                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No.  09-4812


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

KENDRICUS MARQUELL WILLIAMS,

                Defendant - Appellant. 



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    Louise W. Flanagan,
Chief District Judge. ( 5:08-cr-00174-1)


Argued:   May 12, 2011                   Decided:   September 20, 2011


Before DUNCAN and AGEE, Circuit Judges, and David C. NORTON,
Chief United States District Judge for the District of South
Carolina, sitting by designation. 


Affirmed by unpublished per curiam opinion. 


ARGUED: Joseph Edward Zeszotarski, Jr., POYNER SPRUILL LLP,
Raleigh, North Carolina, for Appellant.  Jennifer P. May-Parker,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.    ON BRIEF: George E. B. Holding, United States
Attorney, William M. Gilmore, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee. 


Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM:

       Kendricus Marquell Williams appeals his conviction on nine

counts of unlawfully obstructing, delaying, and affecting, and

attempting    to    obstruct,        delay,       and    affect,        commerce        and    the

movement     of    articles        and   commodities            in     such       commerce       by

robbery, in violation of 18 U.S.C. § 1951 (Counts One, Three,

Five, Seven, Nine, Eleven, Thirteen, Fifteen, and Seventeen);

nine   counts     of    using      and   carrying        a     firearm       during      and     in

relation to a crime of violence, in violation of 18 U.S.C. §

924(c)(1)(A)       (Counts        Two,   Four,          Six,     Eight,          Ten,    Twelve,

Fourteen, Sixteen, and Eighteen); and possession of a firearm

and    ammunition       by   a     felon,     in       violation       of     18    U.S.C.       §§

922(g)(1) and 924 (Count Nineteen).                        Williams was sentenced to

235 months on each of Counts One, Three, Five, Seven, Nine,

Eleven,    Thirteen,         Seventeen,           and    Nineteen,          to     be     served

concurrently;          84    months      on        Count        Two,        to     be     served

consecutively;         and   300    months        on    each    of     Counts      Four,      Six,

Eight,    Ten,    Twelve,         Fourteen,       Sixteen,       and    Eighteen,         to     be

served consecutively. 

       On appeal, Williams raises several issues.                            Williams argues

that the district court should have suppressed his incriminating

statements    because        he    invoked    his       right    to     counsel         during    a

custodial interrogation and because the failure to record his

statements violated due process.                    He contends that the district

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court    should      not    have     admitted     evidence     of     a    911   call      or

concerning an uncharged robbery.                   Finally, Williams argues that

the district court erred by denying his motion for acquittal on

two counts because of a variance between the indictment and the

proof at trial.         For the reasons set forth below, we affirm. 



                                             I.

      Williams first argues that his incriminating statements and

the   fruits   of     those    statements         should     have    been    suppressed. 

When considering the denial of a motion to suppress, we review

factual findings for clear error and legal determinations de

novo.        United States v. Lewis, 606 F.3d 193, 197 (4th Cir. 

2010).        Here,    we    “construe       the    evidence     in    the    light    most

favorable to the prevailing party,” the government, and give

“due weight to inferences drawn from those facts by resident

judges and law enforcement officers.”                   Id.

      The    facts    found     by    the    district      court     are    as   follows. 

After a high-speed chase, law enforcement officers apprehended

and   interrogated         Williams    in    connection      with    a     robbery    of   a

convenience store.            The officers advised Williams of his right

to remain silent and right to assistance of counsel.                              Williams

indicated that he wished to waive these rights both orally and

in writing.        Then, during the course of the interview, and after

confessing     to    at    least     one    robbery,    Williams      said,      “I   don’t

                                             3
think I want to say anything more until I talk to a lawyer.” 

After making this statement, however, Williams continued to talk

and confessed to committing numerous robberies.                     The police did

not prompt Williams to continue speaking.                    On two additional

occasions   during    the    interrogation,        Williams        confirmed       his

desire to continue to speak with the officers.                          Williams then

led one of the officers to the scenes of some of the robberies

and confessed to additional robberies.                   The following day, an

officer   again   advised    Williams     of     his    rights,        and   Williams

signed a Miranda waiver form.             Williams then confessed to two

additional robberies.        The police did not make an audio or video

recording of Williams’ confession. 

     Williams     challenges   the   district          court’s    denial      of   his

motion to suppress the incriminating statements he made during

these custodial interrogations.           Williams argues that he invoked

his right to counsel and that his statements should have been

recorded.     Williams’      arguments     fail    because        his    request    for

counsel was equivocal, he reinitiated contact with the officers,

and he did not have a right to have his statements audio or

video recorded. 



                                     A.

     Williams contends that his statement, “I don’t think I want

to say anything more until I talk to a lawyer,” was an assertion

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of his right to counsel, sufficiently clear to require cessation

of questioning by the officers.          The district court concluded

that this statement was not a clear invocation of the right to

counsel.    We agree. 

