UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4062

ROBERT LEWIS GRIFFITH,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4063

MICHAEL GARY PESACOV,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4404

WILLIAM DAVID BROUWER,

Defendant-Appellant.

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Catherine C. Blake, District Judge.

(CR-96-362-CCB)

Submitted: March 16, 1999

Decided: June 11, 1999

Before NIEMEYER, HAMILTON, and WILLIAMS,

Circuit Judges.
Affirmed by unpublished per curiam opinion.

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COUNSEL

Roger Norman Powell, Pikesville, Maryland; David Richard Solomon, Baltimore, Maryland; David Paul Henninger, GEORGE

PSORAS, JR., CHARTERED, Towson, Maryland, for Appellants.

Frank W. Hunger, Assistant Attorney General, Lynne A. Battaglia,

United States Attorney, Susan L. Strawn, Trial Attorney, Office of

Consumer Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., 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Unpublished opinions are not binding precedent in this circuit.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:

Appellants, Robert L. Griffith, Michael G. Pesacov, and William

D. Brouwer, were indicted in 1996 along with nine co-defendants on

charges relating to a substantial and long running interstate conspiracy to trade in automobiles with altered odometers. The conspiracy

was led by Theodore Schecter who organized both the odometer "rollbacks" and the related title and paperwork alterations as well as the

massive financial accounting scheme that disguised the illegitimate

transactions. At trial, the government presented the testimony of several cooperating co-conspirators and documentary evidence regarding

twenty-seven of the illegal transactions. Summary exhibits detailed

the inflow and outflow of capital to and from the conspiracy. Following deliberations, the jury returned verdicts convicting Appellants on

all counts.1 In January 1998, Appellants Pesacov and Brouwer were

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1 Each Appellant was convicted of: (1) conspiracy to alter odometers

on used cars and to transport in interstate commerce falsely made and

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sentenced to fifty-one months imprisonment, and Appellant Griffith

was sentenced to forty-six months imprisonment. Appellants filed

timely notices of appeal and now raise several claims of error relating

to both the trial and sentencing. Having conducted a thorough review

of the record, we find no error. Therefore, we affirm the convictions

and sentences for the reasons set forth below.

Appellant Pesacov assigns error to the decision of the district court

to admit a tape recording of a telephone conversation between Pesacov and a cooperating government witness. Pesacov supports his

argument with MD. CODE A NN., Courts and Judicial Proceedings

§§ 10-402, 405 (1998), which excludes from evidence any recording

obtained without the consent of all parties. See id. However, it is well

settled that "`[i]n a federal criminal prosecution, federal standards

govern the admissibility of evidence.'" United States v. Glasco, 917

F.2d 797, 798 (4th Cir. 1990) (quoting United States v. Mealy, 851

F.2d 890, 907 (7th Cir. 1988)). Therefore, Maryland law is inapplicable. It is equally settled that recorded conversations made in confidence to another are not protected by the Fourth Amendment if the

listener is a cooperating government agent. See, e.g., United States v.

White, 401 U.S. 745, 749, 751 (1971). Because the government witness consented to the recording of his conversation with Pesacov,

there is no violation of Pesacov's constitutional or federal statutory

rights. Thus, the district court did not err by admitting the tape recording of the conversation.

Pesacov next objects to a series of government exhibits that demonstrated his financial involvement in the conspiracy by summarizing

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altered vehicle titles, in violation of 18 U.S.C.A.§ 371 (West 1966 &

Supp. 1998); and (2) conspiracy to launder money and aiding and abetting the same in violation of 18 U.S.C.A. § 1956(g) (West 1993) (recodified at 18 U.S.C.A. § 1956(h) (West Supp. 1999)) and 18 U.S.C.A. § 2

(West 1969). Appellants were also convicted of (1) specific counts of

altering odometers and aiding and abetting the same in violation of 15

U.S.C. §§ 1984, 1990c (West 1993) (reworded and recodified at 49

U.S.C.A. §§ 32703(2), 32709(b) (West 1997)), and 18 U.S.C.A. § 2

(West 1969); and (2) transporting falsely made titles in interstate commerce and aiding and abetting the same in violation of 18 U.S.C.A. §§ 2,

2314 (West 1969 & Supp. 1998).

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the capital exchanges between Pesacov and Schecter. These exhibits

demonstrated that Pesacov transferred $739,823 to Schecter from

1988 - 1994 and that he received $709,095 from Schecter during the

same time period.2 The Federal Rules of Evidence provide that "[t]he

contents of voluminous writings, recordings, or photographs which

cannot conveniently be examined in court may be presented in the

form of a chart, summary, or calculation." FED. R. EVID. 1006. Furthermore it is not a prerequisite that the underlying evidence in support of the summaries be admitted into evidence so long as the

supporting documents were admissible and available to the defendants to facilitate cross examination. See United States v. Strissel, 920

F.2d 1162, 1163-64 (4th Cir. 1990). Although Pesacov claims that the

underlying evidence was "probably . . . inadmissible," (Appellant's

Brief at 17), he fails to provide a single example of objectionable evidence. Moreover, banking records are readily considered admissible

under FED. R. EVID. 803(6). Finally, Pesacov was given access to the

material supporting the summary exhibits. Because the evidence in

question was admissible, and because the evidence was made available to Pesacov, his claim of error is meritless.

