                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4052


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

MICHAEL JOSEPH DAVIS, a/k/a Mike Dee,

                  Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:07-cr-00205-NCT-1)


Submitted:    September 18, 2009            Decided:   October 8, 2009


Before WILKINSON, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, North
Carolina, for Appellant.     Anna Mills Wagoner, United States
Attorney, Michael F. Joseph, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Michael Joseph Davis appeals his conviction by a jury

of   possession     with       intent      to       distribute        crack         cocaine,      in

violation of 21 U.S.C. § 841(a)(1) (2006).                                On appeal, Davis

challenges the district court’s admission of the terminology he

used in prior drug transactions with a confidential informant

and of a police officer’s testimony regarding the description of

Davis’   vehicles        and    the    conversation             the      officer       overheard

between Davis and the informant.                     Davis also contends that the

district    court    erred      by    instructing            the     jury      on    aiding      and

abetting and by failing to grant a mistrial based upon alleged

juror misconduct.        Finding no reversible error, we affirm.

            Davis     asserts         that      the       district        court       erred       by

admitting     under       Fed.        R.     Evid.          404(b)       the        confidential

informant’s testimony regarding the terms “work” and “O and a

half.”      Rule    404(b)      prohibits           the     admission       of      evidence      of

“other crimes” solely to prove a defendant’s bad character, but

“[s]uch evidence . . . may ‘be admissible for other purposes,

such as proof of motive, opportunity, intent, preparation, plan,

knowledge,    identity,         or     absence         of     mistake       or      accident.’”

United   States     v.    Basham,      561      F.3d      302,     326    (4th       Cir.   2009)

(quoting    Fed.    R.    Evid.       404(b)).            For      such     evidence        to    be

admissible under Rule 404(b), it “must be (1) relevant to an

issue other than character; (2) necessary; and (3) reliable.”

                                                2
Id.    In     addition,    the          evidence      must    be    more      probative          than

prejudicial.         Id. (citing Fed. R. Evid. 403).                           “Limiting jury

instructions explaining the purpose for admitting prior bad acts

evidence      and    advance       notice       of    the    intent      to   introduce          such

evidence provide additional protection to defendants.”                                      United

States v. Hodge, 354 F.3d 305, 312 (4th Cir. 2004).                                  With these

standards      in     mind,        we    have        carefully      reviewed         the        trial

transcript and conclude that the district court did not abuse

its discretion in admitting evidence under Rule 404(b).                                           See

Basham, 561 F.3d at 325 (stating standard of review).

              Next, Davis contends that the district court erred in

admitting a police officer’s testimony that the informant had

described      vehicles    Davis         had     driven      in    the    past    because         the

testimony      was    hearsay.            Davis       asserts       that      this    testimony

bolstered the informant’s testimony that the informant and Davis

had    been    involved       in    prior       drug     transactions.               Davis      also

challenges the court’s admission of the officer’s testimony that

the    officer       overheard          Davis    telling          the    informant         on     the

telephone that he (Davis) was picking up the drugs in another

town before meeting the informant because there was no evidence

that the officer could identify Davis’ voice on the telephone.

              Because Davis did not object at trial to the admission

of    the   officer’s     testimony,            our    review       is   for     plain      error.

United States v. Perkins, 470 F.3d 150, 155 (4th Cir. 2006).

                                                 3
“To    establish     plain    error,    [Davis]         must    show    that    an    error

occurred, that the error was plain, and that the error affected

his substantial rights.”            United States v. Muhammad, 478 F.3d

247,    249   (4th    Cir.    2007).         Even    if    Davis       satisfies      these

requirements,        “correction       of    the    error       remains      within     our

discretion, which we should not exercise . . . unless the error

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

of    judicial   proceedings.”         Id.      (internal       quotation      marks    and

citation omitted).           Our review of the trial transcript leads us

to    conclude   that   the     district        court    did    not    err--plainly      or

otherwise--in admitting the officer’s testimony.

              Davis also asserts that the district court erred in

giving    the    jury    a    supplemental          instruction        on    aiding     and

abetting because the Government did not advance that theory at

trial.        “[T]he     necessity,         extent        and    character       of     any

supplemental instructions to the jury are matters within the

sound    discretion     of    the   district        court.”        United      States    v.

Horton,    921   F.2d    540,    546    (4th      Cir.    1990).        We   review     the

decision to give an instruction and the instruction itself for

abuse of discretion.          United States v. Foster, 507 F.3d 233, 244

(4th Cir. 2007), cert. denied, 128 S. Ct. 1690 (2008).                               If the

district court gives a supplemental instruction, “the district

court’s duty is simply to respond to the jury’s apparent source

of confusion fairly and accurately without creating prejudice.”

                                            4
Id. (internal quotation marks and citation omitted).                        In light

of the defense theory at trial, we find no abuse of discretion

in the district court’s decision to give the jury a supplemental

instruction on aiding and abetting.

              Finally, Davis asserts that the district court plainly

erred    by    failing   to    declare     a    mistrial     after    learning     of

possible juror misconduct.          As the Government correctly points

out, however, Davis knowingly waived the right to challenge on

appeal the alleged misconduct after a thorough colloquy with the

district      court.     United   States       v.   Olano,   507   U.S.     725,   733

(1993); United States v. David, 83 F.3d 638, 641 n.5 (4th Cir.

1996).

              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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