                                                NOT PRECEDENTIAL



                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                               _____________

                                No. 11-1865
                               _____________

                        UNITED STATES OF AMERICA

                                      v.

                            KEITH SINGLETON,
                                 Appellant
                              _____________

               On Appeal from the United States District Court
                          for the District of Delaware
                    District Court No. 1-09-cr-00119-001
               District Judge: The Honorable Sue L. Robinson

              Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                             January 12, 2012

          Before: SCIRICA, RENDELL, and SMITH, Circuit Judges

                           (Filed:January 20, 2012)

                           _____________________

                                  OPINION
                           _____________________

SMITH, Circuit Judge.

     Keith Singleton appeals from the District Court’s granting of the
                                      1
government’s motion in limine, which permitted the government to introduce

evidence of a scheme to defraud separate from the scheme at issue in the trial, and

the District Court’s purported failure to give a contemporaneous limiting

instruction. Singleton also appeals the government’s introduction at trial of false

statements he made during a civil deposition. We will affirm.

                                        I.

      On December 10, 2009, Singleton was indicted and charged with: one count

of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349; sixteen

counts of wire fraud, in violation of 18 U.S.C. § 1343; and two counts of money

laundering, in violation of 18 U.S.C. § 1957. These charges related to allegations

that from December 2006 through 2008, Singleton and Eugene Watson,

Singleton’s co-conspirator — along with Carin Seals, an employee of the financial

institution Citigroup — defrauded Citigroup out of millions of dollars. The fraud

was alleged to have occurred when Seals sent or attempted to send numerous

fraudulent wire transfers from internal Citigroup accounts to financial accounts

controlled by Singleton, Watson, and their confederates (the “Citigroup Scheme”).

      The government filed a pre-trial motion in limine to admit certain evidence

of other crimes, wrongs, or acts pursuant to Federal Rule of Evidence 404(b). In

particular, the government sought to admit the testimony of Robert Morgan, one of

the government’s expected trial witnesses. Morgan’s proffered testimony was that

                                        2
he assisted Singleton in perpetrating portions of the Citigroup Scheme. Further,

Morgan was expected to testify that in February 2009, approximately two years

after his involvement in the Citigroup Scheme, Singleton told Morgan that he was

involved with an individual known as “Big Homey,” who had arranged for a large

sum of money to be unlawfully wire transferred to a particular bank account (the

“Big Homey Scheme”). Morgan believed that Singleton was asking for his help in

obtaining the proceeds of this unlawful wire transfer. The government asserted

that the Big Homey evidence should be permitted under Rule 404(b) because it

demonstrates, inter alia, that Singleton knowingly received stolen funds as part of

the Citigroup Scheme and that his actions were not an accident or a mistake. The

government argued that this evidence was not being introduced to demonstrate that

Singleton had a propensity to commit fraud crimes. The District Court granted the

government’s motion in limine, permitting the government to introduce the Big

Homey evidence.

        At trial, the government’s theory was that, from December 2006 through

March 2007, Seals sent unlawful wire transfers totaling more than $2,700,000 from

Citigroup to Singleton and Watson in exchange for kickbacks from Singleton.

During the government’s case-in-chief, Morgan testified about the Big Homey

Scheme. The District Court did not give — and Singleton did not request — a

contemporaneous limiting instruction regarding Morgan’s testimony of the Big

                                        3
Homey Scheme. The government put forward six other witnesses and more than

100 exhibits in its case-in-chief.

      Singleton’s theory at trial was that Seals led Singleton to believe that he was

receiving a legitimate loan from Citigroup. Singleton testified during his case-in-

chief that in December 2006, Seals, whom he did not know at the time, visited the

pizza restaurant that he owned, presented herself as a loan officer from Citigroup,

and stated that she could provide him with a commercial loan. Singleton further

testified that Seals never told him that the money she wired into his accounts was

stolen.

      On cross examination, Singleton was asked about his answers during his

2008 civil deposition, which involved the same events at issue in the Citigroup

Scheme.1    Singleton admitted that, in the deposition, he denied knowing that

someone from Citigroup sent wire transfers to his bank accounts even though he

did, in fact, know they had come from Citigroup. Singleton’s explanation was that

he “lied” because he was “nervous.” Singleton also acknowledged at trial that,

during his deposition, he had falsely denied knowing Seals or anyone else that

worked at Citigroup.      The District Court did not give a limiting instruction

contemporaneously with the introduction of his false deposition testimony, and

Singleton did not request any such instruction.



                                         4
      The District Court, during its final instructions to the jury, charged that the

evidence related to the Big Homey Scheme was admitted only for certain limited

purposes, including to prove that Singleton acted with the requisite state of mind,

knowledge, or intent necessary to commit the crimes charged or that his actions

were not an accident or mistake. The District Court further instructed the jury not

to consider the testimony regarding the Big Homey Scheme as evidence proving

that Singleton is a bad person or predisposed to do bad things.

        The jury found Singleton guilty on all counts. Singleton timely appealed.2

                                         II.

                                         A.

      Singleton argues that the District Court erred in permitting the government

to introduce evidence of the Big Homey Scheme pursuant to Rule 404(b). “We

review the District Court’s decision to admit evidence under Rule 404(b) for an

abuse of discretion, which may be reversed only when clearly contrary to reason

and not justified by the evidence.” United States v. Butch, 256 F.3d 171, 175 (3d

Cir. 2001) (citations and quotation marks omitted).

