UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4688

JEFFREY ROY CROSBY,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Florence.

Cameron McGowan Currie, District Judge.

(CR-96-361)

Submitted: June 24, 1997

Decided: April 2, 1998

Before NIEMEYER and HAMILTON, Circuit Judges, and

HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Debra O. Jackson, Florence, South Carolina, for Appellant. J. Rene

Josey, United States Attorney, Nancy C. Wicker, Assistant United

States Attorney, Kelly E. Shackelford, Assistant United States Attorney, Columbia, South Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Jeffrey Roy Crosby appeals his jury conviction and sentence on

two counts of solicitation of the murder-for-hire of his United States

Probation Officer in violation of 18 U.S.C. #8E8E # 373, 1114 (1994).1 The

district court sentenced Crosby on August 29, 1996, to a term of

imprisonment of 240 months on count one and 125 months on count

two, with those sentences to run consecutively with each other and

with the federal sentence Crosby was serving at the time of his sentencing on the instant charges. In addition, the district court sentenced

Crosby to a supervised release term of three years on each count, to

run concurrently, ordered Crosby to participate in an inpatient/outpatient program of mental health, and further ordered payment of the $100 special assessment. Crosby's sentence was based on

an offense level of thirty-five and a criminal history category VI.

Crosby noted a timely appeal, claiming, by counsel, that the district

court abused its discretion in denying his pre-trial and pre-sentencing

motions for a psychiatric examination, and that the court's enhancement of his criminal history category pursuant to U.S. Sentencing

Guidelines Manual § 4A1.1(d) (1995), was inappropriate. As to the

second issue, Crosby specifically contends that the crime of solicitation was completed during his first, or, at the latest, his second, contact with the intended perpetrator, and was therefore completed before

he was imprisoned. In addition, Crosby raises several issues pro se:

(1) the wiretaps used against him were illegally obtained; (2) the

wiretap tapes were unintelligible, prejudicial, confusing, misleading,

and not protected against tampering; (3) the district court erred in

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1 Count one alleged the solicitation of others in violation of § 373

between September 18, 1995, and October 31, 1995; Count two alleged

the solicitation of another in violation of § 373 between February 9,

1996, and April 16, 1996.

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denying his motion for acquittal on the ground of insufficiency of evidence to support the solicitation charge; (4) the district court erred in

denying Crosby's motion to suppress certain statements Crosby made

on the tapes; (5) violation of the double jeopardy clause;

(6) prosecutorial misconduct; and (7) ineffective assistance. For the

reasons stated below, we affirm Crosby's conviction and sentence.

The district court's denial of Crosby's motions for psychiatric

examination are subject to review for abuse of discretion. United

States v. West, 877 F.2d 281, 285 n.1 (4th Cir. 1989). The record

reveals that the district court conducted a hearing on Crosby's motion

in compliance with 18 U.S.C. § 4241(a) (1994). In addition, the district judge had extensive opportunities to observe and talk with

Crosby in hearings in this case and in a previous criminal case, and

specifically found Crosby to be lucid, competent, and involved in his

defense. The judge reviewed multiple presentence reports from Crosby's prior criminal cases as well as the record of supervision from a

period of supervised release, none of which indicated that Crosby had

any problem being able to understand the nature and consequences of

proceedings against him, or in assisting in his defense. Moreover, as

to Crosby's pre sentence motion for psychiatric examination, the district judge also heard Crosby testify during the four-day trial in this

case. Under these circumstances, we cannot say that the district judge

abused her discretion in denying Crosby's pre-trial and pre-sentencing

motions for psychiatric examination.

Crosby's second claim, by counsel, is that the offense of solicitation was completed prior to his being under a criminal justice sentence, and that the district court erred in enhancing his criminal

history category pursuant to USSG § 4A1.1(d), with the resultant

requirement that Crosby serve a portion of his sentence consecutively

to an earlier sentence pursuant to USSG § 5G1.3(a). Count two of

Crosby's indictment alleged conduct committed from on or about

February 9 to April 16, 1996. Crosby was sentenced on February 20,

1996, for unrelated forearms violations and cocaine charges, and,

thus, began a criminal justice sentence of imprisonment on that date.

