PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 10-5162

FREDRICK LAMAR MCBRIDE,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

Patrick Michael Duffy, Senior District Judge.

(2:09-cr-01223-PMD-1)

Argued: January 26, 2012

Decided: April 23, 2012

Before WILKINSON, GREGORY, and KEENAN,

Circuit Judges.

Affirmed in part, reversed in part, and remanded by published

opinion. Judge Keenan wrote the majority opinion, in which

Judge Gregory joined. Judge Wilkinson wrote an opinion concurring in part and dissenting in part. 
COUNSEL

ARGUED: Jessica Ann Salvini, SALVINI & BENNETT,

LLC, Greenville, South Carolina, for Appellant. Jeffrey

Mikell Johnson, OFFICE OF THE UNITED STATES

ATTORNEY, Columbia, South Carolina, for Appellee. ON

BRIEF: William N. Nettles, United States Attorney, Matthew

J. Modica, Assistant United States Attorney, OFFICE OF

THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. 

OPINION

BARBARA MILANO KEENAN, Circuit Judge:

In this appeal in a criminal case, we principally consider

whether there was reasonable, articulable suspicion to detain

the defendant’s vehicle, whether the duration of the detention

was unreasonable, and whether certain prior "bad act" evidence was admissible. Fredrick Lamar McBride was tried by

a jury and convicted of (1) possession of cocaine with intent

to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(C); (2) being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and (3) knowingly using and carrying a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1). We

hold that the detention of the defendant’s vehicle was valid,

but that the district court improperly admitted certain prior

"bad act" evidence of McBride’s statements showing his

knowledge of crack cocaine and his willingness to manufacture and distribute it. Accordingly, we affirm in part, reverse

in part, and remand the case to the district court. 

I.

A.

At 6:15 p.m. on August 12, 2009, Lieutenant Phillip Ardis

and Agent Harold Kennedy III, undercover officers of the

2 UNITED STATES v. MCBRIDE
Clarendon County Sheriff’s Office in South Carolina, drove

by the Nu Vibe Club (the club), an establishment with which

Ardis was familiar. In his decades in law enforcement, Ardis

had driven by the club many times, and recalled that it generally did not open until about midnight. He became interested,

therefore, when he observed two cars in the club’s parking lot

in the early evening. 

Ardis also had personal knowledge of past criminal activity

at the club. In 2007, he had been involved in an investigation

regarding drug activity there. According to his information at

that time, certain men were known to deliver illegal drugs to

the club. 

Based on this information and the unusual hour for activity

at the club, Ardis and Kennedy decided to observe the club

from a nearby automobile dealership. While looking through

binoculars at the club’s parking lot, the officers saw four vehicles stop at the club for varying lengths of time over the

course of an hour. When the last vehicle, a blue Ford Explorer

truck, entered the lot, a black male in a white tee shirt immediately came out from the club and walked with the driver of

the blue truck, a Hispanic male, to a black Cadillac SLS automobile that also was parked in the lot. The men conversed

briefly, and opened the Cadillac SLS’s passenger door.

Although Ardis suspected that the pair was engaging in a drug

transaction, he could not see their hands, and did not observe

the men exchange anything between them. The black male

then returned to the club, and the Hispanic male returned to

his blue truck. 

Following this interaction, the blue truck left the club and

drove by the officers’ location. It was raining at that time, and

although the blue truck’s windshield wipers were in motion,

the truck’s headlights were not activated, in violation of South

Carolina law. On this basis, the officers initiated a traffic stop.

When the driver of the truck was unable to produce a valid

driver’s license, he was placed under arrest. As the officers

UNITED STATES v. MCBRIDE 3
were escorting the passenger from the truck, they observed a

black bag, which was found to contain a large amount of cash.1

Based on the evidence retrieved from the blue truck, and

his observations of the activity in the club’s parking lot, Ardis

decided to investigate the activity inside the club. He and

Kennedy entered the club and were met at the door by the

man who had been speaking earlier with the driver of the blue

truck. At this closer range, Ardis recognized the man as

McBride, whom he knew from a prior narcotics investigation.

Four other men were in the club at that time. Ardis recognized two of them, also from prior narcotics investigations.

Ardis announced to the handful of patrons that the sheriff’s

office was conducting an investigation. He informed the

patrons that after they provided him with identification and a

description of the vehicle in which they had arrived, they

would be free to leave. However, Ardis also informed the

patrons that the vehicles in the parking lot were being

detained by the police. 

At this time, Kennedy left the club temporarily, and, while

crossing the parking lot, observed that the engine of a

champagne-colored Cadillac Escalade was running, and a

man was sitting in the passenger seat. Kennedy reentered the

club and provided this information to Ardis. They returned to

the parking lot and opened the Escalade’s door. Inside they

noticed that the center console of the vehicle was stuffed with

money to the extent that the armrest could not fully close. The

officers thereafter escorted the man into the club. 

After returning inside the club, Ardis began to record the

patrons’ information. Although McBride did not produce any

identification, he stated that he was the owner of the black

Cadillac SLS. Upon recording this information, and the infor1The bag later was determined to contain $9,101. 

4 UNITED STATES v. MCBRIDE
mation from the other five patrons, Ardis told all six men that

they were free to leave. None left at that time. 

Ardis returned to the parking lot and conferred with the

sheriff, who had arrived at the scene. When Ardis asked the

sheriff for authorization to request a canine narcotics unit

from a nearby jurisdiction to inspect the vehicles,2 he learned

that such a unit was already en route from neighboring Florence County. Ardis reentered the club and stated again that

the patrons were free to leave, but that their vehicles were

being detained so that the canine unit could check them. 

McBride’s demeanor changed noticeably upon hearing that

a canine unit soon would be arriving. According to Ardis,

McBride "got very[,] very loud, nervous, [began] pacing back

and forth, [and was] sweating profusely." At that time, contrary to his earlier statement, McBride denied ownership of

the black Cadillac SLS. Next, McBride informed the officers

that he intended to leave, provided the keys to the club to a

patron with instructions to lock the club after all the patrons

had left, walked out of the bar, and began walking away from

the club. 

Following McBride’s departure, a canine narcotics unit

arrived at the club about 55 minutes after the vehicles first

were detained. At that time, a dog trained in narcotics detection "alerted" on the black Cadillac SLS. 

Using this information, and other details from the investigation, the officers obtained a search warrant for the black

Cadillac SLS. A search of the vehicle revealed a photograph

of McBride, his driver’s license, $1,500 in cash on the floorboard behind the driver’s seat, a loaded nine-millimeter semiautomatic pistol in the glove compartment, and a "tin foil"

package containing two plastic bags of white powder cocaine

totaling 373.85 grams. 

2Clarendon County does not have its own canine narcotics unit. 

UNITED STATES v. MCBRIDE 5
B.