      Rule 404(b) permits the introduction of evidence of other bad acts unless


1
  The government, in its case-in-chief, also introduced portions of Singleton’s civil
deposition testimony as admissions by a party opponent.
2
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
appellate jurisdiction pursuant to 28 U.S.C. § 1291.
                                         5
such evidence is offered solely to “prove the character of a person in order to show

action in conformity therewith.” Fed. R. Evid. 404(b); United States v. Green, 617

F.3d 233, 244 (3d Cir. 2010). The “threshold inquiry a court must make before

admitting similar acts evidence under Rule 404(b) is whether that evidence is

probative of a material issue other than character,” Huddleston v. United States,

485 U.S. 681, 686 (1988), such as intent, plan, knowledge, identity, or absence of

mistake or accident. Fed. R. Evid. 404(b); Green, 617 F.3d at 244. We apply a

four-factor standard when determining the admissibility of evidence pursuant to

Rule 404(b): (1) a proper evidentiary purpose; (2) relevance under Rule 402; (3) a

weighing of the probative value of the evidence against its prejudicial effect under

Rule 403; and (4) a limiting instruction. Butch, 256 F.3d at 175-76 (citing United

States v. Mastrangelo, 172 F.3d 288, 294 (3d Cir. 1999)).

       Here, the District Court did not abuse its discretion in permitting

introduction of the Big Homey evidence. First, the government had a proper

purpose for introducing this evidence, which included demonstrating Singleton’s

intent to defraud, his knowledge that funds were being laundered through third-

party bank accounts, and the absence of mistake on his part when he arranged to

receive the charged funds from Seals and route them through Morgan’s bank

account. Second, the Big Homey evidence had a tendency to prove that Singleton

knowingly participated in the fraud conspiracy for which he was charged, and thus,

                                         6
it was relevant under Rule 402.      See Fed. R. Evid. 401 & 402.         Third, the

introduction of the Big Homey evidence did not unfairly prejudice Singleton by

distracting, swaying, diverting, or inflaming the jury. See, e.g., Fed. R. Evid. 403;

United States v. Guerrero, 803 F.2d 783, 785-87 (3d Cir. 1986). Further, this

evidence was highly probative of Singleton’s intent to defraud and belies his

asserted belief that the money was part of a legitimate loan. Finally, the District

Court issued a limiting instruction at the close of the case.3 Accordingly, the

District Court did not abuse its discretion in permitting the government to

introduce the Big Homey evidence pursuant to Rule 404(b).

                                         B.

      Singleton asserts that the District Court erred by not issuing a

contemporaneous limiting instruction upon introduction of the Big Homey

evidence. Because Singleton did not object at trial, we review the District Court’s

failure to give a contemporaneous limiting instruction for plain error. See, e.g.,

United States v. Moore, 375 F.3d 259, 262 (3d Cir. 2004). To establish plain error,

a defendant must demonstrate: (1) an error; (2) that is plain; and (3) that affects


3
  The District Court issued a summary order granting the government’s motion in
limine and did not expressly analyze the four factors that courts must consider
when determining the admissibility of evidence pursuant to Rule 404(b). We are
satisfied that the District Court properly considered these factors because they were
set forth in the government’s brief in support of the motion in limine. However,
the better practice is for courts to expressly consider these factors when making
such determinations.
                                         7
substantial rights. Johnson v. United States, 520 U.S. 461, 467 (1997); see also

United States v. Moore, 375 F.3d 259, 262 (3d Cir. 2004).

      The District Court did not plainly err by giving its limiting instruction

regarding the Big Homey evidence at the close of evidence.            Although it is

preferable that courts give limiting instructions both at the time of the evidence’s

introduction and at the close of evidence, there is no rigid rule regarding the timing

of such instructions. See, e.g., United States v. Misle Bus & Equip. Co., 967 F.2d

1227, 1233-34 (8th Cir. 1992) (finding no abuse of discretion where the limiting

instruction for Rule 404(b) evidence was given only at the close of evidence); cf.

United States v. Hakim, 344 F.3d 324, 325-26 (3d Cir. 2003) (finding no error

where the court gave a curative instruction thirty minutes after the testimony at

issue was improperly admitted). Accordingly, the District Court did not plainly err

by giving the limiting instruction at the close of evidence.

                                          C.

      Singleton argues that the District Court erred by not issuing a limiting

instruction to the jury regarding his false deposition testimony. Singleton asserts

that such a limiting instruction should have been given because the false statements

amounted to Rule 404(b) evidence of perjury or were offered for the limited




                                          8
purpose of impeaching his credibility under Federal Rule of Evidence 608(b).4

Because Singleton did not object at trial, we review the District Court’s failure to

make such a limiting instruction for plain error.

      The District Court did not plainly err by failing to give a limiting instruction.

The false deposition statements — which were made by Singleton while

attempting to conceal his participation in the ongoing Citigroup Scheme — were

intrinsic to the charged conspiracy, and thus, did not constitute Rule 404(b)

evidence. See, e.g., Green, 617 F.3d at 248 (stating that evidence is “intrinsic” to

the charged crime and not subject to Rule 404(b) where the evidence directly

proves the charged offense or the uncharged act facilitates the commission of the

charged crime). Moreover, the government’s use of Singleton’s false statements

on cross-examination was not limited solely to impeaching his credibility under

Rule 608(b), and thus, no limiting instruction was necessary. See, e.g., United

States v. Console, 13 F.3d 641, 661-62 (3d Cir. 1993) (stating that evidence barred

by Rule 608(b) solely for impeachment can be admitted if it is otherwise relevant

to a material issue). Thus, the District Court’s failure to issue a limiting instruction

was not plain error.

      Accordingly, we will affirm.


4
 Rule 608(b) provides that “[s]pecific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness’ character for truthfulness . . . may
not be proved by extrinsic evidence.” Fed. R. Evid. 608(b).
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