Filed: February 10, 2000

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 95-5983(L)

(CR-93-407-MJG)

United States of America,

Plaintiff - Appellee,

versus

Sean Andre Bullock, etc., et al,

Defendants - Appellants.

ORDER

The court amends its opinion filed January 27, 2000, as

follows:

On page 7, first paragraph, line 2 -- a new footnote 4 is

added, which reads: “We note that Hester is represented by new

counsel on this appeal. Neither Mr. Goldstein nor his law firm

represented Hester during the trial.” Footnotes previously

numbered 4-11 are renumbered 5-12.

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SEAN ANDRE BULLOCK, a/k/a Derrick

No. 95-5983

Taylor, a/k/a Big Man, a/k/a

Kenneth Taylor, a/k/a Tyrone

Harris,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5984

BYRON MELVIN GEORGE, a/k/a Amar

Bomani Mawusi-Zulu,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

STEVEN ERNEST HESTER, a/k/a Melvin

No. 96-4028

Ball, a/k/a Bobo, a/k/a Byron

Melvin Falls, a/k/a Owen Price,

a/k/a Owen Davis, a/k/a Bob, a/k/a

Melvin Ball, Jr., a/k/a U.S.A.,

Defendant-Appellant.
Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Marvin J. Garbis, District Judge.

(CR-93-407-MJG)

Argued: December 3, 1999

Decided: January 27, 2000

Before NIEMEYER and WILLIAMS, Circuit Judges,

and HAMILTON, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Arthur Samuel Cheslock, Baltimore, Maryland; Martin H.

Schreiber, II, BROWN, GOLDSTEIN & LEVY, L.L.P., Baltimore,

Maryland, for Appellants. John Vincent Geise, Assistant United

States Attorney, Bonnie S. Greenberg, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, Greenbelt, Maryland, for Appellee. ON BRIEF: Daniel F. Goldstein, BROWN,

GOLDSTEIN & LEVY, L.L.P., Baltimore, Maryland, for Appellant

Hester; Gerald D. Glass, Towson, Maryland, for Appellant Bullock.

Lynne A. Battaglia, United States Attorney, UNITED STATES

ATTORNEY'S OFFICE, Greenbelt, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

 2
OPINION

PER CURIAM:

Appellants Steven Ernest Hester, Byron Melvin George, and Sean

Andre Bullock were named along with four other defendants in an

eleven-count indictment alleging various federal drug and firearm

offenses. Hester was charged in nine counts; George was charged in

eight counts; and Bullock was charged in five counts. Appellants

were tried together with two other defendants, Dawon Markham and

Steven Wright, in the United States District Court for the District of

Maryland.1 After a two-and-a-half-month trial and several days of

deliberation, the jury returned a verdict acquitting Markham and

Wright on the single count in which they were named, convicting

Bullock on three counts, convicting George on four counts, and convicting Hester on one count. The jury was unable to reach a verdict

on two of Hester's other counts.

Hester and Bullock were sentenced to life imprisonment and

George received a thirty-year sentence. Appellants now appeal,

asserting that various errors were made at their trial that warrant

reversal. In addition, Bullock argues that he should not have received

a life sentence. We disagree and affirm Appellants' convictions and

sentences.

I.

In March 1993, State's Attorneys for Prince George's County and

Howard County, Maryland applied for permission to intercept phone

conversations on phone lines associated with a suspected drug organization believed to be led by Hester. The applications requested wiretaps in Prince George's County and Howard County. In support of the

applications, Prince George's County Police Detective Maurice Hicks

_________________________________________________________________

1 As noted above, two other codefendants were also named in the

indictment. One, Lawrence Day, testified on the Government's behalf in

exchange for the Government's agreement that he would be prosecuted

on state charges only. The other, Clyde Robinson, was originally prosecuted with Appellants, but the Government dismissed the indictment

against him on the eighth day of trial.

