                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4544


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

VALENTINA ELEBESUNU,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      George J. Hazel, District Judge.
(8:13-cr-00008-GJH-2)


Submitted:   November 21, 2016            Decided:   February 7, 2017


Before SHEDD, AGEE, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joseph Murtha, MURTHA PSORAS &            LANASA LLC, Lutherville,
Maryland, for Appellant.      Rod J.      Rosenstein, United States
Attorney, Baltimore, Maryland, Menaka      Kalaskar, Assistant United
States   Attorney,  OFFICE   OF  THE       UNITED   STATES  ATTORNEY,
Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      After        a      five-day    jury       trial,     Valentina     Elebesunu

(“Elebesunu”) was convicted of Hobbs Act robbery and conspiracy

to   commit       Hobbs    Act   robbery,       both   violations    of   18    U.S.C.

§ 1951(a).         On appeal she challenges the admission of a portion

of a co-conspirator’s testimony as improper character evidence

prohibited by Federal Rule of Evidence 404(b).                        As Elebesunu

failed to object to the challenged evidence, its admission is

reviewed only for plain error.               We conclude the admission of the

testimony was not plain error and affirm Elebesunu’s conviction.



                                           I.

                                           A.

      On November 21, 2012, three masked gunmen robbed an armored

truck outside a Bank of America branch in Bladensburg, Maryland

(the “bank”).            All told, they took about $275,000.                   But the

gunmen did not act alone.                As the authorities investigated the

robbery,      a        larger    conspiracy      became     apparent,     one     that

eventually included two bank insiders.

      The first insider was Damione Lewis (“Lewis”), a contract

security guard hired to protect the bank.                   Lewis was arrested on

December      6,       2012.     After    his     arrest,    Lewis   confessed      to

organizing the robbery and told investigators he had enlisted

several associates to carry out the crime.

                                            2
       Lewis also named a second insider, Elebesunu, who, at the

time, was a Bank of America assistant vice president.                                Lewis

described Elebesunu as a principal in planning and facilitating

the robbery.           Later, Elebesunu was arrested and charged with

Hobbs Act robbery and conspiracy to commit that crime.                                She

pleaded not guilty and went to trial on both counts. 1

                                          B.

       Lewis testified against Elebesunu at trial as required by

his    written    plea     agreement.           According     to     Lewis,     he    and

Elebesunu were close outside work; she had been invited to his

wedding, and he had picked her children up from after school

activities on numerous occasions.                 One afternoon shortly before

the    robbery    the    two    began    discussing      their      finances    in     the

bank’s break room.             In particular, the two talked over some

significant      upcoming       expenses:       Elebesunu     was    having     trouble

paying her daughter’s private school tuition and Lewis had a

newborn on the way.

       Their    conversation      took    a     turn   into   uncharted       territory

when       Elebesunu    “said    she     knew     a    way    that     [they]        could

get the money.”         J.A. 92.        At first Elebesunu proposed robbing



       1
       Elebesunu also was charged with using, carrying, and
brandishing a firearm in furtherance of a crime of violence, a
violation of 18 U.S.C. § 924(c). The Government dismissed that
charge before trial.



                                            3
the bank.      And although Lewis thought she was not serious, the

topic “kept coming up, and [Elebesunu was] trying to figure out

how   we    c[ould]   do   it[.]”      J.A.      68.      Eventually     Lewis   and

Elebesunu settled on a plan to rob an armored truck when it

arrived to pick up the bank’s excess funds.                  Because the amount

of money leaving the bank fluctuated every day, and Elebesunu

knew the amount ahead of time, she was to select a lucrative day

for the robbery and tell Lewis.                 Lewis, in turn, would alert

those   who    were   to   commit   the       robbery.      After    the   robbery,

Elebesunu was to collect her share of the proceeds from Lewis.

                                        C.

      The     testimony    Elebesunu      challenges       on   appeal     concerns

another aspect of their break room conversation.                    In particular,

Lewis testified that when Elebesunu first discussed robbing the

bank she also told him that she had taken $50,000 in 2007 while

employed as a Bank of America teller:

      [A.]        And we just both started talking and just
                  one conversation led to another.

                  We talked about robbing [the bank].     She
                  said she had done it [in 2007] when she was
                  a teller, and it just went on from there.
                  We had numerous conversations.   It went on
                  from there.

      Q.          You said      there         were     conversations     after
                  that?

      A.          Yes.

      Q.          And when you said the defendant said she had
                  done it before, did she ever give any more

                                          4
                  details about doing it before, how it was
                  done?

      A.          She said she slid it out through the drive-
                  thru window.

      Q.          And was there an amount that was discussed?

      A.          I believe it was 50.

      Q.          Fifty what?

      . . .

      [A.]        $50,000.

