                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 13-4078


                            UNITED STATES OF AMERICA

                                             v.

                                 OMAR SIERRE FOLK,
                                                           Appellant


                     On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                               (D.C. No. 1-11-cr-00292-001)
                     District Judge: Honorable William W. Caldwell


                       Submitted under Third Circuit LAR 34.1(a)
                                   on June 3, 2014

               Before: HARDIMAN, SCIRICA and ROTH, Circuit Judges

                           (Opinion filed: September 17, 2014)



                                       OPINION


ROTH, Circuit Judge:

       Omar Folk was found guilty of distribution and possession with intent to distribute

cocaine, use of a firearm in furtherance of drug trafficking, and being a felon in

possession of a firearm. At trial, Melanie Schill, a woman with whom Folk used to live
and with whom he had a child, testified that Folk possessed and manufactured drugs and

used a gun during a domestic dispute. Folk now appeals his denial of a motion for a

mistrial and his subsequent denial of a motion for a new trial on the grounds that Schill’s

testimony was unduly prejudicial. Finding no error with the District Court’s decision to

admit the testimony, we will affirm.

I.     Background

       On July 11, 2012, a grand jury returned a four-count indictment against Folk.

Count one charged Folk with distribution of 280 grams or more of cocaine base for the

entire period of the indictment from August 2009 through September 1, 2011, in violation

of 21 U.S.C. § 841(a)(1). Counts two through four charged Folk with being a felon in

possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. §§

922(g), 924(c).

       At trial, the prosecution presented physical evidence from Folk’s arrest, evidence

obtained during a search of Folk’s apartment, and testimony from two cooperating

individuals to whom Folk had sold crack and powder cocaine from 2009 through 2011.

In addition, Schill testified that, while living with Folk in 2010, she had arrived home and

seen what she believed to be crack cocaine on a napkin and proceeded to argue with him

about it. The argument escalated, and Schill testified that Folk grabbed a gun during the

argument, held their daughter, and pointed the gun at Schill while threatening to kill her.

Folk’s counsel objected throughout Schill’s testimony. At the end of the testimony,

Folk’s counsel requested a mistrial on the grounds that the testimony was unduly

prejudicial and should not have been admitted pursuant to Rule 403 of the Federal Rules

                                             2
of Evidence. The request was denied, and the jury found Folk guilty on all four counts.

Folk then filed a motion for a new trial alleging that Schill’s testimony was incurably

prejudicial testimony. The District Court denied Folk’s motion in a written opinion.

Folk appealed.

II.        Standard of Review

           We review denial of a motion for a mistrial based on allegedly prejudicial

testimony for abuse of discretion. United States v. Riley, 621 F.3d 312, 335–36 (3d Cir.

2010) (citing United States v. Lore, 430 F.3d 190, 207 (3d Cir. 2010)).

III.       Discussion 1

           The District Court did not abuse its discretion in admitting Schill’s testimony

because it was relevant to the government’s charge that Folk carried and used a firearm in

relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). See Smith v.

United States, 508 U.S. 223, 238 (1993) (defining scope of § 924(c)(1)). Schill’s

testimony established that Folk owned a gun, stored it near a supply of crack cocaine, and

used it at least once to threaten Schill into keeping silent about his drug trafficking

activities. This evidence went directly to the government’s case against Folk under §

924(c). See, e.g., United States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004) (holding

that the fact that a gun was strategically located in a compartment containing a cache of

marijuana supported a § 924(c) conviction).

           The District Court similarly did not abuse its discretion in admitting Schill’s

testimony over Folk’s objection pursuant to Rule 403. Under that rule, a court may

1
    The District Court had jurisdiction under 28 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.

                                                          3
exclude relevant evidence “if its probative value is substantially outweighed by the

danger of unfair prejudice.” Fed. R. Evid. 403. Rule 403 creates a presumption of

admissibility and “does not provide a shield for defendants who engage in outrageous

acts.” United States v. Cross, 308 F.3d 308, 325 (3d Cir. 2002). Nothing about Schill’s

testimony created a danger of unfair prejudice that substantially outweighed its probative

value under Rule 403. The District Court, therefore, did not err in admitting the

testimony.

IV.    Conclusion

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                            4