Based on the evidence seized from the Cadillac SLS, the

government secured a three-count indictment charging

McBride with the crimes for which he ultimately was convicted. Before trial, McBride filed a motion to suppress the

evidence found in the Cadillac SLS. He asserted that the

detention of his vehicle before the arrival of the canine narcotics unit was not supported by reasonable suspicion, in violation of his Fourth Amendment rights. McBride alternatively

contended that, even if the seizure was supported by reasonable suspicion, the duration of the detention was unreasonable. After conducting a hearing, the district court denied

McBride’s motion. 

Also before trial, the government filed notice of its intent

to introduce prior "bad act" evidence, as evidence of

McBride’s guilt for the crimes charged, under Rule 404(b) of

the Federal Rules of Evidence. This prior "bad act" evidence

was based on an encounter between McBride and a confidential police informant named Burnell Blanding, who had

attempted to purchase cocaine base, or "crack," from

McBride. Although McBride filed a motion in limine seeking

to exclude this prior "bad act" evidence, this issue was not

resolved before trial.

McBride pleaded not guilty, and his case was tried before

a jury in the district court. The government introduced its evidence through stipulations and through the testimony of two

witnesses. The prosecution’s primary witness, Ardis, focused

his testimony on the events of August 12, 2009. The government also elicited testimony from him, over McBride’s objection, regarding the method by which powder cocaine is used

to produce crack cocaine. 

Following this testimony, the district court denied

McBride’s motion in limine to exclude the "bad act" evidence

involving McBride’s encounter with Blanding in 2008, and

6 UNITED STATES v. MCBRIDE
stated that the court would give the jury a limiting instruction

restricting consideration of that evidence. In accordance with

this ruling, the jury heard evidence that on January 14, 2008,

the police used Blanding in an attempt to purchase crack

cocaine from McBride in an encounter that was captured in a

video recording. Blanding testified that on that day, the police

equipped him with audio and video surveillance devices to

record the encounter with McBride at McBride’s residence. 

According to Blanding’s testimony, when he arrived at

McBride’s house and asked McBride if he had "anything,"

McBride responded that he had "no pieces," referring to portions of crack cocaine costing twenty dollars. McBride

explained that his current batch of crack cocaine was still

"wet," meaning that it was in the process of being heated, and

explained that his prior batch had not rendered correctly.

McBride also stated that he needed to contact "his man"

regarding the possibility of acquiring more cocaine, and recommended that Blanding return in a few hours. When Blanding asked if he could procure crack cocaine from someone

other than McBride, McBride responded that he was "about

the only one [who has] something around there." At the end

of Blanding’s direct testimony, the government played four

minutes of the video recording of Blanding’s encounter with

McBride. 

McBride neither testified nor called any witnesses on his

behalf. However, McBride’s attorney elicited testimony from

Blanding on cross-examination to the effect that the events at

McBride’s home on January 14, 2008 were unrelated to the

activities that took place at the club on August 12, 2009. 

After the close of the evidence, the district court instructed

the jury. Included among these instructions was a limiting

instruction stating that the jury could consider the testimony

of McBride’s prior bad acts for the limited purpose of considering his "knowledge, his intent, and/or his absence of mistake" concerning the crimes charged. In this instruction, the

UNITED STATES v. MCBRIDE 7
district court also cautioned the jury that they were not to use

the evidence to consider prior crimes that McBride may have

committed. The jury returned a guilty verdict on each of the

three counts in the indictment, and the district court sentenced

McBride to serve a total of 235 months’ imprisonment.

McBride appeals. 

II.

McBride raises two arguments challenging the district

court’s denial of his motion to suppress the evidence found in

the Cadillac SLS. First, he asserts that the authorities did not

have a reasonable, articulable suspicion to detain his vehicle.

Second, he contends that the duration of the detention, about

55 minutes, was unreasonable under the circumstances. We

address these arguments in turn. 

We review the district court’s factual findings regarding the

motion to suppress for clear error, and the court’s legal conclusions de novo. United States v. Edwards, 666 F.3d 877,

882 (4th Cir. 2011). When, as here, a motion to suppress has

been denied, we view the evidence in the light most favorable

to the government. Id.

A.

McBride argues that the officers’ detention of the Cadillac

SLS was not supported by reasonable, articulable suspicion.

We disagree. 

An officer who imposes a detention for investigatory purposes "must be able to point to specific and articulable facts

which, taken together with rational inferences from those

facts, reasonably warrant that intrusion." Terry v. Ohio, 392

U.S. 1, 21 (1968). A detention requires more than an "inchoate and unparticularized suspicion or ‘hunch,’" but it does not

require probable cause. Id. at 27. This reasonable suspicion

standard, which the Supreme Court applied to persons in

8 UNITED STATES v. MCBRIDE
Terry, is equally applicable to investigative detentions of personal property. United States v. Place, 462 U.S. 696, 702

(1983). 

Courts must employ a commonsense and contextual

approach in evaluating the validity of an investigatory detention. See Ornelas v. United States, 517 U.S. 690, 695-96

(1996); United States v. Branch, 537 F.3d 328, 336 (4th Cir.

2008). Thus, the term "reasonable suspicion" should be

viewed as a "nontechnical" concept, which incorporates the

"factual and practical considerations of everyday life" in

which prudent persons act. Ornelas, 517 U.S. at 695; Branch,

537 F.3d at 336. 

We consider the totality of the circumstances, which

requires us to evaluate the "cumulative information available"

to the detaining officer, rather than engaging in "piecemeal

refutation" of the individual facts upon which the officer

relied during the Terry stop. Branch, 537 F.3d at 337 (citing

United States v. Arvizu, 534 U.S. 266, 273 (2002) and United

States v. Whitehead, 849 F.2d 849, 858 (4th Cir. 1988)). A set

of factors, each of which individually would be consistent

with innocent activity could, when considered together, produce a reasonable suspicion of criminal activity. See United

States v. Sokolow, 490 U.S. 1, 9 (1989). Additionally, acts

that may appear innocuous in certain contexts may suggest

criminal activity under other circumstances. Branch, 537 F.3d

at 336. 

We turn now to review the facts known to the officers

before they announced the detention of the Cadillac SLS.

Those facts included that Ardis was familiar with the club,

and knew that the club had been a site of past drug activity.

Although such a history is an articulable fact insufficient to

establish reasonable suspicion standing alone, "‘an area’s disposition toward criminal activity is an articulable fact’ that

may be considered along with more particularized factors to

support reasonable suspicion." United States v. Sprinkle, 106

UNITED STATES v. MCBRIDE 9
F.3d 613, 617 (4th Cir. 1997) (quoting United States v.

Moore, 817 F.2d 1105, 1107 (4th Cir. 1987)); see Illinois v.

