UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                         No. 98-4043

SHEDDRIC L. WOODS,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-97-117)

Submitted: December 8, 1998

Decided: January 20, 1999

Before ERVIN, MICHAEL, and TRAXLER,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Hunt L. Charach, Federal Public Defender, Brian J. Kornbrath, Assis-
tant Federal Public Defender, Charleston, West Virginia, for Appel-
lant. Rebecca A. Betts, United States Attorney, John J. Frail, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Sheddric L. Woods appeals his conviction for possession with
intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1)
(1994). Woods received a 262-month term of imprisonment. Finding
no error, we affirm.

The Government's evidence showed that Officer Scott Frame
received a radio communication regarding an assault occurring in the
1500 block of Lewis Street. Upon arriving at 1547 Lewis Street, Offi-
cer Frame was directed to a location behind 1551 Lewis Street by the
victim of the assault. The victim also provided Frame with a descrip-
tion of the clothing worn by each of the two suspects. When Frame
approached the designated area, he observed Woods and another
male, who matched the descriptions provided by the victim. After
Officer Frame identified himself as a police officer, Woods and the
other male fled. Frame pursued Woods on foot, and Woods was
directly in front of him. Frame observed Woods toss a red and white
cigar box to his right, in the area of some trash cans, and drop a clear
plastic bag to the ground as he accidentally fell to the sidewalk.
Woods then got up and continued running. Both Woods and the other
male were apprehended and arrested.

Officer Frame returned to the location where he had observed
Woods drop the plastic bag and recovered a small plastic bag contain-
ing several white rocks that later field-tested for cocaine base. In addi-
tion to recovering the plastic bag, Frame directed Officer Robert
Brown to the area where he had observed Woods toss a red and white
cigar box. Officer Brown recovered a red and white cigar box con-
taining several large white rocks that later field-tested for cocaine
base.

At Woods's trial, a forensic chemist, who was qualified as an
expert in the field of controlled substance analysis, testified that he

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had analyzed the substance from the clear plastic bag and determined
that the substance was 4.32 grams of cocaine base. He also analyzed
the substance from the red and white cigar box and determined that
the box contained 21.7 grams of cocaine base. John Starcher, who
was qualified without objection as an expert on the issue of the quan-
tities of cocaine base that are consistent with personal use and the
quantities of cocaine base that are consistent with intent to distribute,
testified that in his opinion, possession of one gram or less would be
consistent with personal use. Starcher further testified that based on
his experience and knowledge, if an individual had 26 grams of
cocaine base on his person, he intended to distribute it.

Lastly, Officer Brown testified to finding a cigar box containing
what appeared to be cocaine base in the area to which he had been
directed by Officer Frame. Brown testified that the search for the
cigar box took less than a minute, that the trash can in which it was
found was otherwise empty, and that he prepared an incident report
detailing his observations and the directions he had received from
Frame.

Woods's defense was based on two predominant themes. First,
Woods contended that Officer Frame lacked the ability to observe
him discard any drugs. While not denying that cocaine base was ulti-
mately recovered at the scene, Woods denied that he was ever in pos-
session of such contraband. Second, Woods claimed that even if he
was found to possess the smaller quantity of drugs found at his feet,
he did not possess the larger quantity of drugs found inside a cigar
box that was recovered from a trash can on the scene. Thus, Woods
alleged, the Government failed to prove intent to distribute beyond a
reasonable doubt.

On appeal, Woods first claims that the district court erred in failing
to find as pretextual the Government's explanation for using a
peremptory challenge to excuse the only minority on Woods's jury
panel. A district court's finding of whether a peremptory challenge
was exercised for a racially discriminatory reason is given great defer-
ence and reviewed for "clear error." Jones v. Plaster, 57 F.3d 417,
421 (4th Cir. 1995).

Woods is an African-American male. Thirty-two panel members
were available for the peremptory challenge process. During the voir

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dire examination of the jury panel, the district court inquired as to
whether or not any member of the panel had ever been convicted of
a crime. Four jury panel members, including James Crews, answered
in the affirmative. James Crews was the only African-American on
the panel.

During subsequent questioning at the bench, Crews stated that he
had been arrested for "nonsupport" in the State of Ohio in 1969.
Crews further stated that he received "a year probation and a big
fine." He also stated, "[t]hey tried to railroad me." The Government
moved to strike Crews for cause on the ground that he might be preju-
diced against the prosecution because he apparently saw himself as a
victim of an unjust prosecution. The district court further inquired
whether Crews's experience would have any bearing on his ability to
serve as a fair and impartial juror, to which he responded in the nega-
tive. Thus, the Government withdrew its motion to strike for cause.

