**UN PUBLISHED** 
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

**No. 08**  **- 4657** 

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v. BRUCE KILGORE , Defendant

- Appellant

.

**No. 08**  **- 5200** 

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v. TIMOTHY MOODY , Defendant

- Appellant.

Appeal s from the United States District Court for the District of Maryland , at Greenbelt

. Roger W. Titus , District Judge. ( 8:06

- cr - 00066

- RWT

- 11; 8:06

- cr - 00066

- RWT

- 12 )

Submitted : September 1 6 , 2010 Decided: November 1 9 , 2010

Before NIEMEYER, DUNCAN, and KEENAN , Circuit Judges.2 Affirmed by un published per curiam opinion

. Pat M. Woodward, Annapolis, Maryland; Timothy J. Sullivan, Brett J. Cook, BRENNAN, SULLIVAN & MCKENNA, LLP, Greenbelt , Ma ryland, for Appellants. Rod J. Rosenstein, United States Attorney, Barbara S. Skalla, Assistant United States Attorney, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.3 PER CURIAM: In these consolidat ed appeals, Bruce Kilgore and Timothy Moody appeal their convictions for one count of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and 1000 kilograms or more of marijuana, in violation of 21 U.S.C. § 846 (2006). Kilgore also appeals his sentence. Finding no error, we affirm. Both Appellants claim the district court erred by admitting evidence of them discussing murdering a co

conspirator. Moody also claims the court erred by admitting evidence of hi s involvement in the conspiracy th at extended beyond the date indicated in the superseding indictment. Review of a district court’s determination of the admissibility of evidence under Rule 404(b) is for abuse of discretion. See United States v. Queen , 1 32 F.3d 991, 995 (4th Cir. 1997). In general, any evidence which tends to make the existence of a fact of consequence to an issue in the case “more probable or less probable” than without the evidence is relevant under Fed. R. Evid. 401 and therefore gene rally admissible under Fed. R. Evid. 402. Evidence of other crimes is not admissible to prove bad character or criminal propensity. Fed. R. Evid. 404(b). Such evidence is admissible, however, to prove “motive, opportunity, intent, preparation, plan, kno wledge, identity, or absence of mistake or accident.” Id. ; see Queen , 132 F.3d at4 994. Rule 404(b) is an inclusive rule, allowing evidence of other crimes or acts except that which tends to prove only criminal disposition. See Queen , 132 F.3d at 994

- 95. Evidence of prior acts is admissible under Rule 404(b) and Fed. R. Evid. 403 if the evidence is (1) relevant to an issue other than the general character of the defendant, (2) necessary, (3) reliable, and (4) if the probative value of the evidence is no t substantially outweighed by it s prejudicial effect. Queen , 132 F.3d at 997. A limiting jury instruction explaining the purpose for admitting evidence of prior acts and advance notice of the intent to introduce evidence of prior acts provide additional protection to defendants. See id.

We conclude the district court did not abuse its discretion by admitting the challenged evidence. In both instances, the evidence was intrinsic to the charged conspiracy and was relevant to the issues of intent, motive , and opportunity. Furthermore, the evidence highlighted the extent to which both Appellants were committed to the conspiracy. Insofar as Moody claims that evidence of him continuing in the conspiracy after the “on or about” date charged in the indict ment constructively amended the indictment or was a fatal variance, we find no error. “A constructive amendment to an indictment occurs when .

. . the government (usually during its presentation of evidence and/or argument),5 the court (usually through its instructions to the jury), or both, broadens the possible bases for conviction beyond those presented to the grand jury.” United States v. Floresca , 38 F.3d 706, 710 (4 th Cir. 1994). “A constructive amendment is a fatal variance because the indictment i s altered to change the elements of the offenses charged, such that the defendant is actually convicted of a crime other than that charged in the indictment.” United States v. Randall , 171 F.3d 195, 203 (4 th Cir. 1999) (internal quotation marks and citati on omitted). A constructive amendment is error per se, and, given the Fifth Amendment right to be indicted by a grand jury, “must be corrected on appeal, even when not preserved by objection.” Floresca , 38 F.3d at 714. When considering a constructive amendment claim, “it is the broadening [of the bases for a defendant’s conviction] that is important

- nothing more.” Id. at 711. The key inquiry is whether the defendant has been tried on charges other than those made in the indictment. See id. The b eginning and ending dates of a conspiracy are not elements of the offense, so proof of different dates could never raise the specter of conviction for a different crime. See United States v. Hatten

- Lubick , 525 F.3d 575, 581 (7th Cir. 2008); see also Queen , 132 F.3d at 999 (dates of conspiracy are not substantive elements of the offense). We conclude there was no constructive amendment to6 the superseding indictment. We further note the jury was instructed that it could not convict Moody based solely on th e challenged evidence and that the evidence was admitted for the purpose of providing context and more information about the conspiracy. See United States v. Paredes

- Rodriguez , 160 F.3d 49, 56 (1st Cir. 1998) (any potential prejudice by the admission of p re - conspiracy evidence was prevented by the court’s jury instruction); United States v. Gonzale z , 661 F.2d 488, 492 (11th Cir. 1981) (no constructive amendment when jury was instructed that it was limited to the conspiracy charged in the indictment). We f urther conclude that there was no fatal variance to the indictment. Moody failed to show his substantial rights were violated. United States v. Kennedy , 32 F.3d 876, 883 (4th Cir. 1994). Moody’s claim that he was entitled to a mistrial or a

severance based on Kilgore’s testimony is without me rit. Moody failed to show Kilgore’s testimony prevented the jury from making a reliable judgment about his criminal conduct. See United States v. Allen , 491 F.3d 178, 189 (4th Cir. 2007). Nor did Kilgore’s testi mony unveil a stark contrast in defenses asserted by the two Appellants. See United States v. Najjar , 300 F.3d 466, 474 (4th Cir. 2002). Kilgore argues that the district court erred at sentencing when it considered the differences between himself7 and tw o co - defendants prior to finding that his sentence would not result in an unwarranted disparity. See 18 U.S.C. § 3553(a)(6). We conclude the cou rt did not abuse its discretion as there was no “unwarranted” disparity. Accordingly, we affirm the convic tions and sentences. 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