UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4280

CHRISTOPHER ERVIN HOWIE,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert R. Merhige, Jr., Senior District Judge.

(CR-97-276)

Submitted: October 30, 1998

Decided: January 22, 1999

Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

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Affirmed in part, vacated in part, and remanded in part by unpublished per curiam opinion.

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COUNSEL

Thomas B. Weidner, IV, Van C. Ernest, WEIDNER & ERNEST,

P.C., Richmond, Virginia, for Appellant. Helen F. Fahey, United

States Attorney, George Metcalf, Assistant United States Attorney,

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Unpublished opinions are not binding precedent in this circuit.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

Christopher Ervin Howie appeals from his convictions for possession with intent to distribute crack cocaine and aiding and abetting,

in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (1994). Howie

contends that: (1) the district court erred in admitting opinion testimony from a government witness; (2) the district court erred in refusing to instruct the jury on simple possession; (3) the district court

erred in denying Howie's motion to suppress; and (4) the district

court erred in permitting the jury to convict Howie of aiding and abetting without being instructed as to the charge.

On August 1, 1997, Richmond Police Detectives Ron Armistead

and Stephanie Ruffin and Petersburg Police Officer Anthony Patterson were assigned to the Drug Interdiction Task Force at the Greyhound bus station in Richmond, Virginia. While on duty at 2:45 a.m.,

Armistead observed passengers as they exited a bus that had just

entered the terminal. Armistead also observed Howie stand up and

place a black plastic bag with white letters in the overhead compartment above his seat, look around, and quickly sit back down. Howie

sat there for a moment and then got off the bus.

At approximately 4:00 a.m., just minutes after the bus driver called

for people to reboard the bus, Armistead approached Howie, displayed his badge, identified himself and his purpose, and asked to

speak with Howie. Howie produced a picture ID, stated that he was

traveling to North Carolina, and produced his bus ticket to confirm his

statement. Armistead asked Howie if he had any baggage, either in

the overhead compartments or stored underneath the bus, and Howie

replied that he had lost his baggage. Armistead pointed to the black

plastic bag that he watched Howie place in the overhead compartment

and asked if it belonged to Howie; Howie responded that it did not.

Howie reboarded the bus, but he sat in a different seat than he previ-

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ously occupied. Armistead then boarded the bus, retrieved the bag,

and asked everyone on the bus if the bag belonged to anyone. Howie

did not respond; he turned his head and looked out the window. After

no one on the bus claimed ownership of the bag, Armistead removed

the bag from the bus. A search of the bag revealed 61.6 grams of

crack cocaine, soap powder, which is commonly used to mask the

scent of the drug, and a gray T-shirt that officers saw Howie wearing

earlier. Also in Howie's possession was a ticket stub from Greensboro, North Carolina, his origination point the previous day.

After he was arrested and given his Miranda* warnings, Howie

stated that he had in fact traveled to New York the previous day. He

stated that he had lost his bag and had returned to Richmond to try

to find it. Howie again denied owning the bag that Armistead

removed from the bus. After some additional questioning, Howie

admitted that he owned the bag.

The district court did not abuse its discretion in admitting Detective

Armistead's testimony that the amount of crack cocaine seized was

not indicative of personal use. Detective Armistead's opinion was

rationally based on his perceptions and his experiences in prior drug

investigations and was helpful to a clear understanding of a fact in

issue, namely, Howie's intent. See Fed. R. Evid. 701; see also United

States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997) (standard of

review).

The district court's refusal to instruct the jury on simple possession

was not an abuse of discretion. See United States v. Burgos, 55 F.3d

933, 935 (4th Cir. 1995). Howie was not entitled to the instruction for

simple possession because his intent, the distinguishing element

between possession with intent to distribute and simple possession,

was not sufficiently placed in dispute to require a lesser included

offense instruction. See United States v. Walker , 75 F.3d 178, 180

(4th Cir. 1996). There was no direct testimony regarding Howie's

intent in possessing the crack cocaine and an intent simply to possess

for personal use was not fairly inferable from the evidence presented.

See id.

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*Miranda v. Arizona, 384 U.S. 477 (1966).

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We have reviewed the record and the briefs and find that the district court did not err in denying Howie's motion to suppress the

drugs seized as a result of the search of the bag. The district court

properly found that Howie abandoned the bag, thereby relinquishing

any expectation of privacy he had in the bag. See Abel v. United

States, 362 U.S. 217, 241 (1960); United States v. Flowers, 912 F.2d

707, 711-12 (4th Cir. 1990). Detective Armistead did not violate

Howie's Fourth Amendment rights by searching what Howie led him

to believe was an abandoned bag. Accordingly, we affirm Howie's

conviction for possession with intent to distribute crack cocaine.

We must vacate Howie's conviction for aiding and abetting. At

trial Howie objected to the government's proposed jury instruction

with respect to aiding and abetting. Because of its position that the

evidence did not support a conviction on that basis, the district court

sustained Howie's position and refused to instruct on aiding and abetting. So only the conviction of possession with intent to distribute was

sent to the jury. The form of verdict, however, executed by the jury

convicted Howie as "guilty as charged in Count 1 of the indictment."

Count 1 of the indictment included 18 U.S.C. § 2 as well as the substantive count. That mistake was carried forward into the judgment of

conviction on sentencing, which provided that Howie was convicted

of "21 [U.S.C. §] 841(a)(1) & 18 [U.S.C. §] 2." The presentence

report does not mention a conviction for aiding and abetting and there

is no transcript of the sentencing hearing which has been presented to

us on appeal. We feel confident, however, that no conviction for 18

U.S.C. § 2 (aiding) was intended or in fact took place. Such conviction for aiding was plain error under United States v. Olano, 507 U.S.

725 (1993). There was no objection, an error occurred which was

plain and which affected Howie's substantive rights, and the error

affected the fairness or integrity of the proceeding.

Accordingly, we vacate Howie's conviction for aiding and abetting

and remand the case to the district court for the limited purpose of

amending the judgment of conviction to reflect only a conviction for

possession with intent to distribute under 21 U.S.C.§ 841(a)(1). In

the unlikely event that vacating one of Howie's convictions should

affect his sentence, the district court, on remand, should resentence

Howie. Otherwise, on remand the district court should state that the

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sentence is not affected because a conviction for aiding was unintended.

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 IN PART, VACATED

IN PART, AND REMANDED

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