UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 92-7435

Summary Calendar

__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANKIE B. WILLIAMS,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court for the

Northern District of Mississippi

______________________________________________ June 4, 1993

( )

Before GARWOOD, JONES and EMILIO M. GARZA, Circuit Judges.

GARWOOD, Circuit Judge:

Appellant, Fra nkie B. Williams (Williams), was convicted of

one count of making false declarations before a grand jury in

violation of 18 U.S.C. § 1623. The district court sentenced

Williams to a term of imprisonment of twelve months, a three-year

term of supervised release, and imposed a $ 3000 fine and a $50

assessment. Williams now appeals her conviction.

Facts and Proceedings Below

During 1991, the federal grand jury for the Northern District

of Mississippi was engaged in an investigation of a drug conspiracy

involving the Rodgerick Williams drug organization (Organization)2

based in Greenville, Mississippi. The grand jury heard testimony

that the Organization supplied over sixty-five pounds of cocaine to

Connie Green (Green) who distributed it in the Lake V illage,

Arkansas area with the assistance of Williams and her daughter

Audrey Williams, who were both residents of Lake Village, Arkansas.

Testimony further established that after Gree n was incarcerated,

Williams and her daughter took over the drug distribution

operation.

Having been identified as a co-conspirator with knowledge of

the Organization, Williams was subpoenaed to appear in Oxford,

Mississippi before the federal grand jury. Williams was served

with the subpoena on October 3, 1991, and an attachment to the

subpoena advised Williams of her rights before the grand jury,

including her right to counsel. On October 18, 1991, Williams

testified before the grand jury. At the beginning of her

testimony, Assistant United States Attorney Charles W. Spillers

(Spillers) informed her that she was the subject of an

investigation, that she did not have to answer any questions or

make any statements if the answer might tend to incriminate her,

and that she could be prosecuted for perjury for knowingly making

false sta tements. Williams acknowledged that she understood her

rights. Spillers questioned Williams about Al Jackson (Jackson),

a major leader in the Organization and one of the principal targets

of the investigation. She denied that Jackson had ever given her

cocaine or arranged for cocaine to be delivered to her. She also1 The specific parts of her testimony that served as the basis

for her indictment were:

"Q. Have you ever sold cocaine?

A. No.

Q. Have you ever distributed or given anyone any

cocaine?

A. (Witness shakes haed [sic] in the negative.)

Q. Ma'am?

A. No.

Q. Have you ever used cocaine?

A. No, sir.

. . . .

Q. When you were living in a mobile home or house did

you or anyone else sell cocaine out of that residence

on April 21, 1990 at about 6:25 p.m., ma'am?

A. I didn't.

Q. Well, did anyone else that you know of?

A. Well, looking I can't say what went on. I don't

be home all the time.

Q. I am not asking you what you don't know. I am

asking you whether you know if anybody else did?

A. No, no, no.

Q. On June 9, 1990 at about 11:40 p.m., did you or

your daughter or anyone else sell cocaine out of your

residence in the 400 block of Lee Street?

A. What for? I don't be at home that time of night.

Q. Your answer is no?

A. No.

. . . .

3 denied that she had ever distributed cocaine. 1 At the conclusionQ. On or about September 25, 1990, at about 11:04

p.m., did you or your daughter or anyone else sell

cocaine from your residence on Lee Street?

A. No.

Q. Ma'am?

A. No.

Q. Is it your sworn testimony under oath today that

neither you nor your daughter sold cocaine on any of

the dates I asked you about?

A. Well, I can testify for myself.

Q. That you didn't?

A. I didn't."

4 of her testimony, Williams was gi ven an opportunity to avoid

prosecution for perjury by am ending or correcting her testimony,

but she declined to do so.

Prior to Williams's grand jury appearance, she and others had

been the targets of an investigation by the Southeast Arkansas

Regional Drug Task Force of the Federal Burea u of Investigation,

and the Arkansas State Police. On October 2, 1991, an Arkansas

bill of information was filed with, and a bench warrant issued by,

the Circuit Court of Chicot, Arkansas for the arrest of Williams on

four cou nts of delivery of a controlled substance contrary to

Arkansas law. Williams was not arrested or served with the warrant

or the information until October 24, 1991.