J.A. 67-68.      During this exchange, Elebesunu did not object to

Lewis’ testimony.      Lewis continued on direct examination:

      [A.]        She didn’t want to tell me about it at
                  first.   She mentioned something, but then
                  she said I don’t know if I can trust you,
                  and then she didn’t say anything else after
                  that for about five minutes.    And then she
                  told me about the whole situation, about her
                  doing it before.

      Q.          When you say the situation before, what do
                  you mean?

      A.          About the robbery she had done before, the
                  taking of the money at the bank when she was
                  a teller.

J.A. 93.      Again, Elebesunu did not object.              Instead, she took

the witness stand in her defense and denied proposing a robbery

to -- or discussing any such matters with -- Lewis.

      While   cross-examining      Elebesunu,      the    Government    tried   to

elicit additional testimony about the 2007 robbery.                    Only then

did Elebesunu object, arguing that the Government’s question was

“a   back-door   way   to    try   to   get   in   some    [improper]    404(b)”

                                        5
character evidence.           J.A. 333.         The district court, however,

concluded Elebesunu had waived her Rule 404(b) objection and

that the question was otherwise proper: “So in . . . terms of

the 404(b) issue or the other bad acts issue, the testimony from

Mr. Lewis came in without objection. . . . It sounds like the[]

[Government] ha[s] a good-faith basis to ask” about the 2007

robbery.    J.A. 334. 2       The district court continued: “I think it

probably    would    have     been    appropriate        [under     Rule]     404(b).

Nonetheless,      again,      my     ruling      is     at   this     point    the[]

[Government]      ha[s]   a   good-faith        basis   to   ask    the   question.”

J.A. 335.

     The jury convicted Elebesunu on both counts, and she was

sentenced    to     105    months’     imprisonment.           Elebesunu      timely

appealed    her   conviction,        and   we    have    jurisdiction       under   28

U.S.C. § 1291.




    2  Elebesunu disputes the characterization of the 2007 event
as a “robbery.”   She contends instead that the 2007 event more
properly is characterized as a “larceny.” For consistency, and
because we do not believe the characterization of the event
affects the outcome of this appeal, we refer to the event as a
robbery throughout.



                                           6
                                       II.

                                          A.

      On appeal, Elebesunu contends Lewis’ testimony related to

the   2007    robbery     was   improper       character   evidence,   which   was

admitted in violation of Federal Rule of Evidence 404(b).                       We

usually would review the admission of Lewis’ testimony for abuse

of discretion.         United States v. Perkins, 470 F.3d 150, 155 (4th

Cir. 2006). 3         But because Elebesunu failed to make a “specific

and timely objection at trial,” we review the admission of the

challenged evidence for plain error.                    United States v. Keita,

742 F.3d 184, 189 (4th Cir. 2014).                 To prevail under the plain

error standard of review, Elebesunu must show (1) that there was

an error; (2) that error was plain; and (3) the error affected

her substantial rights.             See Fed. R. Crim. P. 52(b); United

States v. Olano, 507 U.S. 725, 731-32 (1993).                    Even then, the

Court will only recognize plain error that “seriously affects

the       fairness,     integrity    or        public    reputation    of   [the]

proceedings.”         Id. at 732.

      A “plain” error is “clear” or “obvious” in the sense that

it runs contrary to “the settled law of the Supreme Court or

this circuit.”          United States v. Carthorne, 726 F.3d 503, 516



      3 We have omitted internal alterations,                   citations,     and
quotations throughout this opinion.



                                           7
(4th    Cir.    2013).       Put    another          way,       if    the    district    court’s

ruling is subject to debate, it is not plain error.                                   See United

States v. Robinson, 627 F.3d 941, 957 n.4 (4th Cir. 2010).

                                                B.

       With the highly deferential plain-error standard in mind,

we turn to the substance of Elebesunu’s appeal.                                      Rule 404(b)

prohibits      admission     of     evidence          of    a    past       “crime,    wrong,   or

other    act”       when    it     is     used       “to        prove       [the    defendant’s]

character” and to suggest that the defendant is guilty because

she must have acted consistent with that character.                                      Fed. R.

Evid. 404(b)(1).           The rule permits such evidence, however, if

the     evidence      is    aimed        at    proving           “another       purpose,     such

as . . . motive,           opportunity,               intent,           preparation,       plan,

knowledge, identity, absence of mistake, or lack of accident.”

Fed. R. Evid. 404(b)(2).

       We have distilled the test for admissibility under Rule

404(b) into four inquiries.                     See United States v. Queen, 132

F.3d 991, 997 (4th Cir. 1997).                         First, the evidence must be

relevant       to   some    fact    in        issue    other          than    the     defendant’s

general character.          Id.         Second, evidence of the prior act must

be “necessary in the sense that it is probative of an essential

claim or an element of the offense.”                            Id.     Third, the prior-act

evidence       must   be    “reliable.”               Id.        Fourth,       the     evidence’s

probative       value      “must    not        be     substantially             outweighed      by

                                                8
confusion or unfair prejudice in the sense that it tends to

subordinate reason to emotion in the factfinding process.”                      Id.

