Vacated by Supreme Court, January 24, 2005




                                             UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                                  FOR THE FOURTH CIRCUIT


                UNITED STATES OF AMERICA,               
                                 Plaintiff-Appellee,
                                   v.                               No. 02-4302
                KEVIN A. RIDEOUT, a/k/a JD,
                              Defendant-Appellant.
                                                        
                             Appeal from the United States District Court
                         for the Northern District of West Virginia, at Elkins.
                                Frederick P. Stamp, Jr., District Judge.
                                              (CR-00-7)

                                        Argued: September 26, 2003

                                        Decided: November 13, 2003

                                 Before WILKINS, Chief Judge, and
                                 HAMILTON, Senior Circuit Judge.*



                Affirmed by unpublished per curiam opinion.


                                               COUNSEL

                ARGUED: Jeffrey Alan Holmstrand, MCDERMOTT & BONEN-
                BERGER, P.L.L.C., Wheeling, West Virginia, for Appellant. Sherry
                L. Muncy, Assistant United States Attorney, Clarksburg, West Vir-
                ginia, for Appellee. ON BRIEF: Thomas E. Johnston, United States
                Attorney, Clarksburg, West Virginia, for Appellee.

                  *This appeal is decided by Chief Judge Wilkins and Senior Judge
                Hamilton as a quorum.
2                     UNITED STATES v. RIDEOUT
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

  Kevin A. Rideout appeals his convictions and sentences for several
drug-related offenses. Finding no reversible error, we affirm.

                                   I.

   The drug crimes at issue here occurred in Keyser, West Virginia,
in an area known as "the Hill." This area was described by one wit-
ness as an "open air crack market." J.A. 238. Rideout was one of 20
individuals named in an indictment charging, inter alia, one count of
conspiracy to possess with the intent to distribute and to distribute
unspecified quantities of cocaine and cocaine base in violation of
"Title 21, United States Code, Section 841(a)(1) and
841(b)(1)(A)(iii)" ("the conspiracy count"), 

several
counts of distributing cocaine base.

  At trial,1 numerous witnesses testified to having purchased cocaine
base from Rideout and to having seen him regularly selling on the
Hill. Many testified that Rideout served as a runner for other drug
dealers. Codefendant Shaun Brooks testified that Rideout had sold for
him on the Hill as well as for "a lot more guys." 

witness testified that on at least 20 occasions, he gave Rideout money
on the Hill and then watched Rideout enter an American Legion
Building ("the Legion") and emerge with cocaine base.

   The lead agent investigating the distribution of cocaine base on the
Hill was Senior Trooper Robert E. Cooper of the West Virginia State
Police. He testified that he recorded hours of audio and video during
the investigation. He then prepared a composite video that lasted
    1
   Five of the defendants went to trial, 12 others pled guilty, two were
fugitives at the time of trial, and one died while the case was pending.
                        UNITED STATES v. RIDEOUT                          3
approximately six hours. The video consisted of "shots of what life
was like in this community around the Legion, uncontrolled buys,
[and] controlled buys." 

portions of the video, Coo-
per could be heard commenting on the activities being filmed. Ride-
out did not object to presentation of the video portion of the
composite tape, but he did object to the playing of the audio, which
included Cooper’s narration. The court overruled the objection, con-
cluding that the narration was admissible as present sense impres-
sions. See Fed. R. Evid. 803(1) (permitting the admission of hearsay
when it involves a statement "describing or explaining an event or
condition made while the declarant was perceiving the event or condi-
tion, or immediately thereafter").

   One prosecution witness, Amber Hott, who was being held prior to
trial in the same detention facility as Rideout, testified that one day
when she saw Rideout, he "[p]ut his hand to his throat and acted like
he was going to cut my throat, called me a snitch." J.A. 516. When
asked when the threat was made, Hott answered that it was five or six
days before her testimony. Rideout subsequently presented evidence
that he was transferred from the detention facility where the threat
allegedly took place eight days prior to Hott’s testimony.

   At the close of all of the evidence, the parties discussed the content
of the jury charge with the district court. Regarding each distribution
count in which he was named, Rideout requested a jury charge of
simple possession as a lesser included offense. The district court
refused to charge simple possession, however, concluding that simple
possession is not a lesser included offense of distribution. On the sub-
ject of drug quantity, the district court instructed the jury that, in order
to convict on any of the charged offenses, it did not have to find that
the offense involved the amount of cocaine base alleged in the indict-
ment. However, the court also instructed that if the jury found one or
more of the defendants guilty of the conspiracy charge, it was
required to determine whether the relevant threshold amounts were
proven beyond a reasonable doubt.

