 U.S. 160, 175

(1949)).          “[T]he    probable-cause          standard      is    a    practical,

nontechnical        conception       that        deals    with    the   factual          and

practical considerations of everyday life on which reasonable

and   prudent      men,    not    legal     technicians,        act.”       Maryland      v.

Pringle, 540 U.S. 366, 370 (2003) (quoting Illinois v. Gates,

462 U.S. 213, 231 (1983)) (internal quotation marks omitted).

“[P]robable cause is a fluid concept—turning on the assessment

of probabilities in particular factual contexts—not readily, or



                                             8
even usefully, reduced to a neat set of legal rules.”                         Gates,

462 U.S. at 232.

      Here, McLean maintains that, although the officers may have

had reasonable suspicion to stop him, they did not have probable

cause      to   arrest      him.     The       Supreme    Court   has     “described

reasonable suspicion simply as ‘a particularized and objective

basis’ for suspecting the person stopped of criminal activity.”

Ornelas, 517 U.S. at 696 (quoting United States v. Cortez, 449

U.S. 411, 417–18 (1981)).               Here, the officers did not merely

suspect McLean of criminal activity.                     Instead, based on their

experience and observations, as well as the inferences that they

could draw, they reasonably believed that he had committed a

crime.

      As     the   district     court    held,     and    as   detailed    above,    a

confidential       source     informed     the    officers     that   illegal   drug

activity was taking place in the 2200 block of Guilford Avenue.

The next morning, they set up surveillance in the area and were

able to watch McLean with “a relatively unimpeded view,” as the

district court termed it, while he twice unlocked and entered

the   rear      door   of   2204   Guilford      Avenue    just   long    enough    to

retrieve something.           The second time he did so, he retrieved

something that appeared to be drug packaging.                     He then handed

the package off to another person.                 After that, McLean signaled

two others to come to him.              The person with the package and the

                                           9
two individuals whom McLean had just motioned over to him had

hand-to-hand     exchanges       wherein     the    person    with     the     package

handed the two individuals something from the package and they

handed to him bill currency.            Based on the officers’ experience,

observations, and reasonable inferences that they could draw, we

think it was entirely reasonable for the officers to think that

McLean   had   committed     a   felonious       drug   crime.        As    such,   the

district   court     was     correct        in     concluding        that     McLean’s

warrantless    arrest      did    not      violate      the   Fourth        Amendment.

Consequently, the district court was also correct in holding

that the evidence that the officers seized from McLean while

making the warrantless arrest should not be suppressed.

     McLean’s attempt to compare and contrast this case with

other reasonable-suspicion and probable-cause cases is of no aid

to his appeal.      “[T]he Supreme Court has observed that because

the reasonable-suspicion determination is such a multi-faceted,

fact-intensive     inquiry,      ‘one   determination         will    seldom     be   a

useful precedent for another.’”                  McCoy, 513 F.3d at 412 n.4

(quoting Ornelas, 517 U.S. at 698).                It follows that the same is

true in probable-cause cases.                Having studied the cases that

McLean has asked us to consider, we conclude that they fail to

provide any useful precedent to support his argument.                        Thus, we

will not attempt here to distinguish them.



                                        10
                                          III.

                                              A.

      Next, McLean maintains that the district court committed

reversible    error       when    it    granted          the    government’s          motion   to

admit Rule 404(b) evidence of two of McLean’s prior felony drug-

distribution       convictions.         This       is     so,       according    to     McLean,

because the prior bad acts occurred six years before the charged

conduct here, they were irrelevant and unnecessary to prove the

crime   charged,        they     confused          the    jury,       and   they       unfairly

prejudiced him.         We review a district court’s determination of

the admissibility of evidence under Rule 404(b) for abuse of

discretion.        United States v. McBride, 676 F.3d 385, 395 (4th

Cir. 2012).

      “Rule 404(b) prohibits evidence of other crimes or bad acts

committed     by    the    defendant          if    offered          ‘solely     to    prove   a

defendant’s bad character, but such evidence may be admissible

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

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

mistake or accident.’”             United States v. Moore, 709 F.3d 287,

295 (4th Cir. 2013) (quoting United States v. Byers, 649 F.3d

197, 206 (4th Cir. 2011)) (internal quotation marks omitted).

