                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4652


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TERRANCE WINFRED HINES,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.    Mark S. Davis, District
Judge. (2:09-cr-00150-MSD-FBS-1)


Submitted:   December 10, 2010            Decided:   January 7, 2011


Before MOTZ, GREGORY, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James O. Broccoletti, ZOBY & BROCCOLETTI, P.C., Norfolk,
Virginia, for Appellant.      Neil H. MacBride, United States
Attorney, Elizabeth Bartlett Fitzwater, Special Assistant United
States Attorney, Richard D. Cooke, Assistant United States
Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Terrance Hines appeals his conviction and thirty-five

month    sentence       for    one    count          of    possession       with       intent    to

distribute      heroin        in    violation             of   21   U.S.C.    §        841(a)(1),

(b)(1)(C) (2006).         Hines argues that the district court erred in

failing to require the police to disclose the identity of a

confidential informant, erred in allowing certain testimony to

be     elicited    from       police,       and       finally,       erred        in     allowing

testimony from police regarding the confidential informant’s out

of court statements.           We affirm.



         I.     Disclosure of Confidential Informant’s Identity

              Police apprehended Hines and discovered heroin in his

vehicle after a confidential informant arranged a drug purchase

from    Hines     and   gave       police    a       description      of     Hines       and    his

vehicle.        Hines    sought      in     the      district       court    to    compel       the

Government to disclose the informant’s identity.                                  The district

court denied the motion, but limited the admissibility of the

informant’s statements to police.

              Hines first argues that the court erred in denying his

motion to compel disclosure of the confidential informant.                                        A

decision not to require disclosure of a confidential informant

is     within   the     discretion          of       the       district    court.          United

States v. Gray, 47 F.3d 1359, 1363-64 (4th Cir. 1995) (internal

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citations omitted).         “Under the abuse of discretion standard,

this   court    may   not   substitute        its    judgment     for      that   of    the

district    court;      rather,     [it]        must     determine         whether      the

[district] court’s exercise of discretion, considering the law

and    facts,   was    arbitrary    or    capricious.”            United      States     v.

Mason, 52 F.3d 1286, 1289 (4th Cir. 1995).

            The   government        is    not       required      to       disclose    the

identity of tipsters.         McLawhorn v. North Carolina, 484 F.2d 1,

6   (4th Cir. 1973).        If     the    informant       was     a    participant       in

criminal activity, however, the government may be compelled to

disclose his identity.           Roviaro v. United States, 353 U.S. 53,

64-65 (1957).         “What is usually referred to as the informer's

privilege is in reality the Government’s privilege to withhold

from disclosure the identity of persons who furnish information

of violations of law to officers charged with enforcement of

that    law.”     Roviaro,       353     U.S.       at   59    (internal       citations

omitted).       The    Supreme    Court    further       noted        in   Roviaro     that

“[w]here the disclosure of an informer’s identity, or of the

contents of his communication, is relevant and helpful to the

defense of an accused, or is essential to a fair determination

of a cause, the privilege must give way.”                     Id. at 60-61.

            The Government argues that Hines has made no showing

that he has any need for the identity of the informant.                                 The

Government notes that during the hearing on Hines’s motion to

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compel,       when   asked    by   the    court    whether        permitting    the

Government to “ask that more limited question” about how the

police came to be at Hines’s location, would be appropriate,

Hines responded that “[a]bsent the court’s determining that the

informant is a participant and therefore relieving me of [the

burden to prove prejudice], I don’t know if I could make that

showing if the court limited the government to that evidence.”

              We have reviewed the record, and conclude that the

informant in this case was more than a “tipster” but something

less than a participant.              See United States v. Brinkman, 739

F.2d    977    (4th Cir. 1984).          Furthermore,      the    district     court

appropriately balanced the public’s interest in confidentiality

against Hines’s interest in disclosure and determined that Hines

had not made the requisite showing.               Accordingly, disclosure of

the informant’s identity was not required.



                      II.    Improper Expert Testimony

              Hines next argues that the district court erred in

denying his motion for a mistrial when police witnesses gave

allegedly improper expert testimony regarding forensic testing.

The    Government    argues    that    this   issue   is    not    preserved    for

appellate review because Hines did not object until well after

the witnesses offered the allegedly improper testimony.



                                          4
              Hines broached the subject of forensic testing during

opening statements, when counsel questioned why police did not

submit the drugs found in Hines’s vehicle for DNA or fingerprint

analysis.        During the Government’s examination of two police

witnesses,       the        Government          adduced       testimony          about     why   no

forensic testing was done.                  Hines’s attorney cross-examined the

witnesses on these points.                  It was not until significantly later

in    the    proceedings           that    Hines       lodged      an       objection      to    the

testimony, and accordingly, Hines has failed to preserve this

issue for review.             See United States v. Parodi, 703 F.2d 768,

783   (4th Cir. 1983)          (“[Fed.          R.    Evid.]      103    requires        that,    to

preserve      for    appellate        review         an   objection         to    evidence,      the

objection must be (1) specific, (2) timely, and (3) of record.”)

(internal citations omitted).                         Because the objection was not

preserved for appeal, plain error review applies.                                  To establish

plain error, a defendant must show that an error occurred, the

error was plain, and the error affected his substantial rights.

United      States     v.    Olano,       507    U.S.      725,   732-34         (1993);    United

States      v.   Massenburg,          564       F.3d      337,    342-43         (4th Cir. 2009)

(stating that the defendant bears burden of establishing each of

the plain error requirements).

              Pursuant        to    Fed.    R.        Evid.   701,      a    lay    witness      may

provide      opinions       that     are    rationally           based      on    the    witness’s

perceptions.         Here, the testimony in question was based on each

                                                  5
witness’s      observations     regarding            Hines’s    arrest       and        their

experience with forensic testing.                The witnesses testified that,

in their experience, they had ample evidence because they found

narcotics in a car that they had seen Hines running from.                                One

witness also testified that he had never seen fingerprints taken

from a plastic bag, and it simply was not police procedure to

submit   that    type    of   drug    evidence          for    fingerprint         or    DNA

testing.       Because this testimony was rationally based on the

witnesses’ perceptions, we conclude that the district court did

not plainly err in allowing the testimony.



            III. Testimony Regarding Informant’s Statements

            Hines finally argues that the district court erred by

allowing Portsmouth Police Detective Johnkin to testify as to

the confidential informant’s statements in explaining why the

police were in the apartment complex parking lot where Hines was

apprehended and the heroin discovered.                        While the Government

claims that any error was invited, we have reviewed the record

and   conclude    that    the      claim       was    adequately       preserved         for

appellate review.

            “Rulings     related      to        admission       and    exclusion           of

evidence are addressed to the sound discretion of the [district

court]   and    will    not   be    reversed          absent    an    abuse    of       that

discretion.”       United     States       v.     Stitt,       250    F.3d    878,        896

                                           6
(4th Cir. 2001).         Hearsay      is       generally    not     admissible     in

evidence.       Fed. R. Evid. 802.              A statement is not hearsay,

however, 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) (citing cases).

            Here, the statements were introduced to show why the

officers investigated Hines.           The district court gave the jury

three   instructions     to    that    effect      to    obviate     any    possible

prejudice coming from the testimony.                 We decline to hold that

the court abused its discretion.

            Accordingly, we affirm the district court’s judgment.

We   dispense    with   oral   argument        because     the    facts    and   legal

conclusions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                            AFFIRMED




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