                                         1.

        With regard to the first inquiry under Queen, “[e]vidence

is relevant if it has any tendency to make the existence of any

determinative fact more probable than it would be absent the

evidence.”       United States v. Van Metre, 150 F.3d 339, 349 (4th

Cir.    1998).      In   addition,       “[t]o      be    relevant     under     Rule

404(b) . . . the evidence must [also] be sufficiently related to

the charged offense,” id., “in terms of physical similarity or

mental state,” Queen, 132 F.3d at 997.                   Elebesunu contends that

evidence of the 2007 robbery was not “sufficiently related” to

the charged offense both temporally and factually.                    We disagree.

       Our cases reflect a degree of flexibility when evaluating

whether    a   prior   bad   act   was       “sufficiently     related”     to    the

charged offense in a temporal sense.                 For example, in Queen we

affirmed the district court’s decision to allow evidence of a

prior bad act that was nearly ten years old under Rule 404(b).

See Queen, 132 F.3d at 997-98; see also United States v. McLean,

581 F. App’x 228, 234-35 (4th Cir. 2014) (per curiam) (affirming

the    district   court’s    decision        to   admit    evidence    of   a   prior

conviction that was nearly six years old).                      The evidence at

issue here was five-and-one-half years old, more recent than the

evidence at issue in either Queen or McLean.                   And although the

                                         9
Queen court mentioned that “the defendant ha[d] spent many of

th[e]   intervening . . . years           in     prison,”    132    F.3d     at   998,

Elebesunu does not direct us to any case that suggests the Queen

defendant’s      prison    term     was        dispositive    of     the     temporal

analysis.     We thus reject Elebesunu’s attempt to undermine the

challenged evidence based only on the passage of time.

     In evaluating factual similarity, our test does not demand

that the prior bad act be “identical” to the conduct charged,

but only requires that it be “similar enough.”                      Van Metre, 150

F.3d at 350.        An apt example is United States v. Bailey,                    990

F.2d 119 (4th Cir. 1993), where we held that the Government

could use evidence that the defendant, a state legislator, had

accepted illegal campaign contributions in the past to prove he

intended to accept illegal campaign contributions in connection

with the charged offense.            See id. at 123-25.               Although the

defendant took illegal contributions for different purposes, we

connected     the    two   events    by        reasoning     that     the    evidence

“involved the acceptance of money for the use of his political

office.”    Id. at 124.

     Both the 2007 robbery and the charged robbery are factually

similar as they illustrate Elebesunu’s willingness to leverage

her position as a bank insider for personal gain.                            The two

events show much more than the moral flexibility of a recidivist

criminal,   as      Elebesunu   argues.          In   both   cases,    she    used   a

                                          10
position of trust, held within the same company, for her own

financial          gain.        We    therefore              reject   Elebesunu’s        factual-

similarity argument, and with it her attempt to characterize the

Government’s evidence of the 2007 robbery as irrelevant.

                                                   2.

       We next assess whether the evidence at issue was probative

of     an    element       of   the        crime        --    that    is,      whether   it     was

“necessary”         when    “considered         in       the     light    of    other    evidence

available to the [G]overnment, 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.    The      Government      here

submits that it used the evidence to prove an essential part of

the crime on trial: Elebesunu’s knowledge of and intent to enter

into    the        conspiracy.             Elebesunu          contends      that   it    was    not

necessary for the Government to prove either knowledge or intent

because       she     never      argued        she           mistakenly      entered     into     a

conspiracy with Lewis, but categorically denied that she and

Lewis       ever    discussed        robbing       anything.          Elebesunu’s        argument

fails.

       She pleaded not guilty to both the Hobbs Act robbery and

conspiracy charges.              By doing so, Elebesunu placed her intent,

an element of the conspiracy charge, squarely at issue.                                         See

Queen, 132 F.3d at 997.                    See generally United States v. Clark,

928 F.2d 639, 641-42 (4th Cir. 1991) (listing the elements of a

                                                   11
conspiracy       charge).        The   Government       had    to    prove   Elebesunu

intended to enter into the conspiracy.                     And it used the 2007

robbery     to       do    so   because   her     choice       to     volunteer   that

information demonstrates the seriousness of her discussions with

Lewis -- that their break room conversations were more than an

idle fantasy.             It is of no moment that the evidence was not

strictly necessary to the Government’s case, “as Queen’s second

prong focuses on whether the evidence is necessary in the sense

that it is probative of an essential claim or an element of the

offense.”        United States v. Rooks, 596 F.3d 204, 211-12 (4th

Cir. 2010).          Thus, we cannot say it was plain error for the

district court to conclude that the Government’s evidence of the

2007 robbery was necessary to the Government’s case.

