United States v. Walsh , 228 F. App'x 295 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5272
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PATRICK STEPHEN WALSH, a/k/a Patrick Steven
Walsh,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (CR-05-1-
RWT)
Submitted: May 9, 2007 Decided: May 31, 2007
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William B. Purpura, Christopher J. Purpura, LAW OFFICE OF
WILLIAM B. PURPURA, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Chan Park, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Patrick Stephen Walsh was convicted following a jury
trial of one count of conspiracy to commit arson, in violation of
18 U.S.C. § 844(n) (2000), and thirty-five counts of arson, in
violation of 18 U.S.C. § 844(i) (2000). He was sentenced to 253
months of imprisonment, over three million dollars in restitution,
and a special assessment of $3600. His convictions stem from
intentionally set fires at a partially-complete housing development
in Charles County, Maryland, called Hunter’s Brooke.
Prior to trial, Walsh filed a motion in limine to
preclude admission of evidence that, between August and December
2004, during the charged conspiracy period, he: (1) lit a fire
using acetone in a parking lot, (2) set a field on fire,
(3) purchased and possessed black powder, (4) constructed and
detonated certain explosives, such as pen bombs and canister bombs,
(5) lit a vehicle on fire in a parking lot, (6) possessed a copy of
The Anarchist’s Cookbook and other documents related to explosives,
fires, and flammable materials, and (7) devised a plan called
“operation payback” which involved setting fire to a vehicle. The
defense argued that this evidence was inadmissible propensity
evidence under Fed. R. Evid. 404(b) and unduly prejudicial under
Fed. R. Evid. 403. The district court denied the motion,
concluding that the evidence was intrinsic to the crime of arson
conspiracy and therefore, did not fall within the scope of Rule
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404(b).* Walsh appealed his convictions and challenges the
court’s ruling on the admissibility of the evidence.
This court reviews the admission of evidence for an abuse
of discretion. United States v. Forrest, 429 F.3d 73, 79 (4th Cir.
2005). “[A]n abuse [of discretion] occurs only when it can be said
that the trial court acted arbitrarily or irrationally in admitting
evidence.” United States v. Williams, 445 F.3d 724, 732 (4th Cir.)
(internal quotation marks and citation omitted), cert. denied, 127
S. Ct. 314 (2006).
Walsh argues that the evidence was bad acts evidence
inadmissible under Rule 404(b). However, Rule 404(b) only applies
to acts extrinsic to the crime charged. Where evidence is admitted
“‘as to acts intrinsic to the crime charged, and is not admitted
solely to demonstrate bad character, it is admissible.’” United
States v. Higgs, 353 F.3d 281, 311 (4th Cir. 2003) (quoting United
States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996)). “[A]cts are
intrinsic when they are ‘inextricably intertwined or [the] acts are
part of a single criminal episode or the other acts were necessary
preliminaries to the crime charged.’” Chin, 83 F.3d at 88 (quoting
United States v. Lambert, 995 F.2d 1006, 1007 (10th Cir. 1993)).
In addition, evidence of other crimes or “uncharged conduct is not
considered ‘other crimes’” for Rule 404(b) purposes “if it ‘arose
*
The district court also denied Walsh’s renewed objections to
this evidence when it was admitted at trial.
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out of the same . . . series of transactions as the charged
offense, . . . or if it is necessary to complete the story of the
crime [on] trial.’” United States v. Kennedy, 32 F.3d 876, 885
(4th Cir. 1994) (quoting United States v. Towne, 870 F.2d 880, 886
(2d Cir. 1989)).
Here, as the district court properly concluded, the fires
and experimentation with explosives during the summer and fall of
2004, and Walsh’s possession of information about obtaining and
using various types of explosives and chemicals, were a part of the
context of the charged arson conspiracy and were necessary
preliminaries to the offense. Walsh contends that evidence that
did not specifically reference the Hunter’s Brooke development,
accelerant fires, or the two particular chemicals used in the
arson, was irrelevant. However, as the district court reasonably
determined, the evidence was relevant to show the necessary
“education and training” that enabled Walsh to select a target,
plan, and carry out the arson.
Furthermore, even assuming the evidence fell within the
purview of Rule 404(b), the admission of the evidence was still
within the district court’s discretion. While Rule 404(b)
prohibits the introduction of evidence of prior bad acts for the
purpose of proving character or propensity, such evidence may be
“admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
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absence of mistake or accident.” Fed. R. Evid. 404(b). Such
evidence is properly admitted when it is “(1) relevant to an issue
other than character, (2) necessary, and (3) reliable.” United
States v. Mark, 943 F.2d 444, 447 (4th Cir. 1991) (internal
citations and quotation marks omitted). Walsh’s research about and
experimentation with various explosive substances and devices was
relevant to show intent, preparation, and planning. The evidence
was necessary in that it was probative of the contested issue at
trial, and also was reliable.
The district court also acted within its discretion in
denying Walsh’s objection to admission of the evidence under Rule
403. Under Fed. R. Evid. 403, district courts may exclude
otherwise relevant evidence if the probative value of the evidence
“is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Fed. R. Evid. 403. We will
not overturn a district court’s Rule 403 judgment “except under the
most extraordinary of circumstances, where [a trial court's]
discretion has been plainly abused.” United States v. Love, 134
F.3d 595, 603 (4th Cir. 1998) (internal quotation marks omitted).
We must “examine the evidence in the light most favorable to its
proponent, maximizing its probative value and minimizing its
prejudicial effect.” Id. (internal quotation marks omitted).
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Walsh relies on United States v. Hernandez, 975 F.2d 1035(4th Cir. 1992), in which this court held that evidence concerning
the defendant’s prior knowledge about cooking and selling crack
cocaine was inadmissible as evidence of intent for the charged drug
conspiracy. Id. at 1039. However, in Hernandez, the evidence
about dealing and cooking drugs during some prior indefinite period
of time was not relevant to any disputed issue in the case, and
lacking any probative value, merely served to depict Hernandez as
an experienced drug dealer. Here, on the other hand, the
challenged evidence was directly probative of Walsh’s intent, plan,
and preparation to commit the arson. The district court did not
abuse its discretion in concluding that, under these circumstances,
the significant probative value was not substantially outweighed by
the danger of unfair prejudice.
In conclusion, because the evidence pertaining to fires
and explosives prior to the arson and the printed and downloaded
material were a part of the context of the arson conspiracy and
necessary preliminaries of the crime, the district court did not
abuse its discretion in admitting the evidence. Moreover, even if
we were to conclude the evidence fell within the scope of Rule
404(b), the evidence was admissible because it was relevant to show
planning and preparation, and its probative value was not
substantially outweighed by the danger of unfair prejudice.
Accordingly, we affirm Walsh’s convictions and sentence. We
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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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