 3
and FBI Special Agent Steven Stowe (the affiants) supplied an

accompanying affidavit.2 The 100-plus page affidavit described in

detail the investigations into the Hester drug operation to date and

highlighted Hester's reputation for violence, including his suspected

involvement in several murders. One of the murders involved an individual who had attempted to cooperate with police concerning Hester's criminal activity. The affidavit also documented information

learned through unidentified tipsters and confidential sources. The

affidavit delineated several alternative investigative procedures that

had already been utilized unsuccessfully in the investigation and concluded that a wiretap was a necessary investigative technique to prosecute successfully Hester and his cohorts. The affidavit expressly

noted, among other things, that efforts to infiltrate the organization

were not attempted because they "reasonably appear[ed] to be too

dangerous." (J.A. at 120.) The affidavit also discussed the difficulties

involved in relying on interviews with persons connected with the

conspiracy:

 Based on our experience and the experience of other law

enforcement officers involved in this investigation, we

believe that interviews of persons who could assist with this

investigation would not be successful because the persons

who are knowledgeable about the content of the conversations and illegal transactions are the direct participants in the

conversations and transactions and are themselves the targets of this investigation. Numerous interviews of other persons who may be able to assist this investigation have been

attempted and have been unsuccessful primarily because

such individuals fear for their physical safety or because of

their own culpability. Many persons who have been interviewed during this investigation or prior investigations of

criminal activity involving some of these targets have stated

that Steven Ernest Hester has a violent temper and is known

to retaliate against people who interfere with his illegal

activities.

_________________________________________________________________

2 Virtually identical affidavits accompanied the applications for the

Prince George's County and Howard County wire intercept orders.

 4
(J.A. at 163.) Maryland state court judges for Prince George's County

and Howard County ordered the wire intercepts and the phone lines

were monitored for about a month.

Evidence gathered from the wire intercepts implicated Appellants

in various drug offenses and several arrests were made at the conclusion of the investigation. Many of the coparticipants in the Hester

drug ring agreed to testify for the Government, including Lawrence

Day and Steven Brown. Day was originally named in the indictment,

but later entered an agreement with the Government to testify against

Appellants in exchange for being prosecuted only at the state level

with a recommended sentence of ten years. Day's testimony was

damaging to Appellants, as he testified that he knew Appellants and

that he had engaged in illegal drug activities with them.

Day's testimony revealed that he had provided information to the

police concerning Hester and Bullock on three past occasions in 1991

and 1992. Day had once received $500 for the information he provided and had given the police his phone number and pager number.

The Government contends that the information Day provided to

police concerned Hester and Bullock's participation in violent activities and did not include information related to illegal drug activities.

The Government claims that Day was essentially a tipster on limited

occasions. Day's own testimony supports the Government's portrayal.

Day testified that he was not involved in drug-related activities when

he went to the police and that he did not provide any information

related to drug dealing.

Conversations intercepted through the wiretaps also indicated that

Hester obtained drugs from New York and evidence presented at trial

verified Hester's connection to New York. Steven Brown testified

that George had told him about a trip he was taking to New York.

Brown stated that George had told him that he was going to New

York to purchase cocaine for Hester. After testifying to Hester's

involvement in this New York transaction, however, Brown indicated

that George had not told him that anyone else was "getting any drugs"

out of the trip to New York. (J.A. at 284-85.) The prosecution then

asked, "Was Steve Hester involved in this transaction?" (J.A. at 285.)

Brown answered, "I didn't really know if [George was] getting some

 5
for Steve Hester. [George] told me that he was going for Steve Hester,

but I don't know if it was for him or not." (J.A. at 285.)

George returned from this trip to New York on April 14, 1993. On

that day, George and an unindicted coparticipant, April Davis, arrived

in Washington, D.C. on a bus from New York. After getting off the

bus, the two were together briefly and then moved to opposite sides

of the street as they walked away from the bus station. Davis was carrying her seven-month-old daughter and a diaper bag.3 Police confronted George and Davis and, pursuant to a consensual search of

Davis's diaper bag, discovered a quantity of cocaine base. Both

George and Davis were arrested.

Hester testified in his own defense that although he was involved

in selling heroin, he never sold cocaine as alleged in the indictment.

According to a Government expert witness's report, drug paraphernalia seized from Hester's girlfriend's apartment contained confirmed

traces of heroin. At trial, Hester's attorney asked this witness if he had

also discovered any traces of cocaine on one of these items, a razor

blade. The expert witness responded that he had in fact found small,

unconfirmable traces of cocaine on a few exhibits. On redirect, the

Government asked the expert to explain his answer. The expert testified that, as his notes reflected, he had found small traces of cocaine

on various drug-related items seized from Hester's girlfriend's residence but did not include this information in his report because the

traces were too small to confirm. Hester and his codefendants had

received a copy of the expert's notes and report prior to trial.