“Rule 404(b) is a rule of inclusion, admitting all evidence of

other   crimes     or     acts   except       that       which      tends   to    prove    only



                                              11
criminal disposition.”     Id. (quoting Byers, 649 F.3d at 206)

(internal quotation marks omitted).

     We have outlined a four-factor test that must be satisfied

before a court can properly admit prior bad acts evidence under

Rule 404(b):

     (1) The evidence must be relevant to an issue, such as
     an element of an offense, and must not be offered to
     establish the general character of the defendant.     In
     this regard, the more similar the prior act is (in
     terms of physical similarity or mental state) to the
     act being proved, the more relevant it becomes.
     (2) The act must be necessary in the sense that it is
     probative of an essential claim or an element of the
     offense. (3) The evidence must be reliable. And (4)
     the   evidence’s    probative   value   must    not   be
     substantially   outweighed   by  confusion   or   unfair
     prejudice in the sense that it tends to subordinate
     reason to emotion in the factfinding process.

United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997).           The

fourth   factor   underscores   the   requirement   that   all   admitted

Rule 404(b) evidence must satisfy Rule 403.          United States v.

Williams, 740 F.3d 308, 314 (4th Cir. 2014).



                                  B.

     As is relevant here, police arrested McLean on January 19,

2004, for selling four gel caps of heroin to undercover police

officer Christopher Talley in the area of Barclay Street and

20th Street, two blocks from the 2200 block of Guilford Avenue.

They also obtained a total of sixty-six additional gel caps of

heroin and seventeen vials of cocaine stashed nearby.               As a

                                  12
result,    on        September   15,    2004,        McLean     was    convicted   of

distribution of heroin.          Police also arrested McLean on February

13, 2004, for selling two black top vials of cocaine in the area

of the 2100 block of Barclay Street, which is approximately two

blocks from the 2200 block of Guilford Avenue.                        They found six

additional black top vials of cocaine and $427 in McLean’s right

shirt pocket.          Consequently, on September 15, 2005, McLean was

convicted of distribution of cocaine.



                                          C.

     McLean contests that the Rule 404(b) evidence failed to

meet the first, second, and fourth requirements for admission of

the Rule 404(b) evidence as set forth in Queen.                         He does not

dispute that it meets the third factor.



                                         1.

     McLean argues that the Rule 404(b) evidence admitted in his

case was not relevant.           As to this factor, he asserts that both

of the incidents occurred more than six years before the instant

conduct.        He    also   states    that    the    January    19,   2004,   arrest

concerned a direct sale of heroin—not cocaine, as is the case

here—to an undercover police officer, and that the February 13,

2004, arrest involved a direct sale of cocaine to an undercover

officer.

                                          13
      “For     evidence   to    be   relevant,      it      must    be     ‘sufficiently

related to the charged offense.’”                   McBride, 676 F.3d at 397

(quoting United States v. Rawle, 845 F.2d 1244, 1247 n.3 (4th

Cir. 1988)).      “The more closely that the prior act is related to

the charged conduct in time, pattern, or state of mind, the

greater the potential relevance of the prior act.”                         Id.     We have

also held that geographic proximity is a proper consideration in

determining the relevance of Rule 404(b) evidence.                           See Byers,

649 F.3d at 208.

      Of     course,   the     “fact    that    a    defendant        may    have     been

involved in drug activity in the past does not in and of itself

provide    a   sufficient      nexus    to    the   charged        conduct    where      the

prior activity is not related in time, manner, place, or pattern

of conduct.”      McBride, 676 F.3d at 397 (quoting United States v.

Johnson, 617 F.3d 286, 297 (4th Cir. 2010)) (internal quotation

marks omitted).        “[E]vidence, to be relevant, ‘need only to have

any   tendency    to   make    the     existence       of    any    fact    that    is    of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.’”                              Byers,

649 F.3d at 208 (quoting United States v. Aramony, 88 F.3d 1369,

1377 (4th Cir. 1996)).           According to the district court, “There

are   sufficient       similarities          between        [the    two     prior     drug

offenses] as well as the present instance to establish that the

evidence is relevant.”         We agree.