Wardlow, 528 U.S. 119, 124 (2000). Further, the club’s prior

history was not the only aspect of the venue suggesting that

criminal activity may be afoot. Ardis’ suspicions also were

aroused by the volume of activity at the club in the early evening hours when the club usually was closed. 

The activity that occurred between persons in the club’s

parking lot also supported a finding of reasonable suspicion.

Ardis testified that, in his experience, the brief exchange

between McBride and the driver of the blue truck, which

occurred beside the Cadillac SLS, was consistent with a drug

transaction. Although standing alone, this inference would not

support a reasonable suspicion, the discovery of $9,101 in the

blue truck after the traffic stop provided corroborating evidence supporting Ardis’ initial suspicion. 

Ardis’ contact with McBride is another factor supporting a

finding of reasonable suspicion. Although from a distance

Ardis could not identify the man interacting with the driver of

the blue truck, Ardis could discern that the man had a dark

complexion and was wearing a white shirt. Ardis testified that

once he was in the club, he noticed that McBride was the only

person who fit that description. Ardis also was aware that

McBride previously had engaged in drug dealing, and that

other club patrons who were present likewise had been

involved in drug activity in the past.

In sum, the officers observed unexplained traffic at an

unusual hour at a location having a history of drug activity.

The officers also saw McBride, who they knew to have

engaged in drug transactions in the past, engaged in what

appeared to be a drug transaction with another individual who

was found shortly thereafter in possession of over $9,000.

Further, McBride was found in the company of other men

known to have been involved in the drug trade. These factors,

taken together, were sufficient to establish reasonable, articul10 UNITED STATES v. MCBRIDE
able suspicion for the officers’ detention of the Cadillac SLS

on the ground that it may have contained illegal drugs.3

B.

McBride alternatively asserts, however, that even if the

detention of his Cadillac SLS was supported by reasonable

suspicion, the duration of the detention pending the arrival of

the canine unit was unreasonable. Therefore, McBride argues,

what may have started as a lawful detention of his vehicle

became, over the course of almost an hour, a seizure unsupported by probable cause. We disagree, and conclude that the

55-minute period between the beginning of the detention and

the arrival of the canine narcotics unit did not result in an

unlawful seizure of the Cadillac SLS. 

1.

The reasonableness of a detention pending a "canine sniff"

first was addressed by the Supreme Court in United States v.

Place, and that decision continues to inform our analysis.

There, the authorities approached the defendant in the Miami,

Florida, airport on suspicion that he was transporting narcotics in his luggage. 462 U.S. at 698. Although the defendant

gave the law enforcement officers consent to search his baggage, the officers declined and instead contacted Drug

Enforcement Administration (DEA) agents at LaGuardia Airport in New York, the airport to which the defendant was

traveling, and informed the agents of their suspicions. Id.

The DEA agents confronted the defendant upon his arrival,

3While both parties also refer to the large amount of money in the console of the champaign Cadillac Escalade as evidence that could support

reasonable suspicion, that money was not observed by the authorities until

after Ardis announced to the patrons in the club that their vehicles were

being detained. Therefore, the officers’ discovery of that money is not germane to our analysis. 

UNITED STATES v. MCBRIDE 11
and informed him that they were detaining his luggage until

they could obtain a search warrant. Id. at 699. The DEA

agents also told the defendant that he could accompany them

if he wished, but that he was free to leave. Id. The defendant

declined to join the agents, who took the luggage to another

airport, where it was subjected to a "sniff test" for narcotics

by a trained dog, which alerted positively. Id. The period from

the initial detention of the defendant’s luggage to the positive

alert by the dog lasted about 90 minutes. Id. A later search of

the defendant’s luggage revealed more than one kilogram of

cocaine. Id.

The Supreme Court instructed that when considering the

intrusion created by an investigative detention, courts must

"balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of

the governmental interests alleged to justify the intrusion." Id.

at 703. As the Court explained, such an intrusion may vary in

both nature and extent. Id. at 705. 

The nature of the intrusion in Place, a "canine sniff," was

particularly limited. Id. at 707. The Court noted that it was

"aware of no other investigative procedure that is so limited

both in the manner in which the information is obtained and

in the content of the information revealed by the procedure."

Id. The extent of the intrusion, however, posed a greater concern to the Court. 

First, the Court addressed the impact on the defendant arising from the detention of his property. Although noting that

the seizure of personal property may be less intrusive than the

seizure of a person, the Court stated that such was not the case

in the defendant’s situation. Id. at 708. With respect to luggage within a traveler’s immediate possession, a seizure "intrudes on both the suspect’s possessory interest in his luggage

as well as his liberty interest in proceeding with his itinerary."

Id.

12 UNITED STATES v. MCBRIDE
Second, the Court addressed the length of the detention,

placing special emphasis on the agents’ lack of diligence in

pursuing the investigation. Id. at 709. The Court observed that

the DEA agents had been informed of the suspicious situation

shortly after the defendant boarded the airplane in Miami, and

therefore had ample time to arrange for an investigation at

LaGuardia Airport upon his arrival. Id. Such action, the Court

noted, would have minimized the intrusion to the defendant.

Id. The DEA agents, however, failed to exercise this level of

diligence, extending the investigatory detention longer than

was necessary under the circumstances. Id. Additionally, the

Court stated that it had never approved of a detention as long

as 90 minutes, and declined to do so in that case. Id. at 709-

10. Accordingly, the Court held that the length of the detention of the defendant’s luggage under those circumstances

qualified as an unreasonable seizure. Id. at 710. 

2.

Although the method of analysis employed in Place is

applicable here, we conclude that the circumstances of the

detention of McBride’s vehicle compel a different result. Both

the nature and the extent of the detention of the Cadillac SLS

differ significantly from the detention of the defendant’s luggage in Place. We note at the outset that the detention of an

automobile, like the detention of a traveler’s luggage, may

prove particularly intrusive in certain situations. In this case,

however, those circumstances are not present. 

The defendant in Place was in transit at the time of the

detention and, thus, the DEA agents restricted the defendant’s

course of travel. Conversely, the officers in the present case

did not impede McBride during any travel, because McBride

already had arrived at his club. Therefore, the seizure of his

automobile under these circumstances was significantly less

intrusive than would have been the case in a roadside detention. See United States v. Yang, 345 F.3d 650, 653-54 (8th

UNITED STATES v. MCBRIDE 13
Cir. 2003) (allowing for a more extended detention once

defendant was allowed to drive to a more secure location). 

The length of the detention in the present case concededly

was not brief. However, this detention of less than one hour

was of materially shorter duration than the 90-minute detention at issue in Place. See also United States v. White, 42 F.3d

457, 460 (8th Cir. 1994) (80 minute wait for canine narcotics

unit was reasonable). Moreover, unlike the agents in Place,

the officers here were diligent in their investigation. Shortly

after Ardis informed the club’s patrons of the official decision

to detain the vehicles in the club’s parking lot, the sheriff

requested the assistance of the nearest canine narcotics unit.

