PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5770

JOHN MICHAEL WILLIAMS,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CR-95-206-A)

Argued: September 24, 1996

Decided: February 14, 1997

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

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Affirmed by published opinion. Judge Widener wrote the opinion, in

which Judge Russell and Judge Hall joined.

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COUNSEL

ARGUED: Michael Andrew Dawson, COVINGTON & BURLING,

Washington, D.C., for Appellant. Thomas More Hollenhorst, Assistant United States Attorney, Alexandria, Virginia, for Appellee. ON

BRIEF: Robert A. Long, Jr., COVINGTON & BURLING, Washington, D.C., for Appellant. Helen F. Fahey, United States Attorney,

Alexandria, Virginia, for Appellee.

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OPINION

WIDENER, Circuit Judge:

John M. Williams was indicted April 27, 1995 on three counts of

distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1).

After a one-day trial on June 27, 1995, the jury convicted Williams

of all three charges. The district court then sentenced Williams to a

prison term of 121 months. Williams now appeals his convictions on

several grounds. We affirm.

I.

Factual Background

In August 1994, Michael Angel, a confidential informant, agreed

to make recorded telephone calls for the purpose of purchasing

methamphetamine from Williams. Angel eventually made three such

calls for the government. During the first call, Angel stated that he

would "shoot" the defendant $400. Shortly thereafter, the informant

and an agent from the Northern Virginia Drug Enforcement Administration Task Force shipped an express mail package containing $400.

The package was addressed to "John Williams, 2515 Sonoma Ave.,

Torrance, California 90503," with a return address of "P.O. Box 164,

Merrifield, Virginia 22116." Later, a Task Force agent retrieved a

package from Post Office Box 164 containing a computer disk and

9.187 grams of methamphetamine.

Angel then placed another recorded call to Williams. Williams

asked Angel if he had gotten "it." Angel responded that he had and

that he would probably "double." A few days later, Angel and a Task

Force agent sent an envelope containing $800 in cash to the defendant

for a controlled delivery. A second package addressed to Angel was

subsequently retrieved from the Merrifield post office box. It contained a computer disk and 15.15 grams of methamphetamine, which

was 10 to 12 grams less than Angel had expected.

That same day, Angel placed a third recorded call to Williams to

inform him that the recent shipment was short. Another envelope

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eventually arrived. Inside was an Auto Parts Club newspaper and

3.145 grams of methamphetamine.

Angel died on November 1, 1994. In January 1995, after Angel's

death, a Task Force agent tried to purchase additional methamphetamine from the defendant. His attempts failed. On January 19, 1995,

the DEA executed a search warrant on Williams' home. Seized items

included a triple beam scale, a pocket scale with residue similar to

methamphetamine, a baggie of suspected methamphetamine, and an

address book listing an address for Mike Angel in handwriting matching that on the envelope sent to the Merrifield post office box.

II.

Constructive Amendment of Indictment

Williams' first contention on appeal is that the prosecutor constructively amended the indictment at trial by arguing that the defendant's

admitted distribution of marijuana constituted an admission of guilt

to the charged offenses--distribution of methamphetamine. This situation arose after Williams took the stand and testified that he had distributed marijuana, but not methamphetamine, to Angel. In closing

argument, the prosecutor made several references to this admission,

stating that the defendant had admitted guilt to the indictment's first

two counts.1 These counts related to the first two shipments of

methamphetamine.

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1 The prosecutor made the following statements during closing arguments:

 So even though the Government has alleged a distribution of

methamphetamine, and even if you believe the defendant, he has

just admitted his guilt to two of the counts in the indictment,

Count 1 and Count 2.

 He has admitted that he has received drug money. He has

admitted that he has sent drugs through the mails on or about

those dates. It is not important that the defendant knew the nature

of the drug or the quantity of the drug. He has, in essence, judicially admitted his guilt to Counts 1 and 2.

 . . . .

 3
Williams charges that the prosecutor's comments amounted to a

constructive amendment of the indictment from distributing methamphetamine to distributing marijuana. He bases this claim on our decision in United States v. Floresca, 38 F.3d 706 (4th Cir. 1994) (en

banc). There, we held that "[a] constructive amendment to an indictment occurs when either the government (usually during its presentation of evidence and/or its argument), the court (usually through its

instructions to the jury), or both, broadens the possible bases for conviction beyond those presented by the grand jury." Floresca, 38 F.3d

at 710. Such a constructive amendment would violate the grand jury

clause of the Fifth Amendment. Williams suggests that the prosecutor's improper statements in closing argument, coupled with the prosecutor's extensive development of Williams' admitted marijuana

distribution on cross-examination, broadened the possible bases of

conviction to include distribution of marijuana.

