UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 98-4069

TAVARES KEITH FINCHAM,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CR-97-308)

Submitted: September 15, 1998

Decided: October 14, 1998

Before ERVIN, WILKINS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Charles Warren Kramer, CARTER & KRAMER, P.C., Alexandria,
Virginia, for Appellant. Helen F. Fahey, United States Attorney, John
C. Filippini, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

A jury convicted Tavares Keith Fincham of conspiracy to distribute
fifty grams or more of crack cocaine (Count I), and distribution of
five grams of cocaine or more (Count IV), in violation of 21 U.S.C.
§§ 841(a)(1), 846 (1994). The district court sentenced Fincham to
concurrent sentences of 121 months imprisonment plus five years
supervised release on Count I and sixty months imprisonment plus
four years supervised release on Count IV. He timely appealed. Find-
ing no error, we affirm.

Fincham was charged with distributing crack cocaine on February
6, March 6, and March 20, 1997. The February 6 count was dismissed
at the Government's request,* and the jury acquitted Fincham of the
charge based on the March 6 transaction. The primary witness against
Fincham was Jorge Rolando, the co-defendant to whom Fincham sup-
plied the drugs. Rolando was also charged with several drug viola-
tions, and he pleaded guilty.

At trial, Rolando testified that he had been mistaken about the iden-
tity of his supplier for the February 6 transaction; however, he reas-
serted that Fincham had supplied him with the crack cocaine on
March 6 and 20. On cross-examination, Fincham's counsel attempted
to impeach Rolando's credibility by showing that he could not
remember specific dates, times, and details and that he lied when he
stated that Fincham supplied the drugs to him. On redirect examina-
tion, counsel for the Government questioned Rolando about his mis-
taken identification regarding the February 6 transaction. The
following exchange occurred:
_________________________________________________________________

*The primary witness, Jorge Rolando, originally told detectives that
Fincham sold him drugs on three separate occasions. Sometime before
trial, however, he stated that he had been mistaken about the February
6 transaction and identified another person as his supplier on that day.
Accordingly, the Government moved to dismiss the February 6 count
against Fincham.

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          Q. Do you recall meeting with the defendant on February
          6?

          A. Yes.

          Q. And do you recall--Did you recall why you-- What
          happened when you met with him?

          A. Yeah. Since he didn't have the drugs, he want me to
          steal a four-wheeler.

(J.A. 182-83). Fincham's counsel objected on the grounds that the
answer was not responsive to the question, outside the scope of re-
direct examination, and irrelevant. The Government responded that
defense counsel had "opened the door as to why[Rolando] has sud-
denly recalled something differently." The court overruled the objec-
tion and the Government continued:

          Q. What happened when you met him on February 6?

          A. He didn't have the drugs. And he told me he want me
          to steal a four-wheeler which belong to a dead guy
          now, Joe Veris. And he say if I steal it, he was going
          to give me $500. And also he told me he needs some
          people to steal motorcycles from warehouse that day.

(J.A. 183). Fincham's counsel did not renew his objection. The testi-
mony was not mentioned again during the trial, and Fincham's coun-
sel did not request a jury instruction about it.

On appeal, Fincham contends that the district court erroneously
permitted the Government to introduce this allegedly irrelevant testi-
mony to show Fincham's bad character in violation of Fed. R. Evid.
403, 404(b). We review a district court's evidentiary rulings for an
abuse of discretion. See United States v. Sanchez, 118 F.3d 192, 195
(4th Cir. 1997).

Fincham objected to Rolando's testimony on relevancy grounds
and thereby properly preserved this issue for appeal. Evidence is rele-

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vant if it has "any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or
less probable than it would be without the evidence." Fed. R. Evid.
401. By attacking Rolando's credibility concerning the February 6
misidentification, Fincham's counsel opened the door to the prosecu-
tion's line of questioning, which was designed to rehabilitate Rolan-
do's credibility by establishing why he originally thought Fincham
had supplied the drugs to him on February 6. Thus, the testimony had
some relevance. Accordingly, we find that the district court did not
abuse its discretion in finding that the testimony was relevant. See
Sanchez, 118 F.3d at 195.

Fincham did not object to the testimony as impermissible evidence
of bad character under Rule 404(b) or as relevant evidence excludable
as unduly prejudicial under Rule 403. Thus, because he failed to prop-
erly preserve his objection on these grounds, we review the admission
for plain error. See Fed. R. Crim. P. 52(b); Fed. R. Evid. 103(a)(1)
(requiring a "timely objection . . . stating the specific ground of the
objection"); United States v. Chin, 83 F.3d 83, 87 (4th Cir. 1996).

We find that the admission of the testimony did not constitute plain
error. The Government introduced the testimony in order to rehabili-
tate Rolando's credibility and to explain why Rolando's original iden-
tification was mistaken. Thus, the evidence was not introduced to
prove Fincham's bad character, and Rule 404(b) is not applicable. See
United States v. Grimmond, 137 F.3d 823, 832 (4th Cir. 1998),
petition for cert. filed, ___ U.S. #6D6D 6D# (U.S. June 4, 1998) (No. 97-
9416). Furthermore, although evidence of other crimes not charged is
prejudicial, the jury acquitted Fincham of one of the two charges
about which Rolando testified; thus, it appears that the testimony did
not influence the jury. See id. Accordingly, Fincham's "substantial
rights" were not unfairly prejudiced. See United States v. Olano, 507
U.S. 725, 732-36 (1993).

We affirm Fincham's conviction and sentence. 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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