Crosby alleges that the offense alleged in Count two of the indictment

was concluded on February 9, 1996 (or at the latest February 14,

1996), when Crosby first approached Michael Ray about murdering

Crosby's probation officer.

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The factual findings of the sentencing court are reviewed under a

clearly erroneous standard; mixed questions of law and fact regarding

the Sentencing Guidelines are reviewed with due deference give to

the district court. United States v. Nale, 101 F.3d 1000, 1003 (4th Cir.

1996); United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).

The district court found that while Crosby in fact made his initial

approach prior to the date of sentencing on the firearms and narcotics

charges, he did not finalize the approach or actually reach a firm

agreement relative to the murder of his probation officer until after

February 20, 1996, and that it was not until that firm agreement was

reached that the offense of solicitation occurred.

The record reveals that it was not until Crosby's third contact with

Michael Ray, on March 21, 1996, in which Ray gave Crosby specific

details about how and when the murder of the probation officer would

take place, and until other post-February 20, 1996, evidence was

uncovered by the Government, that the Government had sufficient

evidence which was essential to the Government's proof of circumstances strongly corroborative of Crosby's intent to solicit to commit

a crime of violence. We agree with the district court that the Government proved by a preponderance of the evidence that while Crosby

made his initial contacts of solicitation to commit the murder-for-hire

of a United States Probation Officer prior to the time he was sentenced and imprisoned on unrelated firearms violations and cocaine

charges, Crosby's relevant contact for purposes of the crime of solicitation occurred after Crosby was under a criminal justice sentence.

See United States v. Nelson, 6 F.3d 1049, 1054-55 (4th Cir. 1993)

(discussing standard for enhancement).

Given the facts of this case, we find that the district court's determination that Crosby committed part of the offense alleged in Count

two of the indictment while under a criminal justice sentence, and its

enhancement of Crosby's criminal history category pursuant to USSG

§ 4A1.1(d), was proper. See Nale, 101 F.3d at 1003; Daughtrey, 874

F.2d at 217. Finally, because the district court properly enhanced

Crosby's criminal history category pursuant to USSG§ 4A1.1(d), we

find that the court's imposition of a consecutive sentence as to Count

two of the indictment was appropriate pursuant to USSG § 5G1.3(a).

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Crosby's first pro se claim is that the wiretap used by the Government informant was illegal. Specifically, he alleges that there was no

authorization or court order as required under Title III of Omnibus

Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C.A.

§§ 2510-2521 (West 1970 & Supp. 1993), for the taped intercepts on

February 16, 21, or March 21, 1996. He claims that no order or application for order of the surveillance, as required by Title III, has ever

been produced by the Government. A review of the transcript of the

pre-trial motions hearing before the district court on July 12, 1996,

reveals that Crosby's counsel expressly withdrew any Title III objections to the Government's electronic surveillance evidence. Moreover, upon questioning by the trial judge, Crosby stated that he

understood that his attorney was withdrawing the motion to suppress

the evidence of the taped conversations, and that he agreed with the

withdrawal of the motion. See generally Blackledge v. Allison, 431

U.S. 63, 73-74 (1977); Via v. Superintendent, Powhatan Correctional

Ctr., 643 F.2d 167, 171 (4th Cir. 1981). Given that Crosby withdrew

his Title III objections below, we review his claim on appeal for plain

error. See United States v. Olano, 507 U.S. 725, 734 (1993); United

States v. Young, 470 U.S. 1, 16 (1985); United States v. Cedelle, 89

F.3d 181, 184-85 (4th Cir. 1996). We find no plain error in the record

warranting review of Crosby's claim.2

In two of his pro se claims, Crosby alleges that the wiretap tapes

were unintelligible, prejudicial, confusing, misleading, and not protected against tampering (claim two), and that the district court erred