The actions complained of here occurred wholly within the context

of closing argument. It is doubtful at best if any error occurred under

Floresca in this case.2 Even more importantly, however, there was no

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 He's [the defendant is] desperate. He's come up with a recent

fabrication to somehow explain this away. He does it in a not

very clever way, that is he's admitted to Counts 1 and 2 essentially.

 . . . .

 The Government has proven its case, and, in fact, the defendant has really admitted to at least two of the counts of the case.

2 The district court's clear and unambiguous instructions to the jury

eliminated any further concern we might have on this issue. The district

court instructed in its opening charge that the lawyers' statements

throughout the trial are not evidence and that the jury "must always keep

that in mind." In its final charge, the court instructed that whenever a disparity appears to the jury between the law as stated by the attorneys and

the law as stated by the court in its instructions, the instructions govern.

The court then reiterated that counsels' statements, objections, and arguments were not evidence. The court further instructed that the government must show that the defendant knowingly and intentionally

distributed the controlled substances described in the indictment. The

court added that the government had the burden of proving beyond a reasonable doubt that the defendant distributed a mixture and substance containing methamphetamine.

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contemporaneous objection to the prosecutor's statements and no

motion for a mistrial. In such circumstances, we will not entertain the

question on appeal. United States v. Rhodes, 779 F.2d 1019, 1030 (4th

Cir. 1985). In all events, we are of opinion there was no plain error

under United States v. Olano, 507 U.S. 725 (1993).

III.

Ineffective Assistance of Counsel

Williams next asserts that his defense counsel's closing argument

constituted ineffective assistance of counsel. For Williams to succeed

on this claim on direct appeal, the record must demonstrate conclusively that defense counsel did not provide effective representation.

United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995). It must

appear that the performance of Williams' counsel fell below an objective standard of reasonableness and that the deficient performance

was "so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable." Strickland v. Washington , 466 U.S. 668, 687-88

(1984). We believe Williams has failed to make these showings.

Williams points to two sentences in his counsel's closing argument

as undermining his defense. Defense counsel stated,"I would tell you

what John Williams says happened isn't what happened. It's the

stupidest story I have ever heard." The defendant, however, has

divorced this language from the context in which it was spoken.3

Although the meaning of counsel's statements may not be entirely

clear, he obviously was arguing that Williams' story was so preposterous (in that his testimony admitted to committing a crime) that in

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3 In its entirety, the paragraph in which defense counsel made these

statements is as follows:

 I would tell you what John Williams says happened isn't what

happened. It's the stupidest story I have ever heard. I am not

vouching for the credibility of John Williams. And Mr. Hollenhorst [the prosecutor] doesn't vouch for the credibility of his witnesses. But I think it's a pretty bitter pill to swallow to get up on

the witness stand and say, Yes, I mailed marijuana. I mailed

drugs to Mike Angel. That's what I did. And I got money in

return, but I didn't mail methamphetamine.

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fact he is most likely telling the truth. Rather than disparaging his client's unusual defense (that Williams is not guilty of the charged

offense because the drug he sent was not methamphetamine), he was

trying to make what little sense could be made of it for the jury to buttress Williams' credibility. This became more apparent later in counsel's argument when he asserted that Williams' testimony should

create a reasonable doubt as to whether the defendant mailed methamphetamine or marijuana to Angel and when he requested the jury to

set aside "the fact that he sent marijuana to Mike Angel" in deciding

whether Williams did the act charged in the indictment.

Although defense counsel might have worded his argument more

carefully, he was putting the best slant he could on his client's peculiar testimony. Thus, we are of opinion that the record fails to demonstrate that defense counsel's actions fell below an objective standard

of reasonableness, much less deprived the defendant of a fair trial.

IV.

