UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

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No. 09-4458

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UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

EHREN VAN WART,

Defendant - Appellant.

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Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:07-

cr-00492-RWT-1)

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Argued: October 27, 2010 Decided: November 24, 2010

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Before TRAXLER, Chief Judge, DAVIS, Circuit Judge, and Damon J. 

KEITH, Senior Circuit Judge of the United States Court of 

Appeals for the Sixth Circuit, sitting by designation.

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Affirmed by unpublished per curiam opinion. 

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ARGUED: John Edward Davidson, DAVIDSON & KITZMAN, PLC, 

Charlottesville, Virginia, for Appellant. Justin S. Herring, 

OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for 

Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, 

Barbara Skalla, Assistant United States Attorney, OFFICE OF THE 

UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. 

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Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Appellant Ehren Van Wart was indicted in the District of 

Maryland for possession of a firearm and ammunition after having 

been convicted of a felony, in violation of 18 U.S.C. §

922(g)(1). The charge arose from the seizure of a loaded firearm 

and additional ammunition from Van Wart’s bedroom by officers 

executing an arrest warrant issued in Virginia. In close 

proximity to a box of ammunition, officers also discovered and 

seized a set of handcuffs that had been placed on Van Wart two 

weeks earlier in connection with his arrest by Virginia

authorities, from whom Van Wart had escaped while handcuffed.

Prior to trial, Van Wart moved in limine to exclude the 

handcuffs and the testimonial evidence explaining how he had 

come into possession of the handcuffs. The district court denied 

the motion and a jury convicted Van Wart. On appeal, Van Wart 

contends that the district court committed prejudicial error in 

admitting the challenged evidence. We affirm. 

I.

A.

On September 1, 2007, two Stafford County, Virginia law 

enforcement officers responded to a report of two individuals 

causing a disturbance at a hotel. When the officers arrived, 

they encountered two men at the hotel counter, Van Wart and his 
3

friend, Kofi Agbemble. As the officers approached, Van Wart, 

smelling heavily of alcohol, yelled profanities at the officers 

and became confrontational. Eventually, the officers sought to

arrest Van Wart for public intoxication and disorderly conduct. 

When Van Wart continued to be combative, one of the officers

employed his taser to subdue him. After Van Wart was temporarily 

controlled, the other officer, Deputy Sheriff J.C. Wright,

handcuffed Van Wart. 

The officers placed Van Wart in a secure police vehicle 

with a partition separating the front from the back. After 

Deputy Wright placed Van Wart into the vehicle, both officers

returned to the hotel to conclude their investigation. When the 

officers returned to the parking lot, Van Wart had escaped from 

the vehicle. A video recording of the location showed Van Wart 

escaping from the rear driver’s side of the police vehicle and 

calmly walking away with the handcuffs dangling from one wrist.

B. 

Two weeks later, on September 14, 2007, armed with an 

arrest warrant issued in Virginia, a fugitive task force 

undertook a search for Van Wart at a condominium apartment owned 

by Van Wart in Temple Hills, Maryland. The officers found three 

people present in the apartment: (1) Van Wart, who was in the 

bedroom; (2) Van Wart’s girlfriend, Tawana Rose; and (3) 

Agbemble. The officers observed evidence of drug activity in the 
4

apartment as they took Van Wart into custody; accordingly, they 

applied for and obtained a search warrant. Upon executing the 

search warrant, officers found and seized from a bedroom closet 

a fully-loaded Cobray MAC-11 pistol and additional ammunition. 

Officers also found the handcuffs (identified by serial number) 

that had been used to secure Van Wart in Virginia two weeks 

earlier, as well as numerous other items that belonged to Van 

Wart.

C.

Van Wart was indicted in one count for illegal possession 

of a firearm and ammunition in violation of 18 U.S.C. 

