                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4435


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

THOMAS J. WACKMAN, a/k/a Reef,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:06-cr-00427-WDQ-5)


Submitted:    December 3, 2009              Decided:   January 4, 2010


Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


John L. Machado, LAW OFFICE OF JOHN MACHADO, Washington, D.C.,
for Appellant.     Rod J. Rosenstein, United States Attorney,
Michael C. Hanlon, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Thomas J. Wackman timely appeals the district court’s

judgment following a jury trial on one count of conspiracy to

distribute and possession with intent to distribute a controlled

substance, in violation of 21 U.S.C. § 846 (2006).                             On appeal,

Wackman argues that: (1) the district court erred in denying his

motion for a mistrial; (2) the district court erred in admitting

hearsay testimony and evidence based on hearsay; and (3) the

district       court   erred    in   enhancing          his    sentence.       Finding    no

reversible error, we affirm.



                                            I.

               Wackman first argues that the district court erred in

denying    his     motion      for    a    mistrial       on    the    basis    that     the

Government       improperly      vouched          for     a    cooperating      witness’s

credibility.       We review the district court’s denial of a motion

for mistrial for abuse of discretion.                     United States v. Wallace,

515 F.3d 327, 330 (4th Cir. 2008).                      The district court’s denial

“will     be    disturbed      only       under     the       most    extraordinary      of

circumstances.”         United States v. Dorlouis, 107 F.3d 248, 257

(4th Cir. 1997).

               The first step in analyzing an improper vouching claim

is determining “whether the comments made in fact constituted



                                             2
vouching.”      United States v. Sanchez, 118 F.3d 192, 198 (4th

Cir. 1997).

     Vouching occurs when the prosecutor indicates a
     personal belief in the credibility or honesty of a
     witness.     [P]resenting   evidence   on   a witness’
     obligation to testify truthfully pursuant to an
     agreement with the government and arguing that this
     gives the witness a strong motivation to tell the
     truth is not, by itself, improper vouching. Reference
     to a plea agreement becomes impermissible vouching
     only when the prosecutors explicitly or implicitly
     indicate that they can monitor and accurately verify
     the truthfulness of the witness’ testimony.

United   States      v.   Jones,      471    F.3d    535,   543   (4th    Cir.        2006)

(alteration in original) (internal quotation marks and citations

omitted).

             During       the    witness’s          testimony,     the        prosecutor

questioned    the     witness      about     her     understanding       of    her    plea

agreement.     The prosecutor then asked whether the witness had

met with the agents and prosecutor involved in the case and

whether she was given any money or anything of value during the

meetings.       At    this      point,       Wackman’s      counsel   moved       for     a

mistrial, arguing that the Government improperly vouched for the

witness’s credibility by inference.                   The district court denied

Wackman’s motion.         We find that the district court did not abuse

its discretion in denying Wackman’s motion.                        The prosecutor’s

questions     did     not    suggest        any     personal     belief       about     the

witness’s    credibility        nor    did    the    prosecutor     imply      that     the



                                             3
Government could monitor and verify her truthfulness.                            In short,

the prosecutor’s questions simply did not constitute vouching.



                                             II.

             Wackman        next     contends          that     the     district       court

improperly    allowed        hearsay       testimony      and    evidence      based       upon

hearsay.     Because Wackman did not object to the testimony or the

physical evidence at trial, we review their admission for plain

error.     United States v. Perkins, 470 F.3d 150, 155 (4th Cir.

2006).     To demonstrate plain error, a defendant must show that:

(1) there was an error; (2) the error was plain; and (3) the

error     affected     his     “substantial            rights,”       meaning       that     it

“affected     the     outcome       of     the     district      court       proceedings.”

United States v. Olano, 507 U.S. 725, 732 (1993).                              We are not

required    to    correct      a    plain     error     unless     “a    miscarriage         of

justice     would     otherwise           result,”      meaning       that    “the     error

seriously        affect[s]         the     fairness,          integrity,       or     public

reputation of judicial proceedings.”                      Id. at 736 (alteration in

original) (internal quotation marks omitted).

             Wackman        first        argues    that       Officer    Scott       Doyle’s

testimony regarding what led him to obtain a search warrant of

Apartment 4 at 506 West John Street (“John Street apartment”)

was hearsay.         Hearsay, an out of court statement “offered in

evidence     to     prove    the     truth        of   the     matter    asserted,”         is

                                              4
generally    not    admissible         in    federal     court.        Fed.    R.     Evid.

