United States v. Ware , 29 F. App'x 118 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4733
FERNANDO RENEE WARE,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-98-313-HMN)
Submitted: October 31, 2001
Decided: January 15, 2002
Before WILKINS and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Robert C. Bonsib, Beau Kealy, MARCUS & BONSIB, Greenbelt,
Maryland, for Appellant. Stephen M. Schenning, United States Attor-
ney, Ronald J. Tenpas, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee.
2 UNITED STATES v. WARE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Fernando Renee Ware appeals from his conviction for possession
with intent to distribute, and conspiracy to distribute and possess with
intent to distribute, powder and crack cocaine in violation of 21
U.S.C. §§ 841(a)(1), 846 (1994), and aiding and abetting in violation
of 18 U.S.C.A. § 2 (West 2000). Ware has also filed a motion request-
ing permission to file a pro se supplemental brief. Finding no revers-
ible error, we affirm.
On appeal, Ware contends the district court improperly admitted
hearsay evidence. We review for abuse of discretion. United States v.
Queen, 132 F.3d 991, 995 (4th Cir. 1997). Because we find the com-
plained of evidence was not hearsay, but was admitted solely for the
purpose of explaining the course of the police investigation, we find
no abuse of discretion. See United States v. Love, 767 F.2d 1052,
1063 (4th Cir. 1985).
Ware also contends the district court improperly admitted expert
testimony from a law enforcement officer regarding the meaning of
certain portions of taped conversations between Ware and an infor-
mant under Fed. R. Evid. 702. Ware further contends the testimony
violated Fed. R. Evid. 704(b). Upon careful consideration of the
record, we conclude both claims are without merit.
Ware next contends the trial court abused its discretion by admit-
ting a police officer’s voice identification testimony regarding the
same taped conversations. Ware suggests the officer had no indepen-
dent basis, other than information provided by an informant, that the
voice on the tapes was Ware’s. This contention is belied by the
record. Because the officer had sufficient familiarity with Ware’s
voice to allow him to identify Ware as the person whose voice is on
the recordings, we find no abuse of discretion. See United States v.
Robinson, 707 F.2d 811, 814 (4th Cir. 1983).
UNITED STATES v. WARE 3
Ware next contends the district court erred by denying his motion
to suppress the evidence seized from his vehicle following his arrest.
Ware contends police did not have probable cause to arrest him and
that any evidence seized in the search incident to his arrest was there-
fore inadmissible. Probable cause for a warrantless arrest exists when
facts and circumstances within the officers’ knowledge are sufficient
to warrant a prudent person, or one of reasonable caution, in believ-
ing, in the circumstances shown, that the suspect has committed, is
committing, or is about to commit an offense. Beck v. Ohio, 379 U.S.
89, 91 (1964); United States v. Gray, 137 F.3d 765, 769 (4th Cir.
1998). A finding of probable cause is based upon a practical assess-
ment of the totality of the circumstances. Illinois v. Gates, 462 U.S.
213, 230-31 (1983). Considering the totality of the circumstances of
which police had knowledge at the time, we find ample probable
cause existed for Ware’s arrest. Thus, the evidence seized in the
search incident to arrest was admissible.
Ware also contends the court erred by refusing to instruct the jury
regarding the meaning of reasonable doubt and by giving the jury a
limited flight instruction. In general, the decision to give, or not to
give, a jury instruction and the content of that instruction are reviewed
for an abuse of discretion. United States v. Burgos, 55 F.3d 933, 935
(4th Cir. 1995).
Ware’s argument that the district court erred by refusing to instruct
the jury regarding the meaning of reasonable doubt is foreclosed by
this court’s decision in United States v. Reives, 15 F.3d 42, 45 (4th
Cir. 1994) (condemning the attempts of trial courts to define reason-
able doubt). We decline Ware’s invitation to reconsider that decision.
We also find Ware’s argument that the district court erred by giv-
ing a limited flight instruction unavailing. Despite Ware’s contentions
to the contrary, there was sufficient evidence produced at trial to show
flight. Thus, we find the district court did not abuse its discretion in
deciding which jury instructions to give and which not to give.
Finally, in his pro se supplemental brief, Ware contends his convic-
tion must be overturned because the indictment failed to allege a spe-
cific drug quantity. We find this argument to be without merit, as
Ware’s sentence of 235 months falls within the statutory limits under
4 UNITED STATES v. WARE
Apprendi v. New Jersey, 530 U.S. 466 (2000). See United States v.
Kinter, 235 F.3d 192, 199-202 (4th Cir. 2000), cert. denied, 121 S. Ct.
1393 (2001).
Accordingly, we affirm Ware’s conviction. Further, we grant
Ware’s motion to file a pro se supplemental brief. 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