UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                 No. 99-4056

ALFRED LEE DAY,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                 No. 99-4057

ALFRED LEE DAY,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-91-132-R, CR-98-15-R)

Argued: May 2, 2000

Decided: August 31, 2000

Before MICHAEL, MOTZ, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Rickey G. Young, LAW OFFICE OF RICKEY G.
YOUNG, Martinsville, Virginia, for Appellant. Thomas Jack Bondu-
rant, Jr., Assistant United States Attorney, Roanoke, Virginia, for
Appellee. ON BRIEF: Robert P. Crouch, Jr., United States Attorney,
Roanoke, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Alfred Lee Day was convicted by a jury in the Western District of
Virginia of possession of cocaine with intent to distribute, in violation
of 21 U.S.C. § 841(a)(1). Pursuant thereto, the district court sentenced
Day to 262 months' imprisonment and revoked his previously
imposed term of supervised release. Day appeals his conviction and
sentence. We find no reversible error and affirm.

I.

During the evening of December 16, 1997, Roanoke, Virginia,
police officers assigned to a drug task force followed a lead relating
to drug activity on Staunton Avenue in Roanoke. As Detectives
Danny C. Brabham and R.E. Chandler entered onto the residential
property at 1924 Staunton Avenue, N.W., they observed a male indi-
vidual, later identified as defendant Day, leave the front porch of the
residence and approach them. After the officers identified themselves,
Day abruptly turned around and walked back toward the porch. At
this point, Detective Brabham -- fifteen to twenty feet from Day and
shining a flashlight on him -- observed a "brown paper bag or a small
object fall from between [Day's] legs." J.A. 121. Detective Chandler,
who was standing ten to fifteen feet away from Day, also observed
an object fall near Day's feet. Neither officer could see Day's hands,
but Detective Chandler maintained that, as Day turned his back, he
saw "movement on [Day's] left-hand side. . . . The shoulder and his
elbow moved." J.A. 306.

                    2
As Detective Brabham moved closer, he located and opened the
bag, and found that it contained "five small baggie corners of white
powder substance" that "appeared to be powder cocaine." J.A. 121.
Subsequent lab tests confirmed that the baggies contained 2.39 grams
of cocaine. Upon taking Day into custody, the officers also seized
$842 in cash from Day's person.

Day was indicted by the grand jury in the Western District of Vir-
ginia on March 26, 1998. His trial was conducted in Roanoke on Sep-
tember 3 and 4, 1998, and the jury found him guilty. On January 12,
1999, Day was sentenced to 262 months' imprisonment. In light of
the conviction, the district court also revoked a previously imposed
term of supervised release and ordered Day to serve an additional
twenty-four months' imprisonment.

During trial, the Government introduced -- over objection -- the
testimony of two witnesses, Ricardo Orlando Ubiera and Stephen
Lamont Poindexter, regarding Day's drug transactions in the eight
month period preceding his arrest. Specifically, Ubiera testified that:
in April 1997, he personally witnessed Day purchase four and one-
half ounces of crack cocaine; in July 1997, he observed Day sell one-
half ounce of cocaine to Ubiera's friend, Charles Finney; and in
August 1997, Day informed Ubiera that he had cocaine for sale and
offered Ubiera a beeper number for use if Ubiera became aware of
potential buyers.

Similarly, Poindexter testified about Day's recent drug dealings.
He stated that in May or June of 1997, he sold Day approximately two
ounces of crack, and in a subsequent transaction, he sold Day an addi-
tional eighty-four grams of crack, which was weighed and measured
on a scale brought to the transaction by Day.

Prior to the admission of Ubiera's testimony pursuant to Rule
404(b) of the Federal Rules of Evidence, the district court limited its
evidentiary use to the issue of intent and instructed the jury accord-
ingly:

          Ladies and gentlemen of the jury, in connection with this
          testimony, I believe I ought to tell you it's not being admit-
          ted to prove the character of Mr. Day in order to show, you

                    3
          know, action in conformity with his character. But I'm
          admitting it for the purpose of evidence as to intent. You
          know, if he dropped the bag, whether or not he had it with
          the intent to distribute and motive. But it's not coming in to
          show that he was in possession of the drugs on the night in
          question. Do all of you understand that? Okay.

