UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4435

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

THOMAS J. WACKMAN, a/k/a Reef, 

 Defendant - Appellant. 

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. William D. Quarles, Jr., District 

Judge. (1:06-cr-00427-WDQ-5) 

Submitted: December 3, 2009 Decided: January 4, 2010 

Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge. 

Affirmed by unpublished per curiam opinion. 

John L. Machado, LAW OFFICE OF JOHN MACHADO, Washington, D.C., 

for Appellant. Rod J. Rosenstein, United States Attorney, 

Michael C. Hanlon, Assistant United States Attorney, Baltimore, 

Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Thomas J. Wackman timely appeals the district court’s 

judgment following a jury trial on one count of conspiracy to 

distribute and possession with intent to distribute a controlled 

substance, in violation of 21 U.S.C. § 846 (2006). On appeal, 

Wackman argues that: (1) the district court erred in denying his 

motion for a mistrial; (2) the district court erred in admitting 

hearsay testimony and evidence based on hearsay; and (3) the 

district court erred in enhancing his sentence. Finding no 

reversible error, we affirm. 

I. 

 Wackman first argues that the district court erred in 

denying his motion for a mistrial on the basis that the 

Government improperly vouched for a cooperating witness’s 

credibility. We review the district court’s denial of a motion 

for mistrial for abuse of discretion. United States v. Wallace, 

515 F.3d 327, 330 (4th Cir. 2008). The district court’s denial 

“will be disturbed only under the most extraordinary of 

circumstances.” United States v. Dorlouis, 107 F.3d 248, 257 

(4th Cir. 1997). 

 The first step in analyzing an improper vouching claim 

is determining “whether the comments made in fact constituted 

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vouching.” United States v. Sanchez, 118 F.3d 192, 198 (4th 

Cir. 1997). 

Vouching occurs when the prosecutor indicates a 

personal belief in the credibility or honesty of a 

witness. [P]resenting evidence on a witness’ 

obligation to testify truthfully pursuant to an 

agreement with the government and arguing that this 

gives the witness a strong motivation to tell the 

truth is not, by itself, improper vouching. Reference 

to a plea agreement becomes impermissible vouching 

only when the prosecutors explicitly or implicitly 

indicate that they can monitor and accurately verify 

the truthfulness of the witness’ testimony. 

United States v. Jones, 471 F.3d 535, 543 (4th Cir. 2006) 

(alteration in original) (internal quotation marks and citations 

omitted). 

 During the witness’s testimony, the prosecutor 

questioned the witness about her understanding of her plea 

agreement. The prosecutor then asked whether the witness had 

met with the agents and prosecutor involved in the case and 

whether she was given any money or anything of value during the 

meetings. At this point, Wackman’s counsel moved for a 

mistrial, arguing that the Government improperly vouched for the 

witness’s credibility by inference. The district court denied 

Wackman’s motion. We find that the district court did not abuse 

its discretion in denying Wackman’s motion. The prosecutor’s 

questions did not suggest any personal belief about the 

witness’s credibility nor did the prosecutor imply that the 

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Government could monitor and verify her truthfulness. In short, 

the prosecutor’s questions simply did not constitute vouching. 

II. 

 Wackman next contends that the district court 

improperly allowed hearsay testimony and evidence based upon 

hearsay. Because Wackman did not object to the testimony or the 

physical evidence at trial, we review their admission for plain 

error. United States v. Perkins, 470 F.3d 150, 155 (4th Cir. 

2006). To demonstrate plain error, a defendant must show that: 

(1) there was an error; (2) the error was plain; and (3) the 

error affected his “substantial rights,” meaning that it 

“affected the outcome of the district court proceedings.” 

United States v. Olano, 507 U.S. 725, 732 (1993). We are not 

required to correct a plain error unless “a miscarriage of 

justice would otherwise result,” meaning that “the error 

seriously affect[s] the fairness, integrity, or public 

reputation of judicial proceedings.” Id. at 736 (alteration in 

original) (internal quotation marks omitted). 

 Wackman first argues that Officer Scott Doyle’s 

testimony regarding what led him to obtain a search warrant of 

Apartment 4 at 506 West John Street (“John Street apartment”) 

was hearsay. Hearsay, an out of court statement “offered in 

evidence to prove the truth of the matter asserted,” is 

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generally not admissible in federal court. Fed. R. Evid. 

