UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4739

RICO LAMONT SPURLOCK,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of West Virginia, at Clarksburg.

Irene M. Keeley, District Judge.

(CR-95-29)

Argued: June 6, 1997

Decided: September 5, 1997

Before MURNAGHAN, WILLIAMS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John Stuart Bruce, Acting Federal Public Defender,

Greensboro, North Carolina, for Appellant. Zelda Elizabeth Wesley,

Assistant United States Attorney, Wheeling, West Virginia, for

Appellee. ON BRIEF: William D. Wilmoth, United States Attorney,

Wheeling, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted Rico Lamont Spurlock of attempted possession of

crack cocaine with the intent to distribute and the district court sentenced him to 235 months imprisonment. On appeal, Spurlock challenges the refusal to suppress his post-arrest statement, the admission

of grand jury testimony of an unavailable witness, the sufficiency of

the evidence, and the prosecutor's closing argument. Finding no

reversible error, we affirm.

I.

On September 28, 1995, Brian Smith was stopped for speeding; a

legal search of his car uncovered approximately 760 grams of crack

cocaine. Smith was arrested and quickly entered into a plea agreement

with the Government. Smith agreed to set up a controlled delivery of

the 760 grams of crack to Spurlock. Accordingly, that night Smith

made a police-monitored telephone call to Spurlock. Pretending that

his car had broken down, Smith asked Spurlock to meet him at a rest

stop on Interstate 79. Smith told Spurlock he didn't want to "sit with

that shit on me all night."

Spurlock arrived, and Smith, who was wearing a body wire, told

him that the crack was hidden in (or near) a garbage can. Neither

Spurlock nor Smith retrieved the crack from the garbage can, and as

Spurlock turned to leave he was arrested. The arresting officers

searched Spurlock and found $522.

Spurlock was indicted for conspiracy to possess with the intent to

distribute crack cocaine and for attempted possession with the intent

to distribute crack cocaine. See 21 U.S.C.§§ 841(a)(1) and 846

(1994). The jury convicted him of attempted possession, and deadlocked on the conspiracy count. Spurlock moved for a new trial and

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judgment of acquittal. After the district court denied those motions,

Spurlock appealed to this court. Spurlock raises four issues on appeal.

We address these issues in order.

II.

First, Spurlock asserts that the district court erred in denying his

motion to suppress statements made following his arrest.

When Spurlock was arrested at the rest area on I-79 he was advised

of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). About

an hour later, Agents Lowell J. Maxey and Brian K. Purkey transported Spurlock from the rest area on I-79 to the Weston Detachment

of the West Virginia State Police. During the drive, Spurlock asked

Agent Maxey what law he had violated. Agent Maxey advised Spurlock that he had been arrested for attempted possession of crack

cocaine. Spurlock responded,

You can't charge me with possession man, I never took possession of the shit. You got to catch me with the shit man

before you can charge me with possession and I never took

possession man. I knowed something was up with the dude

man, you know what I mean. So you ain't got shit on me.

Spurlock moved to suppress this statement. The district court held

a suppression hearing on the first day of the trial. After the court

heard testimony from Agent Maxey, Agent Purkey, and Spurlock, it

denied the suppression motion. The court found:"Agent Maxey simply responded to questions that the defendant asked him about what

he was being charged with."

That finding was certainly not clearly erroneous. See United States

v. Johnson, 114 F.3d 435, 439 (4th Cir. 1997) (We review "the district

court's factual findings" concerning a suppression motion "for clear

error."). Spurlock spontaneously asked the officers about his arrest

charge and then volunteered his statement disputing the charge. These

statements were uncoerced and not the result of any subtle interrogation. "Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. . . .

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Volunteered statements of any kind are not barred by the Fifth

Amendment . . . ." Rhode Island v. Innis, 446 U.S. 291, 299-300

(1980) (quoting Miranda, 384 U.S. at 478); see also United States v.

Wright, 991 F.2d 1182, 1186 (4th Cir. 1993). Consequently, the district court did not err in refusing to suppress Spurlock's statement.

III.

The second issue Spurlock raises on appeal is whether the district

court erred in admitting the grand jury testimony of Brian Smith.

"[W]e review the admission of hearsay statements for abuse of discretion." United States v. Ellis, 951 F.2d 580, 582 (4th Cir. 1991).

Before the grand jury, Brian Smith testified concerning Spurlock's

involvement in a conspiracy to sell crack cocaine. Smith testified that

he delivered crack from Richard Watts in Pittsburgh to Spurlock in

Charleston. Smith related that he would telephone Spurlock, deliver

the cocaine, and Spurlock would pay him $500. Smith also testified

as to the details of his arrest and cooperation with the authorities.