Throughout the trial, Appellants moved for severances and mistrials. Among the reasons cited in support of these motions were Hester's occasionally unruly courtroom behavior, Hester's testimony

allegedly implicating his codefendants, Appellants' use of defenses

that were purportedly antagonistic to one another, and conduct by

_________________________________________________________________

3 Testimony from an expert witness indicated that drug dealers often

used women with children as drug couriers because police would tend

not to focus on these women. A female witness who was involved in the

Hester organization also testified that she had brought her daughter along

on drug business at Hester's urging "[b]ecause it would look better if

[she] had a child with [her]." (J.A. at 489.)

 6
Hester's defense counsel that resulted in the trial judge admonishing

the attorney.4 Perhaps the most dramatic event that caused each Appellant to move for a mistrial and severance occurred on the thirty-third

day of trial as the jury was returning to the courtroom following a

recess in Hester's testimony. As the jury was entering, George

"slugged" Hester, knocking him to the floor. (J.A. at 636.) A police

detective who was in the courtroom at the time of the incident

recounted what he saw for the record: "I didn't actually see anybody

hit anybody. . . . But after the incident, as everybody was walking

away, I observed Byron George kind of smile and wink at Hester on

the floor. To me, it looked planned." (J.A. at 644.) The trial judge voir

dired the jury concerning the incident. Most of the jurors indicated

that they had not seen what happened. Many jurors indicated, however, that they had seen Hester on the floor and, based upon where

George was standing, concluded that George had hit Hester. No juror

indicated that the incident would affect his or her ability to judge the

case in any way, although some stated that they did not "think" it

would have an effect. After conducting this voir dire of the jury, the

district court provided a limiting instruction.5

At the conclusion of the presentation of evidence, the jury deliberated for several days. The jury returned a verdict acquitting Markham

and Wright on the single count in which they were named, conspiracy

to distribute and possess with intent to distribute cocaine base, in vio-

_________________________________________________________________

4 We note that Hester is represented by new counsel on this appeal.

Neither Mr. Goldstein nor his law firm represented Hester during

the trial.

5 The instruction was as follows:

 We had an unfortunate incident, and I'm confident that it's not

going to be repeated. In any event, as I have explained to each

one of you, it doesn't have to do with this case in terms of your

judging this case. It's based strictly on the evidence.

 I want to feel very, very secure -- and you've all promised me

this -- that when this case gets to you, which I hope will be

fairly soon, that every defendant and the government will each

get a fair trial based on the evidence, and that events such as

occurred here have nothing to do with it.

 After it's all over, we can talk about anything you want to talk

about with regard to this event, but it is a non-subject from now

on. It is simply not to be discussed at all.

(J.A. at 675.)

 7
lation of 21 U.S.C.A. § 846 (West 1999). Hester was convicted on

one count for possession with intent to distribute cocaine base, 21

U.S.C.A. § 841(a)(1) (West 1999). Hester was acquitted on six counts

and the jury was unable to reach a verdict on two counts concerning

conspiracy to distribute and possess with intent to distribute cocaine

base, 21 U.S.C.A. § 846, and using a juvenile to distribute cocaine

base, 21 U.S.C.A. § 861(a)(1) (West 1999). George was convicted on

four of the eight counts in which he was named: conspiracy to distribute and possess with intent to distribute cocaine base, 21 U.S.C.A.

§ 846, two counts of possession with intent to distribute cocaine base,

21 U.S.C.A. § 841(a)(1), and use of a minor to assist in avoiding

detection of a drug crime, 21 U.S.C.A. § 861(a)(2) (West 1999). Bullock was convicted on three of the five counts in which he was

named: conspiracy to distribute and possess with intent to distribute

cocaine base, 21 U.S.C.A. § 846, and two counts of possession with

intent to distribute cocaine base, 21 U.S.C.A. § 841(a)(1).

After the trial, the district court denied Appellants' motions to suppress the evidence from the wiretaps and for a new trial. Both motions

argued that the wiretap applications were faulty.

Hester and Bullock received life sentences and George received a

sentence of thirty years imprisonment. All three now appeal, alleging

that various errors were committed at their trial. In addition, Bullock

challenges his life sentence. We address Appellants' arguments

below.

