                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-4179



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


MOSES KING,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:05-cr-00218-DCN-3)


Submitted:    February 9, 2007                Decided:   May 3, 2007


Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James W. Smiley, IV, LAW OFFICES OF JAMES W. SMILEY, IV,
Charleston, South Carolina, for Appellant.    Reginald I. Lloyd,
United States Attorney, Carlton R. Bourne, Jr., Assistant United
States Attorney, Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Moses   King     appeals    his    conviction   of   conspiracy    to

distribute and to possess with intent to distribute five kilograms

or   more   of   cocaine     and   attempted     possession   with   intent    to

distribute five kilograms or more of cocaine.               He claims that the

district court improperly admitted testimony of a prior conviction.

We affirm.

            A    certified    copy   of    the   conviction   was    entered   as

evidence.    A federal agent testified briefly that he obtained the

document and that King pled guilty in 1993 to conspiracy to

distribute cocaine and heroin.            The court subsequently instructed

the jury:

      Ladies and gentlemen of the jury, the Government just
      offered evidence tending to show that on different
      occasions the defendant engaged in conduct similar to
      that charged in the indictment. In that connection, I
      want to remind you that the defendant is not on trial for
      committing any crime not alleged in the indictment.
      Accordingly, you may not consider this evidence of a
      similar act as a substitute for proof that the defendant
      committed the crimes he’s charged with.

      . . . If you determine the defendant committed the acts
      alleged in furtherance of the conspiracy charge, you may,
      but you need not, consider such evidence in determining
      whether or not the Government has proved the conspiracy
      alleged   in   the   indictment   and   the   defendant’s
      participation in it beyond a reasonable doubt.

      Specifically, you may not use this evidence to conclude
      that because the defendant committed the other act
      alleged, he must also have committed the acts alleged in
      the indictment.




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King contends that admission of the evidence violated Fed. R. Evid.

404(b) and was more prejudicial than probative.

          Evidence of other crimes “is not admissible to prove the

character of a person in order to show action in conformity

therewith.   It may, however, be admissible for other purposes,

such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.”   Fed. R.

Evid. 404(b). Rule 404(b) is “a rule of inclusion, not exclusion.”

United States v. Smith, 441 F.3d 254, 262 (4th Cir.), cert. denied,

127 S. Ct. 226 (2006).      To be admissible under Rule 404(b),

evidence must be “(1) relevant to an issue other than character;

(2) necessary; and (3) reliable.” United States v. Wells, 163 F.3d

889, 895 (4th Cir. 1998) (internal quotation marks omitted).   The

evidence must also satisfy the requirement of Fed. R. Evid. 403:

“its probative value must not be ‘substantially outweighed’ by its

prejudicial nature.”   United States v. Queen, 132 F.3d 991, 995

(4th Cir. 1997).    In this regard, “[t]he mere fact that the

evidence will damage the defendant’s case is not enough--the

evidence must be unfairly prejudicial, and the ‘unfair prejudice

must substantially outweigh the probative value of the evidence.’”

United States v. Hammoud, 381 F.3d 316, 341 (4th Cir. 2004) (en

banc), vacated on other grounds, 543 U.S. 1097 (2005).

          Our review of the trial transcript convinces us that the

district court did not abuse its discretion in admitting evidence


                              - 3 -
of the 1993 conviction.      See United States v. Queen, 132 F.3d at

995 (stating standard of review).        The evidence--a certified copy

of the conviction--was clearly reliable.             It was relevant and

necessary to the issues of intent, motive, and knowledge. Further,

it helped to establish King’s knowledge of the drug trade and his

willing   participation     in   the   conspiracy.       Additionally,   the

evidence tended to disprove King’s claim that he was present at a

motel only to obtain a small amount of cocaine for his personal use

and was unaware that a major drug deal was about to occur.

Finally, given the court’s curative instruction and the substantial

testimony concerning King’s role in the conspiracy, the evidence

was not unduly prejudicial.

           We accordingly affirm the conviction.          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




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