UNPUBLISHED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Affirmed by unpublished per curiam opinion.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 Appellants. 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Unpublished opinions are not binding precedent in this circuit.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 possessing with the intent to distribute, and aiding and abetting the possession 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 government were that a North Carolina state trooper stopped the vehicle

being driven by Marlese Anderson because it swerved into the trooper'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 credibility of the trooper who testified about his stop of the Andersons'

vehicle. However, it is the role of the district court to observe witnesses 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 allowing 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 substantial 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 knowledge 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 discretion. 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 discretion 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 determine 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 evidence 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 instruction 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 excluding 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 themselves were not necessary and that they were hearsay. The government 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 prejudice 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 conviction of multiple persons, we find that the jury verdict was surely unattributable 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

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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 Marlon Anderson. We deny Appellants' motion for 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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