II.

Appellants first contend that the wiretap authorization was invalid,

and, therefore, all evidence gained from the wire intercepts should

have been suppressed. Appellants argue that the affidavit connected

with the applications for wire intercept authorization in Prince

George's County and Howard County failed adequately to disclose

the availability of Lawrence Day to infiltrate the Hester drug organization. Because of this purported omission, Appellants assert that the

so-called "exhaustion" requirement of the Maryland wiretap statute

 8
was not complied with. We disagree and affirm the district court's

ruling that the wiretap authorization was valid.6

In United States v. Glasco, 917 F.2d 797 (4th Cir. 1990), we intimated that when a state court authorizes a wiretap, as was done here,

state wiretapping law should govern the admissibility of the wiretap

evidence in federal court. See id. at 799. In this case, we will determine whether the wire intercept evidence was properly admitted

under Maryland law, although we note that the relevant provision,

Maryland's "exhaustion" requirement, is identical to federal wiretap

law, and, thus, whether we analyze this case under state or federal law

is of little consequence.7

Although we have indicated that we will review deferentially an

issuing court's finding that the application satisfied the "exhaustion"

requirement, we have heretofore not enunciated a specific standard of

review. See United States v. Smith, 31 F.3d 1294, 1298 (4th Cir.

1994). We need not settle this question of the proper standard of

review now, because we are convinced that under even the least deferential standard the applications for the wire intercept orders issued

in this case easily satisfied the "exhaustion" requirement.

Maryland law requires strict compliance with all "preconditions" to

obtaining a wiretap. See, e.g., Allen v. State, 597 A.2d 489, 493 (Md.

_________________________________________________________________

6 We also reject Appellants' argument that the purported failure of the

Howard County Chief of Police to receive formal notification under Md.

Ann. Code art. 27, § 298(f)(2)(ii) (1996) of Detective Hicks's and Special Agent Stowe's authorization to conduct wire intercepts in Howard

County somehow requires suppression of the wiretap evidence. We note

that Appellants are unable to cite any support for this proposition and our

independent research uncovered none.

7 Under Maryland law, an application for an order authorizing a wiretap

must contain "[a] full and complete statement as to whether or not other

investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous."

Md. Code Ann., Cts. & Jud. Proc., § 10-408(a)(3) (1998). Officials

applying for a wiretap, therefore, must demonstrate that they have "exhausted" other alternative methods of surveillance and that a wiretap is

necessary. The federal wiretap statute contains an identical provision. 18

U.S.C.A. § 2518(1)(c) (West 1970).

 9
Ct. Spec. App. 1991). The failure to comply with a "precondition" set

forth in the wiretap statute "requires suppression of all the evidence

obtained under the wiretap." State v. Mazzone, 648 A.2d 978, 980

(Md. 1994). As noted above, among these "preconditions" is the

requirement that applicants seeking wiretap orders provide "[a] full

and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be

unlikely to succeed if tried or to be too dangerous." Md. Code Ann.,

Md. Cts. & Jud. Proc., § 10-408(a)(3) (1998). The disjunctive nature

of this requirement permits the wiretap applicant to

establish the need for a wiretap by showing either (i) that

normal investigative procedures have been tried and failed,

or (ii) that normal investigative procedures, though not yet

tried, reasonably appear to be either unlikely to succeed if

tried or too dangerous. In reality this gives the government

three alternative ways to establish the need for a wiretap.

Smith, 31 F.3d at 1298 n. 2 (construing the exhaustion requirement

contained in the federal wiretap statute) (internal quotation marks and

citations omitted).

The affidavit attached in support of the applications for wiretap

orders plainly met this exhaustion requirement. First, the affidavit set

forth in detail the investigative techniques attempted to date in bringing the Hester organization to justice. Among the numerous techniques discussed in the affidavit were the use of tipsters and

confidential sources. Second, the affidavit added that further attempts

to rely on interviews with persons knowledgeable about the Hester

organization would likely be futile because many of those persons

would themselves be targets of the investigation. See, e.g., Bell v.