In the context of this 55-minute detention, the absence of a

canine unit in Clarendon County does not weigh against a

finding that the investigation was diligent. 

Based on these considerations, we conclude that the length

of time that McBride’s vehicle was detained was reasonable

given the officers’ diligence in pursuing their investigation.

We therefore hold that the district court did not err in denying

McBride’s motion to suppress the evidence found in the Cadillac SLS.

III.

McBride next challenges the district court’s decision admitting the prior "bad act" evidence. He argues that the admission of testimony of events that occurred eighteen months

before the crimes charged, which showed his attempted manufacture of crack cocaine and his willingness to sell crack

cocaine, violated Federal Rule of Evidence 404(b). We review

the admission of this evidence for abuse of discretion. United

States v. Hodge, 354 F.3d 305, 312 (4th Cir. 2004). Upon our

review, we hold that the evidence was improperly admitted.

At the time of McBride’s trial, Rule 404(b) provided, in relevant part:

14 UNITED STATES v. MCBRIDE
Other Crimes, Wrongs, or Acts.-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 . . . .4

Fed. R. Evid. 404(b). 

The purposeful exclusion of such prior "bad act" evidence

is not grounded in its irrelevance. Instead, the general inadmissibility of such evidence is based on the danger that this

type of evidence will overly influence the finders of fact and

thereby persuade them "to prejudge one with a bad general

record and deny him a fair opportunity to defend against a

particular charge." Michelson v. United States, 335 U.S. 469,

475-76 (1948); United States v. Hernandez, 975 F.2d 1035,

1038 (4th Cir. 1992). 

Although prior "bad act" evidence is inadmissible under

Rule 404(b) to demonstrate a defendant’s bad character, such

4Although it is not germane to our analysis, we note that Rule 404(b)

was amended in December 2011 to read: 

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is

not admissible to prove a person’s character in order to show that

on a particular occasion the person acted in accordance with the

character. 

(2) Permitted Uses; Notice in a Criminal Case. This evidence

may be admissible for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must: 

(A) provide reasonable notice of the general nature of any

such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial—or during trial if the court, for good

cause, excuses lack of pretrial notice. 

UNITED STATES v. MCBRIDE 15
evidence is not always barred from the trial altogether. The

Rule itself provides a number of exceptions allowing for the

admission of prior "bad act" evidence, including evidence of

"proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, [and] absence of mistake or accident."

Fed. R. Evid. 404(b). 

As our cases illustrate, a trial court’s analysis of these competing considerations presents a continuing challenge. See

United States v. Johnson, 617 F.3d 286, 296 (4th Cir. 2010)

(comparing United States v. Mark, 943 F.2d 444, 448 (4th

Cir. 1991), which held that prior drug-transaction testimony

in a drug conspiracy case was admissible under Rule 404(b),

with Hernandez, 975 F.2d at 1040, which held that prior drugtransaction testimony in a drug conspiracy case was inadmissible under Rule 404(b)). Because the danger inherent in

admitting prior "bad act" evidence is that it will be considered

impermissibly as evidence of character, we have developed

certain criteria governing admission of this type of evidence.

We have provided a four-factor test for courts to consider

when determining the admissibility of prior "bad acts" evidence:

(1) The evidence must be relevant to an issue, such

as an element of an offense, and must not be offered

to establish the general character of the defendant. In

this regard, the more similar the prior act is (in terms

of physical similarity or mental state) to the act

being proved, the more relevant it becomes. (2) The

act must be necessary in the sense that it is probative

of an essential claim or an element of the offense. (3)

The evidence must be reliable. And (4) the evidence’s probative value must not be substantially

outweighed by confusion or unfair prejudice in the

sense that it tends to subordinate reason to emotion

in the factfinding process.

16 UNITED STATES v. MCBRIDE
Johnson, 617 F.3d at 296-97 (quoting United States v. Queen,

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

Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988). In addition to

these four factors, we also have stated that other protection

against the misuse of prior "bad act" evidence is provided by

(1) the requirement that a criminal defendant receive prior

notice of the government’s intent to introduce such evidence,

and (2) the requirement of a limiting jury instruction explaining the purpose for which the prior "bad act" evidence may be

considered. See Queen, 132 F.3d at 997. 

We also note that not all prior "bad act" evidence is encompassed by Rule 404(b). Evidence of uncharged conduct arising out of the same series of transactions as the charged

offense, and evidence that "served to complete the story of the

crime on trial," do not qualify as evidence of "other crimes"

subject to scrutiny under Rule 404(b). United States v. Kennedy, 32 F.3d 876, 886 (4th Cir. 1994).

In the present context, we first observe that the prior "bad

act" evidence at issue plainly falls within the realm of Rule

404(b). The events of January 14, 2008 did not arise out of the

same series of transactions as the events that transpired at the

club. Similarly, nothing that occurred at McBride’s residence

in January 2008 was necessary to "complete the story" of the

crimes alleged at the club. We turn, therefore, to consider the

four-factor test employed in Johnson and Queen. 

We note that there is no question regarding the reliability

of the prior "bad act" evidence at issue here. The audio and

video materials are particularly accurate representations of the

past events and, thus, there can be no real concern that the

prior events were being recalled inaccurately or in a biased

fashion. Reliability, however, is but one of the four factors

that we consider.

The factors of relevance and necessity, as applied to the

challenged evidence, rest on far less firm ground. These two

UNITED STATES v. MCBRIDE 17
factors, which embody overlapping concerns, are often considered in tandem. See Johnson, 617 F.3d at 297; Hodge, 354

F.3d at 312; United States v. Bailey, 990 F.2d 119, 124 (4th

Cir. 1993). 

For evidence to be relevant, it must be "sufficiently related

to the charged offense." Rawle, 845 F.2d at 1247 n.3 (citing

United States v. Shackleford, 738 F.2d 776, 779 (4th Cir.

1984)). The more closely that the prior act is related to the

charged conduct in time, pattern, or state of mind, the greater

the potential relevance of the prior act. See Johnson, 617 F.3d

at 297; see also United States v. Cabrera-Beltran, 660 F.3d

742, 755 (4th Cir. 2011) ("conduct charged in the indictment

was exceedingly similar" to prior act conduct (emphasis

added)). And, of particular import to this case, we have held

that the "fact that a defendant may have been involved in drug

activity in the past does not in and of itself provide a sufficient nexus to the charged conduct where the prior activity is

not related in time, manner, place, or pattern of conduct."

Johnson, 617 F.3d at 297. 