During the ensuing peremptory challenge process, the Government
excused Crews. Woods objected on the ground that the Government
had exercised its peremptory challenge based on racial discrimination.
Woods specifically noted that Crews was in a similar situation as
three other potential jurors who were all white and were involved in
the criminal justice system, but only Crews was struck. The Govern-
ment stated that the primary reason for striking Crews was its belief
that Crews was biased against the Government based on his use of the
term "railroaded." The district court held that the Government pro-
vided a rational reason for striking Crews. Woods alleges that the
Government's justification for excusing Crews was pretextual
because Crews immediately clarified his remark by explaining that he
was not referring to the Government but rather to the party who
brought the "nonsupport" action against him.

A peremptory strike cannot be exercised based on race. See Batson
v. Kentucky, 476 U.S. 79, 88-89 (1986). To successfully make a
Batson challenge, a defendant must first establish a prima facie case
of racial discrimination. See United States v. Malindez, 962 F.2d 332,
333 (4th Cir. 1992). The burden then shifts to the Government to state
a race-neutral reason for the peremptory strike. See Howard v. Moore,
131 F.3d 399, 407 (4th Cir. 1997). Once this requirement is met, the
burden shifts back to the defendant to prove that the explanation

                    4
given by the Government is merely a pretext for discrimination. See
id. at 407.

In the present case, the Government offered a race-neutral explana-
tion for striking Crews based on its perception of Crews's potential
bias against the Government. The Government's "explanation need
not be `persuasive, or even plausible,' as long as it is neutral."
Matthews v. Evatt, 105 F.3d 907, 917 (4th Cir. 1997) (citations omit-
ted). We find that the district court did not clearly err in finding that
the Government provided a race-neutral reason for striking Crews that
was not a pretext for racial discrimination.

Woods next claims that the trial court erred in limiting Woods's
right to cross-examine Officer Frame to establish bias by precluding
inquiry into the fact that Frame fully cooperated with the Government
but refused to speak with Woods. Limitations on a defendant's cross-
examination of Government witnesses are reviewed on appeal for an
abuse of discretion. See United States v. McMillon, 14 F.3d 948,
955-56 (4th Cir. 1994).

The Government's case against Woods was based primarily on
Officer Frame's testimony. During Officer Frame's cross-
examination, Woods attempted to establish that Frame was biased in
favor of the Government by showing that he cooperated with the
Government's preparation of the case but refused to speak with the
defense.

A defendant's right to cross-examine a witness is secured by the
Sixth Amendment's guarantee of the right to confront the witness
against him. See Davis v. Alaska, 415 U.S. 308, 315 (1974). A defen-
dant is afforded an opportunity to cross-examine a witness to establish
credibility, including bias. See Fed. R. Evid. 608(b). However, the
trial court retains wide latitude to impose reasonable limitations on
cross-examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, or interrogation that is
repetitive or only marginally relevant. See Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986).

In the present case, the requirements of the Confrontation Clause
were clearly satisfied. Woods thoroughly examined Officer Frame

                     5
concerning his unwillingness to assist Woods in preparation for trial.
The district court allowed Woods to repeatedly question Frame about
his refusal to talk with Woods's investigator. No limitation was
imposed upon cross-examination until Woods asked Frame who sub-
poenaed him to trial. The Government objected to the question on rel-
evancy grounds, and the court sustained the objection.

Despite the limitation on cross-examination, we conclude that
Woods had ample opportunity to explore Officer Frame's motivations
and biases and test his credibility. The district court, therefore, did not
abuse its discretion in limiting cross-examination. See McMillon, 14
F.3d at 955-56. Further, the district court's limitation did not violate
Woods's rights under the Sixth Amendment's Confrontation Clause.
See, e.g., United States v. Ambers, 85 F.3d 173, 176-77 (4th Cir.
1996).

Woods next claims that the district court erred in failing to find that
the Government violated the notice requirements of Fed. R. Crim. P.
16(a)(1)(E), because the Government's expert testimony that no
cocaine base user ever purchases more than one gram of cocaine base
at a time and the bases of such opinion were never previously dis-
closed to Woods. Decisions regarding the admission of evidence are
committed to the sound discretion of the district court and will not be
reversed absent an abuse of discretion. See United States v. Lancaster,
78 F.3d 888, 896 (4th Cir. 1996).

Under Fed. R. Crim. P. 16(a)(1)(E), the Government was required
to disclose to Woods a written summary of expert testimony that the
Government intended to use during its case-in-chief. In the discovery
provided to Woods relating to expert testimony, the Government indi-
cated that it would present the testimony of Starcher. The discovery
further stated that the essence of Starcher's testimony would be that
the amounts and forms of cocaine base recovered from Woods and
the individual accompanying him were consistent with an intent to
distribute. Thus, Woods was given notice that Starcher would testify
regarding the element of intent to distribute as indicated by drug
quantity.

