UNPUBLISHED

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.

Appeals 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 16, 2010 Decided: November 19, 2010

Before NIEMEYER, DUNCAN, and KEENAN, Circuit Judges.
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Affirmed by unpublished per curiam opinion.

Pat M. Woodward, Annapolis, Maryland; Timothy J. Sullivan, Brett 

J. Cook, BRENNAN, SULLIVAN & MCKENNA, LLP, Greenbelt, Maryland, 

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Unpublished opinions are not binding precedent in this circuit.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

In these consolidated 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 coconspirator. Moody also claims the court erred by admitting 

evidence of his involvement in the conspiracy that 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, 132 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 generally 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, knowledge, identity, or 

absence of mistake or accident.” Id.; see Queen, 132 F.3d at 
4

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 not substantially outweighed by its 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 indictment 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), 
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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 (4th Cir. 1994). “A constructive amendment is a 

fatal variance because the indictment is 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 (4th

Cir. 1999) (internal quotation marks and citation 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 beginning 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 to 
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the superseding indictment. We further note the jury was 

instructed that it could not convict Moody based solely on the 

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 pre-conspiracy evidence was prevented by the court’s jury 

instruction); United States v. Gonzalez, 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 further 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 merit. 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 testimony 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 himself 
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and two 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 court did not abuse its 

discretion as there was no “unwarranted” disparity. 

Accordingly, we affirm the convictions 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