McBride was indicted for possession of cocaine with the

intent to distribute for events that occurred on August 12,

2009. The evidence provided by Blanding was unrelated in

time, place, pattern, or manner to the conduct for which

McBride was indicted. Certainly, the events of January 14,

2008 were not "exceedingly similar" to the events that transpired at the club. The incident involving Blanding occurred

one and one-half years before the events at the club. While

this timeframe is not dispositive, such a significant passage of

time had the effect of attenuating any relevance that could be

afforded to the evidence. 

We further observe that McBride was not charged in this

case with manufacturing crack cocaine, or even with possession with intent to distribute crack cocaine. Although this difference in type of narcotic, standing alone, would not merit

exclusion of the evidence, it is yet another distinction separat18 UNITED STATES v. MCBRIDE
ing the events of January 14, 2008 from the events of August

12, 2009. 

Additionally, the prior "bad acts" that occurred on January

14, 2008, involving McBride’s attempted manufacture of

crack cocaine and his expressed willingness to sell crack

cocaine, bear no discernible relationship to the charge of possession of cocaine with the intent to distribute for which

McBride was on trial. The government was not attempting to

prove that the cocaine in McBride’s possession was to be used

for the manufacture of crack cocaine. The government also

failed to identify any connection between the location of the

January 14, 2008 transaction, McBride’s residence, and the

club where the activities occurred on August 12, 2009. 

We note that, in other cases involving narcotics in which

we have upheld the admission of prior "bad act" evidence, we

have identified a linkage between the prior-act evidence and

the drug crimes charged in the indictment. Compare Rawle,

845 F.2d at 1245-46, 1248 (evidence of prior use of tractor

trailers to transport marijuana from southern states to northeastern states was sufficiently linked to charged conduct of

conspiracy to use tractor trailers to transport marijuana from

southern states to northeastern states), and Cabrera-Beltran,

660 F.3d at 755 ("same drugs were sold in similar quantities

and transported in a similar manner," once even using the

same vehicle), with Johnson, 617 F.3d at 298 (testimony held

inadmissible that defendant sold drugs five years before the

beginning of the conspiracy alleged in the indictment to persons unrelated to the conspiracy), and Hernandez, 975 F.2d

at 1037-38, 1041 (testimony held inadmissible that six months

before the conduct alleged in Washington-area drug distribution conspiracy case, the defendant stated she "knew a special

recipe for cooking crack" because she used to "sell that in

New York"). 

The type of linkage supporting admission of such evidence

is notably absent in this case. Instead, the Blanding evidence

UNITED STATES v. MCBRIDE 19
is relevant primarily to establish McBride’s character as a

"drug dealer." This is the very type of evidence that the limitation imposed by Rule 404(b) was designed to exclude. See

United States v. Sanders, 964 F.2d 295, 299 (4th Cir. 1992).

Similarly, the government’s argument regarding the "necessity" for Blanding’s testimony is not persuasive. The government correctly contends that McBride’s plea of not guilty

required that the prosecution prove beyond a reasonable doubt

each element of the crimes, including McBride’s intent. While

this statement of the law is accurate, it does not provide a general license for the use of essentially unrelated prior "bad act"

evidence.

We have held that evidence is "necessary," for purposes of

establishing an exception under Rule 404(b), when that evidence "is an essential part of the crimes on trial" or when that

evidence "furnishes part of the context of the crime." Rawle,

845 F.2d at 1247 n.4 (citations and quotation marks omitted).

Although a defendant’s plea of not guilty places at issue all

elements of the charged crimes, Bailey, 990 F.2d at 123, "this

does not throw open the door to any sort of other crimes evidence." Id. (citing Hernandez, 975 F.2d at 1039-40). 

Two of our prior decisions provide helpful examples showing the type of connection required to find that the prior "bad

act" evidence is "necessary" to prove the crime for which a

defendant is on trial. In Rawle, the defendant was charged

with a violation of the Travel Act, 18 U.S.C. § 1952, in connection with his participation in a marijuana importation conspiracy. 845 F.2d at 1245. We held that evidence of prior,

similar marijuana importation by the defendant was admissible, because this evidence was necessary to demonstrate "a

continuous course of conduct," an essential element of the

Travel Act. Id. at 1248.

Likewise, in United States v. Wells, the defendant was

charged with interference with Internal Revenue Service

20 UNITED STATES v. MCBRIDE
agents. 163 F.3d 889, 892 (4th Cir. 1998). We held that evidence of the defendant’s participation in a tobacco fraud and

tax evasion scheme several years earlier was admissible,

because this evidence provided context for the interference

charge. Id. at 896. The defendant’s attempt to evade conviction for the prior crimes had led to the charge of interference.

In the present case, however, Blanding’s testimony failed

to serve a comparable role in McBride’s trial, and was not

"necessary" to establish McBride’s intent regarding the events

at the club. The events of January 14, 2008 did not provide

any context regarding the events of August 12, 2009, and

none of the charges against McBride required proof of ongoing activity in order to secure a conviction. Additionally, the

government did not present a basis for concluding that Blanding’s testimony was an essential part of the crimes on trial.

See Wells, 163 F.3d at 896.

Instead, the use of Blanding’s testimony more closely parallels the improper use of prior "bad act" evidence that we

considered in Hernandez and Johnson. In Hernandez, the

defendant was being tried for conspiracy to distribute and to

possess with intent to distribute cocaine. The district court

admitted prior "bad act" evidence showing that, more than six

months before the acts alleged in the indictment, the defendant had told a person charged in an unrelated narcotics case

that she had learned in New York a recipe to increase the

quantity of crack cocaine while selling that drug there. Id. at

1037. Although the district court instructed the jury that it

should consider the testimony only as evidence of the defendant’s intent, we nevertheless held that the evidence was

admitted improperly because it was not connected to the

cocaine the defendant was charged with conspiring to sell,

and the evidence served merely to depict the defendant as an

experienced drug dealer. Id. at 1041.

Similarly, in Johnson, a defendant was charged and convicted of conspiracy to possess with intent to distribute

UNITED STATES v. MCBRIDE 21
cocaine. At issue was the district court’s admission of prior

"bad act" evidence showing that five years earlier, a person

had purchased one kilogram of cocaine per week from the

defendant. 617 F.3d at 291. After this evidence was presented

in the government’s case in chief, the district court gave a

limiting instruction restricting the jury’s consideration of the

evidence. Id. at 297. We held that the district court improperly

admitted this evidence because it related to conduct that had

occurred almost five years before the events for which the

defendant was on trial and was not related, either directly or

indirectly, to the charged conspiracy. Id. at 298. 