  Rideout was convicted of the conspiracy count and the three distri-
bution counts in which he was named.2 The jury found in a special
  2
    Rideout had been named in another distribution count that was dis-
missed because, due to a typographical error, it charged that Rideout dis-
tributed cocaine base "lawfully" rather than "unlawfully." J.A. 50.
4                      UNITED STATES v. RIDEOUT
interrogatory that the conspiracy involved at least 50 grams of cocaine
base. Rideout subsequently moved unsuccessfully for judgment of
acquittal or, in the alternative, for a new trial. With regard to the
motion for new trial, the court ruled that Cooper’s narration on the
composite video did not warrant a new trial because the court had "or-
dered narration of the tape to be muted at certain times" and, in any
event, the narration amounted to present sense impressions. 

sentencing, the presentence report recommended a finding that
Rideout’s offenses involved 64.39 grams of cocaine base. The Gov-
ernment argued that a greater quantity was at issue, while Rideout
urged the court to "adopt the determination of the probation officer."

district court rejected the Government’s arguments and
adopted the recommendation from the presentence report. The court
then enhanced Rideout’s base offense level for obstruction of justice
based on the threat made against Hott, yielding a total offense level
of 34. Rideout was sentenced to 262 months imprisonment on the
conspiracy count and 240 months on each of the three substantive
counts, all to be served concurrently.

                                   II.

   Rideout first argues that the use by the district court of a special
interrogatory to allow the jury to calculate the drug quantity involved
in the conspiracy constructively amended the indictment, which did
not allege a particular drug quantity.3

   Because this argument is raised for the first time on appeal, we
review for plain error. See Fed. R. Crim. P. 52(b); United States v.
Olano, 

, 731-32 (1993). In order to establish our author-
ity to notice an error not preserved by a timely objection, Rideout
must show that an error occurred, that the error was plain, and that
the error affected his substantial rights. See 

.
Even if Rideout can satisfy these requirements, correction of the error
    3
   In fact, the indictment cited 21 U.S.C.A. § 841(b)(1)(A)(iii) (West
1999 & Supp. 2003) in the conspiracy count, which arguably put Rideout
on notice that the alleged drug quantity was at least 50 grams of cocaine
base. For purposes of this appeal, however, we assume that the threshold
drug quantity was not sufficiently alleged.
                        UNITED STATES v. RIDEOUT                          5
remains within our discretion, which we "should not exercise . . .
unless the error ‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’" 

original)
(quoting United States v. Young, 

, 15 (1985)).

   Even assuming that the first three elements of plain error review
are satisfied, United States v. Cotton, 

(2002), precludes
the panel from noticing the error. As in Cotton, the evidence here that
the conspiracy involved at least 50 grams of cocaine base was "over-
whelming and essentially uncontroverted," and Rideout did not assert
that he was responsible for less than the threshold amount, even at
sentencing. 

& n.3 (internal quotation marks
omitted). Indeed, Rideout actually requested that the district court
adopt the probation officer’s determination that he was responsible
for 64.39 grams of cocaine base. Under these circumstances, "[t]he
real threat . . . to the fairness, integrity, and public reputation of judi-
cial proceedings" would be if Rideout, despite his concession that he
was responsible for more than 50 grams, "were to receive a sentence
prescribed for those committing less substantial drug offenses because
of an error that was never objected to at trial." 

quotation marks omitted).4

                                    III.

   Rideout next complains that the district court erred in charging the
jury that it did not need to find drug quantity in order to convict.5
  4
    In a related argument, Rideout maintains that the district court
improperly sentenced him based on a drug quantity of 64.39 grams of
cocaine base when that amount was not pleaded in the indictment, found
by the jury, or supported by the evidence. Because Rideout specifically
asked the district court to adopt the 64.39-gram weight recommended by
the probation officer, any error in the adoption of that recommendation
was invited by Rideout, and therefore should not be noticed by this court.
See United States v. Herrera, 

, 75 (4th Cir. 1994).
  5
    The charge stated as follows:
        The indictment alleges that a particular amount of cocaine
     base was involved. The evidence in the case need not establish
     that the alleged amount of cocaine base existed; rather, the evi-
     dence needs to show only that a measurable amount of cocaine
     base was in fact the subject of the acts charged.
J.A. 176.
6                      UNITED STATES v. RIDEOUT
Because this issue is raised for the first time on appeal, our review is
for plain error. See 

.

   With regard to the substantive counts, the instruction that the jury
could convict without finding drug quantities was correct since the
indictment did not charge threshold drug quantities.6 With regard to
the conspiracy count, even assuming that the charge was plainly erro-
neous, the error did not affect Rideout’s substantial rights because the
jury made the requisite threshold quantity finding.