State, 429 A.2d 300, 303 (Md. Ct. Spec. App. 1981) ("The government need not prove to a certainty that such techniques will not succeed if -- as stated in the statute -- it reasonably appears to be

unlikely to succeed." (internal quotation marks and alterations omitted)). Finally, the affidavit provided a detailed account of Hester's

suspected involvement in various violent activities, including the

murders of several persons, and concluded that attempts to infiltrate

the conspiracy "reasonably appear[ ] to be too dangerous." (J.A. at

120.) We believe that Hester's reputation for violence alone, as out-

 10
lined in the affidavit, amply supported the need for a wiretap. As we

noted in Smith, any one of these grounds would suffice to satisfy the

exhaustion requirement. Here, the applicants met all three methods of

establishing the need for the wiretap as set forth under the "exhaustion" provision.

In its 100-plus pages, the affidavit "full[y] and complete[ly]"

informed the issuing judges of previously attempted investigatory

techniques and the reasons why a wiretap was thought necessary. Furthermore, contrary to Appellants' assertions, the affidavit can easily

be read to reference Lawrence Day himself. The affidavit discussed

the prior use of tipsters to learn about Hester's criminal activity. Day

was an occasional tipster. The affidavit also indicated that attempts to

interview persons who could assist in the investigation had been

unsuccessful, and future attempts likely would be unsuccessful as

well because those persons are "themselves the targets of this investigation" and, in any event, these attempts would be extremely dangerous. Day was himself a "target" in the investigation, as evidenced by

his arrest and subsequent prosecution under state law, and the affiants

could reasonably conclude that attempts to use Day to infiltrate the

drug conspiracy would be unsuccessful.

For these reasons, we hold that the applications for wiretaps in this

case strictly complied with the "exhaustion" requirement under Maryland's wiretap law.

III.

Having concluded that the requests for wiretaps in this case met the

requirements of Maryland's wiretap statute, we turn now to Appellants' alternative argument that the district court should have held a

Franks evidentiary hearing, see Franks v. Delaware, 438 U.S. 154

(1978),8 to determine the integrity of the affidavit when it learned that

_________________________________________________________________

8 In Franks, the Supreme Court held that in certain limited situations

a defendant can attack the validity of an affidavit in support of a search

warrant in an evidentiary hearing. See Franks v. Delaware, 438 U.S. 154,

171 (1978). We have extended the Franks rule to situations involving

affidavits in support of wiretaps as well. See , e.g., United States v.

Muldoon, 931 F.2d 282, 286 (4th Cir. 1991) (holding that a Franks hearing was unwarranted because the defendant failed to make the necessary

preliminary showing).

 11
the affiants may have omitted relevant information concerning Day's

availability to infiltrate the Hester organization. A Franks hearing is

appropriate only when "affiants omit material facts with the intent to

make, or in reckless disregard of whether they thereby made, the affidavit misleading" and when the omission is "necessary to the finding

of probable cause." United States v. Colkley , 899 F.2d 297, 300-01

(4th Cir. 1990) (internal quotation marks omitted).

In this case, we find the district court's denial of a Franks hearing

eminently reasonable. There is no factual support for the contention

that the affiants intended to mislead the issuing judge, and we further

conclude that the affidavit was not misleading. The affidavit set forth

information that can fairly be read to reference Day's limited role as

a tipster in prior police investigations into the Hester organization. In

addition, the affiants explicitly stated that they believed that relying

on persons connected with the conspiracy would be unsuccessful.

Certainly, Day would be included in this group. Moreover, even if the

affidavit's failure explicitly to spell out the full extent of Day's previous involvement served to mislead the issuing judge, we find that any

omission was unnecessary to finding probable cause to order the wiretap. Given the Hester organization's reputation for violence, as

spelled out in the affidavit, even if Day were available to penetrate the

drug ring, the affiants' conclusion that attempts to infiltrate the organization would be too dangerous amply establishes probable cause to

order the wiretap. We therefore hold that the district court did not err

in concluding that a Franks hearing was unwarranted.

IV.

Appellants next argue that their cases should have been severed

from one another under Federal Rule of Criminal Procedure 14.9

_________________________________________________________________

9 Federal Rule of Criminal Procedure 14 provides in relevant part:

 If it appears that a defendant or the government is prejudiced

by a joinder of offenses or of defendants in an indictment or

information or by such joinder for trial together, the court may

order an election or separate trials of counts, grant a severance

of defendants or provide whatever other relief justice requires.

