UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                      No. 99-4114
JOHN FREDERICK WATSON, a/k/a John
Francis Watson,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CR-98-343)

Submitted: September 8, 1999

Decided: September 24, 1999

Before NIEMEYER, WILLIAMS, and MOTZ,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Douglas A. Steinberg, Alexandria, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, G. David Hackney, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

John Frederick Watson appeals his convictions and sentence for
conspiracy to distribute cocaine base and for possession with intent
to distribute cocaine base. We affirm.

From mid-1996 until his arrest on May 26, 1998, Watson led a
crack cocaine distribution ring in an area of Alexandria, Virginia,
nicknamed "the Burgh." He sold wholesale quantities to various per-
sons, who in turn sold directly to users.

Watson's arrest came through the help of a confidential informant,
Rajee Wyatt. An Alexandria city detective paged Watson, indicating
that Wyatt wished to purchase $750 of crack cocaine and leaving a
telephone number for Watson to call to Wyatt to arrange the transac-
tion. Watson called back about ten minutes later and arranged to meet
at a parking lot. When Watson arrived at the designated parking lot,
he was arrested. Twenty-nine grams of crack cocaine were found in
his car. After receiving Miranda1 warnings, Watson admitted that he
received the page, purchased the crack cocaine, and came to the park-
ing lot in order to sell it to Wyatt.

Watson was charged in a four-count indictment with conspiracy to
distribute cocaine base, possession with intent to distribute cocaine
base, and two counts of carrying a firearm during and in relation to
a drug trafficking offense. One of the firearms counts was dismissed
on the Government's motion before trial.

At trial, in addition to the physical evidence and statements
obtained at the time of Watson's arrest, the Government presented the
testimony of three cooperating witnesses: James Bates, Alvin Fergu-
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1 Miranda v. Arizona, 384 U.S. 436 (1966).

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son, and Damani Kelly. Bates testified that he bought over two kilo-
grams of crack cocaine from Watson during 1996 and early 1997 and
that during one transaction, Watson showed him a gun. Ferguson tes-
tified that Watson sold him over 150 grams of crack cocaine, and
Kelly recounted two 4.5-gram purchases during February 1998.

During trial, the Government learned that Watson had threatened
to harm Bates' family if he testified. The Government asked the dis-
trict court to permit Bates to be recalled to testify about the threat.
The court allowed Bates to be recalled, and Bates testified that while
he and Watson were in separate cells of a holding facility on the
morning of the trial, he overheard Watson telling his cellmate that
"people who snitch on people don't realize that they got family out
there, and that if he goes down, that people are going to start dropping
like flies." Bates felt that this statement was intended for his ears.

During its deliberations, the jury asked a question about an overt
act alleged in the indictment--Watson's possession of 156 grams of
crack cocaine on October 11, 1996. No evidence concerning this overt
act was presented at trial. The district court responded, without objec-
tion, that no evidence had been admitted concerning this allegation
and that, in any event, proof of an overt act is not essential for convic-
tion of a drug trafficking conspiracy. Moreover, in both voir dire and
in its final instructions, the court instructed the jury that the indict-
ment was not evidence.

Watson was convicted of conspiracy and of possession with intent
to distribute and acquitted of the remaining firearms count. Watson
filed an untimely motion for a new trial, which the district court
denied. He was later sentenced to 292 months in prison, to be fol-
lowed by ten years of supervised release. Watson appeals.

Watson first argues that the district court erred by permitting the
unredacted indictment to be submitted to the jury, because the indict-
ment's allegation that he possessed crack cocaine on October 11,
1996 provided the jury with extraneous, prejudicial information.2
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2 Watson's argument that evidence of this alleged overt act was
excluded by the district court is inaccurate. Instead, the district court
excluded as unduly prejudicial testimony that Watson had been incarcer-
ated in October 1996. Although his incarceration may have stemmed
from the alleged overt act, it does not at all follow that the district court
would have excluded evidence of that act if it had been presented.