                                         14
       First,    the      January        19,   2004,      arrest    involved       a    stash

location, as did the instant offense.                        Thus, this fact goes to

the    manner        of   McLean’s         criminal         conduct.          Second,     the

January 19, 2004, drug charge was for the sale of four gel caps

of heroin, and the February 13, 2004, drug charge involved black

top vials of cocaine.                  Although the drugs in the January 19,

2004, arrest were different than those for the instant arrest,

“the relevance of the evidence ‘derives from the defendant’s

having possessed the same state of mind in the commission of

both the extrinsic act and the charged offense.’”                           United States

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

States v. Dothard, 666 F.2d 498, 502 (11th Cir. 1982)).                                   The

Rule 404(b) evidence is relevant here on the same basis: the

state-of-mind requirement, which includes both the knowledge and

intent    components,        is    the     same     for     both   of   the    prior     drug

convictions     and       the     drug    charge      here.        Stated     differently,

evidence      that     McLean      previously         had    the   state      of   mind—the

knowledge and intent—to distribute illegal drugs is probative

and thus relevant to whether he had the knowledge and intent to

commit the crime charged here.                      And third, both of the prior

drug transactions occurred within approximately two blocks of

2204 Guilford Avenue such that they were in close geographic

proximity to the crime charged here.



                                               15
       It is true that the two prior drug acts were not closely

related in time to the crime charged here.                    But that is just one

consideration.          Nevertheless,        although      the     prior    drug    crimes

were not closely related in time, in this instance, evidence of

the    prior     drug       convictions       six     years       earlier     did     help

demonstrate      a    fourth    reason       that   we     find     the    Rule     404(b)

evidence relevant: a pattern of drug trafficking activity in the

same   general       area   over     an    extended    period       of    time.      Thus,

because   the    prior       acts    are    closely       related    to     the    charged

conduct in regards to manner, state of mind, place, and pattern,

we conclude that the Rule 404(b) evidence is relevant.



                                            2.

       McLean    also       maintains      that     the     Rule     404(b)       evidence

admitted against him at trial was unnecessary.                            “We have held

that evidence is ‘necessary,’ for purposes of establishing an

exception under Rule 404(b), when that evidence ‘is an essential

part of the crimes on trial’ or when that evidence ‘furnishes

part of the context of the crime.’”                    McBride, 676 F.3d at 398

(quoting Rawle, 845 F.2d at 1247 n.4).                     “Although a defendant’s

plea of not guilty places at issue all elements of the charged

crimes, ‘this does not throw open the door to any sort of other

crimes    evidence.’”          Id.    (citation       omitted)       (quoting       United

States v. Bailey, 990 F.2d 119, 123 (4th Cir. 1993)).                                Here,

                                            16
McLean placed the elements of knowledge and intent in play with

his plea of not guilty.           See Mark, 943 F.2d at 448.

       “Significantly,”        however,         “courts      must     determine      whether

prior   bad     acts     evidence    is    ‘necessary’            under   Rule    404(b)   in

‘light of other evidence available to the government.’”                               Byers,

649 F.3d at 209 (quoting Queen, 132 F.3d at 998).                                It follows,

then,    that      the    necessity       for    the       Rule    404(b)     evidence     to

establish     an    issue    decreases          as   non-Rule       404(b)    evidence     to

establish that issue increases.                      Id.      “[I]f the Rule 404(b)

evidence      is    entirely      cumulative           to    other        non-Rule    404(b)

evidence available to the government, the Rule 404(b) evidence

may not meet the necessity prong.”                   United States v. Lighty, 616

F.3d 321, 354 (4th Cir. 2010).

       The core of McLean’s defense strategy was that the officers

had arrested the wrong person.                  As such, the district court held

that    the     Rule     404(b)     evidence         was    necessary        to    establish

McLean’s identity.           The district court held that the evidence

was also necessary to demonstrate McLean’s                         knowledge and intent

to commit the charged crime.

       In his mistaken-identity claim, McLean made much of the

fact that the confidential source who first told the officers

about the drugs that were stored and transported from a vacant

house in the 2200 block of Guilford Avenue failed to give a



                                            17
description of the person or persons who allegedly were dealing

the drugs:

        Defense
        Counsel:           So there was no description of                     the
                           particular physical description of                 the
                           person   or   persons? There   was                  no
                           description of complexion or build                  or
                           height or weight?

        Mays:              No.

