UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4974

MERV BERNARD JONES,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

J. Calvitt Clarke, Jr., Senior District Judge.

(CR-96-136)

Submitted: December 30, 1997

Decided: February 23, 1998

Before WILKINS and MOTZ, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Michael Dana Eberhardt, Suffolk, Virginia, for Appellant. Helen F.

Fahey, United States Attorney, Janet S. Reincke, Assistant United

States Attorney, Robert S. Reverski, Jr., Third Year Law Student,

Norfolk, Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:

Merv Bernard Jones appeals his conviction for two counts of possession with the intent to distribute crack cocaine in violation of 21

U.S.C. § 841(a)(1) (1994), two counts of carrying a firearm during

and in relation to a drug trafficking crime in violation of 18 U.S.C.A.

§ 924(c)(1) (West 1976 & Supp. 1997), and two counts of possession

of a firearm by a convicted felon in violation of 18 U.S.C.A. § 922(g)

& § 924(a)(2) (West 1976 & Supp. 1997). We affirm.

Jones' convictions arise from two separate incidents. On April 25,

1996, the Suffolk Police received an anonymous phone call reporting

that a group of black males were selling drugs in the vicinity of 130

S. Capitol Street, Suffolk, Virginia. The caller stated that one black

male wearing a cap, black shirt, and army fatigue pants was doing the

majority of the selling. Officer D.L. White responded to a police dispatch reporting the alleged drug dealing. While driving to S. Capital

Street, Officer White received another dispatch reporting that the

same group of black males was now walking toward E. Washington

Street. As Officer White turned onto S. Capital Street he spotted a single group of black males approaching E. Washington Street.

Officer White got out of his car, walked up behind Jones, who was

wearing the clothing described in the police dispatch, and said, "Hey,

I need to talk with you a minute." Jones responded, "You don't need

to talk to me" and kept walking toward E. Washington Street. Officer

White then told Jones a few more times that he needed to speak with

him, and at some point tapped Jones on his shoulder in an effort to

get his attention. Jones ignored Officer White and continued walking

down the street. Investigator Coleman then arrived on the scene and

immediately recognized Jones as the subject of an ongoing police

investigation. Coleman knew from confidential informants that Jones

often sold cocaine on S. Capital Street and that Jones carried a fire-

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arm. Coleman also noticed that Jones' right hand was open but his left

hand was clenched. Based on his experience, Coleman knew that drug

dealers often conceal drugs in a clenched fist so that they can easily

dispose of the drugs if encountered by police. Coleman then got out

of his car and said, "Hey Merv, I need to speak with you for a minute." Jones, still walking, looked at Coleman briefly, and then turned

away and responded, "You got a warrant, you don't need to speak

with me." Coleman made repeated requests for Jones to stop walking,

stating that he needed to speak with him. Jones continued to ignore

the officers. Officer White and Coleman then seized Jones and proceeded to frisk him. After discovering a razor blade in Jones'

clenched hand, the officers conducted a full search which uncovered

sixty-two grams of crack cocaine and a .38 caliber revolver.

On June 27, 1996, Coleman and another police officer arrested

Jones pursuant to an arrest warrant issued as a result of Jones' arrest

on April 25. A search incident to arrest uncovered 11.87 grams of

crack cocaine wrapped in small plastic bags, a .25 caliber handgun,

and $330 in currency.

Jones raises six issues on appeal. First he contends the officers did

not have the requisite level of suspicion necessary to justify the April

25 stop under Terry v. Ohio, 392 U.S. 1 (1968). To conduct a Terry

stop and frisk, an officer need only have reasonable suspicion supported by articulable facts that criminal activity may be afoot. United

States v. Sokolow, 490 U.S. 1, 7 (1989). At the time Coleman made

the decision to stop Jones he possessed the following knowledge:

(1) the police had received an anonymous tip that an individual wearing clothing that matched Jones' clothing was selling drugs on S.

Capital street, a known drug area; (2) he had previously received tips

from reliable confidential informants that Jones often sold drugs on

S. Capital Street and that he carried a firearm; (3) Jones had one fist

clenched, behavior Coleman knew to be consistent with drug dealing;

and (4) Jones was acting in an evasive manner and appeared nervous.

Reviewing the claim de novo, see United States v. Perrin, 45 F.3d

869, 871 (4th Cir. 1995), we find that these factors provided Coleman

with adequate reasonable suspicion to stop and frisk Jones to alleviate

his concern that Jones posed a threat to his safety.

Prior to trial Jones moved for severance of the counts stemming

from his arrests on April 25, 1996, and June 27, 1996. Jones alleged

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that joinder of the counts could lead the jury to find him guilty on

charges from one incident and then find him guilty of the other

charges because of his criminal disposition. A district court "has a

wide range of discretion in matters of severance which should be left

undisturbed, absent a showing of clear prejudice or abuse of discretion." United States v. Acker, 52 F.3d 509, 514 (4th Cir. 1995). It is

within a district court's discretion to deny a motion to sever cases

involving identical offenses that occur over a short period of time. See

id. The three counts stemming from Jones' arrests were identical, the

two incidents occurred approximately two months apart, and both

involved searches that uncovered crack cocaine and a firearm.