                                   IV.

   Rideout next contends that the district court should have excluded,
as unreliable, evidence of the alleged threat to witness Amber Hott.
Because Rideout did not object in the district court to the admission
of the evidence, review is for plain error. See 

even establish the first plain-error requirement, that the court erred in
admitting the evidence.

   Federal Rule of Evidence 404(b) provides that evidence of prior
bad acts may be admissible for purposes other than "to prove the
character of a person in order to show action in conformity there-
with." "Evidence of witness intimidation is admissible to prove con-
sciousness of guilt and criminal intent under Rule 404(b), if the
evidence (1) is related to the offense charged and (2) is reliable."
United States v. Hayden, 

, 159 (4th Cir. 1996). Rule
404(b) decisions are not reversed unless they are "arbitrary or irratio-
nal." United States v. Haney, 

, 607 (4th Cir. 1990) (inter-
nal quotation marks omitted).

   Rideout argues that the evidence here was unreliable because Hott
testified the threat was made five or six days prior to her trial appear-
ance, yet subsequent testimony established that Rideout had been
moved from the detention facility where Hott was also confined eight
days before Hott testified. However, because the testimony that Ride-
    6
   The quantities alleged in the substantive counts were all less than one
gram. Five grams is the lowest quantity of cocaine base that can result
in a statutory sentence enhancement. See 21 U.S.C.A. § 841(b)(1)(B)(iii)
(West 1999 & Supp. 2003).
                       UNITED STATES v. RIDEOUT                          7
out had been moved prior to the time he allegedly threatened Hott had
not been presented when Hott’s testimony was admitted, it could not
possibly have provided a basis for excluding Hott’s testimony. More-
over, even assuming that it had been established by the time Hott tes-
tified that Rideout had last been in the detention facility eight days
earlier—rather than six—that might have signified only that Hott was
mistaken concerning the date of threat. That discrepancy would not
justify excluding the evidence.7

                                    V.

   Rideout also challenges the refusal by the district court to charge
simple possession as a lesser included offense of distribution, claim-
ing that the court erred in concluding that possession was not a lesser
included offense. Reviewing this issue de novo, see United States v.
Nichols, 

, 1421 (9th Cir. 1993) (per curiam), we agree
with the district court.

   One offense is a lesser included offense of another only if "the ele-
ments of the lesser offense are a subset of the elements of the charged
offense." Schmuck v. United States, 

, 716 (1989). In
comparing the two offenses, a court must consider only their statutory
elements. See 

possession, a violation of 21
U.S.C.A. § 844(a) (West 1999), requires: (1) knowingly and inten-
tionally (2) possessing (3) a controlled substance. See United States
v. Schocket, 

, 340 (4th Cir. 1985). In contrast, distribu-
tion, a violation of 21 U.S.C.A. § 841(a) (West 1999), requires that
a defendant: (1) knowingly and intentionally (2) distribute (3) a con-
trolled substance. See United States v. Randall, 

, 209
(4th Cir. 1999). As many courts have held, the elements of simple
possession are not a subset of the elements of distribution because
someone who contributes to a drug transaction by "arranging or
supervising the delivery, or negotiating for or receiving the purchase
price" can be guilty of distribution without ever having possessed the
controlled substance, constructively or otherwise. United States v.
  7
   Rideout also claims Hott’s testimony was unreliable because it was
uncorroborated. However, the simple fact that evidence is uncorrobo-
rated does not mean that it is unreliable. See United States v. Bailey, 

, 123 (4th Cir. 1993).
8                      UNITED STATES v. RIDEOUT
Colon, 

, 377 (6th Cir. 2001) (collecting cases). But see
United States v. Howard, 

, 561 n.4 (8th Cir. 1974) (stat-
ing, without discussion, that possession elements are subset of distri-
bution elements). We agree with this analysis and hold that the district
court correctly concluded that simple possession is not a lesser
included offense of distribution.

                                   VI.

   Rideout next argues that the district court erred in refusing to direct
a verdict of acquittal on the conspiracy count because "[a] buyer-
seller relationship i[s] insufficient to form the basis for a conspiracy
conviction."8 Opening Br. of Appellant at 36. We find no error.

   In reviewing a sufficiency challenge, our role is limited to consid-
ering whether "there is substantial evidence, taking the view most
favorable to the Government, to support" the verdict. Glasser v.
United States, 

, 80 (1942). We must bear in mind that
"[t]he jury, not the reviewing court, weighs the credibility of the evi-
dence and resolves any conflicts in the evidence presented," and that
"if the evidence supports different, reasonable interpretations, the jury
decides which interpretation to believe." United States v. Murphy, 

, 148 (4th Cir. 1994). Reversal for insufficient evidence is
reserved for cases in which "the prosecution’s failure is clear." Burks
v. United States, 

, 17 (1978).