Like the evidence improperly admitted in Hernandez and

Johnson, the evidence before us was unrelated to the crimes

charged, and, thus, in no case could be considered "necessary"

to prove the element of McBride’s intent. Additionally,

because we determine that Blanding’s testimony was unrelated to the crimes for which McBride was being tried, and

thus was not probative of his intent with regard to the charged

offenses, we necessarily conclude under the fourth factor of

our test set forth in Johnson and Queen that admission of this

prior "bad act" evidence resulted in unfair prejudice and

potential for confusion. Blanding’s testimony labeled

McBride to the jury as a manufacturer and dealer of crack

cocaine, and this label was all the more prejudicial given that

McBride was not indicted for any crime involving either the

manufacture or distribution of crack cocaine. 

Blanding’s testimony also had the effect of confusing the

issues. It is undisputed that neither crack cocaine nor the manufacture of illegal drugs was in any way necessary to prove

the counts in the indictment. Thus, Blanding’s testimony did

not naturally fit in the context of the government’s case and,

in its attempt to lay the foundation for Blanding’s testimony,

the government had to range far afield from the issues relevant to the case.

At the close of its direct examination of Ardis, the government asked, "are you familiar or aware of how crack cocaine

22 UNITED STATES v. MCBRIDE
is made?" This question was unrelated to the charges in the

indictment, and Ardis’ affirmative response and digression

discussing the manufacture, cost, and street value of crack

cocaine necessarily distracted the jury from its task of considering the evidence concerning the charges for which McBride

was on trial. 

Accordingly, the present case is not a situation in which the

"bad act" evidence admitted against the defendant "was only

prejudicial because it was so highly probative." See Queen,

132 F.3d at 998. Rather, the evidence was inherently prejudicial in the absence of any plausible probative value, and the

effect of the evidence, if not its purpose, was merely to brand

McBride before the jury as a manufacturer and distributor of

crack cocaine. We conclude, therefore, that the admission of

this prior "bad act" evidence was error.5

IV.

Having concluded that the prior "bad act" evidence was

improperly admitted against McBride, we must now address

the impact of that error on McBride’s trial. In cases of nonconstitutional error, the appropriate test of harmlessness in the

context of Rule 404(b) is whether we can say "with fair assurance, after pondering all that happened without stripping the

erroneous action from the whole, that the judgment was not

substantially swayed by the error." United States v. Madden,

38 F.3d 747, 753 (4th Cir. 1994) (quoting Kotteakos v. United

States, 328 U.S. 750, 765 (1946)). In applying this test, we

have stated that the question is not simply "whether we

believe that irrespective of the error there was sufficient

5This error was not cured by the issuance of a limiting instruction. A

jury instruction, while a required condition for the admission of any evidence pursuant to Rule 404(b), does not necessarily rescue the use of otherwise inadmissible evidence. See Johnson, 617 F.3d at 298. We conclude

that this is especially true in a case such as this, in which the prior "bad

act" testimony lacked plausible probative value. 

UNITED STATES v. MCBRIDE 23
untainted evidence to convict but, more stringently, whether

we believe it highly probable that the error did not affect the

judgment." United States v. Ince, 21 F.3d 576, 583 (4th Cir.

1994) (citations and internal quotation marks omitted). See

also United States v. Ibisevic, ___ F.3d ___, ___, 2012 U.S.

App. LEXIS 5288, at *16-*17 (4th Cir. 2012).

We are unable to conclude in this case that it is highly

probable that the error did not affect the jury’s judgment. See

Ince, 21 F.3d at 583; Ibisevic, ___ F.3d at ___, 2012 U.S.

App. LEXIS 5288, at *17. If we were to set aside Blanding’s

testimony and Ardis’ related testimony (the Blanding evidence), it is clear that the government presented sufficient evidence from which a jury could have convicted McBride of the

crimes charged. However, we are not permitted to excise this

inadmissible evidence from our consideration. See Madden,

38 F.3d at 753. We must be mindful that the jury was presented testimony that effectively branded McBride as a "drug

manufacturer" and "crack cocaine dealer," based on events

completely unrelated to the offenses for which he was being

tried. The highly prejudicial nature of this testimony precludes us from concluding that it is highly probable that the

error did not affect the jury’s judgment regarding McBride’s

drug charges. Accordingly, we conclude that the district

court’s error in admitting the Blanding evidence cannot be

classified as harmless. 

Because the admission of the Blanding evidence was not

harmless error, we now assess its impact on the individual

charges on which McBride was convicted. See Sanders, 964

F.2d at 299-300. Count 1 of the indictment charged McBride

with possession with intent to distribute cocaine. Count 3

charged him with use of a firearm in furtherance of a drug

trafficking crime. Both these counts required evidence of

McBride’s intended drug distribution to support a conviction.

Because his intended drug distribution was the very subject

corrupted by the Blanding evidence, the convictions with

regard to Counts 1 and 3 cannot stand.

24 UNITED STATES v. MCBRIDE
We conclude, however, that the Blanding evidence did not

infect the remaining count on which McBride was convicted.

Evidence of McBride’s intended drug distribution was unrelated to Count 2, the charge of being a felon in possession of

a firearm. In fact, McBride stipulated that he was a convicted

felon, and his possession of a handgun was established without dispute at the trial. Accordingly, we hold that McBride’s

conviction with respect to Count 2 is unaffected by our determination that the prior "bad act" evidence was improperly

admitted.

V.

We therefore affirm the district court’s order denying

McBride’s suppression motion. We affirm McBride’s conviction with respect to Count 2 of the indictment, but vacate his

sentence. We reverse McBride’s convictions with respect to

Counts 1 and 3, and remand the case to the district court for

further proceedings consistent with this opinion.6

AFFIRMED IN PART,

REVERSED IN PART, 

AND REMANDED

WILKINSON, Circuit Judge, concurring in part and dissenting in part:

This ruling seeks to reorder the balance between trial and

appellate courts. The majority regrettably pulls the trial process away from both the trial court and the jury, substituting

its own assessment of the relevance and weight of the defendant’s prior criminal activity. By holding that the defendant’s

"expressed willingness to sell crack cocaine bear[s] no discernible relationship to the charge of possession of cocaine

with the intent to distribute," ante at 19, the majority departs

6We have reviewed McBride’s remaining assignments of error and conclude that they have no merit. 

UNITED STATES v. MCBRIDE 25
from established law in no fewer than five circuits spanning

more than thirty years.

Our sister circuits have wisely recognized that assessing

whether a defendant’s prior transactions in different narcotics

are relevant to the charged offenses is an intensely factual

question. They have wisely understood that the courts of

appeals owe significant deference first to the district court’s

discretion on whether the evidence should be admitted and

then to the jury’s determination about how much weight it

should receive. But appellant seems to think that circuit courts

are better suited to these tasks. I can find no error, and certainly not one that amounts to an abuse of discretion, in the

admission of Blanding’s testimony about prior narcotics

transactions with the defendant. I therefore respectfully dissent from Parts III and IV of the majority opinion.*

I.

A.

