UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 09-4115

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

HENRY RAYFORD PRIVETTE, JR., a/k/a H.R. Privette, a/k/a Ray 

Picard, d/b/a Carolina Furniture, Incorporated, d/b/a 

carolinafurniture.com, d/b/a Henry Ray Furniture Export, 

Incorporated, d/b/a Carolina Furniture Factory Direct from 

High Point, NC, Incorporated, d/b/a Miller Burns 

International Home Furnishings, Ltd., 

 Defendant - Appellant. 

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Terrence W. Boyle, 

District Judge. (7:07-cr-00133-BO-1) 

Submitted: December 7, 2009 Decided: December 22, 2009 

Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, 

Senior Circuit Judge. 

Affirmed by unpublished per curiam opinion. 

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, 

Assistant Federal Public Defender, Raleigh, North Carolina, for 

Appellant. George E. B. Holding, United States Attorney, Anne M. 

Hayes, Jennifer P. May-Parker, Assistant United States 

Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. 

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PER CURIAM: 

Henry Rayford Privette, Jr., appeals his convictions 

for wire fraud, in violation of 18 U.S.C.A. § 1343 (West Supp. 

2009). Privette argues that the district court abused its 

discretion under Fed. R. Evid. 404(b) by allowing the government 

to present evidence of Privette’s prior state charges. For the 

reasons that follow, we affirm. 

 This court typically reviews evidentiary rulings for 

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

155 (4th Cir. 2006). An abuse of discretion occurs only when 

“the trial court acted arbitrarily or irrationally in admitting 

evidence.” United States v. Williams, 445 F.3d 724, 732 (4th 

Cir. 2006) (internal quotation marks and citation omitted). 

 Although not admissible to prove the defendant’s 

character, evidence of other crimes may be admitted to prove 

“motive, opportunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake or accident.” Fed. R. Evid. 

404(b). Rule 404(b) is an inclusionary rule, allowing evidence 

of other crimes or acts to be admitted, except that which tends 

to prove only criminal disposition. See United States v. Queen, 

132 F.3d 991, 994-95 (4th Cir. 1997). For such evidence to be 

admissible, it must be “(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.” United 

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

Additionally, the probative value of the evidence must not be 

substantially outweighed by its prejudicial effect. Id. 

(citing Fed. R. Evid. 403). Where the trial judge gives a 

limiting instruction on the use of 404(b) evidence, the chance 

that the jury will improperly use the evidence is reduced. 

Queen, 132 F.3d at 997. 

 An element of wire fraud is the intent to defraud. 18 

U.S.C.A. § 1343. The evidence that Privette had previously pled 

nolo contendere to similar state charges, involving similar 

facts, was relevant to his state of mind when making promises to 

the victims. The district court did not abuse its discretion by 

concluding the challenged evidence was relevant and necessary to 

prove intent, reliable, and more probative than prejudicial. 

Accordingly, because the evidence of Privette’s prior 

state convictions was properly admitted, we affirm the district 

court’s judgment. 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