§ 922(g)(1). Prior to trial, Van Wart moved in limine to exclude 

evidence of the handcuffs and the circumstances of his Virginia

arrest and escape, citing Federal Rules of Evidence 404(b) and 

403. The district court denied Van Wart’s motion. Specifically, 

the district court found that in light of the apparent defense 

to be offered at trial, i.e., that although Van Wart owned the 

residence he did not live there, the evidence relating to Van 

Wart’s possession of the handcuffs was highly probative of Van 

Wart’s dominion and control over the bedroom of the apartment

and of the items found there, including the firearm and 

ammunition. The district court made clear, however, that it 

expected the government to keep its interrogation of the 
5

Virginia officer involved in the prior arrest, Deputy Wright,

“relatively brief” and “concise.”1

At trial, Deputy Wright described the Stafford County 

arrest and Van Wart’s escape from the law enforcement vehicle 

without a significant objection from the defense. Then, on 

cross-examination, defense counsel elicited further details 

about the Stafford County arrest. 

Van Wart’s friend, Agbemble, testified as a witness for the 

government that sometime before the Virginia arrest, he had

moved into the Temple Hills condominium. Agbemble further 

testified, however, that he slept on the couch in the living 

room and kept his personal belongings in the living room closet. 

According to Agbemble, Van Wart also lived in the condominium 

and slept in the bedroom. 

Notably, when the government sought to question Agbemble as 

to the manner in which Van Wart travelled from Virginia to the 

condominium apartment, the defense objected. However, the 

district court stated that the defense’s cross-examination of 

 1 The district court stated:

I believe your interrogation of this witness 

should be relatively brief and concise and not go into 

the facts into any great description of how he was 

drunk and disorderly. . . . I don’t want to have the 

question of whether he was drunk and disorderly in 

Stafford County tried in this case.

J.A. 56.
6

Deputy Wright had opened the door to such questioning because 

the “cross-examination really went into great detail about the 

[Virginia arrest].” Consequently, the district court overruled 

the defense objection and allowed Agbemble to testify to a 

conversation he had had with Van Wart regarding how the latter 

returned to the condominium apartment from Virginia.

After Agbemble’s testimony, the government called several 

officers who were at the Temple Hills condominium apartment to 

testify concerning the execution of the search warrant and the 

seized items tying Van Wart to the residence and its sole 

bedroom. 

The defense called one witness, Van Wart’s girlfriend,

Tawana Rose. Rose testified about her relationship with Van 

Wart, generally insisting that, although she and Van Wart stayed 

at the condominium several days a week, Van Wart did not live at 

the condominium. 

Pursuant to the parties’ agreement on a limiting 

instruction, the district court instructed the jury about 

“evidence of other acts allegedly committed by the defendant.” 

Specifically, the instruction read: 

That evidence was admitted solely for the limited

purpose of showing the context in which the weapon was 

found. I want to emphasize to you that you are not to 

consider that evidence for any other purpose, and you 

are only to return a verdict as to the charge 

contained in the indictment. 
7

The court also explained actual possession as compared to 

indirect/constructive possession, and sole possession as 

compared to joint possession. 

II.

We review a district court’s admission of evidence for 

abuse of discretion. United States v. Perkins, 470 F.3d 150, 155 

(4th Cir. 2006) (citing United States v. Gray, 405 F.3d 227, 238 

(4th Cir. 2005)); see also United States v. Hodge, 354 F.3d 305, 

312 (4th Cir. 2004). “A court has abused its discretion if its 

decision ‘is guided by erroneous legal principles’ or ‘rests 

upon a clearly erroneous factual finding.’” Brown v. Nucor 

Corp., 576 F.3d 149, 161 (4th Cir. 2009) (quoting Westberry v. 

Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999)).2

 2 When a party does not preserve an argument in the district 

court, we review only for plain error. United States v. Lynn, 

592 F.3d 572, 577 (4th Cir. 2010); United States v. Massenburg, 

564 F.3d 337, 342-43 (4th Cir. 2009)). It seems clear that, as 

reflected in its pre-trial ruling, the district court intended 

to permit the government to introduce only limited evidence 

explaining how Van Wart came into possession of the handcuffs. 