801(c), 802. “However, an out of court statement is not hearsay 

if it is offered for the limited purpose of explaining why a 

government investigation was undertaken.” United States v. 

Love, 767 F.2d 1052, 1063 (4th Cir. 1985). 

 Officer Doyle testified that he obtained a search 

warrant for the John Street apartment based on a call from the 

apartment’s landlord, in which the landlord reported that he 

found marijuana in plain view when serving an eviction notice. 

We find that Officer Doyle’s testimony regarding the landlord’s 

report was not offered to prove that the landlord in fact found 

marijuana in the apartment, but was offered to explain how 

Officer Doyle learned of the apartment and the basis for the 

search warrant. Therefore, Officer Doyle’s testimony was not 

hearsay and the district court did not err, much less plainly 

err, in admitting the testimony. 

 Wackman also argues that Officer Doyle’s testimony 

about the eviction was hearsay, as was his testimony regarding 

the renter of the John Street apartment. We find that Officer 

Doyle’s testimony that the landlord was evicting the John Street 

apartment’s occupants was not offered to prove that the 

occupants were being evicted and was thus not hearsay. With 

regard to the renter of the John Street apartment, Officer Doyle 

testified that Antonio Johnson was listed as the renter on the 

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lease and that he “had been told from several people that they 

believed Antonio Johnson was, in fact, Mr. Wackman.” Although 

it appears that the Government offered the statement for the 

truth of the matter asserted – that Wackman was Antonio Johnson, 

renter of the John Street apartment – we conclude that the 

admission of this statement did not affect Wackman’s substantial 

rights, as there was other admissible evidence connecting 

Wackman to the John Street apartment. 

 Finally, Wackman argues that Exhibit 10, ammunition 

found in the John Street apartment, was admitted through hearsay 

because Officer Doyle explained that a portion of the ammunition 

was found in the John Street apartment by the landlord. 

Specifically, Officer Doyle testified that Exhibit 10 contained 

“magazines with rounds in them that were located in the 

residence [during the execution of the search warrant], as well 

as ammunition that was found in the residence, and some 

ammunition that had been brought to us the following day that 

was located.” Officer Doyle further testified that the 

ammunition brought to the police the day after the search 

warrant was executed was found by the landlord while working on 

the apartment. Even if Officer Doyle’s explanation that a 

portion of the ammunition included in Exhibit 10 had been found 

in the apartment by the landlord constituted hearsay, we find no 

reversible error, particularly under a plain error standard of 

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review. Simply stated, Wackman’s substantial rights were not 

infringed because the ammunition turned over to the police by 

the landlord was simply cumulative of the other ammunition and 

weapons previously located by the police during their search 

pursuant to a valid warrant. 

III. 

 Lastly, Wackman argues that the district court 

erroneously enhanced his sentence two levels, pursuant to U.S. 

Sentencing Guidelines Manual (“USSG”) § 2D1.1(b)(1) (2007). 

Generally, “[a] district court’s findings regarding sentence 

enhancement are factual in nature and are reviewed only for 

clear error.” United States v. Carter, 300 F.3d 415, 426 (4th 

Cir. 2002). However, because Wackman failed to object to the 

enhancement in the district court, this court reviews for plain 

error. United States v. Wells, 163 F.3d 889, 900 (4th Cir. 

1998). 

 Pursuant to USSG § 2D1.1(b)(1), a two-level 

enhancement is warranted if a dangerous weapon was possessed 

during the conspiracy. The enhancement “should be applied if 

the weapon was present, unless it is clearly improbable that the 

weapon was connected with the offense.” USSG § 2D1.1, cmt. n.3. 

Wackman contends that there was not a sufficient nexus between 

himself and the John Street apartment where the weapons and 

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ammunition were found to justify the enhancement. However, 

testimony from a cooperating witness established that Wackman 

possessed a gun during their travels between New York and 

Maryland to pick up drugs. Wackman did not introduce any 

evidence that it was clearly improbable that the gun was 

connected to his drug activity. Therefore, we find that the 

district court did not err in enhancing Wackman’s sentence. 

 Accordingly, we affirm the judgment of the district 

court. 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