UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4752

JOSE HERNAN BORDA,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4753

JAMES DEJESUS MARTINEZ,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4806

DUVALL HUCKS,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4807

ORLANDO FRANCO AGUDELO,

Defendant-Appellant.
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4856

LUIS GOMEZ, a/k/a Huevo, a/k/a

Pescado,

Defendant-Appellant.

Appeals from the United States District Court

for the District of Maryland, at Greenbelt.

Alexander Williams, Jr., District Judge.

(CR-95-267-AW)

Argued: September 24, 1998

Decided: May 11, 1999

Before LUTTIG and MOTZ, Circuit Judges, and

BULLOCK, Chief United States District Judge for the

Middle District of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Harold Irwin Glaser, Baltimore, Maryland, for Appellant

Borda; Timothy Joseph Sullivan, SULLIVAN & SULLIVAN, College Park, Maryland, for Appellant Martinez; Robert Thomas Durkin,

Jr., Baltimore, Maryland, for Appellant Hucks; Barry Earl Schulman,

Brooklyn, New York, for Appellant Agudelo; Neil Ian Jacobs, Rockville, Maryland, for Appellant Gomez. Barbara Suzanne Skalla,

Assistant United States Attorney, Deborah A. Johnston, Assistant

United States Attorney, Greenbelt, Maryland, for Appellee. ON

 2
BRIEF: Lynne A. Battaglia, United States Attorney, Greenbelt,

Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants Borda, Martinez, Hucks, Agudelo, and Luis Gomez

were convicted of violating 21 U.S.C. § 846, conspiracy to distribute

and to possess with intent to distribute cocaine, and 21 U.S.C. § 841,

possession with intent to distribute cocaine. In addition, Appellant

Martinez was convicted of violating 21 U.S.C. § 963, conspiracy to

import cocaine, 21 U.S.C. § 952(a), importation of cocaine, and 18

U.S.C. § 1512(a)(1), witness tampering. Appellant Borda also was

convicted of witness tampering. On appeal, Appellants raise numerous evidentiary and procedural challenges. For the reasons set forth

below, we affirm.

I.

This case, which culminated in a twelve-week trial below, presents

two distinct groups of facts. The first involves the United States' case

against all Appellants relating to a cocaine distribution conspiracy. In

making this case, the government relied on testimony of eight cooperating witnesses, testimony of a confidential informant known as

"Marco Sucre," testimony of undercover and surveillance agents,

wiretapped telephone conversations and events captured on audio or

video tape, and items of physical evidence seized in the course of the

investigation. A second collection of facts surrounds the witness tampering charges levied against Appellants Borda and Martinez. The

government made its case here using similar modes of evidence,

namely testimony of a cooperating witness, of Marcos Sucre, and of

an undercover agent, as well as evidence of meetings recorded

through video tape surveillance.

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Turning first to the cocaine distribution conspiracy, the government's evidence painted the picture of an extensive cocaine trafficking organization which operated between 1991 and July of 1995, in

both Maryland and New York. According to the government, Appellants Borda and Martinez ran the operation.

Juan Mora served as a cooperating government witness, describing

the early stages of the collaboration between Borda and Martinez.

Mora testified that as early as 1991 Borda had begun transporting

drug money to New York City from Maryland. Borda and Mora traveled together between five and seven times to meet individuals in

New York named Sarmiento. The Sarmientos are cousins of Borda's

wife. On each trip, Borda would carry north as much as $300,000.00

to exchange for ten to twenty kilograms of cocaine, which he would

bring back to Maryland. According to Mora, Martinez sometimes

made these trips for Borda.

Another witness, Alberto Espinosa, testified that some time in 1991

Borda asked him to locate customers for the cocaine Borda was

acquiring from the Sarmientos in New York. In response to this

request, Espinosa introduced Borda to Enrique Portillo, for whom

Espinosa had been a courier. As a result of this introduction, Borda

began supplying cocaine to Portillo.

When Portillo was incarcerated in late 1991, Appellant Hucks, who

had been a customer of Portillo, obtained cocaine powder directly

from Borda in kilogram quantities. Espinosa testified that this relationship extended into 1992, during which time Borda continued to

receive five to ten kilograms of cocaine each week from New York

City. According to Espinosa, on at least two occasions Borda and

Hucks converted multiple kilograms of cocaine powder into crack.

Hucks sold the cocaine he received from Borda to his own customers.

For example, Hucks' uncle, James Braswell, testified that Hucks sold

him crack cocaine beginning some time prior to 1992 and continuing

through 1994. Braswell often exchanged firearms for the drugs, and

testified that he gave Hucks over thirty guns, including fully automatic weapons and 9mm handguns.

Espinosa testified that on two occasions in 1993 he mailed cocaine

from Colombia, South America, to Borda in Maryland. After return-

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ing from South America, Espinosa supplied Borda with six kilograms

of cocaine. Borda complained that he wanted quantities exceeding

twenty kilograms, an amount which Espinosa was unable to handle.

Thereafter, Espinosa turned to Martinez and began selling him the

amounts of cocaine he could obtain. This relationship continued into

1994.

The government's star witness was Mario Maldonado, who provided key testimony regarding the Borda-Martinez drug operation. He

served as a drug courier between 1992 and 1995, a position which

granted him the access necessary to give the jury a first-hand account

of the inner workings of the drug conspiracy. Maldonado first entered

the company of the Appellants in May or June of 1992, when he met

Antonio Cubides, another person involved in cocaine trafficking in

New York City and Maryland. Maldonado testified that Cubides provided Martinez with one to four kilograms of cocaine each time Martinez made a trip to New York City. Maldonado became a courier for

Cubides and estimated that between July and October of 1992 he

made five or six trips to New York. In each case Maldonado returned

to Maryland with between two and four kilograms of cocaine for

Martinez. Martinez then sent the drugs to Borda.

In October of 1992, Cubides, Borda, and Martinez departed for

Colombia, South America, where they remained until January or February of 1993. Upon their return, Maldonado resumed his trips to

New York City. He testified that every two weeks through May or

June of 1993 he delivered approximately ten kilograms of cocaine to

Martinez. Martinez continued to pass the drugs on to Borda, who

remained a supplier of Hucks.