801(c), 802.       “However, an out of court statement is not hearsay

if it is offered for the limited purpose of explaining why a

government    investigation        was       undertaken.”           United     States   v.

Love, 767 F.2d 1052, 1063 (4th Cir. 1985).

            Officer      Doyle    testified          that    he     obtained    a   search

warrant for the John Street apartment based on a call from the

apartment’s landlord, in which the landlord reported that he

found marijuana in plain view when serving an eviction notice.

We find that Officer Doyle’s testimony regarding the landlord’s

report was not offered to prove that the landlord in fact found

marijuana    in    the   apartment,          but   was      offered    to   explain     how

Officer Doyle learned of the apartment and the basis for the

search warrant.          Therefore, Officer Doyle’s testimony was not

hearsay and the district court did not err, much less plainly

err, in admitting the testimony.

            Wackman      also    argues       that    Officer       Doyle’s    testimony

about the eviction was hearsay, as was his testimony regarding

the renter of the John Street apartment.                       We find that Officer

Doyle’s testimony that the landlord was evicting the John Street

apartment’s       occupants      was        not    offered     to     prove    that     the

occupants were being evicted and was thus not hearsay.                                 With

regard to the renter of the John Street apartment, Officer Doyle

testified that Antonio Johnson was listed as the renter on the

                                              5
lease and that he “had been told from several people that they

believed Antonio Johnson was, in fact, Mr. Wackman.”                                      Although

it appears that the Government offered the statement for the

truth of the matter asserted – that Wackman was Antonio Johnson,

renter    of    the   John      Street         apartment       –    we    conclude       that     the

admission of this statement did not affect Wackman’s substantial

rights,    as     there        was     other       admissible         evidence         connecting

Wackman to the John Street apartment.

               Finally,       Wackman      argues       that       Exhibit      10,    ammunition

found in the John Street apartment, was admitted through hearsay

because Officer Doyle explained that a portion of the ammunition

was   found      in     the     John       Street       apartment         by     the     landlord.

Specifically, Officer Doyle testified that Exhibit 10 contained

“magazines       with     rounds          in   them     that       were        located       in   the

residence [during the execution of the search warrant], as well

as    ammunition        that     was       found      in    the      residence,          and      some

ammunition that had been brought to us the following day that

was    located.”          Officer          Doyle      further        testified          that      the

ammunition      brought        to    the       police      the     day    after        the     search

warrant was executed was found by the landlord while working on

the   apartment.          Even       if    Officer         Doyle’s       explanation         that    a

portion of the ammunition included in Exhibit 10 had been found

in the apartment by the landlord constituted hearsay, we find no

reversible error, particularly under a plain error standard of

                                                 6
review.      Simply stated, Wackman’s substantial rights were not

infringed because the ammunition turned over to the police by

the landlord was simply cumulative of the other ammunition and

weapons previously located by the police during their search

pursuant to a valid warrant.



                                         III.

           Lastly,       Wackman       argues      that       the   district     court

erroneously enhanced his sentence two levels, pursuant to U.S.

Sentencing      Guidelines      Manual     (“USSG”)       §     2D1.1(b)(1)    (2007).

Generally,      “[a]   district    court’s        findings       regarding    sentence

enhancement     are    factual    in     nature    and    are    reviewed     only   for

clear error.”         United States v. Carter, 300 F.3d 415, 426 (4th

Cir. 2002).       However, because Wackman failed to object to the

enhancement in the district court, this court reviews for plain

error.    United States v. Wells, 163 F.3d 889, 900 (4th Cir.

1998).

           Pursuant        to      USSG        § 2D1.1(b)(1),         a       two-level

enhancement is warranted if a dangerous weapon was possessed

during the conspiracy.            The enhancement “should be applied if

the weapon was present, unless it is clearly improbable that the

weapon was connected with the offense.”                   USSG § 2D1.1, cmt. n.3.

Wackman contends that there was not a sufficient nexus between

himself   and    the    John    Street    apartment       where     the   weapons    and

                                           7
ammunition     were       found    to    justify       the    enhancement.          However,

testimony from a cooperating witness established that Wackman

possessed      a    gun    during       their       travels    between      New    York   and

Maryland    to      pick   up     drugs.        Wackman       did   not    introduce      any

evidence     that     it    was     clearly         improbable      that    the     gun   was

connected to his drug activity.                       Therefore, we find that the

district court did not err in enhancing Wackman’s sentence.

            Accordingly, we affirm the judgment of the district

court.      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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