UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4893

DEREK YANCEY,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Harrisonburg.

Samuel G. Wilson, Chief District Judge.

(CR-96-20)

Submitted: June 23, 1998

Decided: September 10, 1998

Before MURNAGHAN and HAMILTON, Circuit Judges, and

HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Timothy S. Coyne, FOWLER, GRIFFIN, COYNE & COYNE, P.C.,

Winchester, Virginia, for Appellant. Robert P. Crouch, Jr., United

States Attorney, Thomas J. Bondurant, Jr., Assistant United States

Attorney, Robbie S. Westermann, Third Year Law Student, Roanoke,

Virginia, for Appellee.

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Opinion on Rehearing
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Derek Yancey was convicted by a jury of endeavoring to obstruct

justice, 18 U.S.C.A. § 1503 (West Supp. 1998), and sentenced to a

term of 110 months imprisonment for attempting to create a false alibi

after he was charged with murder. Yancey was acquitted of the murder, as well as related robbery, firearms, and drug offenses. He contends that the district court erred in allowing the government to

introduce, during rebuttal, statements and a recorded conversation

which had been excluded from its case-in-chief. He also contends that

the evidence was insufficient to convict him of endeavoring to

obstruct justice and he challenges his sentence, arguing that the district court erred in applying USSG § 2J1.2(c), 1 a cross reference to

USSG § 2X3.1 (Accessory After the Fact to murder). We affirm the

conviction and the sentence.

While Yancey was in custody awaiting trial for murder and the

related offenses, he discussed his case with another inmate, Robert

Funk, a jailhouse lawyer. Funk wrote to the Assistant U.S. Attorney

handling his own case to report that Yancey was trying to involve him

in a conspiracy to commit perjury. An agent from the Federal Bureau

of Investigation (FBI) met with Funk and his attorney on March 4,

1996. Funk told the agent that Yancey wanted his help in fabricating

an alibi. On March 8, 1996, as pre-arranged, Funk called another FBI

agent and put Yancey on the phone. The agent was posing as an

acquaintance of Funk's who was willing to say, for a fee, that Yancey

had been working for him in North Carolina for two weeks in March

1995--the period when the murder and robbery occurred. The telephone conversation was recorded. A week later, Yancey filed a notice

of alibi asserting that he was in North Carolina on the date of the murder.

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1 U.S. Sentencing Guidelines Manual (1995).

 2
Yancey was charged with endeavoring to obstruct justice and the

case was consolidated for trial with the other charges. Yancey sought

to suppress all evidence relating to his conversations with Funk and

the recorded telephone conversation. After a suppression hearing, the

district court found that Funk became a government agent on the day

the recorded conversation was made. The court excluded the recorded

call and all statements made by Yancey to Funk after March 8, 1996,

under Maine v. Moulton, 474 U.S. 159, 180 (1985), finding that the

recorded conversation had been obtained in violation of Yancey's

Sixth Amendment right to counsel because the government created a

situation where Yancey was likely to make statements incriminating

himself in the murder.2 However, the court noted that the evidence

could be introduced for impeachment purposes should Yancey testify,

citing Michigan v. Harvey, 494 U.S. 344, 349 (1990). The court

rejected Yancey's claim that his Fifth Amendment right to have counsel present during police-initiated custodial interrogation had been

violated, finding that the rights protected by Miranda v. Arizona, 384

U.S. 436 (1966), did not extend to voluntary statements to undercover

government agents. See Illinois v. Perkins, 496 U.S. 292, 298 (1990).

During his trial, Yancey testified that Funk initiated the idea of creating a false alibi and that his lawyer also told him he needed to come

up with an alibi. In rebuttal, the government called Funk and the FBI

agent who spoke with Yancey during the recorded phone call to testify about the call. The government also introduced the tape recording

of the call and a letter Yancey wrote later thanking his supposed benefactor.

On appeal, Yancey maintains that the district court erred in permitting the government to introduce the tape recording and other evidence which was excluded from the government's case-in-chief. He

acknowledges that, in Michigan v. Harvey, 494 U.S. at 351, the

Supreme Court held that a defendant's statement to police may be

used to impeach his false or inconsistent testimony even if the statement was obtained in violation of his Sixth Amendment right to counsel. However, he argues that the government's conduct here violated

the core value of the Sixth Amendment's constitutional guarantee,

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2 In fact, Yancey did not say anything during the recorded call which

implicated him in the murder, the robbery, or the drug offense.

