UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                        No. 97-4068

TERRY DENNARD MCNEAIR,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Salisbury.
Frank W. Bullock, Jr., Chief District Judge.
(CR-96-70)

Submitted: March 17, 1998

Decided: April 6, 1998

Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney,
Paul A. Weinman, Assistant United States Attorney, Winston-Salem,
North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Terry Dennard McNeair appeals his conviction of possession with
intent to distribute crack cocaine. See 21 U.S.C. § 841(a)(1) (1994).
A jury convicted McNeair for assisting his brother during a sale of
201 grams of crack cocaine to an undercover agent. Although his
brother pled guilty, McNeair went to trial. At trial, McNeair generally
concurred with the Government's version of the events leading up to
his arrest, but nonetheless protested his innocence. McNeair claimed
that he did not know his brother had enlisted his help in conducting
a drug transaction. The jury convicted McNeair for his role in the
transaction and the district court sentenced him to 360 months in
prison.

In this appeal, McNeair first assigns error to the district court's
admission into evidence of a broken antenna. Arresting officers found
the antenna in McNeair's shoe during the arrest. In suggesting that the
district court abused its discretion in admitting the evidence, McNeair
contends that it was inadmissible evidence of prior bad acts under
Fed. R. Evid. 404(b) and that it was more prejudicial than probative.
See Fed. R. Evid. 403. McNeair also contends that the district court
erred in denying his Fed. R. Crim. P. 29 motion for acquittal because
the Government failed to prove McNeair knew that his brother was
conducting a drug transaction. Finally, McNeair suggests that the
Government failed to prove at sentencing that the controlled sub-
stance was crack cocaine as opposed to merely cocaine base. Because
we find no merit to these contentions, we affirm the conviction and
sentence.

The evidence at trial showed that McNeair rode along in his broth-
er's car when his brother received a page from an undercover agent.
McNeair then waited in the car while his brother made the phone calls
to the agent and to a supplier who could provide crack cocaine.
McNeair accompanied his brother to the supplier's residence and
again waited in the car while his brother obtained the drugs for the
transaction. The brother returned to the car with the drugs and a digi-
tal scale in a Crown Royal bag.

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When they arrived at the designated site for the transaction, a shop-
ping center parking lot, McNeair and his brother drove around the lot
once, and McNeair got out of the car with the bag containing the
drugs. McNeair waited away from the car and watched while his
brother determined that the agent was serious about purchasing the
crack cocaine. When he was satisfied, McNeair's brother signaled to
McNeair who returned to the car carrying the cocaine. McNeair sat
in the back seat while his brother and the undercover agent concluded
negotiations for the transaction; at the conclusion of the negotiations
McNeair handed the bag containing the drugs to his brother.

Just after McNeair's brother consummated the transaction with the
undercover agent, back-up units moved in to arrest McNeair, his
brother, and the agent. In the search pursuant to McNeair's arrest, the
arresting officer found a piece of antennae which looked as though it
had been broken off of an automobile or a radio. The district court
admitted the antenna into evidence over McNeair's objection. The
officer testified that broken antenna like the one McNeair had in his
possession are often used as pipes for smoking crack cocaine.
Because of this connection, McNeair contends that the antenna was
inadmissible evidence of prior bad acts and more prejudicial than pro-
bative.

In response, the Government suggests that the antenna was intrinsic
to the offense and therefore admissible. Where evidence "is admitted
as to acts intrinsic to the crime charged, and is not admitted solely to
demonstrate bad character, it is admissible." United States v. Chin, 83
F.3d 83, 88 (4th Cir. 1996). Evidence is intrinsic when it is a "`part
of a single criminal episode.'" Id. (quoting United States v. Lambert,
995 F.2d 1006, 1007 (10th Cir. 1993)). The antenna was a part of the
criminal episode at issue here. McNeair had the antenna on his person
during the entire transaction. The antenna was the fruit of the search
incident to McNeair's arrest. As a result, it became a part of the crimi-
nal episode and was intrinsic evidence not governed by Fed. R. Evid.
404(b). Because it was admitted to contradict McNeair's claim that
he was unaware of the nature of the transaction his brother was con-
ducting and not solely to demonstrate bad character, the antenna was
properly admissible. See Chin, 83 F.3d at 88.

Even assuming the broken antenna was "extrinsic" as opposed to
"intrinsic" evidence based on the fact the antenna was better evidence

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of McNeair's crack cocaine use than his involvement in crack cocaine
distribution, there was no error in admitting the evidence. The district
court has broad discretion regarding the admission of evidence under
Fed. R. Evid. 404(b) and this court will not disturb the exercise of the
district court's discretion unless the ruling was"`arbitrary or irratio-
nal.'" United States v. Powers, 59 F.3d 1460, 1464 (4th Cir. 1995)
(quoting United States v. Haney, 914 F.2d 602, 607 (4th Cir. 1990)).
An abuse of the district court's discretion occurs when the court either
fails to take into account judicially recognized factors constraining the
exercise of its discretion or relies on erroneous legal or factual prem-
ise. See James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993). McNeair
makes no suggestion of error of this magnitude.