After Smith was arrested he was released on a $10,000 bond. On

Thursday, January 11, 1996 (five days before the first day of trial),

an Assistant United States Attorney telephoned Smith, who was living

with his parents in Pittsburgh. Smith stated that he had arranged for

a friend to drive him to the trial and asked the prosecutor about travel

money. The prosecutor responded that Smith would be subpoenaed

and then receive a witness fee. A subpoena for Smith was issued and

sent to Pittsburgh, but was never served on him. On the morning of

the first day of trial, Monday, January 16, 1996, Smith's lawyer telephoned the prosecutor and indicated that Smith would arrive at the

courthouse by 11:00 a.m. Smith never appeared, however, and despite

a lengthy search by marshals, Smith was never located.

The next morning (on the second day of trial), the Government

informed Spurlock and the court of Smith's absence, and moved to

have Smith's grand jury testimony admitted into evidence under Federal Rule of Evidence 804(b)(5). The district court granted the Government's motion on January 18, 1996, and Smith's testimony was

read into the record. Spurlock asserts that the district court's order

granting the Government's motion was erroneous for three reasons.

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A.

First, Spurlock maintains that Smith was not "unavailable." "`Unavailability as a witness' includes situations in which the declarant . . .

is absent from the hearing and the proponent of a statement has been

unable to procure the declarant's attendance . . . by process or other

reasonable means." Fed. R. Evid. 804(a)(5). "The ultimate question is

whether the witness is unavailable despite good-faith efforts

undertaken prior to trial to locate and present that witness." Ohio v.

Roberts, 448 U.S. 56, 74 (1980). "The lengths to which the prosecution must go to produce a witness . . . is a question of reasonableness." Id. (quoting California v. Green, 399 U.S. 149, 189 n.22 (1970)

(Burger, C.J., concurring)).

Spurlock argues that the Government took insufficient steps to produce Smith because there was no attempt to subpoena Smith until a

week before trial and the subpoena was never served. We disagree.

Although the Government never served Smith, it did prepare a subpoena and plan to serve him. The plea agreement required Smith to

testify. Smith, who was released from jail on a $10,000 bail bond paid

for by his parents, had testified willingly before the grand jury. Smith

had never shown any hesitation about testifying at trial. Less than a

week prior to trial the prosecutor talked with Smith and confirmed

that he would testify. When Smith did not appear at trial, the marshals

searched for him. In sum, the Government had no reason to fear that

Smith would fail to testify at trial, and when he did not appear the

prosecution made reasonable, good-faith efforts to locate him.

B.

Spurlock next argues that Smith's statement does not bear adequate

indicia of reliability, as required by the Confrontation Clause. Idaho

v. Wright, 497 U.S. 805, 814-15 (1990). The district court held that

the statement contained sufficient indicia of reliability, reasoning:

Brian Smith testified under oath before the grand jury. He

was represented by an attorney. The facts that he recited in

his testimony were those strictly within his personal knowledge and observation. . . . Moreover, his testimony regarding the events at the stop on I-79, [and] later events at the

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rest stop were confirmed by every other witness who was

involved in those events. The witness, Brian Smith, was out

on bond secured by his parents who strapped themselves

financially to procure his release on bond. He had entered

into a plea agreement with the government which required

him to be truthful. The fact that his testimony was within his

personal knowledge and was corroborated by other individuals at trial and that it related to past facts is persuasive to

this court . . . .

Spurlock correctly notes that insofar as the district court relied

upon "the presence of corroborating evidence," such evidence "may

not be considered in determining the reliability of hearsay testimony."

Ellis, 951 F.2d at 582. As the Supreme Court has explained, "`particularized guarantees of trustworthiness' must be shown from the totality

of the circumstances, [and] . . . the relevant circumstances include

only those that surround the making of the statement and that render

the declarant particularly worthy of belief." Wright, 497 U.S. at 819

(emphasis added). Trustworthiness must emanate from the circumstances of a hearsay statement, not from its consistency with other

evidence offered in the case. Id. at 822-23. Consequently, the district

court erred to the extent that it looked beyond the immediate circumstances of Smith's statements to other corroborating evidence in the

record.

However, "[b]ecause we find that the district court needed to look

no farther than the circumstances of the challenged statements for sufficient guarantees of their trustworthiness . . . any error in the court's

approach was harmless." United States v. Shaw , 69 F.3d 1249, 1253

n.5 (4th Cir. 1995). There were several factors, inherent in the circumstances of the statement itself, supporting a finding of reliability.

"First, [Smith] testified before the grand jury voluntarily. . . . Second,

because [Smith] had participated with [Spurlock] in the narcotics

offenses, he testified from personal knowledge." United States v.

McHan, 101 F.3d 1027, 1038 (4th Cir. 1996) (citations omitted).

Finally, Smith testified pursuant to a plea agreement which required

truthfulness. See Ellis, 951 F.2d at 583 (witness testified pursuant to

a plea agreement).

Spurlock's assertion that Smith's testimony was unreliable because

of conflicts between the transcript of their phone call and Smith's

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grand jury testimony is meritless. The only inconsistency involves the

transcribed nicknames for Smith and Richard Watts. Watts was

known as "Mook," but the transcript read "Milk;" Smith was known

as "Beano," but the transcript read "B Note." This inconsistency is not

substantive, and does not demonstrate that Smith likely lied before the

grand jury.

C.