See supra p. 5 and n.1. Despite the district court’s narrow 

ruling on the defense’s pretrial motion in limine, counsel 

arguably abandoned the defense objection once the trial 

commenced by failing to act on the district court’s unmistakable 

intention to limit the government’s interrogation of Deputy 

Wright and by its probing questioning of Deputy Wright on crossexamination. As the government has not urged us to apply plain 

error review, however, we need not determine whether it applies.
8

III.

We do not understand Van Wart to contend that evidence of 

his possession of the handcuffs (or the manner in which he came 

into possession of them) was wholly irrelevant. Such evidence 

clearly was relevant to the issue of Van Wart’s access to, his 

presence in, and his dominion and control over, the bedroom of 

the condominium apartment where the firearm and ammunition were 

found. Rather, the gravamen of Van Wart’s contention before us 

is that the district court misapplied the balancing tests 

applicable under Rules 404(b) and 403 in admitting the evidence. 

We discern no abuse of discretion.

IV.

Federal Rule of Evidence 404(b) provides that evidence of 

prior bad acts may be admissible for purposes other than “to 

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

conformity therewith.” Fed. R. Evid. 404.3

 3 Rule 404(b) provides:

Such “other purposes”

Evidence of other crimes, wrongs, or acts 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).
9

include “proof of motive, opportunity, intent, preparation, 

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

Id.; Hodge, 354 F.3d at 311-12. We have explained that evidence 

of prior bad acts is admissible pursuant to Rule 404(b) if the 

evidence is (1) relevant to an issue other than the general 

character of the defendant; (2) necessary to prove an element of 

the charged offense; and (3) reliable. Hodge, 354 F.3d at 311-

12; see also United States v. Queen

Evidence is relevant if it has “any tendency to make the 

existence of any fact that is of consequence to the 

determination of the action more probable or less probable than 

it would be without the evidence.” Fed. R. Evid. 401. Evidence 

is necessary where, “considered in the light of other evidence 

available to the government, it is an essential part of the 

crimes on trial or where it furnishes part of the context of the 

crime.” 

, 132 F.3d 991, 997 (4th Cir.

1997). 

Queen, 132 F.3d at 998 (quoting United States v. Mark, 

943 F.2d 444, 448 (4th Cir. 1991). Finally, “[e]vidence is 

reliable for purposes of Rule 404(b) “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)(quoting United States v. Aramony, 88 

F.3d 1369, 1378 (4th Cir. 1996)). 
10

Importantly, Rule 404(b) is “an inclusive rule, admitting 

all evidence of other crimes or acts except that which tends to 

prove only criminal disposition.” United States v. Rooks, 596 

F.3d 204, 211 (4th Cir. 2010) (quoting United States v. Young, 

248 F.3d 260, 271-72 (4th Cir. 2001). Further, limiting jury 

instructions explaining the purpose for admitting prior bad acts 

evidence and advance notice of the intent to introduce such 

evidence provide additional protection to defendants and weigh 

in favor of admissibility. See Hodge, 354 F.3d at 312 (citing 

Queen, 132 F.3d at 997); United States v. Branch

To be sure, the probative value of relevant evidence must 

not be substantially outweighed by the danger that it will cause 

unfair prejudice. 

, 537 F.3d 328, 

342 (4th Cir. 2008). 

See Fed. R. Evid. 403; Queen, 132 F.3d at 997. 

The “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. Williams, 445 

F.3d 724, 730 (4th Cir. 2006) (emphasis in original) (quoting 

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

Evidence is considered to be unfairly prejudicial “when there is 

a genuine risk that the emotions of a jury will be excited to 

irrational behavior, and . . . this risk is disproportionate to 
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the probative value of the offered evidence.” Id. (quoting 

United States v. Aramony

“It is not an easy thing to overturn a Rule 403 ruling on 

appeal.” 