In June of 1993, Maldonado began working for Borda directly as

a courier. Every two weeks from June through October of that year

Maldonado transported ten to fifteen kilograms of cocaine from the

Sarmientos in New York City to Borda in Maryland, where the drugs

were supplied to Hucks. According to Maldonado, Martinez often

received two to three kilograms of Borda's cocaine.

Borda and Martinez again went to Colombia, South America, in

October of 1993. Maldonado testified that after another break of some

four months in making cocaine deliveries for Borda, he renewed his

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job as Borda's courier after Borda returned to Maryland in February

of 1994. He once again traveled to New York every two weeks, each

time bringing ten to fifteen kilograms of the Sarmientos' cocaine back

from New York to Borda in Maryland.

In May of 1994, Gregorio Sarmiento died. Maldonado testified that

Borda continued to buy kilogram quantities of cocaine from Gregorio's sons, Alberto and Fernando Sarmiento. Maldonado continued

to serve as Borda's courier, but decreased the frequency of his trips

to New York. Thereafter his trips occurred only once a month. Borda

began purchasing cocaine from other sources.

Borda again left the United States for Colombia in November of

1994. Borda returned in February of 1995, an event which yet again

triggered the resumption of Maldonado's trips to New York City. On

his first trip, Maldonado delivered fifteen kilograms of cocaine to

Borda. His second trip ended prematurely on February 14, 1995,

when he was stopped in New Jersey en route to Maryland with

another fifteen kilograms of cocaine. Maldonado was placed under

arrest, but agreed to cooperate with law enforcement. Borda and

Eduardo Marroquin were arrested the following day while attempting

to recover the cocaine Maldonado had in his possession when he was

arrested.

In December of 1994, Felipe Ossa joined Martinez on a trip to New

York City for the purpose of delivering a drug payment to Alberto

Sarmiento. By February of the next year, Ossa had relocated to Maryland, where he soon began transporting drugs at the direction of Martinez. While Borda was in jail awaiting trial he arranged for Martinez

to supply Hucks with cocaine. Later that spring, Alfonso Gomez and

Amparo Devasquez-Sarmiento followed up on these changed circumstances by traveling to Maryland to meet with Martinez and discuss

future cocaine deliveries to him.

This new line of cocaine transport was finalized when Martinez,

Ossa, and a paid government informant known as "Marcos Sucre" met

with Alfonso Gomez and Devasquez-Sarmiento in New York on

April 15, 1995, and established the new procedures for delivering

cocaine to Martinez in Maryland. Sucre gained access to these individuals while befriending Martinez.

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The first of these new deliveries totaled twenty kilograms of

cocaine and was made by Aldemar Gomez, the brother of Alfonso

Gomez, on April 18, 1995. At Martinez' direction, Ossa sent one kilogram to an unknown customer and the balance to Hucks, who paid

Martinez $430,000.00 in return. On April 23, 1995, Alfonso Gomez

and Devasquez-Sarmiento traveled to Maryland to collect payment

for the twenty kilograms. They brought with them another fifteen

kilograms, of which fourteen were sent to Hucks. When Alfonso

Gomez and Devasquez-Sarmiento arrived back in New York with the

$430,000.00, they were stopped by police and the money was seized.

The infiltration of the Martinez drug ring by Sucre and the initial seizure of money marked the beginning of the end for Martinez and his

associates.

On May 1, 1995, Aldemar Gomez came to Maryland to collect

payment for the fifteen kilograms delivered on April 23. Videotape

surveillance recorded Martinez and Sucre counting $314,000.00 in

cash collected from Hucks. This money was given to Aldemar

Gomez, who took it back to New York. On May 19, 1995, Aldemar

Gomez delivered another twenty kilograms of cocaine to Maryland,

again with all but one kilogram going to Hucks. This cocaine was

supplied by Appellants Luis Gomez and Orlando Agudelo. Eight days

later, Aldemar Gomez embarked for New York with $407,000.00

received from Hucks. Police stopped Aldemar Gomez outside of New

York City and seized the cash.

Luis Gomez and Martinez met several times the next month in the

presence of Sucre to discuss future deliveries as affected by the problem of the April and May money seizures. According to Sucre, Luis

Gomez related to Martinez that Alfonso Gomez and Amparo

Devasquez-Sarmiento had been kidnapped and tortured because Luis

Gomez did not believe their explanations for the lost money. During

these meetings with Martinez, Luis Gomez agreed to supply Martinez

with thirty kilograms of cocaine initially and, after payment of

$100,000.00, to supply a second thirty kilogram quantity.

On June 24, 1995, Luis Gomez, among others, delivered twenty-six

kilograms of cocaine to Martinez and Sucre. Sucre paid the

$100,000.00 with government funds. Luis Gomez demanded additional payments, explaining that his boss in Colombia, South Amer-

 7
ica, Appellant Agudelo, wanted to recoup the losses suffered by the

police seizures and cover the transportation costs of the next delivery.

In order to buy time for Sucre, government agents directed Sucre to

invite Martinez and Ossa to Miami. Sucre explained to them that he

could arrange for the purchase of 150 kilograms of cocaine from Florida sources. Martinez intended to sell fifty of those kilograms to

Hucks.

On July 5, 1995, Agudelo arrived in New York from Colombia,

South America. Two days later Martinez and Hucks were arrested. On

July 8, Luis Gomez and Agudelo were arrested en route to Maryland

to collect payment on the twenty-six kilograms delivered June 24.

In July of 1995, a shipping container arrived in Baltimore, Maryland, which had been sent from Colombia, South America. According

to Maldonado, Martinez and Cubides had begun formulating a plan

in late 1994 to import 100 kilograms of cocaine directly from Colombia. Maldonado had understood that they intended to ship the drugs

to Maryland in a shipping container fitted with a false compartment.

According to Maldonado, Cubides went to Colombia himself in 1994

to coordinate the plan. When the container in question arrived in

1995, Sucre contended that this was the shipment of cocaine devised

by Martinez and Cubides. Authorities searched the container and

recovered some thirty-two kilograms of cocaine hidden therein.

As stated above, both Martinez and Borda were convicted of witness tampering. According to Sucre, soon after Borda's arrest in February of 1995, Martinez and Borda began to discuss murdering Mario

Maldonado. Sucre testified that Martinez cited the need to kill Maldonado on several occasions and that both Luis Gomez and Hucks

volunteered to do so. Government agents sought to protect Maldonado by having Sucre intercede in the plan. Sucre offered to introduce Martinez to a potential hit man, a person who purported to be

Sucre's cousin but who was actually an undercover United States

Customs Service agent. Martinez provided Sucre with photographs of

Maldonado and showed Sucre the neighborhood in which Maldonado

resided.