Williams was indicted on December 12, 1991, for knowingly

making a false material declaration in front of a federal grand

jury in violation of 18 U.S.C. § 1623. Prior to trial, the

district court denied Williams's motions to quash the grand jury5

indictment and to suppress evidence as being obtained in violation

of her Sixth Amendment right to counsel. The trial was conducted

on March 2 and 3, 1992, during which the prosecution presented

evidence of the materiality of Williams's statements through the

testimony of, among others, the foreman of the grand jury, Charles

Frederick (Frederick), and Spillers. Frederick testified that the

grand jury was investigating the Organization in Greenville,

Mississippi, that Williams had been identified as being associated

with the Organization, and that the grand jury wanted to determine

which members of the Organization were supply ing Williams with

cocaine. Frederick further testified that he did not think that

Williams's testimony SQ whe reby she denied any involvement with

coca ine S Q influenced the grand jury investigation. Spillers

testified tha t other grand jury witnesses had indicated that

Williams had associated with two major figures in the Organization,

Danny Williams and Ja ckson. Spillers explained that if Williams

had admitted selling cocaine, then she could be asked to identify

her drug sources and may have been able to serve as another witness

in the criminal case against Danny Will iams, Jackson, and other

members of the Organization.

At trial, the defense during cross-examination elicited

testimony from Clarence Cunningham, a prosecution witness, that he

had been subpoenaed by the government, had been told that he had to

go to court, and that he was scared not to because of threats to

his life. On redirect, the government asked if he knew where the

threats came from. Cunningham responded that he was threatened

over the telephone and that he could not identify the voice. The6

defense moved to strike the answer as being hearsay and because

Cunningham could not authenticate the telephone conversation. The

district court overruled the objection.

Williams was found guilty of the one charge of perjury.

Subsequently, the district court denied Williams's motion s in

arrest of judgment and for judgment of acquit tal notwithstanding

the verdict of the jury. The district court then sentenced

Williams to a term of imprisonment of twelve months, a three-year

term of supervised release, and imposed a $3000 fine and a $50

assessment. Williams now appeals her conviction.

Discussion

I. The Grand Jury's Jurisdiction

Williams first argues that her perjury conviction must be

reversed because the grand jury exceeded it s jurisdictional and

investigatory authority by making inquiries into her activities in

Arkansas. This argument was raised before this Court by Williams's

daughter and was rejected. U nited States v. Williams

, No. 92-7524

(5th Cir. March 4, 1993) (unpublished). Williams points out that

a false statement made before a grand jury acting beyond its

authority is not perjury. B rown v. U nited States , 245 F.2d 549,

554-55 (8th Cir. 1957). However, as noted by the Williams panel,

in the Brown case the appellant was convicted in Nebraska for

perjury before the Nebraska grand jury concerning false statements

he made regarding activities in Missouri. Under the facts there,

the testimony was irrelevant to possible indictment of anyone for

an offense committed, in whole or in part, in Nebraska. I d. at

554. Here, "[t]he foreman of the grand jury connected Williams's7

appearance in front of the grand jury to the investigation of the

Mississippi-based Rod Williams Organization, and established that

the scope of the grand jury's investigation included activities in

Mis sissippi as well as Arkansas." W illiams

, slip op. at 7. A

grand jury's investigation into a conspiracy is not limited to the

district where the grand jury is located. S ee Matter of Grand Jury

Proceedings: Marc Rich & Co., A. G. v. United States

, 707 F.2d 663,

667 (2nd Cir.), cert. denied

, 103 S.Ct. 3555 (1983); United States

v. Antill

, 601 F.2d 1049, 1050-51 (9th Cir. 1979); United States v.

Phillips , 540 F.2d 319, 328 (8th Cir.), cert denied , 97 S.Ct. 530

(1976); United States v. Girgenti

, 197 F.2d 218, 219 (3rd Cir.

1952). Since the foreman had sufficiently established that the

grand jury in its questioning of Williams was investigating a drug

conspiracy that took place partially in Mississippi, jurisdiction

was proper.

II. Materiality

In a similar vein, Williams argues that her grand jury

testimony concerning her activities in Arkansas was immaterial to

the grand jury's investigation in Missi ssippi and therefore her

perjury conviction must be reversed. To convict for perjury the

governmen t must prove that statements made by the defendant were

false, material, and not believed by the defendant to be true.