, 88 F.3d 1369, 1378 (4th Cir. 1996)). 

United States v. Udeozor, 515 F.3d 260, 264 (4th Cir.

2008). Where the evidence is probative, “the balance under Rule 

403 should be struck in favor of admissibility, and evidence 

should be excluded only sparingly.” United States v. Lentz, 524 

F.3d 501, 525 (4th Cir. 2008) (quoting Aramony, 88 F.3d at 1378; 

see also Udeozor, 515 F.3d at 264-65 (“Rule 403 is a rule of 

inclusion, generally favoring admissibility.”). Put simply, a 

district court’s decision to admit evidence over a Rule 403 

objection “will not be overturned except under the most 

extraordinary circumstances, where that discretion has been 

plainly abused.” Udeozor

Here, the district court did not abuse its discretion in 

admitting evidence of Van Wart’s possession of the handcuffs, 

including the evidence of the circumstances of how he came to be 

in possession of the handcuffs during the Virginia arrest. 

Evidence of the arrest and how Van Wart obtained the handcuffs 

found in the condominium apartment was highly probative on the 

issue of whether Van Wart knowingly exercised dominion and 

control over the bedroom (and thus the contents thereof) and 

significantly aided the government in meeting its burden to show 

, 515 F.3d at 265 (internal quotation 

marks omitted).
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Van Wart’s possession of the nearby firearm. This is especially 

true in light of the defense offered at trial, namely, that Van 

Wart did not reside in the apartment and used it only sparingly. 

The disputed evidence was legally “necessary” because

possession of the firearm was the only issue at trial and items 

located near the firearm provided context to the possession of 

the firearm itself. “That the evidence was not critical to the 

prosecution’s case against [a defendant] does not render it 

unnecessary for purposes of Rule 404(b).” United States v. 

Rooks, 596 F.3d 204, 211 (4th Cir. 2010). This is because the 

“necessary” 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.” Id. at 211-12 (quoting Queen

Finally, the reliability of the testimony of Deputy Wright

has not been put into question. Indeed, Van Wart suggests no 

reason why the deputy’s reliability was damaged. 

, 132 F.3d 

at 997. Therefore, the evidence was “necessary.” 

In sum, Rule 404(b)’s requirements were met and the 

evidence was properly admitted under the rule. This conclusion 

is reinforced by Rule 404(b)’s inclusive nature. The bar against 

prior bad acts is meant to exclude evidence “of other crimes or 

acts except that which tends to prove only criminal 

disposition.” Rooks, 596 at 211 (emphasis added). 
13

Nor did the district court abuse its discretion in finding 

that the danger of unfair prejudice did not substantially 

outweigh the probative value of the evidence. All incriminating 

evidence is prejudicial to some extent. The inquiry under Rule 

403 is whether the evidence had the potential to cause unfair

prejudice and whether the danger of such unfair prejudice 

substantially

The presence of the handcuffs in Van Wart’s bedroom, as 

illuminated by the circumstances surrounding his arrest and 

escape from arrest in Virginia, were probative of possession of 

the firearm found in the same room, the ultimate issue at trial. 

outweighs any probative value of the evidence. 

There was no “genuine risk that the emotions of [the] jury 

[would] be excited to irrational behavior.” Lentz, 524 F.3d at 

525 (quoting Aramony, 88 F.3d at 1378). The government even 

noted that drunk and disorderly conduct is “just barely the 

thing you . . . do to get arrested.” Furthermore, the district 

court’s limiting instruction mitigated the risk of any prejudice 

because it clarified the issues for which the jury could 

properly consider. United States v. White, 405 F.3d 208, 213 

(4th Cir. 2005). Accordingly, the court did not abuse its 

discretion in admitting evidence of the Stafford County arrest. 
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V.

For the reasons set forth, we hold that the district court 

did not err when it admitted evidence of Van Wart’s possession 

of the handcuffs or of the manner in which he came into 

possession of the handcuffs. Accordingly, the judgment is

AFFIRMED.