J.A. 155. The district court reiterated this cautionary instruction prior
to the admission of Poindexter's testimony and gave it again before
submitting the case to the jury.

On appeal, Day's principal argument is that the testimony of Ubi-
era and Poindexter was not properly admitted under Rule 404(b). In
the alternative, Day asserts that the probative value of this evidence
was substantially outweighed by its prejudicial effect, and he argues
that it should have been excluded under Rule 403. 1

II.

A.

We review for abuse of discretion a decision to admit evidence of
prior similar acts pursuant to Rules 404(b) and 403. United States v.
Chin, 83 F.3d 83, 87 (4th Cir. 1996). We defer to a district court's
decision to admit evidence under Rule 404(b) unless that decision is
"arbitrary or irrational." United States v. Haney, 914 F.2d 602, 607
(4th Cir. 1990).
_________________________________________________________________

1 Additionally, Day makes other assignments of error: (1) the court
erred in denying his motion to suppress evidence; (2) the evidence was
insufficient to support his conviction; (3) the court erred in denying his
motion for a mistrial following the prosecutor's closing argument; and
(4) the court erred in admitting a letter written by a witness to the United
States Attorney in which the witness indicated that he possessed evi-
dence against Day and was willing to take a polygraph examination. For
the reasons set forth below, we reject these arguments. See infra Part III.

                     4
B.

Under Rule 404(b), prior acts evidence, when relevant, may be
admissible unless offered to prove "the character of a person in order
to show action in conformity therewith."2 The Rule includes a non-
exhaustive list of those purposes for which such evidence may be
admitted: "motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident." Fed. R. Evid. 404(b); see
United States v. Queen, 132 F.3d 991, 994 (4th Cir. 1997) ("[W]ith
only the one stated exception, [Rule 404(b)] is understood to be a rule
of inclusion, authorizing evidence of prior acts for purposes other
than character . . . .") (internal quotation marks and citations omitted).

Although admissible under Rule 404(b), prior acts evidence
remains subject to exclusion under Rule 403 when its probative value
is "substantially outweighed by the danger of unfair prejudice, confu-
sion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative
evidence." Because of the "complex and difficult distinction between
[inadmissible] evidence of character and evidence of, for example,
intent or motive," Queen, 132 F.3d at 995, we have articulated the fol-
lowing four-pronged test to determine the admissibility of such evi-
dence:

         [E]vidence of prior acts becomes admissible under Rules
         404(b) and 403 if it meets the following criteria: (1) The
         evidence must be relevant to an issue, such as an element of
_________________________________________________________________
2 Rule 404(b) provides that:

          Evidence of other crimes, wrongs, or acts is not admissible to
          prove the character of a person in order to show action in confor-
          mity therewith. It may, however, be admissible for other pur-
          poses, such as proof of motive, opportunity, intent, preparation,
          plan, knowledge, identity, or absence of mistake or accident,
          provided that upon request by the accused, the prosecution in a
          criminal case shall provide reasonable notice in advance of trial,
          or during trial if the court excuses pretrial notice on good cause
          shown, of the general nature of any such evidence it intends to
          introduce at trial.

Fed. R. Evid. 404(b).

                     5
          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 element of the offense. (3) The evi-
          dence 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 rea-
          son to emotion in the fact-finding process.

Id. at 997.

C.

1.

In this case, we must first ascertain whether the testimony of Ubi-
era and Poindexter relating to Day's prior drug transactions was rele-
vant to the issue for which it was offered. Such evidence has
relevance if it has the tendency to make the existence of any determi-
native fact more probable that it would be without the evidence. See
Fed. R. Evid. 401. Here, the Government sought to admit evidence of
Day's prior drug transactions to establish his intent to distribute
cocaine.