                                          3.

      In examining the third Queen factor, we ask whether the

evidence was clearly unreliable.                Evidence is reliable “unless

it   is   so     preposterous     that    it    could    not    be    believed    by   a

rational       and    properly    instructed     juror.”        United       States    v.

Siegel, 536 F.3d 306, 319 (4th Cir. 2008).                          Elebesunu attacks

Lewis’ testimony about the 2007 robbery as unreliable on two

grounds.       First, she argues that his testimony was so vague that

the jury could not have believed him.                   Second, she argues that

Lewis’ testimony was unreliable because he was testifying under



                                          12
a plea agreement and stood to benefit if she were convicted.

Again, we disagree.

       Elebesunu offers no convincing reason why Lewis’ testimony

was    so    vague      that   it     was   plainly       unreliable.         In     effect,

Elebesunu asks us to make a credibility determination and, thus,

discount Lewis’ testimony.                 But “[r]eliability is not synonymous

with credibility when dealing with 404(b) evidence.”                                 Bailey,

990 F.2d at 123.            And credibility issues are properly reserved

for the jury.           United States v. Wilson, 118 F.3d 228, 234 (4th

Cir. 1997).        Elebesunu offered testimony to contradict Lewis’ in

all    material        respects,     and    the    jury    found    Lewis     to    be   more

credible.        We cannot substitute the jury’s judgment with our

own.

       Elebesunu’s attempt to conflate reliability with bias, by

arguing Lewis stood to benefit from her conviction under the

terms       of   his    plea       agreement,      fares    no     better.          We   have

previously       rejected      a    defendant’s      attempt       to   use   the    fact   a

witness was testifying under a written plea agreement to show

that witness’ unreliability.                 See United States v. Hadaway, 681

F.2d 214, 218 (4th Cir. 1982).                      In Hadaway we reasoned that

“[t]he plea bargainer’s position frequently makes him extremely

reluctant to commit another crime or crimes and thus lay himself

open to greater punishment.”                 Id.     The same logic applies here

to defeat Elebesunu’s contention.                   Thus, it was not plain error

                                             13
for the district court to conclude that Lewis’ testimony was

reliable.

                                          4.

     Finally, we ask whether the evidence was so harmful, in

proportion      to   its   probative     value,    that     it    should     have   been

excluded.       See Queen, 132 F.3d at 997.                 Evidence is unfairly

prejudicial if it harms the defendant’s case “for reasons other

than its probative value[.]”               United States v. Mohr, 318 F.3d

613, 620 (4th Cir. 2003).                And even then, evidence should be

excluded only if its prejudicial effect “substantially outweighs

[its] probative value.”            Id.     Elebesunu contends that evidence

of the 2007 robbery was unfairly prejudicial because, in the

absence    of    Lewis’    testimony,      she   likely     would    not     have   been

convicted.

     Although Lewis’ testimony formed part of the Government’s

case,     it    is   not   clear    that       evidence’s    prejudicial        effect

substantially outweighed its probative value.                       But even if the

evidence at issue was unfairly prejudicial, that prejudice was

cured   by     the   district   court’s        thorough   limiting     instruction.

“[C]autionary        or    limiting       instructions           generally     obviate

any . . . prejudice, particularly if the danger of prejudice is

slight in view of the overwhelming evidence of guilt.”                          United

States v. Powers, 59 F.3d 1460, 1468 (4th Cir. 1995).                        Here, the

district court gave a limiting instruction, telling the jury

                                          14
that Lewis’ testimony about the 2007 robbery was not evidence of

Elebesunu’s guilt:

          The Government has offered evidence tending to
     show that 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 this
     act not alleged in the indictment.     Accordingly, you
     may not consider this evidence of the similar act as a
     substitute for proof that the defendant committed the
     crime charged, nor may you consider this evidence as
     proof that the defendant has a criminal personality or
     bad character. The evidence of the other similar act
     was admitted for a much more limited purpose, and you
     may consider it only for that limited purpose.

J.A. 404.      And any prejudice caused by the challenged evidence

was slight.       Even without any evidence of the 2007 robbery,

Lewis offered compelling evidence of Elebesunu’s guilt.                   Thus,

because   of     the   limiting     instruction      and    substantial   other

evidence of Elebesunu’s guilt, we cannot say that the probative

value of the evidence at issue was clearly and substantially

outweighed by its prejudicial effect.

                                     ****

     In   sum,    Elebesunu   has    not   carried    her   burden   under   the

plain error standard of review.             She has not demonstrated that

the district court made any obviously incorrect ruling on any

element of the Queen test.




                                      15
                         III.

For that reason, the district court’s judgment is

                                                    AFFIRMED.




                          16
