                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                          DECEMBER 12, 2006
                             No. 06-11216                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 05-14052-CR-DLG

UNITED STATES OF AMERICA,


                                                  Plaintiff-Appellee,

                                  versus

MELISSA MARIE HOFFPAUIR,

                                                  Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                           (December 12, 2006)

Before DUBINA, BLACK and CARNES, Circuit Judges.

PER CURIAM:
      Melissa Marie Hoffpauir appeals her convictions for one count of attempting

to manufacture five or more grams of methamphetamine, one count of possessing

pseudoephedrine with the intent to manufacture methamphetamine, and one count

of possessing with intent to distribute five grams or more of methamphetamine.

21 U.S.C. §§ 846, 841(c)(1), 841(a)(1). Hoffpauir argues the district court erred

when it (1) admitted testimony regarding an anonymous letter sent to the Port St.

Lucie Police Department (PSLPD), and (2) refused to give a jury instruction on

“mere presence.” We affirm her convictions.

                          I. STANDARD OF REVIEW

      We review a district court’s evidentiary rulings for abuse of discretion and

questions of constitutional law de novo. United States v. Lyons, 403 F.3d 1248,

1250 (11th Cir. 2005), cert. denied, 126 S. Ct. 732 (2005); United States v. Brown,

364 F.3d 1266, 1268 (11th Cir. 2004). A district court’s refusal to give a jury

instruction requested by the defense is reviewed for abuse of discretion. United

States v. Dulcio, 441 F.3d 1269, 1275 (11th Cir. 2006).

                                II. DISCUSSION

A.    The District Court Did Not Abuse Its Discretion When It Admitted Testimony
      Regarding the Anonymous Letter.

      Hoffpauir argues the admission of Agent Grenier’s testimony that the

PSLPD received an anonymous letter reporting a methamphetamine lab at

                                         2
Hoffpauir’s residence violated her rights under the Confrontation Clause. U.S.

Const. Amend. VI; Crawford v. Washington, 124 S. Ct. 1354 (2004). The

Confrontation Clause prohibits the admission of testimonial hearsay evidence at

trial unless the declarant is unavailable and the defendant had a prior opportunity to

cross-examine the declarant. Crawford, 124 S. Ct. at 1374. The Confrontation

Clause does not, however, bar the use of non-hearsay testimonial statements. Id. at

1369 n.9.

           The Federal Rules of Evidence define hearsay as “a statement, other than

one made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). Here,

Agent Grenier’s testimony regarding the anonymous letter was admitted to explain

the reason police obtained a search warrant for Hoffpauir’s residence, and not for

the truth of the matter asserted. Such a statement, admitted for the limited purpose

of establishing the background of an officer’s actions, is not hearsay. United States

v. Johnson, 741 F.2d 1338, 1340 n.2 (11th Cir. 1984); United States v. Vitale, 596

F.2d 688, 689 (5th Cir. 1979).1 Accordingly, the evidentiary ruling of the district

court was not an abuse of discretion.



       1
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.

                                               3
B.    The District Court Did Not Abuse Its Discretion When It Refused to Give
      Defendant’s Proffered Jury Instruction.

      Hoffpauir next argues the trial court erred in refusing to give her requested

jury instruction that her mere presence at the scene of the crime was insufficient to

establish she participated in the crime.2 The denial of a defendant’s requested jury

instruction constitutes reversible error if the defendant can show the instruction:

“(1) was a correct statement of the law; (2) was not adequately covered in the

instructions given to the jury; (3) concerned an issue so substantive that its

omission impaired the accused’s ability to present a defense; and (4) dealt with an

issue properly before the jury.” United States v. Brazel, 102 F.3d 1120, 1139

(11th Cir. 1997).

      Hoffpauir’s proposed instruction does not meet this test. To convict

Hoffpauir of intent to manufacture, the government had to prove she “knowingly

and willfully intended to commit the offense of manufacturing methamphetamine.”

To convict her of possession of pseudoephedrine with the intent to manufacture

methamphetamine, the government had to prove she “knowingly and intentionally



      2
          Hoffpauir’s proposed jury instruction read:

               Mere presence at the scene of a crime and even knowledge that a crime is
               being committed are not sufficient to establish that a defendant participated
               in, directed or aided and abetted the crime. You must find beyond a
               reasonable doubt that the Defendant was a knowing participant and not
               merely a knowing spectator.

                                                 4
possessed pseudoephedrine . . . and had the intent to manufacture

methamphetamine.” And to convict her of possession with intent to distribute five

grams or more of methamphetamine, the government had to prove she “knowingly

or intentionally possessed methamphetamine . . . with the intent to distribute it.”

The district court’s jury instructions correctly defined “knowingly” as doing an act

“voluntarily and intentionally, and not because of mistake or accident.” They also

correctly stated that in order to find possession, the jury had to find Hoffpauir

either had “direct physical control” of the substances or the “power and intention to

. . . take control.” These instructions are sufficient to preclude conviction for mere

presence. See United States v. Rojas, Sr., 537 F.2d 216, 219-220 (5th Cir. 1976).

Accordingly, the district court did not abuse its discretion in refusing to give

Hoffpauir’s proposed jury instruction.

      AFFIRMED.




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