UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4443

ARTHUR ANTHONY BAXTER,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of West Virginia, at Elkins.

Robert Earl Maxwell, Senior District Judge.

(CR-95-8)

Submitted: April 17, 1997

Decided: May 1, 1997

Before NIEMEYER and WILLIAMS, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James R. Fox, JORY & SMITH, L.L.C., Elkins, West Virginia, for

Appellant. William D. Wilmoth, United States Attorney, Sherry L.

Muncy, Assistant United States Attorney, Elkins, West Virginia, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Arthur Anthony Baxter was convicted by a jury of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d) (1994). On appeal,

he alleges the district court erred by allowing into evidence: (1) a note

written by Baxter and (2) evidence that Baxter had registered at a

hotel under another name. Because we find no reversible error, we

affirm.

At trial the Government planned to present witnesses who would

identify Baxter as having robbed a bank in Keyser, West Virginia on

September 8, 1994. The defense strategy was to present evidence that

Baxter, who lived near Baltimore, Maryland, was in Baltimore the

day of the robbery. Accordingly, the Government entered into evidence a handwritten note, authored by Baxter, which read:* "Bits

[nickname of friend], needed $380. Hope you're happy when I get

back Wednesday night." Testimony from the friend showed that the

note had been left at his house on Labor Day and that the Wednesday

night referred to in the letter was the night before the robbery. The

Government also presented evidence that Baxter had registered, under

another name, in a motel near Keyser three nights before the robbery.

Baxter alleges that the district court should have granted his

motions to exclude the evidence based upon Fed. R. Evid. 403. A district court may exclude evidence if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading. . . ." Fed. R. Evid. 403. We review the district

court's evidentiary rulings for a clear abuse of discretion. United

States v. Whittington, 26 F.3d 456, 465 (4th Cir. 1994). A district

court's Rule 403 decision will not be overturned except under "the

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*The redacted portion of the note indicated that money was needed for

drugs. The Government voluntarily offered to have this portion redacted.

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most extraordinary of circumstances, where that discretion has been

plainly abused." United States v. Simpson, 910 F.2d 154, 157 (4th Cir.

1990) (citations and internal quotation omitted)."Because the evidence sought to be excluded under Rule 403 is concededly probative,

the balance under Rule 403 should be struck in favor of admissibility,

and evidence should be excluded only sparingly." United States v.

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

We do not find the district court abused its discretion. See

Whittington, 26 F.3d at 465. With respect to the note, the Government

stipulated that Baxter had $4500 in his savings account at the time of

the robbery, so that the jury would not infer that Baxter robbed the

bank because he was in need of money because he borrowed $380

from his friend. The note's probative value was substantial because

it showed Baxter planned to be in the area the night before the robbery; conversely, the danger of unfair prejudice was minimal. Likewise, evidence that Baxter had stayed in a local motel three nights

prior to the robbery again helped establish his whereabouts just prior

to the robbery. Although Baxter claims that the evidence showing he

registered using a false name was prejudicial to him, such prejudice

is hardly unfair because the jury could logically infer that Baxter used

an alias to avoid detection because he planned to rob the bank three

days later. Fed. R. Evid. 403. Finally, Baxter's claim that this evidence should have been excluded under Fed. R. Evid. 404(b) is simply without merit because the evidence was not offered for the

purpose of showing action in conformity with Baxter's character, but

rather, to show that he had the opportunity to plan and commit the

robbery. See Fed. R. Evid. 404(b).

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

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