In this regard, Day asserts that the challenged testimony was irrele-
vant and should not have been admitted. In support of this claim, Day
relies on our decision in United States v. Sanders, 964 F.2d 295, 298-
99 (4th Cir. 1992), where we held that a conviction for an earlier stab-
bing assault was inadmissible to prove intent as an element of a sub-
sequent charge of assault with a shank -- despite the fact that the
defendant had placed his intent at issue by pleading self-defense to
the later charge. Day also points to our decision in United States v.
Hernandez, 975 F.2d 1035, 1040-41 (4th Cir. 1992), where we
vacated a conviction because the district court admitted evidence --
for purposes of demonstrating the defendant's intent to participate in
the charged drug conspiracy -- that the defendant had previously
shared a recipe for crack cocaine with a witness.

                    6
Day's reliance on Sanders and Hernandez is misplaced. Those
decisions were both largely premised on the lack of similarity
between the prior act and the charged offense. In Sanders, the dissim-
ilarity rested not in the physical conduct involved in both the prior
stabbing and the charged offense, which were admittedly the same.
Rather, the prior stabbing differed from the charged offense in one
critical respect: a different victim, or according to the defendant, a
different aggressor. The injection of this human variable led to our
conclusion that the prior stabbing should have been excluded: "The
fact that Sanders had committed an assault on another prisoner . . .
had nothing to do with his reason for -- his intent in -- stabbing [the
victim of the charged offense]." Sanders , 964 F.2d at 298-99. Like-
wise, the challenged evidence in Hernandez was inadmissible because
of its tenuous relationship to the charges in the indictment. The evi-
dence -- although offered to prove the defendant's intent to partici-
pate in the charged conspiracy -- was not probative of "anything
about [the defendant's] conduct or mental state during the course of
the conspiracy alleged in the indictment." Id. at 1039. While we rec-
ognized that a defendant's prior involvement with crack cocaine
might render the charged offense more "plausible," we held that such
an assumption "is precisely the criminal propensity inference Rule
404(b) is designed to forbid." Id. at 1040.

Unlike the challenged evidence in Sanders and Hernandez, the
prior acts evidence offered against Day by Ubiera and Poindexter was
"sufficiently related to the charged offense." United States v. Rawle,
845 F.2d 1244, 1247 n.3 (4th Cir. 1980) (citation omitted). The prior
drug transactions described by Ubiera and Poindexter were similar in
kind, and all the transactions occurred within an eight-month period
prior to the charged conduct. See id. at 1247-48 (evidence that defen-
dant used to transport marijuana sufficiently similar to instant charges
of conspiracy to possess marijuana with intent to deliver and posses-
sion of marijuana); United States v. Wint, 974 F.2d 961, 967 (8th Cir.
1992) ("evidence of an offense committed within the previous five
years is reasonably close in time"). Because of its similarity to the
charged offense, the challenged evidence tended to demonstrate that
Day knew how drugs are retailed; this knowledge, in turn, suggested
Day's awareness of the significance of individually packaging
cocaine for retail distribution. Such awareness increases the likeli-
hood that Day intended to distribute the individually packaged

                    7
cocaine found to have been in his possession. Thus, given the similar-
ity between Day's prior drug transactions and the charged offense, the
evidence indicating that Day had previously distributed cocaine was
relevant to the Government's effort to prove that he possessed cocaine
on December 16, 1997, with the intent to distribute. See United States
v. Mark, 943 F.2d 444, 448 ("Where such acts are sufficiently related,
the relevance of the [prior acts] evidence`derives from the defen-
dant's having possessed the same state of mind in the commission of
both the extrinsic act and the charged offense.'") (quoting United
States v. Dothard, 666 F.2d 498, 502 (11th Cir. 1982)).

2.