Appellant’s position overlooks simply this: that institutional relationships are to law what personal relationships are

to life. And keeping the relationship of trial and appellate

courts free of unwarranted encroachments is essential to the

harmonious workings of our system. It is thus an article of

faith that "[a] district court is accorded a wide discretion in

determining the admissibility of evidence under the Federal

Rules." United States v. Abel, 469 U.S. 45, 54 (1984). The

majority pays lip service to our deferential review of the district court’s evidentiary rulings, see ante at 14, but fails to

show any actual regard for the reasoned rulings of the trial

judge in this case. This court has been clear that the trial

court’s "determination [of admissibility] will not be overturned except under the most extraordinary of circumstances."

United States v. Heyward, 729 F.2d 297, 301 n.2 (4th Cir.

*I am pleased to concur in Parts I and II of the opinion. 

26 UNITED STATES v. MCBRIDE
1984). Evidence of a defendant’s prior bad acts is no exception. We must "defer to a trial court’s Rule 404(b) balancing

unless it is an arbitrary or irrational exercise of discretion."

United States v. Greenwood, 796 F.2d 49, 53 (4th Cir. 1986).

This standard of review is not some mere trope to be

recited in the opening stanza of discussion and then quickly

forgotten. It exists to protect the different functions of the trial

and appellate courts. "Judgments of evidentiary relevance and

prejudice are fundamentally a matter of trial management."

United States v. Benkahla, 530 F.3d 300, 309 (4th Cir. 2008).

They are made quickly on the spot, by "[t]rial judges . . .

much closer to the pulse of the trial than [the court of appeals]

can ever be." United States v. Tindle, 808 F.2d 319, 327 n.6

(4th Cir. 1986). The district court was "immersed in these

proceedings . . . and has far more familiarity with the matter

than we do." United States v. Rosen, 557 F.3d 192, 200 (4th

Cir. 2009). Thus, even if the court of appeals believes that

"[i]t is far from certain that the [evidence] is relevant," or that

it concerns "a matter that could be proven by other means,"

we nevertheless "may not substitute our judgment for that of

the trial court." Id. at 199-200; see also United States v.

Boros, 668 F.3d 901, 907 (7th Cir. 2012) ("We will not substitute our opinion for that of the trial judge merely because

we may be inclined to rule differently on the question of relevancy." (internal quotations omitted)).

The Supreme Court has been clear that even if a rule of evidence provides more limitations on admissibility than the general guidelines present in Rules 401 and 402, it is for the

district court to apply those standards. See Gen. Elec. Co. v.

Joiner, 522 U.S. 136, 142-43 (1997) (discussing admission of

scientific evidence). In reviewing the district court’s application of evidentiary standards, the Court has continually

admonished the courts of appeals against "applying an overly

stringent review to that ruling [that] fail[s] to give the trial

court the deference that is the hallmark of abuse-of-discretion

review." Id. at 143 This court has heeded this caution with

UNITED STATES v. MCBRIDE 27
respect to Rule 404(b), acknowledging that "Notwithstanding

the greater care required in admitting evidence of prior acts,

we still review a district court’s determinations of the admissibility of evidence under Rule 404(b) for abuse of discretion,

as we do generally for evidentiary rulings." United States v.

Queen, 132 F.3d 991, 995 (4th Cir. 1997). "Because the rule

recognizes the admissibility of prior crimes, wrongs, or acts,

with only the one stated exception, it is understood to be a

rule of inclusion." Id. at 994.

B.

Applying the Queen test to the evidence in this case illustrates how small a spot the appellant has on which to stand.

As the majority properly acknowledges, there is no question

that the evidence here is reliable. In fact, there were video and

audio recordings of Blanding’s transaction with the defendant.

Nor does the different chemical form of the narcotics—crack

versus powder cocaine -– make the evidence unfairly prejudicial. "‘[B]ad acts’ evidence, admissible under Rule 404, is not

barred by Rule 403 where such evidence did not involve conduct any more sensational or disturbing than the crimes with

which the defendant was charged." United States v. Byers,

649 F.3d 197, 210 (4th Cir. 2011). The district judge was

nonetheless acutely aware that Blanding’s testimony was not

to be received as general character evidence. He steered the

prosecution’s questioning away from prejudicial subjects and

restricted it to the relevant foundation for the evidence. See

J.A. 210-13. The judge also gave a careful limiting instruction

to the jury. The majority considers this to be of no moment,

even though we have been clear that "where the trial judge

has given a limiting instruction on the use of Rule 404(b), the

fear that the jury may improperly use the evidence subsides."

Queen, 132 F.3d at 997.

So my colleagues must perforce focus on the question of

the relevance or probative value of the evidence. But this is

the least defensible ground for reversing the district court.

28 UNITED STATES v. MCBRIDE
Embodied in Rule 401, "relevance typically presents a low

barrier to admissibility." United States v. Leftenant, 341 F.3d

338, 346 (4th Cir. 2003). Moreover, assessing relevance is at

the heart of the district court’s trial management function. It

is for this reason that "[t]he rules of evidence give trial judges

broad discretion in evaluating whether evidence is probative,

requiring only a ‘plus value’ to make it admissible." Queen,

132 F.3d at 997 (quoting Wigmore on Evidence, § 29, at 976

(Tillers rev. 1983)). 

Here, the majority questions whether the evidence is relevant to proving McBride’s intent to possess and distribute the

narcotics seized. But this is a distinctly factual inquiry especially suited for the discretion of the district court, since "the

use for which intent evidence is offered . . . should be considered with meticulous regard to the facts of each case." United

States v. Hernandez, 975 F.2d 1035, 1040 (4th Cir. 1992).

Appellate judges are ill-equipped to make that determination

from the cold record, conditioned as we are to focus more on

analogies to precedent rather than on the particularities of fact

on which such questions turn. Because factual permutations

are virtually endless and trial courts by training are especially

sensitized to their variation, the Supreme Court has been

quick to recognize that "[d]istrict courts have an institutional

advantage over appellate courts in making these sorts of

determinations." Koon v. United States, 518 U.S. 81, 98

(1996). In particular, the district court "has full knowledge of

the facts and gains insights not conveyed by the record." Gall

v. United States, 552 U.S. 38, 51 (2007). 

Indeed, this case presents a perfect illustration of matters to

which the trial court was attuned that nonetheless eluded

appellate review. In United States v. Hernandez, 975 F.2d

1035 (4th Cir. 1992), on which the majority heavily relies and

discusses at great length, evidence of the defendant’s prior

narcotics activity was less relevant because intent was not an

issue in the case. The court noted that "Hernandez offered as

her defense the contention that she had not sold the crack in

UNITED STATES v. MCBRIDE 29
question . . . . She did not testify that she had in some way

sold or handled the crack but without the requisite knowledge

or intent; nor did she testify that she had never touched crack

or did not know what it was." Id. at 1039. Here, by contrast,

the district court expressly found that the evidence was relevant to proving McBride’s knowledge and intent:

In this case I find that since we’re dealing with a situation in the club, the defendant’s denying knowledge of—or apparently wants to deny or will put up

evidence later to or not—knowledge of the drugs in

his vehicle, knowledge of the activity going on in the

club, all of this. Lack of knowledge, possible mistake, not-being-mine type evidence indicates that the

Government should be allowed to put up proof that

it was knowingly and intentionally possessed. J.A.

