NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________

No. 22-1872 _______________

UNITED STATES OF AMERICA

v.

ERIC BANKS, Appellant __________

On Appeal from the United States District Court for the Middle District of Pennsylvania (District Court No. 1-18-cr-00131-001) Honorable Jennifer P. Wilson, U.S. District Judge __________

Submitted Under Third Circuit L.A.R. 34.1(a) on January 24, 2023

Before: HARDIMAN, KRAUSE, and MATEY, Circuit Judges

(Filed: January 30, 2023)

__________

OPINION * __________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge.

Appellant Eric Banks challenges his drug- and firearms-related convictions based

on the District Court’s denial of his motion to preclude testimony confirming his alleged

use of certain nicknames. Because that evidentiary ruling was well within the District

Court’s discretion, we will affirm.

I. DISCUSSION 1

On appeal, Banks argues that exposing the jury to testimony identifying him with

the nicknames “Guns” and “Sin” (1) was unfairly prejudicial, in violation of Federal Rule

of Evidence 403, and (2) served as evidence of his propensity to commit the charged

offenses, in violation of Federal Rule of Evidence 404(b). Neither argument is

persuasive.

Under Rule 403, trial courts “may exclude relevant evidence if its probative value

is substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403.

Because balancing these competing interests “requir[es] sensitivity on the part of the trial

court to the subtleties of the particular situation,” we must give “considerable

deference . . . to the hands-on judgment of the trial judge.” Egan, 851 F.3d at 275

(quotation omitted). Banks contends that, because the jury could have perceived the

1 The District Court had jurisdiction under

, and we have jurisdiction under

. We review the District Court’s evidentiary rulings for abuse of discretion and will not reverse if the error was harmless. See Egan v. Delaware River Port Auth.,

(3d Cir. 2017). We review its interpretations of the Federal Rules of Evidence de novo. See United States v. Green,

(3d Cir. 2010).

2 names “Guns” and “Sin” to relate to the charged offenses and the witnesses just as easily

could have identified him by his real name, these nicknames “offered no probative value

other than to imply his guilt, propensity for wrongdoing, and involvement with firearms.”

Opening Br. at 9.

That argument, however, is foreclosed by our precedent. In United States v.

Williams, we held that the introduction of an alias suggestive of criminal activity is

permissible “where the evidence is relevant—including for purposes of identifying the

defendant—and does not result in unfair prejudice.”

(3d Cir. 2020)

(citations omitted). We thus concluded that the district court reasonably allowed a

witness to refer to the defendant by his nickname, “Killer,” in the context of a

racketeering trial—particularly as the district court was willing to give a limiting

instruction.

Here, the District Court likewise identified a number of grounds on which Banks’s

nicknames were relevant, including “the duration of the alleged drug trafficking

conspiracy,” “the proper identification of the defendant,” and “information relied upon by

the Government’s expert witnesses.” App. 4. These are valid evidentiary purposes under

Rule 403. See United States v. Farmer,

(2d Cir. 2009) (“[T]he

suggestiveness of the nickname has not required exclusion, especially when it helped to

identify the defendant, connect him to the crime, or prove other relevant matter, or when

coherent presentation of the evidence entailed passing reference to it.” (emphasis added));

cf. United States v. Williams,

(7th Cir. 1984) (finding an abuse of

discretion where “[t]he prosecution’s only possible purpose in eliciting the testimony

3 [about the defendant’s nickname] was to create an impression in the minds of the jurors

that the defendant was known by the police to be an unsavory character or even a

criminal” (emphasis added)). Consistent with our decision in Williams and the Second

Circuit’s decision in Farmer, the District Court determined that the danger of unfair

prejudice did not substantially outweigh the probative value of the nicknames. Also, as

in Williams, the District Court offered to provide a limiting instruction.

.

Under these circumstances, the District Court’s ruling “easily passes muster” under Rule

403 and was not an abuse of discretion.

Banks fares no better under Rule 404(b). That rule provides that parties cannot

use “[e]vidence of any other crime, wrong, or act . . . to prove a person’s character in

order to show that on a particular occasion the person acted in accordance with the

character,” Fed. R. Evid. 404(b)(1), but such evidence is admissible to prove other issues

“such as . . . motive, opportunity, intent, preparation, plan, knowledge, [or] identity,” Fed.

R. Evid. 404(b)(2).

Banks contends that most of the District Court’s justifications for introducing the

nicknames do not count under Rule 404(b)(2), but his argument fails. The witnesses’

testimony that Banks was “Guns” and “Sin” was not offered to prove acts in conformance

with bad character. Instead, it was offered to establish “the duration of the alleged drug

trafficking conspiracy” (i.e., preparation, plan, and knowledge) and “the proper

identification of the defendant” (i.e., identity). App. 4.

II. CONCLUSION

For the foregoing reasons, we will affirm the judgment of the District Court.

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