UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4278

ROBERT LEE SPENCER, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Huntington.

Robert J. Staker, Senior District Judge.

(CR-95-171)

Submitted: June 24, 1997

Decided: July 16, 1997

Before MURNAGHAN, HAMILTON, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

John Laishley, Huntington, West Virginia, for Appellant. Rebecca A.

Betts, United States Attorney, Margaret A. Hickey, Assistant United

States Attorney, Charleston, West 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Unpublished opinions are not binding precedent in this circuit.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:

Robert Lee Spencer appeals from his convictions on one count of

conspiracy to distribute and possess with intent to distribute hydromorphone ("dilaudid") in violation of 21 U.S.C. § 846 (1994), and

three counts of distribution of dilaudid in violation of 21 U.S.C.A.

§ 841(a)(1) (West 1981 & Supp. 1997). We find no merit to his

claims; consequently, we affirm.

I

Spencer's first claim is that the district court violated his Sixth

Amendment right to confront witnesses by allowing the government

to introduce hearsay testimony through Carolyn Ash. Ash testified

that she delivered drugs to Tammy Adkins and that she saw Adkins

take those drugs into a building identified during the trial as Spencer's

apartment building and then come back with money and other drugs.

Spencer contends that Ash gave hearsay testimony concerning

Tammy Adkins. However, Ash testified only about Adkins' actions--

not her statements--and the government's two attempts to elicit hearsay testimony from Ash were disallowed by the court. Therefore,

Ash's testimony did not violate Spencer's Sixth Amendment rights.

II

Next Spencer claims that the district court erred by not granting his

motion for judgment of acquittal as to Count One, conspiracy to distribute and possess with intent to distribute dilaudid. To prove a drug

conspiracy, the prosecution must show: "(1) an agreement to possess

[the drugs] with intent to distribute existed between two or more persons; (2) the defendant knew of the conspiracy; and (3) the defendant

knowingly and voluntarily became a part of this conspiracy." United

States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (in banc), cert.

denied, ___ U.S. ___, 65 U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No.

96-6868). Each defendant need not know the details of the conspiracy's structure and organization or the identities of every conspirator.

Id. at 858. "[A] loosely-knit association of members linked only by

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their mutual interest in sustaining the overall enterprise of catering to

the ultimate demands of a particular drug consumption market" may

be sufficient to establish the existence of a conspiracy. United States

v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993). Once the existence of

a conspiracy is established, only a slight link between a defendant and

the conspiracy is needed to support a conviction. See United States v.

Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992).

Here, the government presented both direct and circumstantial evidence of Spencer's participation in a dilaudid distribution conspiracy.

Carolyn Ash testified that she sold drugs to Tammy Adkins and saw

Adkins take the drugs to what was identified at trial as Spencer's

apartment building, and that Adkins returned from the building with

cash for Ash and dilaudid for herself. The government also presented

recordings of Spencer selling dilaudid to a confidential informant, and

the informant testified about the recorded transactions. Two other witnesses testified that on several occasions they went to Spencer's

apartment and bought dilaudid. Viewing this evidence in the light

most favorable to the government, the evidence was sufficient for a

jury to find beyond a reasonable doubt that Spencer was engaged in

a conspiracy to distribute and possess with intent to distribute

dilaudid. See United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir.

1993).

III

Spencer filed a motion to recuse the district court judge on the

grounds that the judge had been named as a party in a 28 U.S.C.A.

§ 2255 (West 1994 & Supp. 1997) action where he asked for damages, and that the judge remarked before trial that Spencer had filed

several habeas actions. The judge assured Spencer that he had not

even realized that Spencer had named him as a party to an action for

damages and that this lawsuit would have no bearing on his trial, and

Spencer expressed his satisfaction that this was true. The judge also

said he merely was stating a fact when he commented about Spencer's prior filings. Spencer subsequently withdrew the recusal motion.

He now argues that the district court erred by failing to recuse itself

pursuant to 28 U.S.C. §§ 144, 455 (1994), after the motion for recusal

was withdrawn. Because he withdrew his motion for recusal, however, he waived his right to assert that claim on appeal. Moreover, the

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judge's failure to recuse himself did not amount to plain error. See

United States v. Johnson, ___ U.S. #6D6D 6D#, ___, 65 U.S.L.W. 4305, 4307

(U.S. May 12, 1997) (No. 96-203).

IV

During closing arguments, defense counsel said that he failed to

ask the witnesses who testified that they had purchased drugs from

Spencer whether they knew each other and that he wondered what

their answers would have been. The government responded in rebuttal

that the defense attorney deliberately chose not to ask those questions

because he did not want to know the answers. Spencer claims that the

prosecutor's statement amounts to prosecutorial misconduct because

the prosecutor attempted to discredit his attorney's argument by suggesting to the jurors that he had deceived them with his remarks.

This court has established a two-prong test for assessing prosecutorial misconduct: "(1) whether the prosecutor's remarks or conduct

was [sic] improper, and (2) whether such remarks or conduct prejudicially affected the defendant's substantial rights so as to deprive [him]

of a fair trial." United States v. Francisco , 35 F.3d 116, 120 (4th Cir.

1994). Because defense counsel failed to raise objections at trial to the

prosecutor's remarks, this court will vacate Spencer's conviction only

if the remarks constituted plain error. See United States v. Mitchell,

1 F.3d 235, 239 (4th Cir. 1993).

Defense counsel invited comment when he told the jury that he forgot to ask some questions and that he wondered what the witnesses'

answers would have been. Moreover, even if the prosecutor's statements were improper, they did not undermine the fairness of the trial

and lead to a fundamental miscarriage of justice because there was

substantial evidence establishing Spencer's guilt. We find therefore

that the prosecutor's remarks did not amount to plain error.

V

For these reasons, we affirm Spencer's convictions. 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

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