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 2010-03

United States v. Trout , 369 F. App'x 493 ( 2010 )


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  •                             UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4719
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HAROLD ANTHONY TROUT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:08-cr-01055-HFF-1)
Submitted:   February 18, 2010            Decided:   March 12, 2010
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Falkner Wilkes, Greenville, South Carolina, for Appellant.
W. Walter Wilkins, United States Attorney, Dean A. Eichelberger,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harold Anthony Trout appeals his convictions under the
Computer Fraud and Abuse Act,
    18 U.S.C.A. § 1030
     (West 2000 &
Supp. 2009), and the Electronic Communications Privacy Act,
    18 U.S.C.A. § 2511
          (West       2000    &   Supp.    2009).         The     conduct
underpinning the indictment occurred while Trout was a county
councilman and involved his access to and use of information
covertly obtained from the computer of the county administrator,
Joseph Kernell, as a consequence of Trout’s use of a “spyware”
software program.           On appeal, Trout argues that the district
court   improperly     allowed       the   Government     to    present      testimony
regarding prior bad acts, because the evidence was not relevant
and only served to prejudice the jury.
This court typically reviews evidentiary rulings for
abuse of discretion.              United States v. Perkins,
    470 F.3d 150
    ,
155 (4th Cir. 2006).              However, as Trout did not object to the
evidence   in   the    district       court,    we    review    the    admission   of
evidence for plain error.            United States v. Olano,
    507 U.S. 725
    ,
731 (1993).     To show plain error, the appellant must demonstrate
“that an error occurred, that the error was plain, and that the
error   affected      his    substantial       rights.”         United    States   v.
Muhammad,
    478 F.3d 247
    , 249 (4th Cir. 2007).
Although         not    admissible    to     prove    the     defendant’s
character, evidence of other wrongs may be admitted to prove
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“motive,    opportunity,          intent,       preparation,     plan,       knowledge,
identity, or absence of mistake or accident.”                         Fed. R. Evid.
404(b).     Acts “intrinsic to” the crime are not subject to Rule
404’s restrictions.          United States v. Siegel,
    536 F.3d 306
    , 316
(4th Cir. 2008).          “Evidence of uncharged conduct is not ‘other
crimes’ evidence subject to Rule 404 if the uncharged conduct
‘arose out of the same series of transactions as the charged
offense, or if [evidence of the uncharged conduct] is necessary
to complete the story of the crime on trial.’”
    Id.
     (quoting
United States v. Kennedy,
    32 F.3d 876
    , 885 (4th Cir. 1994))
(alteration in original).             In other words, the Government may
“provide    context    relevant       to    the    criminal     charges.”        United
States v. Cooper,
    482 F.3d 658
    , 663 (4th Cir. 2007).                             Having
carefully      reviewed     the    record,        we    hold   that    the     evidence
pertaining to Trout’s history with the other council members,
Kernell, and other county staff is intertwined with and provided
context to Trout’s conduct underlying the charges.
Further,      even     considering         the   admissibility      of   the
evidence of Trout’s pattern of conduct on the county council
pursuant to the terms of Rule 404(b), the district court did not
plainly    err.      Rule    404(b)    is    an    inclusionary       rule,    allowing
evidence of other crimes or acts to be admitted, except evidence
that   tends    to   prove    only    criminal         disposition.      See    United
States v. Queen,
    132 F.3d 991
    , 994-95 (4th Cir. 1997).                        For such
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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   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).      After reviewing the record and the parties’
arguments, we hold that the evidence Trout challenges was not
barred by Rule 404(b).
Accordingly, 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
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