United States v. Abroms

, 947 F.2d 1241, 1245 (5th Cir. 1991).

Materiality is a legal issue that is decided by the district court

and is reviewed on appeal d e novo

. I d. at 1246. The test for

materi ality is "'whether the false testimony was c apable of

influencing the tribunal on the issue before it.'" United States2 Williams also points out that the grand jury indictment

against her did not state why or how her false statements were

material to the investigation. However, this Court is not

limited to considering the grand jury's indictment in order to

prove the scope of the investigation and thereby the materiality

of the witness's statements. Abroms , 947 F.2d at 1248.

8 v. Salinas

, 923 F.2d 339, 341 (5th Cir. 1991) (emphasis in Salinas )

(quoting United States v. Giarratano , 622 F.2d 153, 156 (5th Cir.

1980)). Materiality need not be proved beyond a reasonable doubt.

Abroms , 947 F.2d at 1246-47.

Williams argues that the false statements were not material to

the grand jury investigation because they related only to Arkansas.

She offers as proof of this assertion the testimony of grand jury

foreman Frederick who stated that he did not think that Williams's

false answers influenced the grand jury's investigation. 2 However,

he also testified that Williams had been identified to the grand

jury as being associated with the Organization and that the

questions asked of Williams concerning whether she sold drugs were

imp ortant because "we wanted to get to the bottom of the drug

organization or get to the source of where the drugs were coming

from that was being dispensed." Frederick further testified that

the grand jury was interested specifically in Williams's testimony

as to whom she was receiving the cocaine from; and if she had

admitted to sales of cocaine the grand jury would have been

interested in her sources.

False statements "need not be material to any particular

issue, but may be material to collateral matters that might

influence the court or the jury in the decisi on of the questions

before the tribunal." U nited States v. Damato

, 554 F.2d 1371, 13733 It is not determinative that Frederick testified that he did

not think the grand jury was influenced by Williams's testimony.

As this Court has recognized, "the false statement need not

actually affect the tribunal's decision; it need only be capable

of affecting the tribunal's decision." Salinas , 923 F.2d at 341.

4 As noted by the Williams panel:

"A transcript of Williams's statements in front of

the grand jury and the foreman's testimony that the

grand jury's objective was to investigate the Rod

Williams Organization is . . . sufficient to

demonstrate materiality. The foreman explained that

the grand jury received information indicating that

Williams's source was the Rod Williams Organization.

In the context of the investigation of the Rod Williams

Organization it is clear that truthful answers might

have allowed the grand jury to ask more probing

questions about Williams's knowledge of the Rod

Williams Organization and the source of her drugs.

Truthful answers to these questions might have enabled

the grand jury to carry out its charge more

efficiently, effectively, and extensively." Williams

, slip op. at 6.

9 (5th Cir. 1977). 3 Here, if Williams had answered truthfully

concerning whether she distributed cocai ne, then the grand jury

would have bee n able to ask more pertinent questions concerning

from whom Williams (who had been iden tified to the grand jury as

associated with the Organization) had received the cocaine; and if

someone in the Organization was a source for her cocaine, her

knowledge of the Organization itself. This testimony had the

legitimate potential to lead to further evidence concerning the

known targets of the investigation and possible other persons that

the grand jury was no t yet aware of. 4 In light of the lawfully

broad scope of this investigation, Williams's testimony was capable

of influencing the grand jury.5 An attachment to the Subpoena that Williams received stated

that "[y]ou may consult with an attorney before testifying; you

may have an attorney outside the jury room, and if you desire,

you will be afforded a reasonable opportunity to step outside the

grand jury room to consult with an attorney before answering any

question." It also informed her that she was "a suspect in [the]

investigation," and that "you will be expected to answer all

questions asked of you, except to the extent that a truthful

answer to a question would tend to incriminate you." Spillers

also informed her at the beginning of her testimony, "you are the

subject of an investigation, and that if you . . . are asked any

question for which the answer may tend to incriminate you then

you need not answer."

10 III. Sixth Amendment Right to Counsel

Williams contends that she was questioned by the grand jury in

violation of her Sixth Amendment right to counsel because Spillers

did not tell her prior to her grand jury testimony of her right to

counsel, nor did he mention the possibility of use immunity for her

t estimony. 5 She argues that Spillers was required to make such

statements because a prior bill of information charging a violation

of Arkansas law had been filed against her, so that her Sixth

Amendment right to counse l had attached and her interrogation by

the grand jury was in violation of that right.