Next, evidence is "necessary" under Queen 's second prong "where,
considered in the light of other evidence available to the government,
it is an essential part of the crimes on trial, or where it furnishes part
of the context of the crime." Queen, 132 F.3d at 998 (internal quota-
tion marks and citations omitted). As the Supreme Court noted in
Huddleston v. United States, 485 U.S. 681, 685 (1988), "Extrinsic
acts evidence may be critical to the establishment of the truth as to
a disputed issue, especially when that issue involves the actor's state
of mind and the only means of ascertaining that mental state is by
drawing inferences from conduct." Here, the testimony of Ubiera and
Poindexter was unquestionably "necessary" inasmuch as it was proba-
tive of an essential element of possession with intent to distribute:
specific intent. See United States v. Fisher, 912 F.2d 728, 730 (4th
Cir. 1990) ("Conviction under 21 U.S.C. § 841(a)(1) for possession
with intent to distribute a controlled substance requires proof of spe-
cific intent to distribute.").

3.

Furthermore, the testimony of Ubiera and Poindexter is sufficiently
reliable to satisfy the third prong of Queen. Evidence is reliable for
purposes of 404(b) if it is "sufficient to allow the jury to `reasonably
conclude that the act[s] occurred and that the defendant was the
actor.'" United States v. Powers, 59 F.3d 1460, 1467 (4th Cir. 1995)
(quoting Huddleston, 485 U.S. at 689) (alterations in original). Since
the challenged evidence was based on the first-hand, personal obser-

                     8
vations of eyewitnesses, the evidence presented by Ubiera and
Poindexter satisfied the reliability requirement of Queen.

4.

Finally, Day contends that Ubiera's and Poindexter's testimony --
even if admissible under Rule 404(b) -- should have been excluded
under Rule 403 because its probative value was substantially out-
weighed by the danger of unfair prejudice.

Admittedly, the challenged testimony was prejudicial to Day. How-
ever, the critical inquiry under Rule 403 is whether such testimony
was unfairly prejudicial, and if so, whether the danger of such unfair
prejudice substantially outweighed the testimony's probative value.
See United States v. Lipford, 203 F.3d 259, 268-69 (4th Cir. 2000)
(evidence that defendants agreed to shoot police officers in the event
of a raid, while undoubtedly prejudicial, was not unfairly prejudicial);
United States v. Grimmond, 137 F.3d 823, 833 (4th Cir. 1998) (hold-
ing that "damage to a defendant's case is not a basis for excluding
probative evidence"). The prejudice necessary to exclude evidence
under Rule 403 typically arises "only in those instances where the
trial judge believes that there is a genuine risk that the emotions of
the jury will be excited to irrational behavior, and that this risk is dis-
proportionate to the probative value of the offered evidence." United
States v. Masters, 622 F.2d 83, 87 (4th Cir. 1980) (citation omitted).

We find no disproportionate risk in this case. There is no indication
that the prior act evidence "would invoke emotion in place of reason
as a decisionmaking mechanism." Queen, 132 F.3d at 998. Therefore,
given the highly probative nature of Ubiera's and Poindexter's testi-
mony, we are unable to find that any prejudice resulting from this evi-
dence substantially outweighed its probative value.

Our conclusion in this regard is bolstered by the efforts of the pre-
siding judge to minimize the prejudicial impact of Ubiera's and
Poindexter's statements. As we have pointed out, the court, prior to
admitting the evidence, instructed the jury that it was not to consider
the testimony for any purpose other than Day's intent. Indeed, the dis-
trict court gave this limiting instruction on three separate occasions:
prior to the testimony of Ubiera, prior to the testimony of Poindexter,

                     9
and at the close of all the evidence. Jurors are presumed to follow
such cautionary instructions, see United States v. Love, 134 F.3d 595,
603 (4th Cir. 1998), and we conclude that the district court's limiting
instructions alleviate any prejudicial impact of the challenged testi-
mony. See Powers, 59 F.3d at 1468 (noting that cautionary instruc-
tions "generally obviate any such prejudice").