Fed. R. Crim. P. 14.

 12
Appellants made numerous requests for severance throughout the

forty-four-day trial and the district court repeatedly denied the

motions. The basis for these motions ranged from Hester's courtroom

outbursts to perceived antagonistic defenses. "[T]he decision to deny

severance, which is within the sound discretion of the district judge,

will not be overturned unless the defendant affirmatively demonstrates a clear abuse of discretion through having been deprived a fair

trial and having suffered a miscarriage of justice." United States v.

Spitler, 800 F.2d 1267, 1271-72 (4th Cir. 1986).

We hold that the district court did not abuse its discretion in this

case. "The basic rule is that persons who have been indicted together,

particularly for conspiracy, should be tried together." United States v.

Tipton, 90 F.3d 861, 883 (4th Cir. 1996). The Supreme Court has

made clear that a Rule 14 severance should be granted only in exceptional cases in which "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."

Zafiro v. United States, 506 U.S. 534, 539 (1993). The Zafiro Court

stressed that even if the risk of prejudice to a codefendant is high,

"limiting instructions . . . often will suffice to cure any risk of prejudice." Id. Moreover, as we noted in United States v. Porter, 821 F.2d

968 (4th Cir. 1987), "[n]o prejudice exists if the jury could make individual guilt determinations by following the court's cautionary

instructions, appraising the independent evidence against each defendant. Convictions should be sustained if it may be inferred from the

verdicts that the jury meticulously sifted the evidence." Id. at 972.

Here, all Appellants were named in the same indictment and

charged with, among other things, conspiracy to distribute and possess with intent to distribute cocaine base; thus, there was a presumption that they should be tried together. In addition, the district court

instructed the jury: (1) that the Government has the burden of proving

beyond a reasonable doubt that each defendant individually committed the crimes with which he was charged; (2) that the jury must consider each defendant separately; and (3) that each defendant was

entitled to have his case decided based solely upon the evidence

applicable to him. This type of instruction is entirely consistent with

the one approved of in Zafiro, and would have cured any risk of prejudice. See Zafiro, 506 U.S. at 541. Furthermore, in this case the jury's

 13
verdicts demonstrate that it carefully "sifted" through the evidence

and followed the district court's instructions. The jury acquitted two

defendants outright, convicted Hester on only one count while reaching an impasse on two other counts, and convicted Bullock and

George on three and four counts, respectively. These verdicts clearly

indicate that the jury was able to consider each defendant separately

and heed the trial judge's instructions. We are confident that the joint

trial of Appellants did not deprive them of a fair trial or result in a

miscarriage of justice, and we affirm the district court's decision not

to grant a severance.

V.

Because Appellants specifically argue that they should have

received a mistrial based upon the incident in which George slugged

Hester as the jury was reentering the courtroom following a recess,

we consider the incident separately. The denial of a motion for mistrial, like a denial of a motion for severance, is reviewed for abuse of

discretion. See United States v. West, 877 F.2d 281, 287-88 (4th Cir.

1989). As we stated in West, "[a] defendant must show prejudice in

order for the court's ruling to constitute an abuse of discretion, and

no prejudice exists if the jury could make individual guilt determinations by following the court's cautionary instructions." Id. at 288.

In this case, the incident in question was ably handled by the trial

judge and did not prejudice Appellants. Following this incident, the

district court voir dired the jury and no juror indicated that he or she

would be unable to judge the case properly based only upon the

evidence.10 After conducting this voir dire, the district court provided

the following limiting instruction:

_________________________________________________________________

10 Appellants stress that some jurors stated that they did not "think" the

incident would affect their ability to judge the case. Appellants claim that

these jurors were "ambivalent" about whether they could properly decide

the case. (Appellants' Br. at 36.) We have determined before that simply

because a juror responds that she "thinks" she can properly judge a case

fairly does not warrant dismissing her. See United States v. Hines, 943

F.2d 348, 353 (4th Cir. 1991). In Hines, we explained that "[i]t may be

appropriate for such a response to provoke additional inquiry to determine if `I think so' reflects any hesitancy, but the trial court is in the best

position to determine the assertiveness of such a response." Id. Similarly,

here, we find that the district court was in the best position to conclude

whether the jurors adequately indicated that they could fairly judge the

case.

