United States v. Alexander , 87 F. App'x 889 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4357
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL ALEXANDER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CR-02-430)
Submitted: February 2, 2004 Decided: February 17, 2004
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Denise C. Barrett, Assistant
Federal Public Defender, Martin G. Bahl, Staff Attorney, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant.
Thomas M. DiBiagio, United States Attorney, Bryan E. Foreman,
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael Alexander was convicted by a jury of one count of
possession with intent to distribute crack cocaine and one count of
possession with intent to distribute marijuana, and was sentenced
to seventy months imprisonment. He appeals, claiming that the
district court erred in admitting expert testimony from a law
enforcement official that included an opinion as to Alexander’s
intent, allegedly in violation of Fed. R. Evid. 704(b). Because he
failed to object at trial, we review this claim only for plain
error. Fed. R. Crim. P. 52(b). To establish plain error,
Alexander must show: (1) there was an error; (2) the error was
plain or clear under current law; (3) the error affected
substantial rights so as to prejudice him; and (4) the error
seriously affected the fairness, integrity, or public reputation of
the judicial proceedings. United States v. Olano, 507 U.S. 725,
731-32 (1993). We find that there was no error.
An expert witness may testify about an established
practice among drug dealers, provided that he does not speak
directly to the guilt or innocence of the accused. See United
States v. Conyers, 118 F.3d 755, 758 (D.C. Cir. 1997). We find
that the officer’s testimony here did not offer an opinion as to
Alexander’s intent. He testified only that the evidence presented
(quantity, packaging, and a digital scale) was inconsistent with
personal use. Accordingly, we find no error in the district
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court’s admission of the expert’s testimony. See United States v.
Gastiaburo, 16 F.3d 582, 587-88 (4th Cir. 1994) (holding that
admission of expert testimony that twenty-one “hits” of crack
cocaine were “certainly possessed with the intent to distribute”
was not plain error). Nor do we find that the expert’s testimony
was unduly prejudicial under Fed. R. Evid. 403.
Accordingly, we affirm Alexander’s conviction. 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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