UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-4456

TENA C. GASTON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
William B. Traxler, Jr., District Judge.
(CR-97-459)

Submitted: February 26, 1999

Decided: April 9, 1999

Before NIEMEYER, LUTTIG, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Jack B. Swerling, Columbia, South Carolina, for Appellant. J. Rene
Josey, United States Attorney, E. Jean Howard, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Tena C. Gaston appeals from her conviction on one count of con-
spiracy to possess with intent to distribute methamphetamine, in vio-
lation of 21 U.S.C. § 846 (1994). Finding her claims meritless, we
affirm.

Gaston first charges that the trial court erred by admitting the testi-
mony of prosecution witness, Johnny Barry, because defense counsel
received inadequate notice of the Government's intention to call this
witness and because his testimony violated Rule 404(b) of the Federal
Rules of Evidence. The Government first notified defense counsel
that Barry was a prospective witness on October 6, 1997, during jury
selection. Before commencement of the trial on the morning of Octo-
ber 10, the Government provided defense counsel with documentation
of the substance of Barry's testimony, namely that Barry had pur-
chased methamphetamine from Gaston before May 1996. Gaston
argues that the short notice concerning Barry's testimony unfairly
prejudiced her.

Under Fed. R. Evid. 404(b), the prosecution must give the defense
reasonable notice in advance of trial of its intention to offer evidence
of prior bad acts. Here, the Government did not learn about Barry
until several days before the trial. The Government notified defense
counsel about Barry on October 6. Barry provided no information to
the Government when he first was interviewed on September 30; the
Government then interviewed Barry the night before the trial and pro-
vided that information to defense counsel the morning of the trial. The
trial court ordered the Government not to call Barry as a witness until
the second week of the trial in order to give Gaston a chance to pre-
pare for this witness. We find that under these circumstances Gaston
was not prejudiced by delayed notice about the Government's inten-
tion to call Barry as a witness.

Gaston asserts that Barry's testimony was inadmissible because it
was not relevant to the charged conspiracy. Gaston was charged with
conspiracy to possess with intent to distribute methamphetamine from
June 3, 1997, to June 6, 1997. Barry testified that he bought metham-

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phetamine from Gaston six or eight times, usually in one-ounce quan-
tities, for about a six month period ending in May 1996, often at
Gaston's house. Gaston argues that the one-year gap between the con-
duct about which Barry testified and the conduct charged in the
indictment rendered Barry's testimony irrelevant.

Evidence of other crimes is not admissible to prove bad character
or criminal propensity. See Fed. R. Evid. 404(b). Such evidence is
admissible, however, to prove motive, opportunity, intent, prepara-
tion, plan, knowledge, identity, or absence of mistake or accident.
This rule is one of inclusion, rather than exclusion. See United States
v. Aramony, 88 F.3d 1369, 1377 (4th Cir. 1996). Even if the evidence
is relevant under Rule 404(b), it must be more probative than prejudi-
cial. See Fed. R. Evid. 403. "The prejudice which the rule is designed
to prevent is jury emotionalism or irrationality." United States v.
Greenwood, 796 F.2d 49, 53 (4th Cir. 1986). This court reviews the
admission of Rule 404(b) evidence for abuse of discretion.

Barry's testimony about his methamphetamine dealings with Gas-
ton were relevant to the issues of Gaston's knowledge of the drug
business and her knowledge of and intent to distribute methamphet-
amine. The court provided both a limiting instruction and a jury
instruction to ameliorate any potential prejudice caused by Barry's
testimony. Under these circumstances, we find that the district court
did not abuse its discretion by admitting this evidence.

Next, Gaston contends that the district court erred by excluding the
testimony of Kathy Hill, a witness whose testimony Gaston planned
to use to impeach Barry. Specifically, Gaston planned to impeach
Barry's testimony that he had never obtained methamphetamine from
Sam Whitfield by having Hill testify about an incident in 1996 when
she drove Barry somewhere to meet with Whitfield. Hill's proffered
testimony indicated that Barry did not tell her he had drug dealings
with Whitfield, but that she deduced that the relationship concerned
drugs because she knew Whitfield "from the past."

Although a defendant may cross-examine a witness for impeach-
ment purposes, including bias, we find that the district court did not
abuse its discretion by disallowing Hill's testimony to impeach Barry.
See Fed. R. Evid. 608(b). Cf. United States v. Ling, 581 F.2d 1118,

                    3
1120-21 (4th Cir. 1978) (where defendant is cross-examined to
impeach his credibility regarding prior bad acts, examiner may not,
over defendant's objections, introduce independent proof that his
statements are false). Hill's testimony was proffered not to impeach
Barry's testimony about his relationship with Gaston, but to impeach
his testimony about his relationship with Whitfield, which was a col-
lateral matter.