The right to counsel attaches upon the "ini tiation of

adver sary judicial criminal proceedings." K irby v. Illinois

, 92

S.Ct. 1877, 1882 (1972); Daigre v. Maggio , 705 F.2d 786, 788 (5th

Cir. 1983). This Court has explained that the Kirby court viewed

the initiation of such proceedings to occur "'whether by way of

formal charge, preliminary hearing, indictment, information, or

arraignment.'" D aigre

, 705 F.2d at 788 (quoting Kirby

, 92 S.Ct. at

1882). A bill of information was filed in Arkansas state court on

October 2, 1991, accusing William s of two separate counts of6 Williams was asked about the underlying facts concerning

these two counts during her Mississippi grand jury appearance on

October 18, 1991. Her false answers concerning these facts

served as a partial basis for her perjury indictment. However,

there is no evidence that the grand jury was aware of the prior

bill of information filed in Arkansas.

11 delivery of a controlled substance in violation of Arkansas law. 6

The filing of the bill of information in the Arkansas state court

certainly triggered her right to counsel in the Arkansas state

court proceedings. K irby, supra

. However, this filing did not

trigger her r ight to counsel concerning her October 18, 1991

appearance before the federal grand jury in Mississippi.

The initiation of adver sary criminal proceedings for an

offense causes the Sixth Amendment right to counsel to attach for

that offense

. United States v. Carpenter , 963 F.2d 736, 739 (5th

Cir. 1992) (noting that "the Sixth Amendment only applies to the

specific offense with which the suspect has been charged"). Only

under extremely narrow circumstances will the Sixth Amendment right

to counsel also attach to other offenses. I d. at 740; United

States v. Cooper , 949 F.2d 737 (5th Cir. 1991), cert. denied , 112

S.Ct. 2945 (1992). In C ooper

, the defendant was arrested and

charged for the state offense of robbery, and his car seized as an

instrument in the crime. An inventory search of the car's contents

revealed a sawed-off shotgun in the trunk. After counsel had been

appointed for the defendant in the state case, a federal agent

questioned him about both the sa wed-off shotgun and the state

offense. He was subsequently charged under federal law for

unlawful possession of an unregistered weapon , the shotgun. The

defendant's statements in the interview wit h the federal agent7 We also held in Cooper that the defendant's Sixth Amendment

right to counsel in the federal trial was not violated because

"[e]ven assuming the federal agent erred when he questioned

Cooper about the state offense, that error is harmless because,

as the government points out, it never introduced the statement"

concerning the state offense at the federal trial. Id. at 743.

The issue here is not whether Williams's grand jury testimony

could be used in the Arkansas state case where adversary

proceedings had commenced. And, there is no evidence that

federal charges have ever been initiated against Williams for the

drug transactions she was questioned about. Indeed, she made no

damaging admissions concerning drug offenses before the grand

jury since all of her answers denied culpability.

12 concerning the shotgun, but not the state offense, were used in his

federal trial (but not in his state trial). The defendant argued

t hat all of his statements to the federal agent should have been

suppressed because the federal offense was so "i nextricably

intertwined" with the state offense that his right to counsel for

the state charge also attached to the federal offense. I d. at 743.

We acknowledged that the Sixth Amend ment right to counsel might

well attach to a charge that "was extremely closely related to

pending . . . charges," at least where the charges concerned "the

same" type of crime, "victim, residence, time span, and sovereign ."

Id. at 744 (emphasis added). However, such was not the case in

Cooper

, because "the federal and state crimes concern different

conduct, although, efficiently for the governments, both

prosecutions could use much of the same evidence." Id. 7

Here, Williams was also charged with two different offenses:

distributing a controlled substance and perjury. Williams was

never charged by the federal authorities for her part in the drug

conspiracy, but only for perjuring herself before the grand jury.

These charges, brought by different sovereigns and con c erning8 Specifically, when asked by defense counsel about the

federal official who brought him the subpoena, Cunningham

testified:

"Q. What did he tell you about the subpoena?

A. He said I had to come to court.

13 different conduct, are not "extremely closely related." Williams's

Sixth Amendment right to counsel was not violated.