Rule 404(b) is a rule of inclusion. See United States v. Aramony,
88 F.3d 1369, 1377 (4th Cir. 1996), cert. denied , 65 U.S.L.W. 3781
(U.S., May 27, 1997) (No. 96-752). The rule itself specifies that evi-
dence of prior bad acts is generally admissible except when it is
offered to prove "the character of a person in order to show action in
conformity therewith." In a criminal trial, evidence of other bad acts

          becomes admissible under Rules 404(b) and 403 if it meets
          the following criteria: (1) The evidence must be relevant to
          an issue, such as an element of an offense, and must not be
          offered to establish the general character of the defendant.
          In this regard, the more similar the [other bad] act is (in
          terms of physical similarity or mental state) to the act being
          proved, the more relevant it becomes. (2) The act must be
          necessary in the sense that it is probative of an essential
          claim or element of the offense. (3) The evidence must be
          reliable. And (4) the evidence's probative value must not be
          substantially outweighed by confusion or unfair prejudice in
          the sense that it tends to subordinate reason to emotion in
          the factfinding process.

United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997); see also
United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988).

Here, presumably, the antenna was evidence that McNeair had at
some point smoked crack cocaine. In this sense, the antenna was evi-
dence of a prior bad act. However, it was also relevant to and proba-

                     4
tive of McNeair's knowledge of the contents of the bag and purpose
of the transaction. This knowledge, or lack thereof, was a crucial ele-
ment to McNeair's theory of the case rendering the evidence neces-
sary to the Government's case. The evidence was certainly reliable,
as it was discovered on McNeair's person. Moreover, the district
court explicitly weighed the antenna's probative value against its prej-
udicial effect, concluding that the antenna was admissible. Although
McNeair disagrees with the district court's conclusion, there is no
suggestion on this record that the court abused its discretion, much
less acted arbitrarily or irrationally. As a result, we decline McNeair's
invitation to disturb the district court's evidentiary ruling.

McNeair next contends that the trial court erred when it denied his
Fed. R. Crim. P. 29 motion for acquittal because the evidence was
insufficient to support his conviction. Specifically, McNeair claims
that the Government failed to prove that he knowingly possessed the
crack cocaine in the bag. See United States v. Williams, 41 F.3d 192,
199 (4th Cir. 1994). This court will review the denial of Rule 29
motions to determine "whether there is substantial evidence (direct or
circumstantial) which, taken in the light most favorable to the prose-
cution, would warrant a jury finding that the defendant was guilty
beyond a reasonable doubt." United States v. MacCloskey, 682 F.2d
468, 473 (4th Cir. 1982); see also United States v. Stockton, 788 F.2d
210, 218 (4th Cir. 1986). In determining the issue of substantial evi-
dence, this court neither weighs the evidence nor considers the credi-
bility of witnesses. See United States v. Arrington, 719 F.2d 701, 704
(4th Cir. 1983).

McNeair was present when his brother contacted the undercover
agent, obtained the crack cocaine from his supplier, and drove to meet
the agent. In addition, McNeair got out of his brother's car with the
crack cocaine and waited until his brother determined whether the
agent was prepared for the transaction. At his brother's signal,
McNeair returned to the car with the crack cocaine and handed the
bag to his brother so that the drugs could be weighed out and the
transaction consummated. Finally, the broken antenna that McNeair
had in his possession is a common instrument for the ingestion of
crack cocaine. In all respects, McNeair behaved like a knowing par-
ticipant in the distribution of the controlled substance. As a result, we
cannot conclude that the jury was unwarranted in finding that

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McNeair was guilty beyond a reasonable doubt. See McCloskey, 682
F.2d at 473.

Finally, McNeair contends that the district court erred in overruling
his objection to the identity of the controlled substance at issue in the
case. He suggests on appeal that the Government failed to prove by
a preponderance of the evidence that the substance was crack cocaine
as opposed to merely some other cocaine base. See United States v.
Ford, 88 F.3d 1350, 1367-68 (4th Cir.), cert. denied, 65 U.S.L.W.
3369 (U.S., Nov. 18, 1996) (No. 96-6379). In this case, there was no
ambiguity with regard to the identity of the drugs at issue. Virtually
every Government witness identified the substance as crack. The tes-
timony of trained narcotics agents and chemists was sufficient to
establish the identity of the controlled substance. See United States v.
Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976).

Finding no merit to any of McNeair's contentions on appeal, we
affirm the conviction and sentence. 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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