Pesacov's final claim of error is that the government violated the

tenets of 18 U.S.C.A. § 201(c)(2) (West Supp. 1998), by offering

leniency to cooperating witnesses in exchange for their truthful testimony. Although a widely discussed panel decision of the Tenth Circuit supported this proposition, see United States v. Singleton, 144

F.3d 1343 (10th Cir. 1998), that opinion has since been vacated and

reversed. See United States v. Singleton, 165 F.3d 1297 (10th Cir.

1999). We reject Pesacov's claim.

Appellant Brouwer asserts two claims of error. Brouwer first

argues that the district court erred by enhancing his sentence for

obstruction of justice pursuant to U.S. Sentencing Guidelines Manual

§ 3C1.1 (1997). At sentencing, the United States moved for a two

level enhancement based on Brouwer's intimidating behavior toward

witnesses at trial. In support of this claim, the United States presented

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2 The exhibits were based on the banking records and canceled checks

from six accounts and were compiled with the assistance of a special

agent of the Criminal Investigation Division of the Internal Revenue Service.

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affidavits from three witnesses each of whom testified at trial. The

witnesses indicated that Brouwer had approached them and made

threatening gestures and comments.3 The sentencing guidelines provide a two level enhancement "[i]f the defendant willfully obstructed

or impeded, or attempted to obstruct or impede, the administration of

justice." USSG § 3C1.1. The application notes to the guidelines further provide a non-exhaustive list of examples that warrant an

enhancement, including: "threatening, intimidating, or otherwise

unlawfully influencing a co-defendant, witness, or juror, directly or

indirectly, or attempting to do so." USSG § 3C1.1, comment. (n.3(a)).

Because Brouwer challenges the district court's application of the

facts to USSG § 3C1.1, we review the court's action for clear error.

See United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).

Our review of the record reveals no error. Based on the affidavits

and statements made at trial, it was clear that Brouwer approached

three separate witnesses and made remarks reasonably interpreted as

threatening. Indeed, on one occasion Brouwer went so far as to raise

his closed fist toward a witness. It is also clear that Brouwer continued to engage in this inappropriate behavior even after being admonished by the court to refrain from doing so. In consideration of this

evidence, we cannot conclude that the district court erred in determining by a preponderance of the evidence that Brouwer engaged in

obstruction of justice. See United States v. Puckett, 61 F.3d 1092,

1095 (4th Cir. 1995).

Brouwer next claims that the district court abused its discretion by

denying his request for a mistrial following the improper remarks of

a testifying witness. At trial, the government called Special Agent

Michelle Gruzs to testify regarding documentary evidence. On cross

examination by counsel for one of Brouwer's co-defendants, Gruzs

was asked about an alleged threat on Theodore Schecter's life. Gruzs

began to answer with information implicating Brouwer; however,

counsel immediately objected and ultimately moved for a mistrial on

the ground that inappropriate and prejudicial material had been placed

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3 The substantive claims in the affidavits were bolstered by objections

to Brouwer's conduct that had been brought to the court's attention during the trial.

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before the jury. The district court denied the motion but gave a strong

curative instruction.

We review the district court's decision denying a motion for mistrial under an abuse of discretion standard. See United States v.

Dorsey, 45 F.3d 809, 817 (4th Cir. 1995). As our past decisions have

noted, not all error in the admission of evidence will result in the

grant of a new trial. See generally id. at 816-18; United States v.

Johnson, 610 F.2d 194, 196-97 (4th Cir. 1979). A proper analysis will

include a review of the error "in the context of the entire trial," focusing on the weight of the otherwise untainted evidence and the presence or absence of a strong curative instruction. Johnson, 610 F.2d at

196. A reviewing court should also consider whether the government

or the defense counsel elicited the inappropriate information. See id.

at 197. In the instant matter, the untainted evidence against Brouwer

was overwhelming. At the time of the inadmissible statement, six witnesses and co-conspirators had already testified as to Brouwer's role

in the odometer rollback scheme. Numerous documents had been

introduced to corroborate this testimony, and tapes of Brouwer discussing his illicit activities had been played for the jury. In addition,

the objectionable response was not elicited at the behest of the Government; rather, it was brought forward upon questioning by counsel

for one of Brouwer's co-defendants. Thus, the specter of wrongful

government action is absent in this case. Lastly, the record makes

clear that the court provided an immediate and thorough curative

instruction admonishing the jury to disregard the statement. In consideration of all these factors, the district court did not abuse its discretion by denying Brouwer's motion for a mistrial.

Finally, Appellant Griffith claims that the district court erred by

denying his motions for acquittal under FED. R. CRIM. P. 29. However,

the basis of Griffith's Rule 29 motions was that the district court

should not have considered any evidence that would have been barred

by the now-vacated panel decision in United States v. Singleton, 144

F.3d 1343 (10th Cir. 1998). Because that decision has since been

reversed, and in any event is not binding upon this court, this claim

too, must fail.

Accordingly, we affirm the convictions and sentences of the Appellants. We dispense with oral argument because the facts and legal

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contentions are adequately presented in the materials before the court

and argument would not aid the decisional process.

AFFIRMED

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