UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4234

ALLEN KEITH BATTERMAN,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

N. Carlton Tilley, Jr., District Judge.

(CR-97-213)

Submitted: January 19, 1999

Decided: March 23, 1999

Before MURNAGHAN and TRAXLER, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Michael W. Patrick, HAYWOOD, DENNY & MILLER, L.L.P., Durham, North Carolina, for Appellant. Walter C. Holton, Jr., United

States Attorney, Paul A. Weinman, Assistant United States Attorney,

Winston-Salem, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Allen Keith Batterman was convicted by a jury of bank robbery,

18 U.S.C. § 2113(a) (1994), armed bank robbery, 18 U.S.C. § 2113(d)

(1994), and using and carrying a firearm during a crime of violence,

18 U.S.C.A. § 924(c) (West 1994 & Supp. 1998). Batterman appeals,

claiming that (1) the district court erred in admitting evidence of his

drug use and prior thefts and (2) his sentence was improperly

enhanced for obstruction of justice. See U.S. Sentencing Guidelines

Manual § 3C1.1 (1997). For the reasons that follow, we affirm.

On the morning of August 5, 1997, Batterman and Robert Durham,

armed with an automatic rifle, robbed the Guaranty State Bank in

Durham, North Carolina. Durham and Batterman had met several

weeks before the robbery--both were in a parking lot injecting heroin. Durham testified that in the eight weeks prior to the robbery, he

and Batterman began using drugs together and stealing to supply their

drug habits. According to Durham, he and Batterman stole lawnmowers and groceries, and committed several burglaries to obtain

money to buy more drugs. Durham stated that it was he who came up

with the idea of robbing a bank in the two weeks prior to the bank

robbery. After the robbery, Durham and Batterman used the proceeds

to purchase, among other items, eight bottles of heroin. The government also called David Clemonts and Gene Dunn, both of whom testified that they had seen Batterman inject heroin intravenously on

several different occasions.

Durham and Batterman were arrested shortly after the robbery.

While they were housed in the same cell awaiting trial, Batterman

composed a written statement that read: "I Robert Durham state that

Allen Keith Batterman was not with me between the times of 10:30

am & 12:30 pm on Aug. 5th, 1997. I swear that everything above is

true and unfabricated." The statement was signed by Durham and wit-

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nessed by a detention officer. However, Durham later admitted that

the statement was false and that he had signed it to"get Batterman

off my back" and to avoid a fight. Based on this conduct, the district

court imposed a two-level sentencing enhancement for obstruction of

justice.

Batterman first claims that the district court erred in admitting the

testimony of Durham, Dunn, and Clemonts regarding his drug use and

unrelated thefts. Decisions regarding the admission and exclusion of

evidence are peculiarly within the province of the district court and

will not be reversed on appeal absent an abuse of discretion. See

United States v. Loayza, 107 F.3d 257, 263 (4th Cir. 1997). Under

Rule 404(b), evidence of other crimes or bad acts is not admissible

to prove the character of the defendant, but may be admissible for

other purposes, including proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Rule 404(b) is an "inclusive rule" which "admits all evidence of other

crimes (or acts) relevant to an issue in a trial except that which tends

to prove only criminal disposition." United States v. Masters, 622

F.2d 83, 85 (4th Cir. 1980) (internal quotations omitted). Evidence

under Rule 404(b) is admissible if it is (1) relevant to an issue other

than character, (2) necessary, and (3) reliable. See United States v.

Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988).

In United States v. Madden, 38 F.3d 747, 752 (4th Cir. 1994), we

developed a specific inquiry to evaluate the admissibility of evidence

of drug use to establish motive in a bank robbery prosecution. The

government must demonstrate "both that the accused has a significant

drug habit or addiction and that he did not have the financial means

to support it." Id. In Madden, we found that "highly imprecise evidence of drug usage with no corresponding evidence of financial

need" was insufficient to establish admissibility of the defendant's

drug use. By contrast, here we find that the evidence presented by the

government at Batterman's trial established that he had a significant

drug habit and that he did not have the financial means to support it.

With respect to the testimony regarding Batterman's participation in

various thefts prior to the robbery, we find that the evidence was relevant to an issue other than character, namely that it helped "explain

to the jury how the illegal relationship between the participants in the

crime developed." United States v. McMillon , 14 F.3d 948, 955 (4th

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Cir. 1994) (quoting United States v. Roldan-Zapata, 916 F.2d 795,

804 (2d Cir. 1990)). Therefore, the district court did not abuse its discretion in admitting the evidence regarding Batterman's drug use or

his involvement in the thefts.

Batterman next claims that the district court improperly enhanced

his sentence for obstruction of justice because the statement upon

which the enhancement was based was never introduced into evidence at his trial. Section 3C1.1 provides that a defendant's offense

level shall be increased by two levels if "the defendant willfully

obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing

of the instant offense." USSG § 3C1.1. A"wide range of conduct falls

within the parameters of this section." United States v. Hicks, 948

F.2d 877, 883 (4th Cir. 1991). Application Note 3 provides a "nonexhaustive" list of the types of conduct to which this enhancement

was intended to apply, including: "(c) producing or attempting to produce a false, altered, or counterfeit document or record during an official investigation or judicial proceeding." USSG§ 3C1.1, comment.

(n.3). Batterman clearly produced a false document during the investigation and prosecution of his case which he intended to use to exonerate himself. Whether the document was actually used at his trial is of

no consequence as the guidelines applies to attempts as well as completed conduct. Accordingly, we find that the enhancement was properly applied.

Therefore, we affirm Batterman's convictions 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 in the decisional process.

AFFIRMED

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