                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4640


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TRAVIS DENORRIS ARNOLD,

                Defendant - Appellant.



Appeal from the United States District Court for          the Middle
District of North Carolina, at Winston-Salem.              Thomas D.
Schroeder, District Judge. (1:08-cr-00322-TDS-1)


Submitted:   April 22, 2010                   Decided:   May 13, 2010


Before KING, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant. Paul Alexander Weinman, OFFICE
OF THE UNITED STATES ATTORNEY, Winston-Salem, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Following       trial,       a   jury      convicted           Travis        Denorris

Arnold    of    bank       robbery    in    violation         of     18    U.S.C.       §       2113(a)

(2006).        Arnold        was   sentenced        as    a    career       offender            to   230

months’       imprisonment.           Arnold’s         counsel        has       filed       a    brief

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting

that,    in    his        opinion,    there      are     no     meritorious         issues           for

appeal,       but     questioning        the    admission          of     certain       evidence.

Arnold has filed a pro se supplemental brief arguing:                                           (1) his

arrest was illegal and his subsequent confession was fruit of

the poisonous tree; (2) his confession was involuntary; (3) he

was denied the right to a speedy trial; (4) his indictment was

defective; (5) his counsel was ineffective for failing to file a

motion    to    suppress       his    confession;         and      (6)     the    testimony           of

Masear and Shulenberger was not credible.                                 The Government has

elected not to file an appellate brief.                        We affirm.

               Counsel       for   Arnold       asserts       that      the     district          court

erred    (1)        in    admitting      the    portion        of     Arnold’s       confession

stating    that          wearing   ski     masks    and       kicking      in    doors          is   not

Arnold’s “MO”; (2) in allowing Detective Shulenberger to testify

as to Shulenberger’s understanding of the meaning of the term

“MO”; and (3) in identifying Masear as a probation officer.                                           He

contends that these evidentiary rulings violated Fed. R. Evid.

404(b), and were unfairly prejudicial under Fed. R. Evid. 403.

                                                2
We review evidentiary rulings for abuse of discretion.                                        United

States v. Basham, 561 F.3d 302, 325 (4th Cir. 2009), petition

for cert. filed, __ S. Ct. __, 78 U.S.L.W. 3341 (U.S. Nov. 23,

2009) (No. 09-617).

             Rule 404(b) of the Federal Rules of Evidence provides

that “[e]vidence of other crimes . . . is not admissible to

prove the character of a person in order to show action in

conformity therewith.”             The evidence may, however, be admissible

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

preparation,       plan,     or    knowledge.                 Basham,      561    F.3d       at   326.

“Rule 404(b) is an inclusive rule, admitting all evidence of

other    crimes     or    acts     except      that          which    tends      to    prove      only

criminal     disposition.”              Id.    (internal            citation      and       quotation

marks    omitted).         Rule     403       of       the    Federal      Rules       of   Evidence

provides     that        “relevant       evidence             may    be    excluded          if   its

probative value is substantially outweighed by the danger of

unfair    prejudice.”             The    damage          that       probative      evidence        can

inflict on a defendant’s case is no basis for excluding the

evidence,       however;     only       when       the       evidence      results      in    unfair

prejudice, such as an appeal to the jury’s emotion, and that

prejudice “substantially outweighs the probative value of the

evidence,” must it be excluded.                        Id. at 327.          Where the jury is

given    a   limiting       instruction,               any    fear     that      the    jury      will

improperly use the evidence subsides.                           United States v. Branch,

                                                   3
537 F.3d 328, 342 (4th Cir. 2008), cert. denied, 129 S. Ct. 943

(2009).

            We        find     the      district       court      did   not     abuse       its

discretion       in     admitting        the        disputed      portion     of    Arnold’s

statement to police, or in allowing Detective Shulenberger to

testify as to his understanding of the term “MO.”                             This portion

of   Arnold’s         confession        constituted          an     explanation      of    the

planning and preparation of the bank robbery, and therefore was

admissible under Rule 404(b).                   Further, there was no inordinate

prejudice from its admission under Rule 403.                            As to Detective

Shulenberger,         Arnold      contests      his    brief      explanation       that    the

term “modus operandi” can be used to describe “the way someone

acts or evidence they leave behind when they commit a crime.”

This testimony was probative, in that it helped explain part of

Arnold’s    confession,           and    was     not       unduly    prejudicial.          The

district court gave a limiting instruction, directing the jury

that it was not to assume the truth of the current charged

conduct    in    light       of   any    prior       bad   conduct.      Therefore,        the

district court did not abuse its discretion in admitting this

evidence.

            The       district       court       also       strictly     controlled        the

testimony       of    Masear,     Arnold’s       probation        officer     for   a     prior

offense.        The     district        court       instructed      Masear    outside       the

presence of the jury that she “should not indicate at any time

                                                4
that [she is] a probation officer with respect to defendant in

any   way,”    although     she    could       reveal    that    she   worked   as   a

probation     officer.       No     reference      was    made    during    Masear’s

testimony to the fact that she was Arnold’s probation officer.

The district court instructed the jury:                   “You must not conclude

from the fact that Ms. Masear is employed as a probation officer

that the defendant may have committed a crime or engaged in any

bad conduct in the past.”             Further, the district court repeated

this warning in its final instructions to the jury.                        Therefore,

the district court did not abuse its discretion in admitting the

disputed evidence.

              Arnold alleges in his pro se supplemental brief that

his trial counsel was ineffective for failing to file a motion

to suppress his confession on the bases that it was obtained as

a result of an unlawful arrest and that it was involuntary.

Because     the    record      does    not      conclusively       establish    that

counsel’s performance in failing to file a motion to suppress

Arnold’s confession was deficient, this claim is not cognizable

on direct appeal.         United States v. Benton, 523 F.3d 424, 435

(4th Cir. 2008).         We have reviewed the other issues raised in

Arnold’s pro se brief and find them without merit.

              In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.       We   therefore      affirm     the   district      court’s   judgment.

                                           5
This court requires that counsel inform his client in writing of

his right to petition the Supreme Court of the United States for

further    review.      If    the   client    requests       that   a     petition   be

filed,    but   counsel      believes   that    such     a    petition      would    be

frivolous, then counsel may move in this court for leave to

withdraw from representation.           Counsel’s motion must state that

a copy thereof was served on the client.

            We dispense with oral argument because the facts and

legal    contentions    are    adequately      presented       in   the     materials

before    the   court   and    argument      would   not     aid    the    decisional

process.

                                                                             AFFIRMED




                                        6