 3
rather than a mere prophylactic rule designed to protect the right to

counsel, and thus should have been excluded from rebuttal.

The Sixth Amendment right to counsel attaches once formal

charges are initiated. See United States v. Gouveia, 467 U.S. 180, 187

(1984). "The essence of this right . . . is the opportunity for a defendant to consult with an attorney and to have him investigate the case

and prepare a defense for trial." Harvey, 494 U.S. at 348 (internal

citation omitted). After the right has attached, police may not deliberately elicit uncounseled statements from a defendant without an

express waiver of the right to counsel. See id. Similarly, once a defendant has asserted his right to counsel, a waiver of counsel given in a

police-initiated discussion is presumed invalid, see Michigan v.

Jackson, 475 U.S. 625, 636 (1986), unless the defendant is again

given a Miranda3 warning. See Patterson v. Illinois, 487 U.S. 285

(1988). The Jackson rule is a prophylactic rule designed to protect the

Sixth Amendment right to counsel at any interrogation occurring after

arraignment and to ensure voluntary waivers of that right. See Harvey,

494 U.S. at 350. Statements obtained in violation of the Jackson rule

may be used to impeach the defendant's trial testimony, see id. at 351,

as may statements obtained in violation of Miranda. See Harris v.

New York, 401 U.S. 222, 225-26 (1971).

The district court here equated the Moulton rule with the Jackson

rule in holding that Yancey's suppressed statements could be used to

impeach his testimony. Yancey provides no authority that the court

was wrong in doing so. Reviewing the court's decision under the

harmless error standard, see Tuggle v. Netherland, 79 F.3d 1386,

1392 (4th Cir. ), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3263 (U.S.

Oct. 7, 1996) (No. 96-5364), we have difficulty in finding that any

error occurred. Assuming, arguendo, that an error occurred, it was

harmless because it did not affect the outcome of the trial. The harmless error standard for constitutional issues on direct appeal is

"whether the error `was harmless beyond a reasonable doubt.'"

Tuggle, 79 F.3d at 1392 (quoting Chapman v. California, 386 U.S.

18, 22 (1967)). "[A] constitutional error may not be declared harmless

if there is a `reasonable possibility' that the`error contributed to the

verdict.'" Id. (quoting Brecht v. Abrahamson, 507 U.S. 619, 637

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3 Miranda v. Arizona, 384 U.S. 436 (1966).

 4
(1993)). Yancey was acquitted of all the charges on which his right

to counsel had attached when he attempted to create the false alibi.

Yancey argues that the introduction of the tape recording of his

conversation with the undercover agent was not harmless because it

made Funk's testimony more credible and thus created a reasonable

possibility that constitutional error affected the verdict on the obstruction of justice count. This argument is meritless because Yancey's

Sixth Amendment right had not attached with regard to the obstruction charge and evidence of the recorded call could have been introduced in the government's case-in-chief had Yancey been tried

separately on that charge. See Moulton, 474 U.S. at 179-80 & n.16

(incriminating statements obtained in violation of the Sixth Amendment relating to pending charges must be excluded in trial of those

charges but may be admitted in trial for the other crimes); Perkins,

496 U.S. at 299 (once charge has been filed, use of undercover agent

to interfere with defendant's right to counsel is error). The evidence

was excluded only because Yancey was placed in a position where he

might have incriminated himself in the murder, robbery, or drug

offenses with which he had been charged, outside the presence of his

attorney and without making an express waiver of his right to counsel.

Error in the admission of Yancey's suppressed statements on rebuttal

could occur only with respect to the murder, robbery, and drug

charges. Because Yancey was acquitted of those charges, any error

was necessarily harmless.4

Yancey next argues that the evidence was insufficient to prove

beyond a reasonable doubt that he obstructed justice. A conviction

will be upheld "if there is substantial evidence, taking the view most

favorable to the Government, to support . . . the conviction." United

States v. Guay, 108 F.3d 545, 553 (4th Cir. 1997) (quoting Glasser

v. United States, 315 U.S. 60, 80 (1942)). Here, the government was

required to prove that Yancey had "knowledge or notice of a pending

judicial proceeding and acted . . . with the intent to influence,

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4 Yancey contends that, in the event his case is remanded for a new

trial, this court should find that the government's dealings with him

through Funk violated his Fifth Amendment right against police-initiated

uncounseled interrogation after he had asserted his Miranda right to

counsel. We need not address this issue.