 14
 We had an unfortunate incident, and I'm confident that

it's not going to be repeated. In any event, as I have

explained to each one of you, it doesn't have to do with this

case in terms of your judging this case. It's based strictly on

the evidence.

 I want to feel very, very secure -- and you've all promised me this -- that when this case gets to you, which I hope

will be fairly soon, that every defendant and the government

will each get a fair trial based on the evidence, and that

events such as occurred here have nothing to do with it.

 After it's all over, we can talk about anything you want

to talk about with regard to this event, but it is a non-subject

from now on. It is simply not to be discussed at all.

(J.A. at 675.)

The district court thus, in addition to carefully questioning the

jurors about George and Hester's incident, provided appropriate cautionary instructions. Again, as demonstrated by the jury's verdicts, the

jury was able to heed the district court's instructions and consider

each defendant separately based only upon the evidence presented at

trial. We think that the manner in which the trial judge handled the

incident was more than adequate even without considering his

unequaled position to determine the effect the incident might have

had on the jury. We also note that a ruling that a mistrial was required

would "encourage future misconduct by defendants" because "it

would provide an easy device for defendants to provoke mistrials

whenever they might choose to do so." West, 877 F.2d at 288 (internal

quotation marks omitted). Because we are convinced that Appellants

were not prejudiced by the incident involving George and Hester, we

affirm the district court's ruling denying the motion for mistrial.

VI.

Appellants argue that the Government violated 18 U.S.C.A.

§ 201(c)(2) (West Supp. 1999), when it presented testimony from witnesses that had received promises from the Government that they

 15
would not be prosecuted for their roles in the drug conspiracy. This

argument is foreclosed by binding Circuit precedent. See United

States v. Richardson, 195 F.3d 192, 196-97 (4th Cir. 1999) (holding

that the Government does not violate § 201(c)(2) when it "act[s] in

accordance with its statutory authority to use immunity, leniency, and

plea agreements to obtain truthful testimony").

VII.

Hester argues that the testimony of the Government's expert witness concerning small, unconfirmable traces of cocaine that were

found on various drug-related items seized from Hester's girlfriend's

apartment was inadmissible because this information was not disclosed in the witness's summary or report, pursuant to Federal Rule

of Criminal Procedure 16(a)(1)(E). We review the district court's ruling on the admissibility of expert testimony for an abuse of discretion.

See Cavallo v. Star Enterprise, 100 F.3d 1150, 1153-54 (4th Cir.

1996).

At trial, an expert witness for the Government was asked on crossexamination by Hester's counsel whether he had found any traces of

cocaine on a razor blade.11 The expert answered that he actually had

found small, unconfirmable traces of cocaine on a few of the exhibits.

Hester's attorney quickly moved on to other areas of interrogation.

On redirect, the Government inquired into this subject concerning the

small traces of cocaine. The expert witness explained that he had

found small traces of cocaine on various drug-related items, but that

in no case were the amounts large enough to confirm. This information was all contained in his notes, which he had provided to the

defense before trial.

Rule 16(a)(1)(E) requires the Government to provide at the defendant's request a written summary of the testimony that its expert witnesses intend to present during the Government's case-in-chief. See

Fed. R. Crim. P. 16(a)(1)(E). In this instance, the information concerning small amounts of cocaine was included in the expert's notes,

_________________________________________________________________

11 The expert's report indicated that he had found traces of heroin on

the razor blade and the expert testified to this fact immediately before

Hester's defense attorney asked about traces of cocaine.

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but not in his summary or report as something about which he

intended to testify.

We hold that the district court did not abuse its discretion in allowing this expert's testimony. The expert did not include his finding of

small traces of cocaine in his summary or report because, as he testified, they were too small for him to confirm and the Government did

not intend to introduce this evidence. When asked point blank on

cross-examination whether he had found any traces of cocaine, the

expert correctly testified that he had in fact found some small traces

as reflected in his notes. Hester cannot now complain about truthful

testimony that his own questioning directly elicited. Nor can he claim

he was surprised by this information when he was undisputably provided a copy of the expert's notes prior to trial.

VIII.

Hester also argues that the Government asked an impermissibly

leading question of Steven Brown that resulted in Hester's conviction.12

We review the district court's rulings on leading questions for a "clear

abuse of discretion," and such rulings will not be overturned absent

"prejudice or clear injustice to the defendant." United States v.