At trial, Starcher testified, in response to whether he had an opinion
about the amount of cocaine base that is consistent with personal use

                     6
versus distribution, that personal use would be consistent with one
gram or less of cocaine base. Starcher further testified that a person
who possesses more than a gram is considered to be a distributor.
Woods cross-examined Starcher extensively trying to indicate to the
jury that a person could possess more than one gram of cocaine base
for personal use.

Woods complains that the Government's disclosure that Starcher
would testify about quantities of cocaine base that are consistent with
"an intent to distribute" did not put Woods on notice that he would
also testify about the quantity that was indicative of "personal use."
Woods alleges that the district court's decision not to sanction the
Government was prejudicial to Woods's defense because the use of
an arbitrary one gram cut-off to distinguish personal use from posses-
sion with intent to distribute cocaine base was never disclosed to
Woods prior to trial. We find that the notice was sufficient enough to
allow Woods to prepare a cross-examination. As the district court
noted, "the notice informed [Woods] that in this case where there is
one batch that is less than five grams in content and another that is
more," Starcher could possibly testify that possession of four grams
of cocaine base would indicate possession with the intent to distrib-
ute. Thus, the district court did not abuse its discretion in admitting
Starcher's testimony. See Lancaster, 78 F.3d at 896.

Woods also claims that the district court erred in allowing the Gov-
ernment to introduce hearsay testimony contained in Officer Brown's
incident report. We review for an abuse of discretion. See id.

During Brown's direct examination he was allowed to testify from
a police report he prepared on the day Woods was arrested. Brown
had already testified from memory to essentially the same facts. Fol-
lowing his testimony, Officer Brown was asked similar questions
relating to a report he had prepared, to which Woods objected. The
district court permitted Brown to answer. The report itself was not
admitted into evidence.

Woods alleges that the district court abused its discretion in allow-
ing Brown to read from his incident report resulting in prejudicial
error. See Fed. R. Evid. 803(8). Specifically, Woods alleges that the
Government used Brown's hearsay testimony to impermissibly bol-

                    7
ster Officer Frame's purported observations. However, even before
Brown was questioned about the incident report, he provided essen-
tially the same testimony. Thus, even if the district court had excluded
the testimony relating to the police report, the same evidence had
already been testified to without objection. Therefore, the district
court did not abuse its discretion in admitting the testimony. See
Lancaster, 78 F.3d at 896.

Lastly, Woods claims that the district court erred in denying his
request for a continuance of his sentencing hearing so that a medical
examination could be conducted to determine whether his physical
condition qualified him for a lower sentence. The district court's deci-
sion to deny a motion for a continuance of sentencing is reviewed for
an abuse of discretion. See United States v. Speed, 53 F.3d 643, 644
(4th Cir. 1995).

Prior to Woods's scheduled sentencing hearing, he moved the dis-
trict court for a continuance so that a physical examination could be
performed to determine whether his medical condition, as described
in his presentence report, would qualify him for a lower sentence.
Woods argued that the existence of a life threatening medical condi-
tion might provide grounds for a downward departure. Woods stated,
however, in response to questioning from the district court that the
district court could fairly assume that Woods suffers from the condi-
tion as it was set forth in his presentence report. Thus, the district
court denied his motion for a continuance.

Woods alleges on appeal that the district court's ruling prejudiced
him because it deprived him of the only opportunity to obtain infor-
mation potentially supportive of his request for a lower sentence.
Woods contends that without the examination, he could not conclu-
sively establish that he suffered from a life threatening condition or
that his infirmity constituted an "extraordinary physical impairment,"
which would justify a sentencing departure. See U.S. Sentencing
Guidelines Manual § 5H1.4 (1997). Because a district court has broad
discretion in scheduling sentencing proceedings, a sentence will not
be vacated because a continuance was denied absent a showing both
that the denial of a continuance was arbitrary and that it substantially
impaired the defendant's opportunity to secure a fair sentence. See
Speed, 53 F.3d at 644. We find that the district court's denial of a

                    8
continuance in this case was neither arbitrary nor substantially
impaired Woods's opportunity to secure a fair sentence. The record
reveals that the district court was aware from the presentence report
of the nature of Woods's illness. Thus, the district court did not abuse
its discretion in denying the motion for a continuance. See id.

Accordingly, we affirm Woods's conviction and sentence. We
deny Woods's motion to substitute counsel. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

AFFIRMED

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