                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 05-5234



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

          versus


EDWARD JOHN BEACH,

                                                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-02-260)


Submitted:   August 21, 2006                 Decided:   August 30, 2006


Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Aaron E. Michel, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Kimlani S. Murray,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Edward John Beach appeals his convictions for (1) conspiracy

to manufacture methamphetamine, (2) conspiracy to possess with

intent to distribute methamphetamine, and (3) the manufacture of

methamphetamine in violation of 21 U.S.C.A. §§ 841 and 846 (West

1999).       Beach    argues     that      several   of     the   district       court’s

evidentiary rulings undermine confidence in the jury’s verdict and

require us to vacate his conviction.                 Beach also argues that the

district      court’s     constructive          amendment    of   the     grand       jury

indictment requires us to vacate his conviction. For the following

reasons, we affirm.



                                            I.

      On     November     15,    2002,     the    Charlotte-Mecklenburg           Police

Department responded to a domestic disturbance at 10486 Moores

Chapel Road, Charlotte, North Carolina.                Upon their arrival at the

scene, Margaret Alice Schaal informed the police that Beach had hit

her and that Beach operated a methamphetamine lab inside their

home. After observing the methamphetamine lab, the officers exited

the   home    and    called     for   additional     assistance.          Due    to    the

explosive and dangerous nature of methamphetamine production, Agent

Hetzel,      a   narcotics        officer        specializing      in     clandestine

laboratories,       was   called      to   the   scene.      Agent      Hetzel    donned

protective gear and secured the home, so that chemists could enter


                                            2
it and assess the lab.         Chemists with the North Carolina State

Bureau    of   Investigation   confirmed        that   the     lab   was   indeed    a

methamphetamine lab.

       Schaal was arrested and cooperated with the police.                         She

informed the police that she helped Beach make methamphetamine and

that Jason Lewis also assisted in the production and distribution

of the methamphetamine.        Beach was arrested on April 25, 2003 and

subsequently charged with the two offenses forming the basis of

this   appeal.      Schaal   and   Lewis       were    also    indicted     for    the

methamphetamine     conspiracy     and       Schaal,    like    Beach,     was    also

indicted on the manufacturing charge.                 Lewis and Schaal pleaded

guilty and testified at trial against Beach.                    A jury convicted

Beach on both counts and the district court sentenced Beach to 188

months’ imprisonment, a sentence below the recommended sentencing

guidelines range.     Beach timely appealed his conviction only, and

we have jurisdiction to review his conviction pursuant to                           28

U.S.C.A. § 1291 (West 1993).



                                     II.

         We first address Beach’s challenges to the district court’s

evidentiary rulings.     We review for abuse of discretion a district

court’s evidentiary rulings.       See United States v. Smith, 451 F.3d

209, 217 (4th Cir. 2006).




                                         3
     Beach first contends that the district court erred by allowing

the officer who responded to the domestic disturbance call to

testify    that    he    was   called     to      the    Schaal/Beach   residence       on

November 15, 2002 for domestic disturbance, arguing that such

statements were hearsay evidence and were highly prejudicial.                           We

find no error in the district court’s admission of this evidence.

The evidence was not hearsay evidence because it was not offered

for the truth of the matter asserted, but instead was offered to

provide relevant background evidence as to why the officers visited

the Schaal/Beach house on that day.                 See United States v. Love, 767

F.2d 1052, 1063 (4th Cir. 1985).                        Furthermore, given the wide

discretion provided to district courts, we find no error in the

district    court’s      conclusion       that      the    probative    value,    as    it

provided    an     explanation      for       the       officers’   presence     at    the

Schaal/Beach       home,   was     not    substantially          outweighed      by    any

prejudice to Beach.            See Fed. R. Evid. 403 (“Although relevant,

evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury.”)