   To prove conspiracy to possess cocaine and cocaine base with the
intent to distribute, the Government must establish that "(1) an agree-
ment to possess cocaine [and cocaine base] with the intent to distrib-
ute existed between two or more persons; (2) the defendant knew of
the conspiracy; and (3) the defendant knowingly and voluntarily
    8
    At oral argument, Rideout also contended that the evidence in the
record, if sufficient to show a conspiracy, was sufficient only to show
multiple conspiracies rather than the single, overarching conspiracy
alleged in the indictment. Because Rideout did not include this argument
in his brief and no special circumstances excuse his failure to do so, the
argument is not properly before us. Cf. United States v. Lewis, 

, 218 n.3 (4th Cir. 2000) (explaining that issues first raised in reply
briefs ordinarily are not addressed).
                       UNITED STATES v. RIDEOUT                         9
became a part of the conspiracy." United States v. Wilson, 

, 306 (4th Cir. 1998) (internal quotation marks omitted). Here,
many witnesses described the drug sales on the Hill, which was char-
acterized as an open air crack market. Codefendant Shaun Brooks tes-
tified that Rideout had sold for him and "a lot more guys." J.A. 566.
Many other witnesses stated that Rideout acted as a runner for other
drug dealers. That testimony was sufficient to support a reasonable
conclusion that Rideout agreed with several other people to possess
with the intent to distribute, and to distribute, cocaine base. The dis-
trict court correctly refused to direct a verdict of acquittal on the con-
spiracy count.

                                  VII.

   Rideout next maintains that the following charge was given in error
to the jury:

     The combination of circumstantial and direct evidence that
     many dealers worked in front of the Legion at a given time;
     that they took turns approaching cars; that the many sellers
     were supplied by the same few suppliers; and that the deal-
     ing in front of the Legion occurred in a similar manner over
     a period of time may support a finding that a conspiracy to
     distribute cocaine base existed.

added). Rideout does not argue that the charge
was legally incorrect, but rather contends that it was inapposite here
because it was not supported by evidence. Rideout notes in particular
that Cooper testified that he witnessed an incident in which an auto-
mobile pulled up on the Hill and several drug dealers "raced each
other over to the car and leaned into the window and were selling."

find no reversible error. The challenged instruction offered one
possible basis for conviction. To the extent that the evidence did not
support a conviction on this basis, the error in giving the instruction
was harmless, as the absence of evidence negated any possibility that
the jury would rely on this instruction. See Bullard v. United States,

, 839 (4th Cir. 1917) (in prosecution for illicit distilling,
holding no prejudice from instruction improperly stating that convic-
10                      UNITED STATES v. RIDEOUT
tion could rest on finding that defendant distilled intoxicants other
than corn whiskey because there was no evidence that would support
such a finding).
                                   VIII.
   Rideout next argues that the district court erred in allowing the jury
to hear Cooper’s narration on the composite videotape. We hold that
the record reveals no such error.
   We review the admission of evidence by the district court for clear
abuse of discretion. See United States v. Jackson, 

, 618
(4th Cir. 1997). Federal Rule of Evidence 803(1) permits the admis-
sion of hearsay when it involves a statement "describing or explaining
an event or condition made while the declarant was perceiving the
event or condition, or immediately thereafter." Here, Rideout has
given us no reason to doubt that any narration heard by the jury fit
within this rule. Accordingly, we find no error in the denial of Ride-
out’s blanket objection.
    To the extent that Rideout contends that particular statements made
by Cooper on the videotape and heard by the jury were inadmissible,
Rideout failed to preserve that contention by objecting to the state-
ments specifically or even ensuring that the statements were reflected
in the transcript. See Fed. R. Evid. 103(a)(1) (stating that no error may
be predicated on a ruling admitting evidence unless "a timely objec-
tion or motion to strike appears of record, stating the specific ground
of objection, if the specific ground was not apparent from the con-
text"); 1 Weinstein’s Federal Evidence § 103.31[4] (2d ed. 2003) ("To
preserve for appeal any ruling on non-testimonial evidence or other
events, . . . the aggrieved party must make an appropriate objection
. . . and ensure that the event, the objection . . . , and the court’s ruling
appear on the record."). Because the objection is not preserved,
review is for plain error only. See 

. And,
on plain error review, Rideout can show neither that a plain error
occurred nor that he was prejudiced thereby.
                                    IX.
   In sum, for all of the above-mentioned reasons, we find no revers-
ible error. We therefore affirm Rideout’s convictions and sentences.
                                                               AFFIRMED