McLean    also     challenged      Mays’s    recollection       of    what    type   of

sweatshirt the person entering the house was wearing, whether

Mays saw the person unlock the back door of the house with a

key, whether the person was using a cellphone, and whether the

object    that     the    person    passed      to   the    other    individual      was

actually drugs.

        So first, evidence of the prior bad acts was necessary to

establish that the officers had not arrested the wrong person.

By     asserting    his     mistaken-identity         claim,        McLean    made   it

necessary for the government to introduce evidence of his prior

drug     convictions,      which,    as      described      above,     were    closely

related to the charged conduct in regards to manner, state of

mind, place, and pattern.             Because of these similarities, the

government employed this evidence to help demonstrate that it

was McLean, and not someone else, whom Mays and his partners

observed engaging in illegal drug transactions on the morning of

March    3,     2010.     And    second,     the     Rule   404(b)     evidence      was


                                           18
necessary    to    help    establish        McLean’s     knowledge     and    intent.

Having called into question his identity as the person who was

dealing    drugs   from     2204     Guilford     Avenue,     McLean   effectively

challenged the government’s assertion that he had the requisite

knowledge and intent to commit the crime.                    Thus, he cannot now

be heard to argue that the government’s evidence of his prior

two drug convictions, which go to knowledge and intent, were

unnecessary.

     Although the government presented other evidence to support

McLean’s conviction, its other evidence was not such that it

made the Rule 404(b) evidence unnecessary.



                                           3.

     Finally, McLean contends that the admission of the Rule

404(b)    evidence    that    he     had    twice    been     convicted      of   drug

distribution charges was unfairly prejudicial to him, thereby

contravening Rule 403.         And, as such, according to McLean, the

district court abused its discretion by admitting it.

     We have long held, however, that we will not disturb the

district    court’s       decision     whether      to     admit   evidence       under

Rule 403     “except         under         ‘the     most      extraordinary         of

circumstances,’ where that discretion has been plainly abused.”

United States v. Simpson, 910 F.2d 154, 157 (4th Cir. 1990)

(quoting United States v. Heyward, 729 F.2d 297, 301 n.2 (4th

                                           19
Cir. 1984) (internal quotation marks omitted)).                       “Such an abuse

occurs only when it can be said that the trial court acted

‘arbitrarily’      or    ‘irrationally       in   admitting      evidence.”        Id.

(quoting Garraghty v. Johnson, 830 F.2d 1295, 1298 (4th Cir.

1987);    United   States    v.    Masters,       622    F.2d   83,    88   (4th   Cir.

1980)).

       “[W]e are reluctant to question a trial court’s judgment

under Rule 403, and for good reason.                      Trial judges are much

closer to the pulse of a trial than we can ever be and broad

discretion is necessarily accorded them.”                   Id. (first alteration

omitted) (brackets omitted) (internal quotation marks omitted).

“Nonetheless, when, after review of the record, we are left with

a firm conviction that an abuse of discretion has occurred that

has worked to the prejudice of a defendant, we must reverse.”

Id.      “Of course, in one sense all incriminating evidence is

inherently prejudicial.           ‘The proper question under Rule 404(b),

however, is whether such evidence has the potential to cause

undue prejudice, and if so, whether the danger of such undue

prejudice substantially outweighs its probative value.’”                       United

States v. Boyd, 53 F.3d 631, 637 (4th Cir. 1995) (quoting Mark,

943 F.2d at 449).

       “A criminal defendant . . . cannot deny knowledge of drug

trafficking or an intent to traffic in drugs and at the same

time   preclude    the    admission    of     the       government’s    evidence    of

                                        20
prior occasions when he willingly trafficked in drugs.”                                 Sparks

v.   Gilley    Trucking          Co.,    992    F.2d       50,   52    (4th     Cir.       1993).

“[W]hen intent to commit an act is an element of a crime, prior

activity      showing       a    willingness         to    commit      that    act     may    be

probative.”     Id.