     Beach next contends that the district court erred by allowing

Agent     Hetzel    to     testify       to       the     dangers   presented     by     a

methamphetamine lab and by showing the jury pictures of the agents

in “moon-walker” protective gear.                 (Appellant’s Br. at 48.)            Beach

contends that such evidence was irrelevant to the charges and


                                              4
highly prejudicial.       We find no error in the district court’s

admission   of   this   evidence.      To   be   admissible     as   background

evidence, the testimony and pictures must satisfy the requirement

of Rule 401 of the Federal Rules of Evidence that the evidence

“make the existence of any fact that is of consequence . . . more

probable or less probable.”         Fed. R. Evid. 401.        Agent Hetzel’s

testimony and the pictures demonstrated that a methamphetamine lab

existed in the Schaal/Beach home, thus making it more probable that

Beach had violated § 841.       We also hold that the probative value of

the pictures and Agent Hetzel’s testimony outweigh any prejudice

suffered by Beach.      See United States v. Grimmond, 137 F.3d 823,

831 (4th Cir. 1998)(upholding the admission of evidence of a

shooting    where   defendant    was   charged    with   drug    and   weapons

possession because the shootings tended to suggest that defendant

had a weapon, thus establishing an element of the crime and

outweighing any prejudice suffered).

     Beach’s third argument is that the district court erred in

allowing Schaal to testify that Beach had been “captured,” (J.A. at

370), because “[t]here was no relevance to [this testimony] and it

served only to convey the idea that [Beach] is not only presumed

guilty but is dangerous.”       (Appellant’s Br. at 49.) Even assuming

for argument’s sake that such evidence is irrelevant, the admission

of such evidence does not constitute reversible error because the

testimony in no way implies that Beach was dangerous.


                                       5
       Fourth, Beach alleges that the prosecution engaged in improper

bolstering of Schaal’s testimony during closing argument and that

the district court erred by admitting evidence that the prosecution

had not made any promises of leniency to Schaal in exchange for her

testimony.          We disagree.          A prosecutor engages in improper

vouching when he indicates his personal belief in the witness or

indicates to the jury that he can guarantee the truthfulness of a

witness.     See United States v. Collins, 415 F.3d 304, 307-8 (4th

Cir.    2005).         Having    reviewed   the        record,   we    find      that   the

prosecutor did not vouch for Schaal’s credibility.                         For example,

the prosecutor merely told the jury that just because Schaal had

entered into a plea agreement did not “disqualify [her] from

testifying,” but that “it’s just up to you to listen to [her] and

decide for yourself.”            (J.A. at 456.)          Furthermore, the district

court did not err by allowing the prosecution to question Schaal as

to    whether    she    had     been   offered    anything       in   return      for   her

testimony.       See United States v. Henderson, 717 F.2d 135, 138 (4th

Cir. 1983)(holding that the “district court did not abuse its

discretion in permitting the government to introduce the terms of

[a] plea bargain during the government’s case in chief”).

       Fifth,    Beach     contends     that     his    due   process      rights       were

violated because the police lost some of the seized evidence and

the    prosecution       then     introduced      photographs         of   the    missing

evidence.        Beach     also    argues       that    the   introduction        of     the


                                            6
photographs violated his Sixth Amendment confrontation rights as

delineated under Crawford v. Washington, 541 U.S. 36 (2004).             In

Arizona v. Youngblood, 488 U.S. 51 (1988), the Supreme Court held

that “where a defendant can show bad faith, the failure to preserve

potentially useful evidence constitutes a violation of the Due

Process Clause.” Lovitt v. True, 403 F.3d 171, 186 (4th Cir.

2005)(internal quotation marks omitted).         Because Beach cannot

demonstrate any bad faith on the part of the government, his due

process claim fails.    In addition, in Crawford the Supreme Court

held that “[the Confrontation Clause] bars admission of testimonial

statements of a witness who did not appear at trial unless he was

unavailable   to   testify,   and   the   defendant   had   had   a   prior

opportunity for cross-examination.”        Davis v. Washington, 126 S.

Ct. 2266, 2273 (2006)(internal quotation marks omitted). Beach has

failed to demonstrate how photographs of seized evidence could

conceivably constitute the “testimonial” statements that Crawford

bars.

     In Beach’s final evidentiary argument, he contends that the

district court erred by preventing him from cross-examining Schaal

about her malingering at a mental institution and her marijuana

usage.   Even assuming for argument’s sake that the district court

should have permitted Beach to use the medical report produced from

Schaal’s institutionalization, any such error would be harmless.