in denying his motion to suppress certain statements Crosby made on

the tapes (claim four). He claims that witness testimony as to the portions of the tapes that were unintelligible was inaccurate, misleading,

and prejudicial, and specifically claims discrepancies between what

he actually said on portions of the tape and what the witness testified

(and the transcripts reflected) that he said. Crosby also claims that he

was forced to testify to explain what he said on the tapes and to clar-

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2 Also, to the extent Crosby's counsel objected to the March 21, 1996,

tape during the trial on other grounds, we find that the district court did

not abuse its discretion in allowing the tape into evidence, given the

proof of authorization by the Federal Bureau of Investigation and the

Department of Justice, which the Government produced. See United

States v. Chin, 83 F.3d 83, 87 (4th Cir. 1996).

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ify inaccurate and prejudicial testimony by the Government's informant regarding what Crosby had said on the tapes.

The district court's admission of evidence under Fed. R. Evid.

404(b) is subject to an abuse of discretion standard, and will only be

overturned if the judge's decision was "`arbitrary or irrational.'" Chin,

83 F.3d at 87 (quoting United States v. Powers , 59 F.3d 1460,

1464-65 (4th Cir. 1995)). A district court may in its sound discretion

exclude a tape if unintelligible or inaudible portions of it are so significant that the whole recording is rendered untrustworthy. See United

States v. Watson, 594 F.2d 1330, 1335 (10th Cir. 1979).

Crosby's counsel had the opportunity to explore through crossexamination any inaccuracies in the tapes, the testimony relating to

the tapes, and the transcripts. The district court gave limiting instructions to the jury regarding the tapes themselves and the transcripts,

specifically instructing the jury, on repeated occasions, that the tapes

themselves were the best evidence, and that the transcripts were to be

used only as an aid. Proof of the accuracy of the transcripts was

offered both pre-trial and at trial. Plus, Crosby testified regarding his

statements on the tapes. Moreover, the record reflects that the district

judge systematically and thoroughly considered each objection made

by Crosby's attorney concerning each specific portion of the tapes

which Crosby was claiming were prejudicial, not relevant, or misleading, in some cases listening to the portion of the tapes herself, prior

to making her rulings regarding admissibility. Under these circumstances, we cannot say that the district court abused its discretion

regarding the admissibility of the portions of the tapes that ultimately

were entered into evidence. See United States v. Capers, 61 F.3d

1100, 1106 (4th Cir. 1995) (standard), cert. denied, ___ U.S. ___, 64

U.S.L.W. 3779 (U.S. May 20, 1996) (No. 95-7022). Finally, as to the

admissibility of statements Crosby made on the tapes which he contends were prejudicial, taken out of context, misleading, and/or not

relevant, we find that the district court's thorough consideration of

Crosby's objections to those statements, and ultimate determination

that the probative value of the statements outweighed any prejudice,

was not an abuse of its discretion. See Chin, 83 F.3d at 87.

Crosby's third pro se claim is that the district court erred in denying his motion for acquittal on the ground of insufficiency of evidence

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to support the solicitation charge. In evaluating the sufficiency of the

evidence supporting a criminal conviction on direct review, "the verdict must be sustained if there is substantial evidence, taking the view

most favorable to the Government to support it." Glasser v. United

States, 315 U.S. 60, 80 (1942).

This court considers circumstantial and direct evidence, and allows

the government the benefit of all reasonable inferences from the facts

proven to those sought to be established. See United States v. Burgos,

94 F.3d 849, 858 (4th Cir. 1996) (en banc), cert. denied, ___ U.S.

___, 65 U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No. 96-6868); United

States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). In resolving

issues of substantial evidence, this court does not weigh evidence or

review witness credibility. See United States v. Saunders, 886 F.2d

56, 60 (4th Cir. 1989). Circumstantial evidence need not exclude

every reasonable hypothesis of innocence. See United States v.

Jackson, 863 F.2d 1168, 1173 (4th Cir. 1989).