While in Florida, Martinez, Ossa, and Sucre met with the undercover agent on July 5, 1995. At that meeting, which was recorded on

 8
video tape, Martinez offered the agent $20,000.00 to kill Maldonado

before Borda's trial began.

In total, nineteen individuals were named in two indictments,

returned on June 29, 1995, and September 26, 1995, respectively. Of

these, six chose to proceed to trial, including the five Appellants and

Aldemar Gomez (of the four counts against him, the jury acquitted

him on one count of possession with intent to distribute cocaine and

could not reach a verdict on the remaining counts). The trial began on

April 2, 1996, and lasted twelve weeks, concluding on June 29, 1996,

with the jury's convictions of Appellants Borda, Martinez, Hucks,

Agudelo, and Luis Gomez on all counts in which they were named.

Following sentencing hearings, Borda, Martinez, Hucks, and Luis

Gomez were sentenced to life in prison without parole. Agudelo was

sentenced to thirty years in prison. All Appellants filed timely notices

of appeal.

II. SEVERANCE

Defendant Borda argues that the district court abused its discretion

in refusing to sever his case from that of the other defendants. Borda

requested severance prior to trial and throughout the proceedings,

especially on the first day of trial after the opening statement by counsel for co-defendant Martinez. The motions were denied by the trial

court.

The district court's denial of a motion for severance is reviewed for

abuse of discretion and constitutes error only if defendant was

deprived of a fair trial and a miscarriage of justice resulted. United

States v. Chorman, 910 F.2d 102, 114 (4th Cir. 1990). Although the

general rule is that persons indicted together should be tried together,

a severance is warranted if a defendant can establish that a joint trial

would be fundamentally unfair and unduly prejudicial. United States

v. Shuford, 454 F.2d 772, 775-76 (4th Cir. 1971).

Although Borda sought to be severed pre-trial because of the allegedly antagonistic defenses involved, his primary argument on appeal

relates to the district court's failure to grant severance based on

Borda's supplemental motion for severance following the opening

statement by counsel for co-defendant Martinez. The transcript of the

 9
opening statement of counsel for Martinez consists of approximately

fifteen pages. Borda's objections to the statement are directed at

counsel's brief references to Borda on essentially one page of the

transcript; the remaining portions of the transcript consist almost

entirely of an attack on the government informant, Marcos Sucre. In

reference to Borda, Martinez' counsel said, "This one little investigation involves suppliers, like Hernan Borda, and street-level people

like Duvall Hucks developed into this giant conspiracy. The government could have stopped it way back in 1991. They had enough information to bring convictions against people that they knew were

participating." The only other mentions of Borda were an admission

that Martinez and Borda were Colombians and knew each other, and

to the undisputed fact that Borda was arrested in February 1995 in

New Jersey. The remainder of the argument consisted of portraying

Sucre's alleged cajoling of Martinez to get involved in the conspiracy

after Borda was arrested. In fact, counsel refuted the government's

contention that Martinez worked for Borda, and argued that he was

a "trainee" for Sucre.

Counsel for Borda characterizes this opening statement as so

severely prejudicial to Borda as to require severance or a mistrial.

Borda characterizes the statement as alleging that Martinez was lured

into the conspiracy by Borda, which is not the case. The statement

clearly and repeatedly alleges enticement by Sucre, not Borda.

Severance is not required in every instance where co-defendants

may have conflicting defenses. As the Supreme Court said in Zafiro

v. United States, 506 U.S. 534, 538-39 (1993):

Mutually antagonistic defenses are not prejudicial per se.

Moreover, Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to

be granted, if any, to the district court's sound discretion.

[W]hen defendants properly have been joined under

Rule 8(b), a district court should grant a severance under

Rule 14 only if there is a serious risk that a joint trial would

compromise a specific trial right of one of the defendants,

or prevent the jury from making a reliable judgment about

guilt or innocence. . . . When the risk of prejudice is high,

a district court is more likely to determine that separate trials

 10
are necessary, but . . . less drastic measures, such as limiting

instructions, often will suffice to cure any risk of prejudice.

506 U.S. at 538-39 (citations omitted). "Speculative allegations as to

possible prejudice do not meet the burden of showing an abuse of discretion in denying a motion for severance." United States v. Becker,

585 F.2d 703, 707 (4th Cir. 1978). Here, the district judge cautioned

the jury that their verdict should be based only upon the evidence pertaining to each defendant without regard to the guilt or innocence of

other defendants. Borda has not shown that the defenses or arguments

of his co-defendants were so antagonistic as to be irreconcilable, id.,

and the record does not reveal that counsel for co-defendant Martinez

was doing anything other than fairly commenting on the evidence

expected to be adduced at trial, see United States v. Boyd, 610 F.2d

521, 526 (8th Cir. 1979), cert. denied , 444 U.S. 1089 (1980). Mere

hostility and finger-pointing among defendants does not ordinarily

require severance. See id.

Here, speculative pre-trial allegations pointing to possible prejudice

do not meet the burden of showing an abuse of discretion in denying

a motion for severance, nor do the limited references to Borda made

by counsel for Martinez in his opening statement constitute the kind

of asserted and repeated efforts to discredit another defendant that

require severance. See United States v. DeVeau , 734 F.2d 1023, 1027-

28 (5th Cir. 1984) (references to defendant being"duped" by codefendant and to co-defendant as "great con artist" did not require

severance in light of limited nature of comments during month-long

trial and support for comments in record), cert . denied, 469 U.S. 1158

(1985).

III. IDENTITY OF INFORMANT

Defendants Luis Gomez and Martinez argue that the district court

abused its discretion in permitting a key government witness, "Marcos Sucre," to testify without disclosing his true identity, thus limiting

their ability to cross-examine him.