Durham, 319 F.2d 590, 592 (4th Cir. 1963).

We find no such prejudice here. While testifying to the events surrounding George's arrest in Washington, D.C., Brown twice indicated

that George had told him that George was going to New York to purchase drugs on Hester's behalf. Following this testimony, the prosecution asked Brown whether anyone else was "getting any drugs out

of this trip [to New York]" and Brown answered "No." (J.A. at 284-

85.) The prosecution then followed up by asking,"Was Steve Hester

involved in this transaction?" (J.A. at 285.) Brown responded: "I

didn't really know if [George was] getting some for Steve Hester.

[George] told me that he was going for Steve Hester, but I don't know

if it was for him or not." (J.A. at 285.) The Government's question

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12 Federal Rule of Evidence 611(c) expresses a preference against the

use of leading questions on direct examination: "Leading questions

should not be used on the direct examination of a witness except as may

be necessary to develop the witness' testimony." Fed. R. Evid. 611(c).

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was thus intended to clarify Brown's earlier testimony in which he

testified that George went to New York for Hester. Because "no new

information was elicited by the question and [Brown's] answer was

merely repetitive" of his prior testimony, we hold that the district

court did not abuse its discretion in allowing the Government to ask

Brown if Hester was involved in the transaction. See Durham, 319

F.2d at 593.

IX.

We turn now to George's argument that there was insufficient evidence to support his conviction for using a juvenile to assist in avoiding detection for a drug offense, under 21 U.S.C.A. § 861(a)(2) (West

1999). When reviewing a sufficiency-of-the-evidence challenge on

direct appeal, we must sustain the verdict "if there is substantial evidence, taking the view most favorable to the Government," Glasser

v. United States, 315 U.S. 60, 80 (1942), including all reasonable

inferences that can be drawn, see United States v. Russell, 971 F.2d

1098, 1109 (4th Cir. 1992), to support the conviction.

Section 861(a)(2) provides in relevant part: "It shall be unlawful for

any person at least eighteen years of age to knowingly and intentionally . . . employ, hire, use, persuade, induce, entice, or coerce, a person under eighteen years of age to assist in avoiding detection or

apprehension [for a drug offense]." 21 U.S.C.A. § 861(a)(2). George's

conviction under this statute was founded upon the events surrounding his Washington, D.C. arrest on April 14, 1993. On that day,

George and a travel companion, April Davis, were arrested after arriving in Washington by bus from New York. The two were arrested

because police found a quantity of cocaine base in a diaper bag that

Davis was carrying. Davis also had her seven-month-old daughter

with her. George was convicted for his role in this incident and on

appeal does not contest the sufficiency of the evidence for his conviction for the underlying substantive drug offense; instead, he argues

only that there was insufficient evidence to support a finding that

Davis's infant was used "to assist in avoiding detection."

We conclude that there was substantial evidence to support

George's conviction under this statute. Although there was no direct

evidence that the infant was used to avert suspicion, the jury reason-

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ably could have drawn the inference that the infant's presence was

intended to help avoid detection. The drugs were hidden in a diaper

bag -- a bag that would look conspicuously out of place without an

accompanying baby. The infant's presence clearly appears to have

been intended to throw law enforcement officials off the couriers'

trail. Furthermore, evidence presented at trial indicated that drug dealers were known to use women with children in transporting drugs and

that the participants in the Hester organization had employed such

practices before. Given all of this evidence, we hold that the Government's evidence sufficiently supported George's conviction under

§ 861(a)(2).

X.

Finally, Bullock argues that he should not have been sentenced to

life imprisonment under 21 U.S.C.A. § 841(b)(1)(A) (West 1999) for

having two prior felony convictions for drug offenses because he did

not receive the benefit of counsel for one of those drug convictions.

We reject Bullock's argument because we agree with the district

court's conclusion, which we review for clear error, see United States

v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989), that Bullock waived

his right to counsel in the proceeding that resulted in the conviction

he now disputes. Moreover, we note that Bullock would have

received a life sentence even if he had not been sentenced under the

§ 841(b)(1)(A) provision because his base offense level was 44.

XI.

Having carefully considered Appellants' arguments, we reject each

of them and affirm their convictions and sentences.

AFFIRMED

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