Spurlock contends that the Government did not provide the defense

with sufficient notice of Smith's unavailability. Rule 804(b)(5)

requires "the offering party [to] provide[ ] the opposing party reasonable notice before trial of its intention to use the statement." Shaw, 69

F.3d at 1253 (citing Fed. R. Evid. 804(b)(5)). In this case, the Government became aware of Smith's absence during the first day of trial,

and immediately dispatched the authorities to track him down. When

unsuccessful, the Government informed the court and Spurlock of

Smith's absence first thing the next day. Because the Government

notified Spurlock shortly after Smith failed to appear, and as soon as

it became clear that he could not be found, the Government provided

Spurlock with sufficient notice of the witness's unavailability. See

United States v. Heyward, 729 F.2d 297, 299 n.1 (4th Cir. 1984)

(holding that when "new evidence is uncovered on the eve of trial . . .

advance notice is obviously impossible"); United States v. Baker, 985

F.2d 1248, 1253 n.3 (4th Cir. 1993) (holding that when "reasonable

efforts" have been taken to locate an unavailable witness, and "pretrial

notice was wholly impracticable," a court should grant "notice flexibility" under Rule 804(b)(5)).

IV.

Spurlock next argues that the Government produced insufficient

evidence to support his conviction for attempt to possess crack

cocaine with intent to distribute. "[C]hallenges to the sufficiency of

the evidence must overcome a heavy burden . . . ." United States v.

Neal, 78 F.3d 901, 906 (4th Cir.), cert. denied, 117 S. Ct. 152 (1996).

"On review, we examine the evidence in the light most favorable to

the government, considering circumstantial as well as direct evidence

and allowing the government all reasonable inferences, to determine

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whether any rational trier of fact could have found the defendant

guilty beyond a reasonable doubt." Id.

"[A] defendant can be convicted of an attempt only if the government proves beyond a reasonable doubt (1) culpable intent to commit

the crime charged and (2) a substantial step towards the completion

of the crime that strongly corroborates that intent." Id. There is sufficient evidence that Spurlock had the requisite intent and took a substantial step. Smith testified that he had delivered drugs to Spurlock

in the past. Spurlock agreed to meet Smith at the rest stop after Smith

said that he didn't want to "sit with that shit on [him] all night." Spurlock arrived with $522, and Smith testified that Spurlock typically

paid him $500 for delivery of this quantity of crack. Thus, there was

evidence of an existing relationship, and that Spurlock came to the

rest stop to pick up drugs and to pay Smith for delivering them. This

is sufficient evidence of both intent and a substantial step.

Spurlock maintains that he took no "substantial step" because he

walked away from the deal without buying the crack. Spurlock argues

that this case is analogous to United States v. Joyce, 693 F.2d 838 (8th

Cir. 1982), where the Eighth Circuit held that there was no attempt

to possess cocaine when a defendant's intention"to procure cocaine

was abandoned prior to the commission of a necessary and substantial

step to effectuate the purchase." Id. at 841. Even if Spurlock were correct that he abandoned his purpose to obtain the crack, there is enough

evidence here of a substantial step prior to that abandonment to distinguish Joyce. In Joyce the potential purchaser had never before bought

drugs from that supplier. Id. at 839-40. In this case Smith testified that

he had delivered drugs to Spurlock before. As such, Spurlock's arrival

at the rest area after the phone call with $500 to pay Smith for delivery was a substantial step.

V.

Finally, Spurlock maintains that the prosecutor impermissibly

vouched for Smith's testimony. During closing argument the prosecutor stated "You heard one of the agents testify that the last thing we

heard is that Brian was traveling here to testify on Tuesday. No one

has seen or heard from him since." In fact, the agent had testified that

Smith's lawyer's secretary had spoken to Smith on Tuesday morning.

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No one testified that "last we heard Brian was traveling here to testify

on Tuesday."

Spurlock failed to object to the prosecutor's argument, so we

review for plain error. United States v. Adam , 70 F.3d 776, 780 (4th

Cir. 1995). "To reverse for plain error, we must find that an error

occurred, that the error was plain, that the error affected substantial

rights, and that the error `seriously affected the fairness, integrity, or

public reputation of the judicial proceedings.'" Id.

In Adam we applied the plain error standard to a claim of prosecutorial vouching and listed "several factors" relevant to a finding of

prejudice:

(1) the degree to which the prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused; (2)

whether the remarks were isolated or extensive; (3) absent

the remarks, the strength of competent proof introduced to

establish the guilt of the accused; and (4) whether the comments were deliberately placed before the jury to divert

attention to extraneous matters.

Id. (quoting United States v. Harrison , 716 F.2d 1050, 1052 (4th Cir.

1983)). Under this standard it is clear that the district court did not

commit plain error here. The prosecutor's remark was unlikely to

mislead the jury or prejudice Spurlock because the remark was isolated, there was sufficient evidence of guilt absent the comment, the

comment was not particularly deliberate, and likely did not divert the

jury. In short, the comment had little, if any, harmful effect on Spurlock's trial.

AFFIRMED

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