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Because Watson did not object to either the submission of the indict-
ment to the jury or to the district court's response to the jury's
inquiry, our review is for plain error. See United States v. Olano, 507
U.S. 725, 731-32 (1993).3

The first and most basic characteristic of a plain error is its
"plainness"--unless the error is "obvious, or, at a minimum, clear
under current law," an appellate court may not take note of it. United
States v. Castner, 50 F.3d 1267, 1277 (4th Cir. 1995). We find no
such obvious error. The district court properly instructed the jury that
the indictment was not evidence and that proof of an overt act was not
necessary for conviction of a drug trafficking conspiracy.

Watson relies on United States v. Greene, 834 F.2d 86 (4th Cir.
1987), but we find Greene distinguishable from this case. In Greene,
the jury asked for the exhibits to be sent into the jury room, and
twenty-one exhibits that had not been introduced into evidence were
inadvertently included. This mistake was not discovered until after the
jury returned a guilty verdict. Thus, in Greene , the jury considered
extraneous, prejudicial information that, under its instructions, it had
every reason to believe was evidence. The district court granted a new
trial, and we affirmed. Here, in contrast, the jury was instructed not
only that the indictment was not evidence, but also that the Govern-
ment had not proved the alleged overt act. Thus, we find no error,
plain or otherwise.

Next, Watson assails the admission of Bates' testimony concerning
Watson's jailhouse threat. We review the district court's decisions
regarding admission of evidence for abuse of discretion. See United
States v. Hassan El, 5 F.3d 726, 731 (4th Cir. 1993).

Evidence of an accused's intimidation of witnesses is relevant
because it betrays a consciousness of guilt and an awareness that the
witness might give inculpatory testimony. See United States v. Van
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3 This issue was first raised in Watson's motion for a new trial. To the
extent Watson asserts that the denial of that motion was error, we find
no error because the motion was untimely. See Fed. R. Crim. P. 33
(requiring a motion for a new trial, except one based on newly discov-
ered evidence, to be filed within seven days of the verdict).

                    4
Metre, 150 F.3d 339, 352 (4th Cir. 1998); United States v. Hayden,
85 F.3d 153, 158-59 (4th Cir. 1996). On the other hand, unfair preju-
dice could result to the defendant if the alleged threats are of dubious
reliability or have little or no connection to the case at bar. Conse-
quently, the district court should assure that the evidence is reliable
and tends to show a consciousness of guilt of the charged crime or
crimes. See Van Metre, 150 F.3d at 352. Moreover, if the evidence is
admitted, the district court can and should mitigate any unfair preju-
dice by instructing the jury of the limited purpose of the evidence.
The district court followed this prescription to the letter, and we con-
clude the court did not abuse its discretion by admitting evidence of
Watson's threat.

Finally, Watson attacks two factual findings of the district court at
sentencing. He argues that the court erred in enhancing his offense
level for possession of a gun under U.S. Sentencing Guidelines
Manual § 2D1.1(b)(1) (1998) and in finding that he was responsible
for the distribution of over 1.5 kilograms of crack cocaine. We may
disturb such factual findings only if they are clearly erroneous. See
United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999).

For each finding--gun possession and drug weight--the testimony
supporting it came from cooperating witnesses. Watson attacks their
credibility, just as he did in the district court. Because credibility
determinations often rest on observation of a witness' demeanor, the
trier of fact is far better positioned than we to make them. Conse-
quently, we are reluctant to hold a factual finding resting on a credi-
bility determination clearly erroneous. See United States v. D'Anjou,
16 F.3d 604, 614 (4th Cir. 1994). Our reluctance has not been over-
come here.4 The judgment of the district court is affirmed.

We dispense with oral argument because the facts and legal conten-
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4 It is true that the jury found Watson not guilty of carrying a firearm
during and in relation to a drug trafficking offense. However, the jury's
finding is not dispositive of the § 2D1.1(b)(1) issue at sentencing,
because the standard of proof is lower and the elements are somewhat
different. See United States v. Watts, 519 U.S. 148 (1997) (per curiam);
United States v. Barber, 119 F.3d 276, 283-84 (4th Cir.) (en banc), cert.
denied, 118 S. Ct. 457 (1997).

                    5
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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