Gaston also challenges the criminal forfeiture of her undivided half
interest in her land and home near Woodruff, South Carolina. It was
from this home that she received a telephone call from Sammy Whit-
field on May 28, 1997, to set up a June 4, 1997, delivery of one-half
pound of methamphetamine, a June 4, 1997, telephone call to arrange
another delivery to Whitfield, and subsequent calls on June 5, 1997,
in anticipation of Whitfield's delivery of $21,400 towards the pur-
chase of an additional pound of methamphetamine. Following Whit-
field's delivery of the cash to Gaston on June 5, law enforcement
officers executed a search warrant at her home and found Federal
Express packaging like that used to deliver the drugs to Whitfield, the
California address of the drug source, foil-wrapped packages of cash
in $7500 increments, two ounces of methamphetamine, scales, and
the $21,400 Whitfield gave to Gaston.

Citing civil in rem forfeiture cases establishing the standards for
civil forfeitures, Gaston argues that the Government failed to establish
a nexus between the forfeited property and the crime of conviction.
However, civil in rem forfeiture standards do not apply to criminal in
personam forfeitures, such as this one. See United States v. Wild, 47
F.3d 669, 674 (4th Cir. 1994).

Gaston also contends that the forfeiture of her home and land were
not proportional to the crime of conviction. Because a criminal forfei-
ture ordered pursuant to 21 U.S.C. § 853(a) (1994) is an element of
the sentence imposed following a defendant's conviction for substan-
tive drug offenses, and therefore properly characterized as punish-
ment, see Libretti v. United States, 516 U.S. 29, 38-39 (1995), our
sole inquiry in analyzing whether the forfeiture is constitutionally
excessive is whether the forfeiture "is grossly disproportional to the
gravity of a defendant's offense." United States v. Bajakajian, 118
S.Ct. 2028, 2036 (1998); see Wild, 47 F.3d at 676 (stating that the

                    4
excessiveness inquiry "beckons a comparison of the value of the
property being forfeited to the gravity of the offense committed by the
defendant and the nature and extent of the defendant's activities").

The Government presented evidence linking Gaston and her home
to the June 3 to June 6, 1997, drug conspiracy for which Gaston was
convicted. The Government also presented evidence that Gaston was
responsible for three to ten kilograms of methamphetamine. Based on
Gaston's offense level of 36, and criminal history category I, Gaston
faced fines of $20,000 to $200,000. See U.S. Sentencing Guidelines
§ 5E1.2(c)(3) (1997). The full value of Gaston's property before the
partition was $240,000. We find that forfeiture of Gaston's home was
not grossly disproportional to the gravity of her offense.

Finally, Gaston challenges the amount of drugs the district court
attributed to her for sentencing purposes. We review for clear error
a district court's factual finding of the relevant quantity of drugs at
sentencing. See 18 U.S.C. § 3724(e) (1994); United States v. Fletcher,
74 F.3d 49, 55 (4th Cir. 1996).

Under the sentencing guidelines, a district court must make an
independent resolution of the amount of drugs that can be attributed
to a defendant whenever that amount is in dispute. See U.S. Sentenc-
ing Guidelines § 6A1.3(b). In a case such as this, "`[w]here . . . the
amount [of drugs] seized does not reflect the scale of the offense, the
court shall approximate the quantity of the controlled substance.'"
United States v. D'Anjou, 16 F.3d 604, 614 (4th Cir. 1994) (quoting
U.S. Sentencing Guidelines § 2D1.1, comment. (n.12)). The sentenc-
ing guidelines do not demand certainty and precision; they demand
that a court do the best that it can with the evidence in the record, err-
ing on the side of caution. See United States v. Cook, 76 F.3d 596 604
(4th Cir. 1996); United States v. Uwaeme, 975 F.2d 1016, 1019 (4th
Cir. 1992). Thus, we afford the district court broad discretion in mak-
ing this estimate. See Cook, 76 F.3d at 604. The court may also
include for sentencing purposes quantities of drugs that were part of
the same course of conduct or the same common scheme or plan as
the crime of conviction. See USSG § 1B.1.3(a)(2); United States v.
Cousineau, 929 F.2d 64, 67 (2d Cir. 1991).

Sammy Whitfield testified that Gaston made two deliveries of one-
half pound of methamphetamine to him and that he ordered another

                     5
pound of methamphetamine from her all within the dates of the con-
spiracy. He also testified that he had received one-half to one pound
of methamphetamine from Gaston per month for eighteen months.
The district court found Whitfield's testimony reliable and truthful
and also concluded that the drug transactions between Whitfield and
Gaston for the eighteen-month period prior to the charged conspiracy
were part of the same course of conduct as the charged conspiracy or
were part of a common scheme or plan. Conservatively calculating
the amount of methamphetamine attributable to Gaston as one-half
pound per month for eighteen months (nine pounds), plus two pounds
for the June 5 and 6 deals, the Government attributed a total of eleven
pounds of methamphetamine to Gaston. This converts to 4.9896 kilo-
grams.

Relying on these numbers, the district court attributed to Gaston
more than three but less than ten kilograms of methamphetamine. We
conclude that these findings are not clearly erroneous.

For these reasons, we affirm Gaston'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 argu-
ment would not aid the decisional process.

AFFIRMED

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