Although the district court refused to allow Beach to ask Schaal


                                    7
about the contents of the report, the district court allowed Beach

to ask Schaal whether she was initially deemed incompetent to stand

trial, a question she answered in the affirmative, and whether she

was malingering while at the institution, a question she answered

in the negative.        While the report would have allowed Beach to

impeach Schaal on this issue, the impeachment would have been on an

issue that was so tangential to the prosecution’s case that it

would have had little effect on Schaal’s overall credibility.               The

same analysis applies to the district court’s ruling prohibiting

Beach from asking Schaal whether she tested positive for marijuana

while on pre-trial release and whether she had a prior misdemeanor

conviction for marijuana.       At trial, Beach asked Schaal about her

marijuana usage and she replied, “I smoked it all the time.”             (J.A.

at   384.)     Schaal   also   testified   that    she   used   some   of   the

methamphetamine made by Beach. Again, any impeachment value gained

from eliciting a statement from Schaal that she used marijuana

while on pre-trial release or had a prior misdemeanor conviction

would be only cumulative considering her testimony regarding her

drug usage.

      Beach also contends that “[e]ven if each of the particular

errors   above    described    was   harmless     or   non-reversible,      the

cumulative effect requires a new trial.”          (Appellant’s Br. at 58.)

We disagree.     The evidence against Beach was overwhelming.          It was

undisputed that Beach resided where the methamphetamine lab was


                                      8
discovered. Furthermore, Schaal and Lewis testified that Beach was

engaged in the manufacture of methamphetamine.     Lewis testified in

detail how he met Beach at work and how Beach agreed to purchase

ephedrine packages for the manufacture of methamphetamine to earn

some extra money. In fact, Lewis testified that Beach provided him

fifty packages a week.     Lewis further testified that he and Beach

together cooked the methamphetamine on a few occasions.        Schaal

testified consistent with Lewis. In summary, we find no reversible

error in the district court’s evidentiary rulings.



                                 III.

     We next address Beach’s argument that the expansion of the

charges beyond what the grand jury charged constituted per se

reversible error.    We review de novo an allegation that the

district court improperly permitted a constructive amendment to a

grand jury indictment.     United States v. Bolden, 325 F.3d 471, 493

(4th Cir. 2003).

     “‘A constructive amendment to an indictment occurs when either

the government, [the court], or both, broadens the possible bases

for conviction beyond those presented by the grand jury.’” Id.

(quoting United States v. Floresca, 38 F.3d 706, 710 (4th Cir.

1994)).   The original indictment provided in Count One that Beach

was involved in a conspiracy involving at least 500 grams of a

mixture   or   substance     containing   a   detectable   amount   of


                                   9
methamphetamine.     In    addition,       and    presumably     because   the

government was concerned about the affect of United States v.

Blakely, 542 U.S. 296 (2005), on the constitutionality of the

United States Sentencing Guidelines, Count One further stated that

the amount reasonably foreseeable to Beach was at least 200 grams,

but less than 350 grams.       At trial, the district court granted the

prosecution’s   motion    to   redact     the   amount   of   methamphetamine

reasonably foreseeable to Beach because, after United States v.

Booker, 543 U.S. 220 (2005), it became clear that the Sixth

Amendment did not require that amount to be proven to a jury.

Beach alleges that the indictment was broadened when the district

court granted the prosecution’s motion to redact.                We find that

the district court did not broaden the indictment.             The jury found

that the conspiracy involved at least 500 grams of methamphetamine,

but the jury did not make a specific finding as to the amount of

methamphetamine reasonably foreseeable to Beach.              Thus, the jury’s

verdict and the grand jury indictment are consistent with each

other. Although the indictment was amended, it did not broaden the

basis for conviction.



                                    IV.

     In summary, we affirm Beach’s conviction because the district

court did not commit any reversible errors in its evidentiary

rulings, nor did the district court improperly broaden the charges


                                     10
beyond the grand jury indictment.    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




                                11