IV. Hearsay Objection

Finally, Williams argues that the district court erred when it

overruled her objection to prosecution-witness Cunningham's

testimony that an unidentified voice he heard over the telephone

threatened to kill him if he testified. Williams alleges that the

testimony was highly prejudicial hearsay and was not authenticated

in violation of the "voice identification" rule. In resolving this

point of error, we are mindful that our review of a trial court's

evidentiary rulings is "highly de ferential," and this Court will

generally reverse such rulings o nly for an abuse of discretion.

United States v. Anderson

, 933 F.2d 1261, 1267-68 (5th Cir. 1991).

The complained of testimony was elicited in response to a

matter opened up by defense counsel. On cross-examination of

Cunningham, Williams's counsel attempted to impeach his credibility

by showing that the government had subpoenaed him, and had told him

that he had to testify. Cunningham also testified on crossexamination that he was scared because his life was threatened.

Cunningham's testimony on cross-examination at least arguably left

the impression that the government was the entity that had

threatened him. 8 On redirect, the prosecutor elicited testimonyQ. You had to come to court?

A. Come to court because I am scared.

Q. You are scared?

A. Yes.

Q. Why you are scared?

A. Because I have been threatened. My life has been

threatened and my family's life has been threatened."

9 Williams did not object below on the ground that the

14 from Cunningham that he had been threatened over the phone and that

he could not identify who was making the threats. Cunningham also

t estified that the person said "I would be killed one way or

another, whether they had to burn my mother's house to get me out,

one way or another I would be terminated."

Williams claims that Cunningham's statements describing the

caller's threat s were hearsay. Hearsay is an out-of-court

statement offered to prove the truth of the matter asserted. F E D

.

R. E VID

. 801(c). Here, the government was not seeking to prove

whether the threats were true, but rather to show why Cunningham

feared for his life. S ee United States v. Garza , 754 F.2d 1202,

1206 (5th Cir. 1985) (holding that "[t]he evidence was offered as

the fa ct of an assertion and not as assertion of a fact and was

therefore not hearsay"). Since the defense counsel had arguably

implied that Cunningham's testimony was unreliable because he had

been coerced by the g overnment and was fearful, the government's

questioning had at least some relevance as rebutting the defense

counsel's implication by show ing that Cunningham's state of mind

w as not the result of government threats. 9 Statements regardingevidence should be excluded under F ED

. R. E VID

. 403 because its

legitimate probative value was substantially outweighed by the

danger of unfair prejudice. Nor has that contention been raised

on appeal. The objection below was made solely in terms of

hearsay and authentication; there was no mention of prejudice or

Rule 403. See United States v. Martinez , 962 F.2d 1161, 1168 &

n.8 (5th Cir. 1992); United States v. Vitale , 596 F.2d 688, 689

(5th Cir. 1979).

15 exi sting state of mind are exceptions to the hearsay rule. S ee

F ED

. R. E VID

. 803(3); United States v. Taglione

, 546 F.2d 194, 200-01

(5th Cir. 1977) (holding that a defendant's telephone conversation

with a third person was admissible under Rule 803(3) to establish

the defen dant's state of mind concerning alleged threats made by

the defendant).

Williams also claims that the statements of the caller should

have been excluded because they were not authenticate d. Federal

Rule of Evidence 901(a) does require that evide nce of telephone

conversations be authenticated as a condition precedent to their

admission. S ee F ED

. R. E VID

. 901(b)(5); United States v. Scott

, 678

F.2d 606, 611-12 (5th Cir.), cert. denied

, 103 S.Ct. 304 (1982).

The Scott court noted that the government had "offered nothing to

identify the parties to the overheard [radio] communications." I d.

at 612. However, "the radio communication evidence came in not to

prove the truth of the matter asserted

. . . but to explain why the

Coast Guard undertook its investigation." I d. Similarly, the

telephone threats made to Cunningham came in not to prove the truth

of the threats (or as any kind of admission) but to explain why the

witness was fearful. Therefore we conclude, as did the S cott

court, that "in view of the strength of the evidence against

[Williams] whose conviction we affirm, any error in admitting these16

rather ambiguous transmissions was harmless." Id.

Conclusion

Williams has failed to show any reversible error was committed

by the district court below. Accordingly her conviction is

AFFIRMED.