UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 96-4535

MARLON ANDERSON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 96-4555

MARLESE FLAVIA ANDERSON,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-95-198-H)

Submitted: June 30, 1997

Decided: October 10, 1997

Before WIDENER and NIEMEYER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Gordon Widenhouse, Assistant Federal Public Defender, Raleigh,
North Carolina; Linda Kaye Teal, Cary, North Carolina, for Appel-
lants. Janice McKenzie Cole, United States Attorney, Anne M. Hayes,
Assistant United States Attorney, Cynthia E. Tompkins, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Marlon and Marlese Anderson appeal their convictions for possess-
ing with the intent to distribute, and aiding and abetting the posses-
sion with the intent to distribute, cocaine base and marijuana. See 21
U.S.C. § 841(a)(1) (1994); 18 U.S.C. § 2 (1994). They allege error in
the district court's denial of their motion to suppress the drugs and in
various trial rulings. We affirm.

Briefly, the facts as viewed in the light most favorable to the gov-
ernment were that a North Carolina state trooper stopped the vehicle
being driven by Marlese Anderson because it swerved into the troop-
er's lane of travel and almost collided with the trooper's vehicle on
I-85. When the trooper approached the Andersons' vehicle he smelled
the odor of burned marijuana coming from the vehicle. The trooper
testified that Marlese Anderson gave him oral consent to search the
vehicle. The officer called a drug dog to the scene and it alerted to
the back of the driver's seat of the car. The troopers dismantled the
driver's seat and found a package of wrapped drugs in a cavity of the
seat where the springs are located. Two more packages were found
in the front passenger's seat which Marlon Anderson occupied. Two
other persons were in the rear seats.

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We review de novo the district court's denial of the Andersons'
motion to suppress with respect to the ultimate questions of whether
reasonable suspicion for the stop and probable cause for the search
existed, and we review the court's findings of historical fact under the
clearly erroneous standard. See Ornelas v. United States, 64 U.S.L.W.
4373, 4375-76 (U.S. May 28, 1996) (No. 95-5257); accord United
States v. McCraw, 920 F.2d 224, 227 (4th Cir. 1990) (determining
probable cause for arrest). The Andersons primarily attack the credi-
bility of the trooper who testified about his stop of the Andersons'
vehicle. However, it is the role of the district court to observe wit-
nesses and weigh the credibility of witnesses during pretrial motions
to suppress. United States v. Murray, 65 F.3d 1161, 1169 (4th Cir.
1995). We accord deference to these findings. (Id.). We find no error
in the conclusions of the magistrate judge and the district court that
the reckless operation of the vehicle supplied reasonable suspicion for
the stop and that the odor of burned marijuana supplied probable
cause for, and Marlese Anderson's consent justified, the warrantless
search of the vehicle.

The Andersons next contend that the district court erred by allow-
ing a trooper to testify that the package of drugs hidden within the
driver's seat of the vehicle would have made the seat uncomfortable
and the seat would have "sat like a board." The district court is given
broad discretion in its evidentiary rulings and they are entitled to sub-
stantial deference. Murray, 65 F.3d at 1170. The Andersons claim that
the trooper did not have personal knowledge about how the seat
would feel. The district court did not abuse its discretion because the
trooper testified that he observed the seat with the package inside it.
Even though he did not actually sit in the seat, we find that the knowl-
edge gained from his personal observation satisfies Fed. R. Evid. 602.

The Andersons also contend that the trial court erred by denying
their motion for a new trial. We review that decision for abuse of dis-
cretion. United States v. Arrington, 757 F.2d 1484, 1486 (4th Cir.
1985). The basis for their motion was evidence, alleged to be newly
discovered, purportedly showing the falsity of the trooper's testimony
regarding how the seat would have felt. The district court found that
the evidence was not newly discovered and that none of the evidence
would have made any difference to a jury. We find no abuse of dis-
cretion in the denial of this motion. The trooper's testimony is not

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properly characterized as false testimony and the evidence was not
"newly discovered." See United States v. Bales, 813 F.2d 1289, 1295
(4th Cir. 1987).

