United States of America v. Melvin Dean Morton

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5158
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MELVIN DEAN MORTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:08-cr-00401-RDB-4)
Submitted: December 22, 2011 Decided: January 12, 2012
Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gary A. Ticknor, Elkridge, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, James G. Warwick, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Following a jury trial, Melvin Dean Morton was
convicted of conspiracy to commit robbery, robbery, possession
of a firearm in furtherance of a crime of violence, and
possession of a firearm by a convicted felon. He was sentenced
to a total of 372 months’ imprisonment. The sole issue on
appeal is whether the district court erred in permitting the
Government to cross-examine Morton concerning his prior robbery
convictions. We affirm.
A district court’s evidentiary rulings are reviewed
for abuse of discretion. United States v. Byers, 649 F.3d 197,
206, 213 (4th Cir. 2011), cert. denied, __ S. Ct. __, 2011 WL
4344656 (U.S. Oct. 17, 2011) (No. 11-6371). “A trial court’s
exercise of such discretion is entitled to substantial
deference,” United States v. Myers, 589 F.3d 117, 123 (4th Cir.
2009) (internal quotation marks omitted), and will be upheld
unless the court “acts arbitrarily or irrationally, fails to
consider judicially recognized factors constraining its exercise
of discretion, relies on erroneous factual or legal premises, or
commits an error of law.” United States v. Delfino, 510 F.3d
468, 470 (4th Cir. 2007).
Rule 404(b) of the Federal Rules of Evidence prohibits
the admission of “[e]vidence of other crimes, wrongs, or acts
. . . to prove the character of a person in order to show action

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in conformity therewith.” Fed. R. Evid. 404(b).* Accordingly,
“the prosecution may not introduce evidence of extrinsic
offenses to demonstrate the defendant’s propensity to commit
unlawful acts or to prove that the defendant committed the
crime[s] with which he is presently charged.” United States v.
Powers, 59 F.3d 1460, 1464 (4th Cir. 1995) (internal quotation
marks omitted). Evidence of extrinsic offenses, “may, however,
be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Fed. R. Evid. 404(b). The
admission of such evidence requires “reasonable notice in
advance of trial, or during trial if the court excuses pretrial
notice on good cause shown.” Id.
Morton argues that the Government violated Rule 404(b)
by failing to provide adequate notice of its intent to admit
evidence of his prior convictions. We conclude that Morton’s
receipt of a pre-plea investigation report detailing his
criminal history and Morton’s pre-trial motion in limine
regarding these convictions evidence sufficient actual notice.
See United States v. Basham, 561 F.3d 302, 327 n.12 (4th Cir.
2009) (concluding defendant had sufficient notice where he
* Rule 404(b) was amended, effective December 1, 2011.
Citations in this opinion to the Federal Rules of Evidence refer
to the rules in effect at the time of Morton’s trial.

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objected to admission of evidence before Government reached
relevant line of questioning).
Next, Morton contends that the district court erred in
admitting evidence of his prior convictions because there was no
basis for doing so under Rule 404(b). Morton argues that the
prior convictions could not be used to show intent because the
offenses occurred almost thirty years ago and that the minimal
probative value of his prior convictions was outweighed by their
immense prejudicial effect. Morton also asserts none of the
other grounds for admission under Rule 404(b) is applicable.
Evidence of prior bad acts is admissible under Rule
404(b) when the evidence is relevant, necessary to prove an
element of the offense, and reliable, and when the probative
value of the evidence is not substantially outweighed by unfair
prejudice. United States v. Queen, 132 F.3d 991, 997 (4th Cir.
1997). We conclude that Morton’s prior four convictions were
relevant to his state of mind in light of his duress defense
because they stemmed from robberies that, upon cross-
examination, Morton admitted he committed voluntarily. Queen,
132 F.3d at 996 (stating that earlier acts are probative if
“similar in nature to the charged acts”); see United States v.
Ceballos, 605 F.3d 468, 470 (8th Cir. 2010) (“Numerous courts
have found that 404(b) evidence may be admitted to refute a
duress defense.”) (internal quotation marks omitted), cert.

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denied, 131 S. Ct. 437 (2010); United States v. King, 879 F.2d
137, 139 (4th Cir. 1989) (discussing duress defense). Further,
the evidence of Morton’s prior convictions is reliable, and its
probative value is not substantially outweighed by unfair
prejudice. Although approximately thirty years have passed
since Morton was convicted of committing the prior robberies,
those convictions are similar to the charged offenses, and
Morton spent much of the intervening time incarcerated. See
United States v. Kelly, 510 F.3d 433, 437 (4th Cir. 2007)
(holding that conviction occurring twenty-two years prior was
admissible because similarities between charged offense and
prior crime were significant and lapse of time alone did not
render conviction inadmissible); Queen, 132 F.3d at 998 (finding
nine-year-old evidence of intent probative despite lapse of time
“particularly when the defendant has spent many of those
intervening nine years in prison”).
Finally, Morton contends that the district court
improperly admitted evidence of his prior convictions under Fed.
R. Evid. 609. Because admission of this evidence was proper
under Rule 404(b), we need not reach this issue. See United
States v. Verduzco, 373 F.3d 1022, 1030 (9th Cir. 2004)
(declining to reach Rule 609 argument upon resolution of Rule
404(b) argument because “[i]f evidence is properly admitted

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under one rule, then improper admission under the second rule is
harmless”).
Based on the foregoing, we affirm the judgment of the
district court. 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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