"[T]he appraisal of the probative and prejudicial value of evidence
under Rule 403 is entrusted to the sound discretion of the trial judge;
absent extraordinary circumstances, the Courts of Appeal will not
intervene in its resolution." United States v. MacDonald, 688 F.2d
224, 227-28 (4th Cir. 1982). Such "extraordinary circumstances" are
not present here; thus, we conclude that the district court acted within
its discretion in admitting Ubiera's and Poindexter's testimony of
Day's prior transactions.

D.

The facts before us present a compelling case for the admission of
prior act evidence under Rule 404(b). Day was charged with posses-
sion with intent to distribute cocaine, and his intent was an issue at
trial. As a result, evidence of recent prior acts involving similar drug
transactions was properly admissible to establish the requisite intent.
As we recognized in United States v. Sanchez, 118 F.3d 192, 196 (4th
Cir. 1997), "A not-guilty plea puts one's intent at issue and thereby
makes relevant evidence of similar prior crimes when that evidence
proves criminal intent." Indeed, when a criminal defendant's intent is
at issue,

          we have regularly permitted the admission of prior acts to
          prove that element. A criminal defendant, for example, can-
          not 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 prior occasions when he willingly
          trafficked in drugs. We have held repeatedly that when
          intent to commit an act is an element of a crime, prior activ-
          ity showing a willingness to commit that act may be proba-
          tive.

Sparks v. Gilley Trucking Co., 992 F.2d 50, 52 (4th Cir. 1993) (cita-
tions omitted). Given our inclusive interpretation of Rule 404(b), we

                    10
conclude that the admission of Ubiera's and Poindexter's testimony
was not an arbitrary or irrational exercise of discretion, and we there-
fore affirm the district court's decision to admit the challenged evi-
dence. See Haney, 914 F.2d at 607.

III.

Day raises several additional arguments, none of which merit
extensive discussion. First, Day contends that the district court erred
in denying his motion to suppress the cocaine evidence based on an
unlawful search and seizure. We reject his contention. See United
States v. Leshuk, 65 F.3d 1105, 1111 (4th Cir. 1995) ("[A] person
who voluntarily abandons property loses any reasonable expectation
of privacy in the property and is consequently precluded from seeking
to suppress evidence seized from the property.").

Second, Day maintains that the evidence was insufficient to sup-
port his conviction for possession with intent to distribute. We reject
this argument. Taken in the light most favorable to the Government,
the evidence adduced at Day's trial was more than sufficient to sup-
port his conviction. See Glasser v. United States, 315 U.S. 60, 80
(1942).

Next, Day asserts that the district court erred in denying his motion
for a mistrial following closing argument. During closing argument,
the prosecutor referred to defense counsel's characterization of Detec-
tives Brabham and Chandler as "total slander." J.A. 355. We do not
find this line of argument to be, under the circumstances, improper.
However, even if improper, it did not so prejudicially impact Day's
substantial rights so as to deprive him of a fair trial. See United States
v. Francisco, 35 F.3d 116, 120 (4th Cir. 1994). Accordingly, the dis-
trict court did not abuse its discretion in denying Day's motion for a
mistrial.

Finally, Day argues that the district court erred in admitting a letter
written to the United States Attorney in which Government witness
Bracy indicated that he had evidence against Day and that he (Bracy)
was willing to take a polygraph examination. We review evidentiary
rulings for an abuse of discretion, see Benedi v. McNeil P.P.C., Inc.,
66 F.3d 1378, 1383 (4th Cir. 1995), and we conclude that the district

                     11
court did not abuse its discretion in admitting Bracy's letter. More-
over, Bracy's testimony was not critical to the Government's case,
and beyond the introduction of the letter itself, there was no reference
during trial to the offer to take a polygraph examination. Therefore,
any error in the district court's admission of this evidence was harm-
less beyond a reasonable doubt. See United States v. Hererra, 832
F.2d 833, 835-36 (4th Cir. 1987).

IV.

Pursuant to the foregoing, we affirm Day's conviction and sen-
tence.

AFFIRMED

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