Next, Marlese Anderson contends that the district court abused its
discretion in admitting evidence of her prior misdemeanor conviction
for possession of marijuana. See United States v. Fells, 920 F.2d
1179, 1182 (4th Cir. 1990) (stating standard of review). A Maryland
state trooper testified about his stop in February 1993 of a car in
which Marlese was a passenger and during which he smelled the odor
of burned marijuana coming from the car, discovered marijuana on
Marlese's person along with over $2,000 in her pocket, and found
over $50,000 in a shoebox hidden in the driver's side door panel of
the car. Marlese contends that the admission of the testimony violated
Fed. R. Evid. 404(b) and 403.

The trial court instructed the jury to use this evidence only to deter-
mine whether the Defendant had the state of mind or intent necessary
to commit the crime charged or whether the Defendant committed the
acts by accident or mistake. We find that the evidence was relevant
to these issues, was necessary due to the lack of other types of evi-
dence against Marlese, and was reliable. Thus, we find no abuse of
discretion under Rule 404(b). See United States v. Greenwood, 796
F.2d 49, 53 (4th Cir. 1986). We also find that the testimony was not
the type to unduly prejudice Marlese and thus it did not violate Rule
403. See id.

Marlon Anderson asserts error in the district court's denial of his
request for a limiting instruction on the testimony of the Maryland
trooper referred to above. He asked that the jury be instructed not to
consider Marlese's prior conviction against him. We agree with the
district court that no clarification was needed following the limiting
instruction given above. That instruction, by its reference to "the
defendant" and use of the female pronoun, sufficiently limited the
jury's consideration of the evidence to Marlese. See United States v.
Lewis, 53 F.3d 29, 32 (4th Cir. 1995) (no reversible error if instruc-
tion given substantially covers requested instruction). Marlon's name
was not mentioned in regard to this traffic stop in Maryland.

Both Appellants next contend that the district court erred in exclud-
ing the judgments of conviction for possession with intent to distrib-

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ute the drugs found in the Andersons' vehicle, of two people who
were arrested with them. The district court excluded the evidence
because there were "too many complexities" surrounding the issue,
especially when there was testimony that the two persons had been
prosecuted for the crime. The court found that the judgments them-
selves were not necessary and that they were hearsay. The govern-
ment contends that the evidence was hearsay not saved by the
exception of Fed. R. Evid. 803(22). The government also argues that
the evidence was cumulative and that Appellants can show no preju-
dice from its exclusion. Even assuming that the judgments fell within
the Rule 803(22) exception and were not hearsay, we find any error
in the exclusion of them to be harmless. See Fed. R. Crim. P. 52(a).
The jury knew that these two individuals had been prosecuted for the
crime. Although being prosecuted is different from being convicted,
given that the theory of joint possession of the drugs allows convic-
tion of multiple persons, we find that the jury verdict was surely unat-
tributable to the error, if it was error to exclude the judgments.

Next, Marlese assigns as error the district court's exclusion of a
handwritten letter supposedly written for Marlon to Marlese in which
he took responsibility for the drugs found in the car and exculpated
her. The district court excluded the letter because it was not properly
authenticated and was not in Marlon's handwriting. Marlon testified
that he could not read and write. Because of this, he could not testify
at trial that the letter was actually the letter he had someone else write
for him. Counsel for Marlese did succeed in getting Marlon to admit
that he told the person who wrote the letter that the drugs belonged
to him and that no one else in the car knew anything about the drugs.
We find no abuse of discretion in the district court's exclusion of this
letter due to it not being properly authenticated. The authentication
requirement requires that the party seeking to admit the document
demonstrate that the document is in fact what its proponent claims.
See Fed. R. Evid. 901(a); United States v. Turpin, 65 F.3d 1207, 1213
(4th Cir. 1995), cert. denied, 64 U.S.L.W. 3640 (U.S. Mar. 25, 1996)
(No. 95-7260). No such showing was made here.

Finally, Marlese contends that sufficient evidence does not support
her convictions. We disagree. She was driving the car carrying the
drugs and there was sufficient evidence for the jury to find that she

                     5
knew the drugs were present and had the intent to distribute them. See
United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992).

Accordingly, we affirm the convictions of both Marlese and Mar-
lon Anderson. We deny Appellants' motion for oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.

AFFIRMED

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