UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4023

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BRUCE MARTIN DAVIS,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Charlottesville. Norman K. Moon, District

Judge. (CR-05-32)

Submitted: August 17, 2007 Decided: September 11, 2007

Before MICHAEL, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

W. Barry Montgomery, KALBAUGH, PFUND & MESSERSMITH, Richmond,

Virginia, for Appellant. John L. Brownlee, United States Attorney,

Jean B. Hudson, Assistant United States Attorney, Charlottesville,

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Bruce Martin Davis appeals his jury convictions and

resulting 174-month sentence for attempted aggravated bank robbery,

in violation of 18 U.S.C. § 2113 (2000) (“Count One"), and using

and brandishing a firearm during the commission of a violent

felony, in violation of 18 U.S.C. § 924(c)(1) (2000) (“Count Two"),

for an incident that occurred in November 2002, and for bank

robbery, in violation of 18 U.S.C. § 2113(a) (2000) (“Count

Three"), for an incident that occurred in April 2003. Davis claims

the district court erroneously: (i) admitted evidence of three

prior bad acts under Fed. R. Evid. 404(b); and (ii) denied his

motion to sever Count Three. Finding no error, we affirm Davis’s

convictions and sentence.

First, we reject Davis’s assertion that the district

court erred in admitting evidence of three other burglaries he was

accused of having committed because the evidence’s probative value

was outweighed by its prejudicial effect. Substantial deference is

due a district court’s evidentiary rulings, see General Elec. Co.

v. Joiner, 522 U.S. 136, 141 (1997), and Rule 404(b) decisions by

the district court are discretionary and will not be overturned

unless arbitrary and irrational, see United States v. Powers, 59

F.3d 1460, 1464 (4th Cir. 1995).

We conclude the district court correctly found that the

evidence of the Davis’s other burglaries was relevant and necessary
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to prove motive, intent, and identification. We also conclude the

evidence was reliable because the prior bad acts evidence consisted

of undisputed scientific DNA evidence and facts to which Davis

stipulated. See United States v. Bailey, 990 F.2d 119, 123 (4th

Cir. 1993) (holding that Rule 404(b) evidence should ordinarily be

admitted as reliable unless it is “so preposterous that it could

not be believed by a rational and properly instructed juror”). 

Although Davis vehemently argues that the probative value

of the prior bad acts evidence was substantially outweighed by its

prejudicial effect, we conclude that the district court’s limiting

instructions to the jury, as well as the prior notice regarding the

evidence that was given to Davis by the prosecution, was sufficient

to reduce any prejudicial effect the evidence may have had. See

United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997) (holding

that the fear a jury may improperly use Rule 404(b) evidence

subsides when the trial judge gives the jury a limiting instruction

regarding proper use, and that “the fear of a ‘trial by ambush’

recedes” when the prosecution has given notice of the evidence to

be introduced and “there is no evidence that the prosecution is

placing the defendant’s entire earlier life on trial”). Given the

striking similarity of the circumstances surrounding the prior bad

acts and the crimes with which Davis was charged, we conclude the

district court’s admission of Davis’s prior bad acts into evidence

was not arbitrary or irrational. See id. at 996 (holding that the
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more similar the prior bad act is to the charged crime the more

relevant the prior bad act becomes toward proving intent). 

We also reject Davis’s claim that the district court

erred in denying his motion to sever Count Three. The joinder of

multiple offenses is proper under Fed. R. Crim. P. 8(a) if the

offenses are: (1) of the same or similar character; (2) based on

the same act or transaction; or (3) part of a common scheme or

plan. See United States v. Foutz, 540 F.2d 733, 736 (4th Cir.

1976). Even if offenses are properly joined, however, severance is

appropriate if the defendant establishes he would be prejudiced by

the joinder. See Fed. R. Crim. P. 14(a). 

We conclude that the district court correctly denied

Davis’s motion to sever Count Three of the indictment because both

counts charged Davis with robbing bank funds in violation of the

same statute, Davis was accused of using tools to cut his way into

both robbed properties, he was accused of wearing a stocking cap

during the commission of both crimes, and the crimes occurred

within a short time span. See Foutz, 540 F.2d at 736; see also

United States v. Acker, 52 F.3d 509, 514 (holding that it is not an

abuse of discretion to deny a motion for severance when “the

offenses are identical or strikingly similar in the method of

operation and occur over a short period of time”). 

We also conclude that Davis failed to meet the demanding

burden of demonstrating a strong showing he was prejudiced by the
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joinder. While Davis correctly avers that his defense was more

difficult because the counts were joined, this alone is

insufficient to establish prejudice. See United States v. Goldman,

750 F.2d 1221, 1225 (4th Cir. 1984). Rather, any possibility of

prejudice was reduced since the evidence of each crime would have

been admissible in the trial of the other if the counts had been

severed. See United States v. Cole, 857 F.2d 971, 974 (4th Cir.

1988) (holding that when evidence of the crimes “would be mutually

admissible for legitimate purposes in separate trials for each

offense,” the possibility of prejudice requiring severance is

“greatly diminished”) (internal citation omitted). Because joinder

of the offenses promoted judicial economy, the district court did

not err in denying Davis’s motion to sever Count Three. 

Based on the foregoing, we affirm Davis’s convictions and

sentence. 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