Admission of Out-of-Court Statement

Williams' challenge to the district court's admission of an out-ofcourt statement by Angel is equally unavailing. During re-direct

examination of the Task Force agent who worked most closely with

Angel, the prosecutor asked, "And did he [Angel] say whether or not

he had ever obtained methamphetamine from the defendant?" The

defense objected to this question on hearsay grounds. The court overruled the objection on the ground that the defendant had "opened the

door." The Task Force agent then responded that Angel told him that

he had made "multiple purchases from John Williams, both personally and through the mail."4

We agree with the district court that the defendant opened the door

to this line of questioning and therefore find that the court did not

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4 Without objection, the government next asked whether Angel provided the modus operandi for obtaining drugs from the defendant. The

agent answered that when Angel was in California he would go to the

defendant's residence where he would obtain drugs from him, and when

going through the mail, "it was basically the way that I conducted it."

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abuse its discretion in admitting the out-of-court statement. In crossexamining the Task Force agent, defense counsel elicited testimony

that the agent had no "personal knowledge" as to any dealings

between Williams and Angel over the last four years. He also asked

the agent if he had any "personal knowledge" of business dealings

between the defendant and Angel for which Angel might have owed

the defendant money. The agent responded that he did not.

Although the defendant now emphasizes the use of the term "personal" knowledge regarding Angel and Williams' relationship, the

term has not been before defined. The phrase can imply either first or

secondhand knowledge, as the district court obviously found it, and

the agent apparently interpreted defense counsel's questions as inquiring into his firsthand knowledge only. His answers thus had the

potential to mislead the jury into thinking the agent had no knowledge

regarding Angel's dealings with Williams. The district court therefore

permitted the prosecution to introduce Angel's out-of-court statement

to close the door opened by the defense.

V.

Warrantless Search

Williams next argues that the district court's admission into evidence of the envelopes containing methamphetamine was plain error

because the investigating agents opened them without a search warrant. Because the defense did not object to the evidence in the district

court, we review the court's decision for plain error. Fed. R. Crim. P.

52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993); United

States v. Hanno, 21 F.3d 42, 45 (4th Cir. 1994).

We are of opinion that the admission of the contents of the three

envelopes did not constitute error at all, much less plain error. Even

assuming Williams had standing to challenge the admissibility of the

envelopes, the record indicates that Angel's consent was implied from

his conduct during the investigation. Angel had the right to open, or

give consent to open, the envelopes because they were addressed to

him. Also at this time, Angel, as an informant, and the Task Force

agents who actually opened the packages were cooperating. Angel

had agreed to buy methamphetamine using government money. At

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Angel's instance, the drugs procured with that money were sent to

him at a post office box under the exclusive custody and control of

the DEA Task Force. We believe this evidence of the relationship

between Angel and the Task Force agents establishes Angel's implied

consent. Accordingly, the agents' search of the packages did not violate Williams' constitutional rights as sender of the package. See

United States v. Kurck, 552 F.2d 1320, 1321 (8th Cir. 1977) (evidence

of cooperative relationship between an informant driver of a car and

arresting officers established implied consent to search trunk for

counterfeit money and other evidence while defendant was passenger

in informant's automobile).

VI.

Sufficiency of Evidence

Williams' final contention on appeal is that the evidence was insufficient to convict him. In reviewing sufficiency claims on direct

appeal, our inquiry is whether there is substantial evidence taking the

view most favorable to the government to support the conviction.

Glasser v. United States, 315 U.S. 60, 80 (1942).

After reviewing the record, we find that Williams' sufficiency challenge is without merit. The government proved that its informant had

called Williams and sent Williams money three times. Each time, a

package followed, in accordance with the terms of the conversations.

All three shipments contained methamphetamine. The government

also demonstrated that Williams himself signed for envelopes containing the money to pay for the goods discussed in the first two telephone calls. All three packages of methamphetamine were addressed

in a handwriting that matched handwriting in an address book found

in Williams' residence. The third envelope also contained an Auto

Parts Club newspaper in addition to the methamphetamine, and Williams is an auto mechanic.

During a search of Williams' residence, the government seized evidence including a triple beam scale, a pocket scale with residue similar to methamphetamine, and a baggie of methamphetamine.5

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5 The defendant admitted that the substance in the baggie was methamphetamine, but denied it belonged to him.

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Drawing all favorable inferences from this evidence, we conclude that

it supports Williams' conviction on the indictment's three counts. We

therefore reject Williams' sufficiency challenge.

The judgment of the district court is accordingly

AFFIRMED.

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