FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DEC 4, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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Nos. 08-11939 & 08-11940

Non-Argument Calendar

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D. C. Docket Nos. 07-00037-CR-HL-5

04-00103-CR-HL-5

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KENNETH RODNEY MCCRARY,

Defendant-Appellant.

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Appeals from the United States District Court

for the Middle District of Georgia

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(December 4, 2008)

Before BIRCH, MARCUS and FAY, Circuit Judges.

PER CURIAM:

Kenneth Rodney McCrary appeals from his convictions for possession with

intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a) and (b)(1)(C), and
for violating probation. McCrary argues that the district court abused its discretion

in admitting Rule 404(b) evidence during his trial. After careful review, we affirm.

We review admission of prior bad act evidence for abuse of discretion.

United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir. 2008). Evidence of a prior

bad act may be admitted only for purposes other than proof of bad character. Fed.

R. Evid. 404(b). Prior bad act evidence is subject to a three-part test for

admissibility: (1) the evidence must be relevant to an issue other than the

defendant’s character; (2) the probative value must not be substantially outweighed

by its undue prejudice; and (3) the government must offer sufficient proof so that

the jury could find the defendant committed the act. Ellisor, 522 F.3d at 1267.

Similarity between the prior bad act and the charged conduct will make the other

offense highly probative of the defendant’s intent in the charged offense. United

States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005). Moreover, the risk of

undue prejudice can be reduced by an appropriate limiting instruction. Id.

Here, the government introduced Rule 404(b) evidence -- consisting of

cocaine and drug distribution paraphernalia that police officers found on McCrary

in 2003 and that led to McCrary’s prior guilty plea in 2006 -- to show McCrary’s

intent to sell cocaine in this case. As for the first prong of the admissibility test for

prior bad act evidence, McCrary concedes that the Rule 404(b) evidence at issue

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was relevant to an element of the charged offense -- namely, his intent to distribute

cocaine. See Ellisor, 522 F.3d at 1267; see also United States v. Cruz-Valdez, 773

F.2d 1541, 1544 (11th Cir. 1985) (en banc) (providing that the elements of a §

841(a)(1) offense are (1) knowing or intentional (2) possession of a controlled

substance (3) with intent to distribute that substance).

As for the second prong, McCrary argues that the unfair prejudicial effect of

the prior bad act evidence outweighed its probative value because the

government’s case was so strong that there was no need to introduce the Rule

404(b) evidence. However, as we’ve said, similarity between the prior bad act and

the charged conduct makes a prior offense highly probative. See Ramirez, 426

F.3d at 1354. Since McCrary previously pled guilty to possession of cocaine with

intent to distribute, and now again was charged with the same offense, his prior

conduct was similar to his instant offense and therefore highly probative. In

addition, the district court gave a limiting jury instruction concerning McCrary’s

prior conduct, and this instruction served to lessen the unfair prejudicial effect of a

piece of evidence. Id. For these reasons, the unfair prejudicial effect of the Rule

404(b) evidence did not substantially outweigh its probative value.

As for the final prong, McCrary argues that due to the inability of the crime

lab’s chemist to link the substance he tested for purposes of McCrary’s prior

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criminal proceeding to the substance that the investigator confiscated from

McCrary in 2003, “there was insufficient evidence” to show that the substance that

the investigator confiscated from McCrary in 2003 actually was cocaine. But this

argument lacks merit because McCrary’s prior plea based on this evidence permits

a reasonable jury to find that he previously possessed cocaine with intent to

distribute it, and thus, satisfies the final prong of the admissibility test.

Accordingly, the district court did not abuse its discretion in admitting this

evidence.

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AFFIRMED.

 As for McCrary’s argument that an investigator’s testimony was unduly cumulative 1

because a police officer already testified about McCrary’s prior drug case, the district court

sustained McCrary’s objection and struck that testimony from the record. We also note that

McCrary never actually makes an argument to us about why the district court’s denial of his

follow-up motion for a mistrial was erroneous. Therefore, McCrary has abandoned his argument

on this issue. See United States v. Jernigan, 341 F.3d 1273, 1284 n.8 (11th Cir. 2003).

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