Even the uncorroborated testimony of an accomplice may be sufficient to sustain a conviction, see United States v. Burns, 990 F.2d

1426, 1439 (4th Cir. 1993), and it is the role of the jury to judge the

credibility of witnesses, resolve conflicts in testimony, and weigh the

evidence. See United States v. Manbeck, 744 F.2d 360, 392 (4th Cir.

1984). This Court may reverse a jury verdict only when there is no

"substantial evidence, viewed in the light most favorable to the Government, to uphold it." Burks v. United States, 437 U.S. 1, 17 (1978).

The trial evidence fully supports Crosby's conviction. Crosby was

detained prior to trial and incarcerated in the Florence County Detention Center in Effingham, South Carolina, on firearms and cocaine

charges arising out of conduct occurring while he was on supervised

release from a prior offense. While in the Florence County Detention

Center, Crosby met two inmates, Terry McKnight and Jimmy Parker,

to whom he expressed his hatred for his probation officer, Robbie

Baird, whom he blamed, together with his common-law wife, Dixie

Welch, for the revocation of his supervised release, return to prison,

and the firearm and drug indictments. Both McKnight and Parker testified that in late September 1995 Crosby spoke with them in separate

conversations, asking for help in murdering both Baird and Welch.

They each testified as to specific details Crosby gave them individu-

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ally about how the murders could be carried out, including where and

how the murders could take place. They also each testified that

Crosby spoke with them individually about how he would pay them

for murdering Baird and Welch and/or arranging for their murders.

McKnight testified that in late September 1995 he informed authorities that Crosby had solicited him to murder federal probation officer

Baird and Crosby's estranged common-law wife, Welch. McKnight

told FBI agents that Crosby had also been talking to Parker about carrying out the murders. Parker testified that he was uncooperative

when interviewed by FBI agents, and that he told Crosby that FBI

agents had approached him regarding Crosby's murder-for-hire plot.

Michael Ray, the Government's primary witness as to Count two,

testified that he was Crosby's new pod-mate, and that immediately

upon their introduction, Crosby told Ray of his hatred for his probation officer, Baird. Ray testified that Crosby then attempted to solicit

Ray to help him hire someone to murder Baird. Ray testified that he

contacted his probation officer, Vic Bartell, and informed Bartell of

Crosby's plot to kill Baird. On February 13, 1996, Ray met with

Agent Kevin Harvey of the Federal Bureau of Investigation and

agreed to tape record conversations he had with Crosby. The first

such conversation was taped on February 16, 1996, the second on

February 21, 1996, and the third on March 21, 1996.

The actual tape recordings were played for the jury at trial, and the

jury was supplied with a transcript of the tapes, of which Ray assisted

in the preparation. In addition, Ray testified to his recollection of

what Crosby was saying on the tapes.

Through the tape recordings, transcripts, and Ray's testimony,

Crosby's murder-for-hire plot was described. Ray testified as to how

Crosby was going to sell his boat and use some of the proceeds to hire

a hit man to kill Baird. Crosby initially offered Ray $1000 from the

boat proceeds to kill Baird; $1500 was the final figure to which

Crosby agreed. Crosby and Ray negotiated the price of the murder

and discussed the potential dates for the murder, as well as the identity of the potential hit man. Ray told Crosby that the hit man had

been staking Baird out, determining his daily schedule. He then

detailed to Crosby the time, manner, and circumstances in which

Baird was to be murdered. Ray testified that at no time in his conver-

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sation with Crosby did Crosby state or indicate that he had changed

his mind about having Baird killed. Ray testified that at the end of the

discussion on March 21, 1996, Crosby was made to understand that

Baird's murder was to take place either the next day on Friday or on

the following Monday.