Ordinarily, the identity of a confidential informant who takes an

active role in the criminal activity itself must be disclosed. Here, the

government sought permission prior to trial to have Sucre testify

 11
without disclosing his true name, address, or place of birth, alleging

that two co-conspirators had been kidnapped and tortured and that

Defendants Borda and Martinez had attempted to have another coconspirator, Mario Maldonado, killed to prevent him from testifying

against them. The government also alleged that during the undercover

operation Borda told Sucre that if he was cooperating with law

enforcement he would be killed. Attached to the government's motion

and submitted ex parte under seal was an affidavit from a United

States Customs Service agent who directly supervised Sucre during

the investigation, offering additional information indicating that disclosing Sucre's true identity would place Sucre and his family in

jeopardy. Certain information about Sucre was provided to the Defendants, however, including the facts that he had no criminal convictions, had been cooperating with law enforcement for a number of

years and had been involved in other investigations, had been compensated for his cooperation, and had received or might receive a percentage of the value of certain seizures.

When a trial court is satisfied that there is an actual threat to a witness if his identity is disclosed, courts have held that it is proper to

withhold this information. As long as enough information is provided

to allow the cross-examiner to place the adverse witness in the proper

environment, there is no violation of the confrontation clause. See

United States v. Spector, 793 F.2d 932, 937 (8th Cir. 1986); United

States v. Mesa, 660 F.2d 1070, 1075 (5th Cir. 1981); United States v.

Hansen, 569 F.2d 406, 410 (5th Cir. 1978); United States v. Rangel,

534 F.2d 147, 148 (9th Cir.), cert. denied, 429 U.S. 854 (1976).

Our review of the government's motion, Defendant Martinez'

opposition, and the sealed affidavit persuades us that the district court

did not abuse its discretion in refusing to order the government to disclose the true name, address, and place of birth of Sucre. The information available to the district court indicated that the government's

concerns about Sucre's safety and that of his family were real, and

that it was not improbable that revealing his true identity would place

his life and the lives of his relatives in jeopardy. Furthermore, the

information that the government did make known enabled Defendants' counsel to put before the jury important evidence bearing upon

Sucre's credibility, including the fact that he was likely to be compensated further for his activities and testimony.

 12
IV. DISCOVERY ISSUES

Defendant Agudelo contends he was denied a fair trial by the government's failure to make available to him notes made by government

agents during the debriefing of Marcos Sucre. Sucre's statements

were not taken down verbatim by the agent, nor did Sucre sign the

notes or any other statement. The debriefings were not recorded. The

agent testified that everything in his notes was reflected in the reports

provided to defense counsel. Agudelo contends that the government

was under an obligation to disclose the handwritten notes as Jencks

material, 18 U.S.C. § 3500, Jencks v. United States, 353 U.S. 657

(1957).

The district court conducted an extensive hearing outside the presence of the jury concerning the creation of the agent's notes. After the

hearing, the trial court found that the debriefing reports were not ever

seen by Sucre, nor did he adopt them as his own.

The purpose of the Jencks act is to afford defense counsel fair

access to prior statements of government witnesses that could be used

to impeach their testimony on direct examination. United States v.

Snow, 537 F.2d 1166, 1168 (4th Cir. 1976). "Statement" is precisely

and narrowly defined as "a written statement made by said witness

and signed or otherwise adopted or approved by him." 18 U.S.C.

§ 3500(e)(1). Although Agudelo contends that because Sucre

reviewed the debriefing reports he thereby adopted them as his own,

the record is clear that Sucre never read nor reviewed the notes or the

reports prepared by the agent, and that they were never read to him.

Whether a particular set of interview notes has been"adopted or

approved" by a witness is a question of fact for the trial court, which

will be reviewed only for clear error. United States v. Smith, 31 F.3d

1294, 1301 (4th Cir. 1994). "Evidence that a government agent has

discussed the `general substance' of what the witness said during the

interview with him will not suffice to show that the witness has

`adopted or approved' the agent's notes of that interview for purposes

of § 3500(e)(1)." Id. Accord United States v. Roseboro, 87 F.3d 642,

646 (4th Cir. 1996) (report not Jencks material as to witness even

though agent repeated witness's answers to ensure he"had it right"),

cert. denied, 117 S. Ct. 694 (1997).

 13
To the extent that Agudelo argues that he should have been provided both the notes and reports prepared by the agent because they

were "statements" of the agent, we disagree. It is well settled in this

circuit that the government need not disclose rough notes which are

later incorporated into final reports. United States v. Hinton, 719 F.2d

711 (4th Cir. 1983), cert. denied, 465 U.S. 1032 (1984). As to the

final debriefing reports, Defendant must show that they were the

statements of the agent which related to the substance of his direct

testimony. The record is clear that any reports which related to the

substance of the agent's testimony were disclosed. Defendant Agudelo fails to specify with reasonable particularity any reports which

he contends should have been disclosed. See United States v. Boyd,

53 F.3d 631, 635 (4th Cir.), cert. denied, 516 U.S. 924 (1995).

V. EVIDENTIARY ISSUES

A.

Defendant Gomez contends that the district court erred in admitting

into evidence English transcripts of the Defendants' numerous Spanish conversations which were captured on tape by wiretap or by consensual recordings. The translations were prepared by Anna Maria

Velasco, a certified court interpreter and college professor holding a

Ph.D. in Hispanic languages. Although the transcripts were provided

to the Defendants well prior to trial, Defendant Gomez did not prepare an alternate version of the conversations. Furthermore, counsel

for Gomez extensively cross-examined Dr. Velasco concerning her

translations.

The district court has wide latitude in determining whether

or not the proponent of a tape recording has adequately laid

the foundation from which the jury could reasonably evaluate the accuracy, validity, and credibility of the contents of

the recordings, and the district court's admission of tape

recordings is reviewed for abuse of discretion.

United States v. Wilson, 115 F.3d 1185, 1189 (4th Cir. 1997); see

United States v. Capers, 61 F.3d 1100, 1106 (4th Cir. 1995), cert.

denied, 517 U.S. 1211 (1996). While transcripts of English conversations are typically used as aids for the jury and not admitted into evi-

 14
dence, Wilson, 115 F.3d at 1189, courts have admitted English

transcripts of foreign language conversations as substantive evidence

in view of the fact that the jury would not understand the spoken language. See United States v. Pena-Espinoza, 47 F.3d 356, 359-60 (9th

Cir. 1995); United States v. Garcia, 20 F.3d 670, 673 (6th Cir. 1994),

cert. denied, 513 U.S. 1159 (1995); United States v. GonzalezBalderas, 11 F.3d 1218, 1224 (5th Cir. 1994).