      As observed above, police arrested McLean on January 19,

2004,   for    selling          four    gel   caps    of    heroin      to    an    undercover

police officer.          They also recovered sixty-six additional gel

caps of heroin and seventeen vials of cocaine nearby.                                   Police

also arrested McLean on February 13, 2004, for selling two black

top vials of cocaine and found six additional black top vials of

cocaine in McLean’s shirt pocket.                          But evidence presented at

trial showed that the amount of drugs involved in this case was

substantially        more       than    the    amounts       for      which    he    had     been

previously      charged.           Here,       he    was    also      charged       here     with

possession of ammunition.                Consequently, the scales tip in favor

of admitting the Rule 404(b) evidence inasmuch as the evidence

of McLean’s previous sales of lesser amounts of drugs were not

any more “sensational or disturbing,” Boyd, 53 F.3d at 637, than

what he was charged with here.



                                               D.

      To ameliorate any prejudice that might be visited upon a

defendant     with    the        admission      of    Rule       404(b)      prior     bad    act

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evidence,       two     additional      safeguards        are     available       when

requested: (1) a limiting jury instruction that explains the

reason    for    admitting      prior    bad     acts     evidence       and    (2)     a

requirement      that    the    government,      in   a    criminal      case,    must

provide advance notice that it intends to introduce Rule 404(b)

evidence.       Queen,    132    F.3d   at     997.       “When   Rule    404(b)       is

administered according to these rules, it will not, we believe,

be applied to convict a defendant on the basis of bad character,

or to convict him for prior acts, or to try him by ambush.”                           Id.

Instead, it permits “the admission of evidence about similar

prior acts that are probative of elements of the offense in

trial.”   Id.

     Both safeguards are present here.                    First, just after the

detectives       testified      regarding       McLean’s        two   prior       drug

convictions,      the    district    court     gave     the   following        limiting

instruction to the jury:

     Ladies and gentlemen, you’ve just heard evidence that
     the   government  has  offered,  testimony   of   three
     witnesses. Specifically, Detective Collins, Sergeant
     Talley, as well as Sergeant Rutkowski, I believe I’m
     pronouncing   it  improperly.     [The   evidence   is]
     [i]ntended to show on a different occasion the
     defendant engaged in conduct similar to the charges in
     the indictment.

     In that connection, let me remind you that the
     defendant is not on trial for committing those prior
     acts not alleged in the indictment.  Accordingly, you
     may not consider this evidence of the similar acts as
     a substitute for proof that the defendant committed
     the crime charged.

                                         22
       Nor may you consider the evidence as proof that the
       defendant has bad character. The evidence of the other
       similar acts was admitted for a much more limited
       purpose, and you may consider it only for that limited
       purpose.

       If you find that the defendant did engage in that
       other conduct, and if you find that other conduct has
       sufficiently similar characteristics to that charged
       in the indictment, then you may but you need not infer
       that the defendant was the person who committed the
       act charged in the relevant counts of the indictment.
       That is, you may consider the prior act evidence as
       evidence of identity.

Although not contained in the Joint Appendix, the government

asserts that the district court gave a similar admonition during

its closing instructions to the jury.                    McLean does not contest

otherwise.

       And   second,    McLean     was     made   aware    in    advance    that    the

government intended to introduce Rule 404(b) in its case against

him with its January 11, 2012, filing of its motion to admit

Rule   404(b)      evidence.       Thus,     we   conclude       that    evidence    of

McLean’s     two    prior   drug   convictions      was    not    used    to   convict

McLean “on the basis of bad character, or to convict him for

prior acts, or to try him by ambush.”                    Queen, 132 F.3d at 997.

As   such,    the    district      court    did    not    err    in     granting    the

government’s motion to admit evidence of two of McLean’s prior

drug convictions.




                                           23
                                         E.

      McLean’s reliance on other cases from this Court to support

his argument that the district court erred in admitting the Rule

404(b)   evidence     is    unavailing.          This    Court    has    held    that

admission of Rule 404(b) evidence “should be considered with

meticulous regard to the facts of each case.”                    United States v.

Hernandez, 975 F.2d 1035, 1040 (4th Cir. 1992) (quoting United

States   v.   Baldivid,      465   F.2d        1277,    1290    (4th    Cir.    1972)

(Sobeloff,    J.,    concurring    in    part     and   dissenting      in     part)).

Simply stated, none of the cases cited by McLean present the

same factual scenario as what we are confronted with here.                           On

the   facts   of    this   case,   the    district      court    did    not    err   in

admitting the Rule 404(b) evidence.



                                         IV.

      For these reasons, we find no reversible error and thus

affirm the judgment of the district court.

                                                                              AFFIRMED




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