On Friday, March 22, 1996, Crosby was transported to the Orangeburg Detention Center where Crosby met another inmate named

James Roy Toothe. Toothe testified that upon Crosby's arrival at

Orangeburg, Crosby asked Toothe whether they could receive news

from Florence, and that a man in a high position in Florence was supposed to be killed. Crosby explained to Toothe that he had arranged

for the murder of his probation officer, and told Toothe details as to

how the murder was to be committed and what Crosby's role was in

arranging for the murder. Given the trial testimony and evidence, and

construing that evidence in the light most favorable to the Government, we find that the evidence was sufficient for a reasonable jury

to have found Crosby guilty of solicitation of the murder-for-hire of

his United States Probation Officer, as alleged in both counts of the

indictment. See Glasser, 315 U.S. at 80.

Crosby next alleges violation of the Double Jeopardy Clause

regarding the two counts of his indictment. Specifically, he claims

that the evidence was insufficient to convict him on the first count

(having the time frame of from on or about September 19, 1995, until

on or about October 31, 1995), and that his conviction on the two

counts was based on facts related to the time frame set forth in the

second count only (having the time frame of from on or about February 9, 1996, to the date of the indictment), resulting in multiple

charges of the same offense, and multiple convictions on the same

offense. He bases his argument on testimony of Special Agent Harvey

before the grand jury that there was insufficient evidence to prosecute

Crosby on the first count of the indictment involving McKnight and

Parker. Crosby misconstrues the law and the evidence.

Even assuming, arguendo, that the Government decided not to

prosecute Crosby after his first round of solicitation to murder based

upon the lack of evidence strong enough to obtain a conviction, that

same evidence apparently was strong enough, when coupled with the

ample evidence to support a conviction on the second count, for the

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jury to convict on both counts. Crosby was indicted on separate transactions involving separate attempts and separate solicitations. As we

have found, the evidence was sufficient for the jury to convict on both

counts. There was no double jeopardy violation, and we dismiss this

claim.

Crosby next alleges several instances of prosecutorial misconduct.

He claims that the prosecutor ordered him into maximum segregation

lock down status, where he had no access to the law library, based

upon the belief that he had approached another inmate to contract a

murder for hire of the prosecutor, a federal judge, individuals in the

probation office, and others. Even assuming, arguendo, that Crosby

has made a proper allegation of prosecutorial misconduct, we find his

conclusory claims of denial of due process rights to legal research and

a fair trial to be insufficient to state a claim. He also alleges plain

error in several statements made by the prosecution regarding Baird's

children, in asking Crosby at trial if he thought the proceedings

against him for murder-for-hire were a joke, in commenting that he

was willing to fake affidavits or lie, and in confusing the language of

the tapes. Because Crosby has not demonstrated that the statements

made by the prosecutor affected his substantial rights, and seriously

affected the fairness, integrity, or public reputation of the judicial proceedings, we find this claim to be without merit. See United States v.

Olano, 507 U.S. at 731-32; Muth v. United States, 1 F.3d 246, 250

(4th Cir. 1993).

Finally, Crosby alleges that his attorney was ineffective for failing

to: (1) call to testify certain defense witnesses; (2) obtain certain

documents; (3) pursue an entrapment defense; and (4) adequately

question witnesses. Also, Crosby claims plain error in the fact that his

former court-appointed attorney on charges other than the solicitation

charges at issue in this case was the same individual who was representing Ray and who negotiated Ray's cooperation with the Government to tape record Crosby regarding his solicitation of the murderfor-hire of his probation officer. He claims that his defense attorney

on the solicitation charges was aware of this conflict of interest, yet

failed to bring the issue to the court's attention, and refused to call the

previous attorney as a witness at trial.

A claim of ineffective assistance of counsel should be raised by

motion under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997), in the

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district court, and not on direct appeal, unless it"conclusively

appears" from the record that the defense counsel did not provide

effective representation. United States v. DeFusco, 949 F.2d 114,

120-21 (4th Cir. 1991). We find that it does not conclusively appear

from the face of the record that Crosby's defense counsel failed to

provide effective representation. Thus, Crosby's recourse must be to

file a motion under 28 U.S.C.A. § 2255.

Accordingly, we affirm Crosby's conviction and 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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