In this case the district court cautioned the jury with respect to the

transcripts of the Spanish language conversations, noting that there

was no agreement or stipulation as to the identity of speakers or the

accuracy of the transcripts. Under the circumstances, we find that the

district court did not abuse its discretion in admitting into evidence

the written translations of the Spanish language conversations.

B.

Defendant Gomez also objects to the designation of Detective John

Bettinger as an expert, and his testimony concerning codes utilized by

the Spanish-speaking Defendants. The district court ruled that the

issue was one of weight rather than admissibility. Again, we review

the trial court's rulings for abuse of discretion.

At the time of trial, Detective Bettinger had been a police officer

with the Montgomery County Police Department for twenty-three

years, a large part of which involved working with informants in an

undercover capacity utilizing the language and codes of drug traffickers. We believe that Detective Bettinger was properly accepted as an

expert given his experience in the field of narcotics law enforcement.

Further, we do not find it error to allow Detective Bettinger to offer

his opinion, based on the English transcripts, about codes used in conversations conducted in Spanish in view of his extensive experience

in narcotics cases involving Spanish-speaking suppliers. See United

States v. Hughes, 970 F.2d 227, 235-36 (7th Cir. 1992) (no abuse of

discretion at sentencing to permit expert to interpret codes in English

translations of Spanish conversations).

Gomez also claims the court erred in permitting Bettinger to use

charts which Gomez contends simply summarized the testimony of

other witnesses. Although Bettinger testified about approximately

 15
eighteen charts, Gomez does not identify the specific charts to which

he objects. Many of the charts were simply summaries of voluminous

data, such as pen registers, telephone records, and paging intercepts.

Another was a pager code chart, prepared to assist in explaining other

charts which detailed pager communications among the Defendants

on certain relevant days. We do not find that the district court abused

its discretion in allowing Detective Bettinger to testify about and produce the charts, especially in view of the opportunity Defendant

Gomez had to extensively cross-examine Bettinger. See United States

v. Johnson, 54 F.3d 1150, 1157-61 (4th Cir.), cert. denied, 516 U.S.

903 (1995).

C.

Defendant Hucks contends that the district court committed plain

error in not allowing him to call as a witness an ex-Metropolitan D.C.

police officer, James Bradley, to provide expert testimony "in terms

of application for search warrants, execution of search warrants, the

means and methods of drug traffickers, and in terms of apprehending

and . . . targeting and apprehending drug traffickers." The trial court

excluded Bradley's testimony on the grounds that it would "not assist

the trier of fact to understand the evidence or to determine a fact that

is in issue." We agree, as the district court found, that the general testimony proffered by Bradley was not relevant and would not assist the

jury in determining any fact in issue. See Mason v. United States, 719

F.2d 1485, 1490 (10th Cir. 1983) (no abuse of discretion to exclude

expert testimony of private detective offered by defendant to show

inadequacy of police investigative techniques).

VI. ATTORNEY CONFLICT

Defendant Hucks contends that his first lawyer in this case had a

conflict of interest and that the district court erred in not dismissing

the indictment against him for that reason. We review the district

court's determination de novo, but its factual findings in support of

its determination are reviewed for clear error. See United States v.

Suntar Roofing, Inc., 897 F.2d 469, 480 (10th Cir. 1990). Hucks' initial counsel, Douglas J. Wood, began representing an individual

named Kermit Oliver in July 1995, following his arrest. Oliver had

been arrested and prosecuted on drug charges unrelated to the instant

 16
case in the Eastern District of Virginia. Wood withdrew from his representation of Hucks on November 28, 1995, because of a conflict of

interest having no connection with his representation of Kermit Oliver. On December 21, 1995, after he had been sentenced, Oliver

began cooperating with law enforcement officers. When he testified

in the present trial Oliver was no longer represented by Wood. (Wood

withdrew from representation of Oliver on December 22, 1995.) Thus

from July 1995 until November 28, 1995, Wood represented both

Hucks and Oliver. Billy Ponds entered his appearance on behalf of

Hucks on December 4, 1995, and represented him through trial and

sentencing. However, Ponds does not represent Hucks on this appeal.

Ponds was made aware that Wood represented Oliver in the Virginia

case and cross-examined Oliver in the instant case regarding Woods'

representation of Oliver. Following the cross-examination of Oliver,

and with the jury out, Ponds moved to dismiss the indictment against

Hucks based on the alleged conflict of interest. The court made a preliminary ruling denying the motion, but indicated that if counsel had

evidence of any prejudice it should be put in writing and the court

would consider it. However, Hucks submitted no further filings.

In Cuyler v. Sullivan, 446 U.S. 335 (1980), the Supreme Court

indicated that a defendant who objects to multiple representation must

have the opportunity to show that the potential conflict impeded his

right to a fair trial. Here, Hucks concedes that he was afforded such

an opportunity and that he never followed up on the court's direction

that any evidence supporting the alleged conflict be brought to the

court's attention in writing. If a defendant fails to show that there is

a conflict when given the opportunity "a reviewing court cannot presume that the possibility for conflict has resulted in ineffective assistance of counsel." Cuyler, 446 U.S. at 348. See United States v.

Young, 644 F.2d 1008, 1012 (4th Cir. 1981) (applying Cuyler to successive representations and citing it for the proposition that mere possibility of conflict is insufficient to set aside conviction).

As the government points out, Hucks has done nothing more than

allege that there might have been a conflict of interest and then speculate that the conflict may have resulted in disclosure of some unidentified communication. As we said in Beaver v. Thompson, 93 F.3d

1186, 1192 (4th Cir.), cert. denied, 117 S. Ct. 553 (1996), "[t]o prevail on a claim of conflict of interest, [a defendant] must present con-

 17
vincing evidence of an actual conflict and a resulting adverse effect

on performance." There is no evidence that Wood was still representing Hucks when Oliver decided to cooperate with the government.

Thus Hucks has failed to show that any conflict he perceived during

the short period of time when Wood represented both Hucks and Oliver resulted in any kind of prejudice to him.

VII. PROSECUTORS' REMARKS

Defendants Agudelo and Luis Gomez also take issue with the government's closing arguments. Specifically, Agudelo objects to the

prosecutor's statements that, "Orlando Franco Agudelo. If we didn't

get anybody else in this case it was worth it to take somebody like

him off the streets" and "He was worth every penny spent in this

case." Defendant Gomez objects to the government's focus in its

rebuttal argument to allegations of violence, especially to the government stating,

That's the Huevo [Luis Gomez] everybody was afraid of.