188.

As the district court recognized, the knowledge and intent

of McBride was central to the entire defense of his case. Inasmuch as Rule 404(b) explicitly recognizes disputed knowledge and intent as grounds for admissibility, the district court

can hardly be faulted for its ruling here. The sort of factual

iterations noted by the district court make or break the case

for admissibility. They can be difficult for appellate judges to

divine, even though they may be second-nature to a seasoned

district judge whose familiarity with the case exceeds our

own. In this case, the district court proceeded conscientiously

through the same "four prong test" as the majority, J.A. 187,

and made a reasoned ruling on the record. I do not understand

how the majority can regard this painstaking inquiry as "an

arbitrary or irrational exercise of discretion." Greenwood, 796

F.2d at 53.

C.

In overturning the district court’s judgment, the majority

concludes that the evidence was irrelevant primarily because

30 UNITED STATES v. MCBRIDE
the prior acts involved the manufacture and distribution of

crack cocaine rather than the possession of powder cocaine

with intent to distribute at issue in this case. But it is unclear

why this should make a difference. In requiring that prior bad

acts bear some resemblance to the crime at issue, we have

held that similarity may be demonstrated not only "through

physical similarity of the acts," Queen, 132 F.3d at 996, but

also "through the defendant’s indulging himself in the same

state of mind in the perpetration of both the extrinsic offense

and charged offenses." Id. It is irrelevant that the prior transaction involved the manufacture of narcotics for sale whereas

the instant offense was possession with intent to distribute.

This is not a distinction material to the requisite intent of the

defendant, such as when "[o]ne activity involves the personal

abuse of narcotics, the other the implementation of a commercial activity for profit." United States v. Jenkins, 345 F.3d

928, 938 (6th Cir. 2003). If anything, evidence of prior drug

manufacturing is even more telling as to the defendant’s

knowledge and intent. Notwithstanding its disclaimer, see

ante at 19, the burden of the majority opinion is that the intent

to distribute narcotics varies substantially based on the particular preparation of the drug. 

Our sister circuits have long expressly rejected this distinction. See United States v. Santiago, 566 F.3d 65, 72 (1st Cir.

2009) ("That the conviction was for powder cocaine (as the

jury was told) and some years before the present crack sale

lessened its weight, but the judge was still free to deem it

more probative than prejudicial."); United States v. Molina,

172 F.3d 1048, 1055 (8th Cir. 1999) ("The district court also

did not abuse its discretion by admitting evidence of the 1.4

grams of crack cocaine that was found in the bedroom Fraga

shared with Molina. Molina and Fraga were charged with distributing a mixture or substance containing powder cocaine.

Possession of crack, which is derived from cocaine powder,

is relevant to show the defendants’ knowledge of cocaine

based substances and further discredits Molina’s unwitting

bystander defense."); United States v. Hernandez, 84 F.3d

UNITED STATES v. MCBRIDE 31
931, 935 (7th Cir. 1996) ("Similarity is tougher, but given our

deferential standard of review, we concur in the district

court’s conclusion that the prior conviction was similar

enough for 404(b) purposes. Different drugs were involved,

but both incidents concerned distribution amounts of drugs.");

United States v. Hernandez, 896 F.2d 513, 522 (11th Cir.

1990) (The defendant’s prior narcotics activity was "distinguishable only in that the drug in the earlier conviction was

marijuana whereas this case involved cocaine. We do not

view this as a material distinction; the element of intent in the

extrinsic and charged offenses was the same."); United States

v. Batts, 573 F.2d 599, 603 (9th Cir. 1978) ("In this case the

[404(b)] evidence consisted of prior activity in drugs, albeit

a different drug. The connecting factor between the crime

charged here and the rebuttal evidence is the fact that the

crime here charges an intent to distribute (hashish) and the

rebuttal evidence discloses acts of negotiation leading up to

an act of distribution. Merely because the drugs involved are

different does not strip this conduct of its evidentiary value.").

The majority inexplicably departs from this weight of caselaw

locating the admission of this evidence well within the discretion of the district court. I see no reason for us to diverge from

the sound approach of our fellow circuits, especially in this

case in which the district court’s exercise of its discretion was

so plainly reasonable.

II.

To the extent that the distinctions on which the majority

relies have any relevance, their "value or weight is [to be]

determined by the jury." Queen, 132 F.3d at 998. "Assessing

the probative value of [evidence] . . . is a matter . . . ultimately, if the evidence is admitted, for the trier of fact." Abel,

469 U.S. at 54. It may be that the jury agreed with the majority’s view—we cannot know what, if any, weight it afforded

Blanding’s testimony—but the jury is to be the arbiter of such

questions, not the court of appeals. Indeed, even though the

jurors here both heard arguments from opposing counsel and

32 UNITED STATES v. MCBRIDE
observed Blanding’s cross-examination on these issues, the

majority nevertheless supplants their judgment with its own.

This simply "betray[s] too much distrust of the ability of the

adversary process to reach just results when the evidence on

both sides is in." Benkahla, 530 F.3d at 310-11. 

Sending this case back to the district court for a second

round diminishes the trial process. Retrials are like yesterday’s breakfast—always stale and seldom satisfying. Witnesses often try to remember what they said at the first trial

rather than their actual recollections of the events in question.

Everyone is farther removed from the events the trial process

is designed to reconstruct. "The very act of trying stale facts

may well, ironically, produce a second trial no more reliable

as a matter of getting at the truth than the first." Mackey v.

United States, 401 U.S. 667, 691 (1971) (Harlan, J., concurring in part and dissenting in part). 

It does more than merely inconvenience participants to put

them through the process twice. Retrials can be traumatic, and

criminal trials especially so, as witnesses are brought back for

a second time to relive troubling events. As for the jurors

here, it reduces to insignificance the time they spent in civic

duty listening to evidence and argument and weighing facts

whose accuracy is in no way questioned. The majority treads

no ground here that was not covered at trial, reviewed by the

district judge, and assessed by the jury in rendering a fair verdict. I would let the verdict stand in full. The district court

applied proper legal standards, followed case law from ours

and other circuits, made a sound and considered evidentiary

inquiry, and admirably discharged its obligations throughout.

With all respect to my fine colleagues in the majority, the trial

court should be commended, not reversed. 

UNITED STATES v. MCBRIDE 33