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obstruct, or impede that proceeding in its due administration of justice." United States v. Littleton, 76 F.3d 614, 619 (4th Cir. 1996).

Although Funk testified that Yancey initiated the scheme to set up a

false alibi, Yancey maintains that Funk was not a credible witness.

The jury's decision concerning the credibility of witnesses is not

reviewable on appeal. See United States v. Johnson, 55 F.3d 976, 979

(4th Cir. 1995). Given that the jury found Funk more credible than

Yancey, the evidence was sufficient to support the conviction.

Finally, Yancey argues that the district court erred in applying

USSG § 2J1.2(c) and USSG § 2X3.1 (Accessory After the Fact) to

determine his sentence. Because the issue is a legal one involving

application of the sentencing guidelines, our review is de novo. See

United States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995).

Guideline section 2J1.2(a) provides a base offense level of 12, but

subsection (c) states that, "[i]f the offense involved obstructing the

investigation or prosecution of a criminal offense,[the court should]

apply § 2X3.1 (Accessory After the Fact) in respect to that criminal

offense, if the resulting offense level is greater." Section 2X3.1 provides for an offense level 6 levels lower than the offense level for the

underlying offense, but no more than 30. Finding that Yancey had

attempted to obstruct the prosecution of a criminal offense involving

first degree murder (base offense level 43), the district court applied

the cross reference and determined that Yancey's offense level was

30.5 See United States v. Aragon, 983 F.2d 1306, 1315 (4th Cir. 1993)

(section 2J1.2(c) applies to conviction for endeavoring to obstruct justice).

Yancey argues that the cross reference should not apply because

(1) he obstructed justice to protect himself, not someone else, and (2)

he was not guilty of murder. He relies on United States v. Huppert,

917 F.2d 507 (11th Cir. 1990), which held that the cross reference

was inapplicable when the defendant obstructed an investigation to

protect only himself. We took the same approach until the commentary to USSG § 2J1.2 was amended in 1991. See United States v.

Pierson, 946 F.2d 1044, 1047-49 (4th Cir. 1991) (following Huppert

in limiting application of USSG § 2X3.1 to cases in which defendant

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5 Yancey received a 2-level adjustment for acceptance of responsibility,

see USSG § 3E1.1(a), which reduced his offense level to 28.

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makes false statements to assist other persons). After the 1991 amendment we held, in United States v. Heater, 63 F.3d 311, 330-31 (4th

Cir. 1995), that the cross reference applied to a defendant who

obstructs justice to protect himself and that Pierson was no longer

good law. Yancey acknowledges the holding in Heater, but argues

that Heater is not controlling because he"did not commit the underlying offenses as evidenced by his acquittal of the drug, murder and

robbery charges." Yancey states that "the District Court essentially

found that the Defendant did not commit the crime of murder." In

fact, the district court did not make such a finding in the course of

determining Yancey's sentence. In deciding whether the cross reference applied, the court stated, "I believe that whether he was, in fact,

guilty of the underlying offense is not the issue at this point, that the

question is what was the underlying offense concerning which he . . .

attempted to create a false alibi, and that offense was murder." Only

later, after applying the cross reference, determining the guideline

range, and deciding not to depart, did the judge state that the evidence

had not convinced him that Yancey was guilty of murder.

In any case, the cross reference applies when the defendant's "offense involved obstructing the investigation or prosecution of a criminal offense," see USSG § 2J1.2(c)(1), regardless of "whether

defendant or anybody else was convicted of the underlying offense or

whether an offense could be shown to have been committed at all."

United States v. McQueen, 86 F.3d 180, 182 (11th Cir. 1996). The

application of USSG § 2X3.1 "is intended not to treat the defendant

as having committed the underlying offense, but to weigh the severity

of one's actions in obstructing justice based on the severity of the

underlying offense that was the subject of the judicial proceeding

sought to be obstructed, impeded or influenced." United States v.

Brenson, 104 F.3d 1267, 1285 (11th Cir.), cert. denied, ___ U.S. ___,

66 U.S.L.W. 3261 (U.S. Oct. 6, 1997) (No. 97-5252). Therefore, we

conclude that the district court properly applied the cross reference in

Yancey's case.

Accordingly, we affirm the conviction and the sentence. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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