That's the Huevo that kidnapped Amparo and Alfonso and

put them in a bathtub to torture them, not the quiet one. He

doesn't have Mr. Jacobs' personality. Huevo is the one that

runs with Paisa, Paisa and the other killers from New York.

Those are the individuals you're dealing with. Those are the

individuals that Marcos Sucre needs to be protected from.

Agudelo's prosecutorial misconduct claim, for which he made a

timely objection, is reviewed under a harmless error analysis. United

States v. Loayza, 107 F.3d 257, 262 (4th Cir. 1997). Gomez did not

object to the government's arguments in a timely manner, and consequently his claims are reviewed for plain error. Id.

The test by which a claim of prosecutorial misconduct is evaluated

consists of two components: (1) the prosecutor's remarks must have

been in fact improper; and (2) such remarks must have prejudicially

affected the defendant's substantial rights so as to deprive the defendant of a fair trial. United States v. Mitchell , 1 F.3d 235, 240 (4th Cir.

1993). In the event the court finds a prosecutor's remarks to be

improper, reversal is still not warranted unless the comments made

were so prejudicial as to make any resulting conviction a denial of

 18
due process. Id. A review of the arguments of counsel does not support the Defendants' contentions. Counsel for all parties, Defendants

and government alike, gave spirited arguments on behalf of their clients. However, we are satisfied that the isolated comments about

which Defendants complain were generally in response to Defendants' arguments, did not constitute misconduct, and even if improper

did not rise to a level to have affected the Defendants' substantial

rights and deprive them of a fair trial.

VIII. JURY INSTRUCTIONS

A.

Defendants Martinez and Agudelo both find fault with the jury

instructions given by the trial court. Martinez argues that the district

court erred in failing to give an entrapment instruction as to the

witness-tampering count and the drug-related counts against him.

A district court's decision whether to give an entrapment instruction is a question of law and is reviewed de novo. United States v.

Singh, 54 F.3d 1182, 1189 (4th Cir. 1995). Martinez has made only

a perfunctory reference in his brief to failure to give an entrapment

instruction on the drug counts. Regardless, we do not believe that

Martinez met his burden of producing sufficient evidence from which

a reasonable jury could find that the government induced him to commit the offense as charged. When the government merely offers a

defendant an opportunity to commit the crime and the defendant

avails himself of that opportunity an entrapment instruction is not

warranted. United States v. Harrison, 37 F.3d 133, 136 (4th Cir.

1994).

Although Martinez argues that he lacked the pre-disposition to participate in the murder of Maldonado and was induced by Sucre, the

evidence clearly indicates that the idea of killing Maldonado originated with Borda and Martinez, and not with Sucre or any other government agent. It was only after it appeared that the murder attempt

was imminent that Sucre and the government sought to exert control

over the situation by offering an undercover officer as the potential

killer. It was not error to deny an entrapment instruction on this count.

 19
B.

Agudelo claims that the district court's failure to instruct on multiple conspiracies was an abuse of discretion because there was evidence of several conspiracies--one to distribute narcotics, one to

import narcotics, and one to commit a murder. Agudelo was not

charged with membership in the conspiracy to import cocaine, Count

Two of the indictment, or with involvement in the attempt to kill a

witness, Count Four of the indictment.

A multiple-conspiracy instruction is not appropriate unless the

proof at trial demonstrates that Defendants were involved only in separate conspiracies unrelated to the overall conspiracy charged in the

indictment. United States v. Kennedy, 32 F.3d 876, 884 (4th Cir.

1994), cert. denied, 513 U.S. 1128 (1995). A single conspiracy exists

where there is one overall agreement or general business venture,

United States v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988), or where

there is a permissible inference that each actor was aware of his role

in a larger organization. See United States v. Vanwort, 887 F.2d 375,

383-84 (2d Cir. 1989), cert. denied, 495 U.S. 906, and cert. denied,

495 U.S. 910 (1990). We believe the evidence in this case established

one overall agreement to distribute cocaine. The evidence indicated

that Agudelo's role was that of a supplier in Colombia, South America. On July 8, 1995, three days after arriving in New York from

Colombia, Agudelo and Luis Gomez were arrested after traveling

from New York to Maryland to collect money owed on a twenty-sixkilo sale. Although the evidence does not show participation by Agudelo early in the conspiracy, it does clearly show one overall agreement to distribute cocaine. It is not unusual for a conspiracy to exist

involving multiple suppliers. See United States v. Johnson, 54 F.3d

1150, 1154-55 (4th Cir.) (single conspiracy even though competition

for multiple suppliers and customers), cert. denied, 516 U.S. 903

(1995); United States v. Banks, 10 F.3d 1044 (4th Cir. 1993) (single

conspiracy even though parallel, and sometimes competing, suppliers), cert. denied, 511 U.S. 1090, and cert. denied, 512 U.S. 1208

(1994); see also United States v. Moten, 564 F.2d 620, 624 (2d Cir.)

(single conspiracy even though multiple suppliers, some of heroin and

some of cocaine), cert. denied, 434 U.S. 942, and cert. denied, 434

U.S. 959, and cert. denied, 434 U.S. 974 (1977).

 20
Furthermore, even if the evidence had supported Agudelo's claim

of multiple conspiracies, he would not be entitled to relief unless he

could show that he was prejudiced by the court's failure to give the

requested instruction. United States v. Howard , 115 F.3d 1151, 1157

(4th Cir. 1997). Indeed, he would have to show that the "evidence of

multiple conspiracies was so strong in relation to that of a single conspiracy that the jury probably would have acquitted on the conspiracy

count had it been given a cautionary multiple-conspiracy instruction."

United States v. Tipton, 90 F.3d 861, 883 (4th Cir. 1996), cert. denied,

520 U.S. 1253 (1997). Finally, Agudelo was not entitled to a

multiple-conspiracy instruction because he did not advance a

multiple-conspiracy theory at trial. United States v. Gray, 47 F.3d

1359, 1369 n.13 (4th Cir. 1995).