Accordingly, the district court properly exercised its discretion to

deny Jones' motion for severance.

We give substantial deference to the district court's evidentiary rulings and will not reverse absent a clear abuse of discretion. United

States v. Whittington, 26 F.3d 456, 465 (4th Cir. 1994). Jones alleges

that the district court erred in allowing Officer White and Coleman to

testify that they received a police dispatch that an individual was selling drugs on S. Capital Street and that they knew this to be a high

crime area. Initially, we note that the dispatch evidence was not hearsay because the district court specifically told the jury that it was to

consider the evidence only to understand why the officers went to S.

Capital Street and not for the truth of the matter asserted. See Fed. R.

Evid. 801(c); United States v. Love, 767 F.2d 1052, 1063 (4th Cir.

1985). Further, we agree with the district court's finding that the testimony about the police dispatch was relevant to the understanding of

why Officer White and Coleman went to S. Capital Street.

A district judge may exclude relevant evidence if its probative

value is substantially outweighed by the danger of unfair prejudice.

Fed. R. Evid. 403. We find that the probative value of providing the

jury with a complete picture of the events leading up to Jones' first

arrest is not substantially outweighed by any possible prejudice stemming from testimony concerning the police dispatch. Hence, we find

that the district court did not abuse its discretion in admitting evidence of the police dispatch. Further, we find no prejudicial error

from the admission of testimony that S. Capital Street is located in a

known drug area. See United States v. Nyman, 649 F.2d 208, 212 (4th

Cir. 1980).

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Jones next claims that the district court abused its discretion by

allowing into evidence a chemist's laboratory report of analysis which

summarized the chemist's trial testimony describing several prosecution drug exhibits. Under Fed. R. Evid. 611(a) a district court may

admit summary testimony into evidence if it will help the jury to better understand the evidence presented. See United States v. Johnson,

54 F.3d 1150, 1162 (4th Cir. 1995). It is important, however, that

opposing counsel is provided with the opportunity to cross-examine

the witness whose summarized testimony has been introduced in

order to "alleviate any danger of inaccuracy or unfair characterization." United States v. Paulino, 935 F.2d 739, 753 (6th Cir. 1991). In

this case, the district court determined that the laboratory report

would aid the jury in following the case. Jones' counsel then had

ample opportunity to cross-examine the chemist concerning the validity of the laboratory report. Accordingly, we find that the district

court acted within its discretion by permitting the United States to

introduce the chemist's report into evidence under Rule 611(a).

We review the district court's decision whether or not to strike

superfluous language from an indictment for an abuse of discretion.

See United States v. Poore, 594 F.2d 39, 41 (4th Cir. 1979). Jones

argues that the district court abused its discretion by not striking from

the superseding indictment the term "crack" and the references to specific quantities of drugs. Crack is the specific form of cocaine base

that the United States charged Jones with possessing and intending to

distribute. The United States offered expert testimony at trial identifying the substance as crack and explaining to the jury the difference

between powder cocaine and crack cocaine. In light of this evidence

presented to the jury, we cannot agree with Jones' allegation that the

indictment's use of the term crack prejudiced him. Hence we find that

the district court properly refused to strike the word crack from Jones'

indictment.

We also find that the district court did not abuse its discretion by

refusing to strike the drug quantity references in Jones' indictment.

The district court recognized that as part of its burden of proving that

Jones had the intention to distribute, the United States would introduce evidence of the specific quantities of crack cocaine found on

Jones each time the police arrested him. Hence, the district court

determined that any quantity references in Jones' indictment merely

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helped explain the charges to the jury and would not prejudice Jones.

Accordingly, the district court properly exercised its discretion not to

strike the quantity references from Jones' indictment.

Regarding Jones' challenge to the sufficiency of the evidence, we

ask whether "`any rational trier of fact could have found the essential

elements of the crime [charged] beyond a reasonable doubt.'"

Johnson, 54 F.3d at 1153 (quoting Jackson v. Virginia, 443 U.S. 307,

319 (1979)). We "`construe the evidence in the light most favorable

to the government, assuming its credibility, drawing all favorable

inferences from it, and taking into account all the evidence, however

adduced.'" Id. at 1153 (quoting United States v. Giunta, 925 F.2d 758,

764 (4th Cir. 1991)). The evidence adduced at trial was that at the

time of Jones' arrest on June 27, 1996, the police found him in possession of 11.87 grams of crack cocaine packaged in separate bags,

a .25 caliber handgun, and $330 in cash. The United States put forth

expert testimony that personal consumption of crack cocaine may

reach approximately one gram per day. Based on this evidence, we

find that a rational juror could have found Jones guilty of knowingly

possessing with the intention to distribute crack cocaine in violation

of 21 U.S.C. § 841(a)(1) (1994).

We therefore affirm Jones' conviction. We dispense with oral argument because the facts and legal contentions are adequately presented

before the court and argument would not aid the decisional process.

AFFIRMED

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