IX. JURY DELIBERATIONS

Defendant Hucks argues that the district court erred in allowing the

substitution of another district judge while the trial judge was attending a judicial meeting during jury deliberations. It is undisputed that

the trial judge stayed in touch with the trial and the substitute judge

during deliberations. The Defendant never objected to the trial judge's

absence, which had been discussed with counsel on several occasions.

A substitution of judges, for which no timely objection is made, is

reviewed under a harmless-error analysis. See United States v. Lane,

708 F.2d 1394, 1396-97 (9th Cir. 1983) (although Rule 25(a), Fed. R.

Crim. P., not strictly complied with, defendant could not show prejudice). Hucks has failed to show any prejudice to him by the brief substitution of judges or by the substitute judge's failure to excuse a juror

during deliberations after consultation with the trial judge. While we

believe that the substitution of a different judge from the trial judge

during jury deliberations is not ideal, we fail to see how Hucks has

been prejudiced in any way.

Hucks also contends that the district court abused its discretion

when it did not declare a mistrial when the jury indicated it was deadlocked and instead gave an Allen charge. See generally Allen v.

United States, 164 U.S. 492 (1896). No objection was made to the

language of that charge.

The decision whether to give an Allen charge is left to the sound

discretion of the trial court. United States v. Seeright, 978 F.2d 842,

 21
850 (4th Cir. 1992). After eleven weeks of trial, the jury began deliberations on Monday morning, June 24, 1996. Late on Tuesday,

June 25, the jury sent a note asking "[i]f a unanimous verdict cannot

be achieved on one or more counts or charges, can a unanimous verdict on the remaining charges/counts be rendered?" The jury was then

excused for the evening. The next morning, Wednesday, June 26, the

jury was instructed to continue deliberating and to review the instructions previously given to them. The following day, Thursday, June 27,

just before noon, the jury sent a note indicating that it was hopelessly

deadlocked. No additional charge was given that day. On Friday,

June 28, in the early afternoon, the jury sent another note advising

that it appeared to be "hopelessly deadlocked" and was unable to

reach a unanimous verdict on "the twenty-five individual charges."

Shortly thereafter, in response to a written question from the court

asking if they had reached unanimous agreement on any counts, the

jury indicated that it had reached a unanimous verdict on twenty-one

of the twenty-five charges. Five of the six Defendants moved for a

mistrial. A written Allen charge was then sent to the jury, and the jury

was again advised that they would not be required to deliberate

beyond the upcoming weekend and then was excused for the night.

About 12:35 p.m. on Saturday, June 29, the jury returned a note saying that they remained deadlocked on more than one count of the

indictment, that they had been deadlocked on the same counts since

Monday, June 24, and that no significant movement had occurred

despite four days of serious discussions. Shortly thereafter, the verdict

was returned. The jury acquitted Aldemar Gomez on one count and

was unable to reach a unanimous decision on the remaining three

counts against him. The remaining five Defendants were convicted on

the various counts against them.

The record does not support Hucks' claim that the Allen charge and

the length of the deliberations coerced a jury verdict. It is clear from

the jury's final note that it had been deadlocked on the same counts

of the indictment since Monday, June 24, the first day of deliberations. It is also likely from the verdict that the deadlock involved the

guilt of Aldemar Gomez, not Hucks. Thus it does not appear that the

Allen charge and the length of the deliberations had any effect on the

jury at all. For the same reasons the fact that four jurors were concerned about their plans for the following week could not have

coerced their decision. This is especially true in that the jurors were

 22
advised early on that they would not be required to deliberate beyond

the weekend.

X. SUFFICIENCY OF WITNESS TAMPERING EVIDENCE

Count Four of the amended superseding indictment charged that

Defendants Borda and Martinez "did knowingly and unlawfully

attempt to kill another person, to wit Mario Maldonado, with intent

to prevent the attendance or testimony of any person in an official

proceeding, as more fully described in overt acts forty and forty-nine

set forth in Count One" in violation of 18 U.S.C.§ 1512(a)(1) and 18

U.S.C. § 2.

Borda and Martinez challenge the sufficiency of the evidence to

sustain their conviction. When reviewing the sufficiency of the evidence, the relevant question is whether, after viewing the evidence

presented by the government in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979); United States v. Tresvant, 677 F.2d 1018,

1021 (4th Cir. 1982). The government's theory on this count was that

following Maldonado's arrest in New Jersey in February 1995 while

transporting fifteen kilos of cocaine from New York to Maryland at

the direction of Borda, Borda became concerned that Maldonado was

cooperating with law enforcement and began to consider, along with

Martinez, plans to kill Maldonado to prevent his continued cooperation and testimony at Borda's pending trial. The government's primary witnesses on this count were Sucre and Felipe Ossa.

Sucre testified that Martinez provided photographs of Maldonado

to him for delivery to a "hit man," that Martinez showed him where

Maldonado lived so that he could pass this information on to the "hit

man," and that a fee of $20,000.00 was agreed upon. Furthermore,

during a meeting in Miami, Martinez provided Sucre and an undercover officer posing as the "hit man" with additional personal information about Maldonado. Martinez claims that this evidence was

insufficient to prove an attempt to kill Maldonado, and that a factual

impossibility existed as well.

In order to prove an attempt, the government must first offer evidence that a defendant had the culpable intent to commit the crime.

 23
United States v. Neal, 78 F.3d 901, 906 (4th Cir.), cert. denied, 519

U.S. 855 (1996). Once intent is established, the government must next

prove that a substantial step was taken to accomplish the intended act.

There is no clear line between preparation and attempt, and

"[w]hether conduct represents a substantial step depends on the `surrounding factual circumstances.'" Id. However, we believe that

Sucre's testimony was clearly sufficient for a rational juror to find

that Martinez not only had the intention to carry out the crime, but

that he took numerous substantial steps toward its completion, as indicated above.

The evidence as to Borda's complicity in the alleged murder plan

is less compelling. Borda was arrested on February 15, 1995, one day

after Maldonado's arrest, and was in jail during the time Martinez was

actively involved in attempting to arrange Maldonado's murder.

However, Felipe Ossa was the contact between Borda and Martinez

during Borda's incarceration. Sucre testified that Ossa told him of a

telephone conversation Ossa had with Borda in which Borda directed

Ossa that he wanted Maldonado killed. Sucre also drove with Martinez to New Jersey for Martinez to visit Borda in jail. Sucre testified

Martinez received a letter from Borda which Martinez told Sucre

instructed him to do something about Maldonado because Borda's

trial was coming up soon and Borda feared Maldonado would testify

against him. It was at that point that Martinez began obtaining photographs of Maldonado.

The government asserts Borda's complicity in the murder plan

under an aiding and abetting theory. 18 U.S.C. § 2, cited in Count

Four, provides that whoever aids, abets, counsels, commands,

induces, or procures, or willfully causes the commission of an offense

is punishable as a principal. To prove aiding and abetting, the government must show that the Defendant "knowingly associated himself

with and participated in the criminal venture." United States v.

Winstead, 708 F.2d 925, 927 (4th Cir. 1983). The evidence must show

that the Defendant shared the principals' criminal intent. Id. We

believe the government produced evidence which, when taken in the

light most favorable to the government, was sufficient to allow a reasonable juror to conclude that Borda, from his jail cell, directed, coun-

 24
seled and encouraged Martinez and Ossa to have Maldonado killed

and therefore aided and abetted in the attempt. 1

Both Borda and Martinez argue factual impossibility in that they

did not have the financial means to provide a $20,000.00 cash payment to anyone who would kill Maldonado. Of course, Borda would

obviously have to rely on Martinez to arrange payment. However, this

was entirely reasonable in view of the substantial evidence concerning large sums available to Martinez during the same time frame.

Moreover, Defendants' arguments are unavailing in view of our holding that factual impossibility is not a defense to an attempt crime.

United States v. Hamrick, 43 F.3d 877, 885 (4th Cir.), cert. denied,

516 U.S. 825 (1995).

XI. SENTENCING ISSUES

A.

Defendants Martinez and Luis Gomez contend that the district

court erred in imposing their sentences. Martinez alleges that the district court should not have enhanced his sentence for obstruction of

justice and for an aggravating role in the offense. Specifically, Martinez contends that his sentence should not have been increased for

obstruction of justice because the conduct on which the enhancement

was based, the attempted murder of Maldonado, formed the basis for

Count Four, witness tampering. Defendant relies on Application

Note 6 of United States Sentencing Commission, Guidelines Manual,

(USSG) § 3C1.1 (Nov. 1995) (currently Application Note 7), which

provides that the enhancement does not apply to an offense which

includes as an element obstruction of justice. However, this application note would preclude only the assessment of the obstruction

enhancement to the witness tampering count, which the court did not

do. Enhancement was applied only in the calculation of Martinez'

_________________________________________________________________

1 It appears that the substantial steps taken by Martinez, a coconspirator, to have Maldonado killed were taken in furtherance of the

drug conspiracy and that the government could have proceeded on the

Pinkerton doctrine as well. Pinkerton v. United States, 328 U.S. 640

(1946) (holding each conspirator potentially liable for overt acts of every

other conspirator done in furtherance of a conspiracy).

 25
sentence for the drug counts, of which obstruction of justice is not an

element.

Although Martinez does not contest the court's factual finding that

he was an organizer or leader of a criminal activity that involved five

or more participants, or was otherwise extensive, he argues that an

enhancement should not have been applied because of"sentencing

entrapment and/or sentencing manipulation." Martinez argues that

any aggravating role resulted from "the furtherance of and acquiescence and approval of Marcos Sucre." Martinez apparently contends

that the government delayed the arrest solely to increase his offense

level. However, it is clear that the government is not required to terminate an investigation at the very moment at which it could make

an arrest or obtain an indictment. See United States v. Jones, 18 F.3d

1145, 1154-55 (4th Cir. 1994). Martinez' "sentencing entrapment--

sentencing manipulation" arguments are without merit.

B.

Gomez contends that the trial court improperly calculated the quantity of cocaine under the Sentencing Guidelines, improperly designated him as a leader or organizer, and improperly enhanced his

sentence for obstruction of justice. After a full sentencing hearing, the

district court concluded that Gomez was responsible for over 150

kilograms of cocaine which resulted in a base offense level of thirtyeight; that he was a leader or organizer, which resulted in an increase

of four levels; and that he had obstructed justice by misrepresenting

his criminal record to the probation officer who prepared the presentence report and by failing to disclose that he had unlawfully

returned to the United States after having been deported, which

resulted in an increase of two levels. The adjusted offense level was

thus forty-four.

A trial court's determination regarding the amount of drugs attributable to a defendant is reviewed for clear error. United States v.

Vinson, 886 F.2d 740, 742 (4th Cir. 1989), cert. denied, 493 U.S.

1062 (1990). We are satisfied that there is compelling evidence in the

record of the extensive nature of Gomez' participation in multikilogram transactions of cocaine, and that the district court was not

clearly erroneous in concluding that he was responsible for over 150

kilograms. It is also clear that during the time Gomez was a participant in the conspiracy it involved five or more persons. The govern-

 26
ment characterizes Gomez' role as that of a "resident manager" for the

drug business in the United States who supervised and directed the

local participants. The record amply supports such a characterization.

Consequently, it was not clearly erroneous for the district court to

enhance Gomez' sentence for his leadership role.

Finally, because it involves interpretation of a guideline term, we

review Gomez' sentence enhancement for obstruction of justice de

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

an enhancement applies when a defendant provides materially false

information to a probation officer relating to a pre-sentence report or

other investigation for the court. USSG § 3C1.1, comment. (n.3(h))

(1995) (currently application note 4(h)). Information concerning a

defendant's criminal record is considered material. See United States

v. Paden, 908 F.2d 1229 (5th Cir. 1990) (failure to disclose portion

of criminal history), cert. denied, 498 U.S. 1039 (1991); United States

v. Baker, 894 F.2d 1083 (9th Cir. 1990) (failure to disclose prior

conviction).2 In view of Gomez' admitted lies to the probation officer,

which he explained as an attempt to receive a shorter sentence, we

find that his sentence was properly enhanced for obstruction of justice.

XII.

We have carefully reviewed the issues raised by the appellants and

find them to be without merit. We therefore affirm the convictions

and the sentences imposed.

AFFIRMED

_________________________________________________________________

2 A panel of this court in an unpublished decision previously reached

the same conclusion as the Fifth and Ninth Circuits. United States v.

Kroop, No. 90-5221, 1991 WL 39459 (4th Cir. Mar. 26, 1991) (per

curiam).

 27