     In Davis v. United States, 512 U.S. 452, 461-62 (1994), the

Supreme Court held that a suspect must unequivocally state that

he desires the assistance of an attorney to invoke his Fifth

Amendment right to counsel.      Such statements are analyzed under

an   objective   standard   that      takes   into     consideration     the

circumstances surrounding the statement.             Davis, 512 U.S. at 459

(The suspect “must articulate his desire to have counsel present

sufficiently clearly that a reasonable police officer in the

circumstances would understand the statement to be a request for

an attorney”). 

     Williams’ statement is substantially similar to statements

the Supreme Court and this court have held to be equivocal, and

thus,    insufficient   invocations     of    the     right   to   counsel.  1


     1
       See, e.g., Davis, 512 U.S. at 455 (“Maybe I should talk to
a lawyer.”);  United States v. Smith, 281 F. App’x 198, 200 (4th
Cir.  2008) (“I think I might need to talk to a lawyer.”); 
Johnson v. Harkleroad, 104 F. App’x 858, 867 (4th Cir.  2004)
(“[M]aybe I should stop talking and get a lawyer.”);  United
States v. Wheeler, 84 F. App’x 304, 306 (4th Cir.  2003) (“[I]
want[] to call my family to see about a lawyer.”);  Burket v.
Angelone, 208 F.3d 172, 199 (4th Cir.  2000) (“I need somebody
that I can talk to.”);  Mueller v. Angelone, 181 F.3d 557, 573
(4th Cir.  1999) (“Do you think I need an attorney here?”). 



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Furthermore, as discussed below, this statement was made in the

midst of a continuous flow of conversation, thus, “in light of

the circumstances,” an objective listener could not have known

anything     more   than    that    Williams        “might”      have      wanted      the

assistance of counsel, which is an insufficient invocation of

Fifth Amendment rights.            See id.       We, therefore, agree with the

district court that Williams’ statement was equivocal and not

subject to suppression. 



                                         B.

      Even if Williams had unequivocally invoked his right to

counsel, he waived it by continuing to speak with the officers

without their prompting.            In Edwards v. Arizona, 451 U.S. 477,

484-85 (1981), the Supreme Court held that if a suspect has

“invoked his right to have counsel present during [a] custodial

interrogation,” authorities may not “subject [him] to further

interrogation . . .  until counsel has been made available to

him, unless the accused himself initiates further communication,

exchanges, or conversations with the police.”                        See also United

States v. Cain, 524 F.3d 477, 482-83 (4th Cir.  2008) (“[W]here a

defendant initiates contact with law enforcement officers, he

may   validly    waive   his   Sixth     Amendment        rights,    and    submit      to

Government      interrogation,      even       if   he   is   represented         by    an

attorney.”).         As   noted,    the   district        court   found     that     after

                                           6
Williams said, “I don’t think I want to say anything more until

I   talk   to   a    lawyer,”     he    continued     speaking   to    the   officer

without    being       prompted.         Courts   are    required      to   determine

whether a defendant waived his Miranda rights under the totality

of the circumstances.             United States v. Cardwell, 433 F.3d 378,

389   (4th      Cir.      2005).          Based    on     the   totality       of   the

circumstances, Williams waived his Miranda rights by initiating

further conversation with the officers. 



                                          C.

      Williams’ assertion of a constitutional right to have his

confession recorded is similarly unavailing.                      Williams reasons

that two jurisdictions, Minnesota and Alaska, have imposed a

duty to record a defendant’s purported confession, and that we

should find that, “under the specific facts of this case,” the

officers’ failure to record Williams’ statements violated his

due process rights.              Williams fails to cite any binding legal

authority for this proposition, which we reject.                       Based on the

foregoing,      we     affirm     the    district      court’s    ruling     denying

Williams’ motion to suppress his confession. 



                                          II. 

      Williams challenges the admission of evidence concerning an

uncharged robbery and a 911 recording.                  Pursuant to Rule 404(b)

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of the Federal Rules of Evidence, the district court admitted

evidence regarding Williams’ role in an uncharged robbery.                     The

evidence    included    testimony     by      Williams’      accomplice,       who

explained that he assisted Williams in committing the uncharged

robbery in the period of time between the robberies charged in

Counts Eleven and Thirteen.         The district court judge instructed

the jury that it could only consider the uncharged robbery to

evaluate     the     defendant’s      motive,        opportunity,          intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident, and that they could not use the evidence to determine

whether Williams had a “bad character” or to infer that Williams

committed the charged robberies because of a prior bad act.                     The

district    court   also   admitted       a   recording      of    a    911   call

concerning the events charged in Counts Thirteen and Fourteen. 

The call was made by a clerk who worked at a store Williams

robbed and was shot by Williams.               The judge excluded the more

gruesome portions of the recording. 

     We    review   evidentiary    rulings     for   abuse    of       discretion. 

United States v. Basham, 561 F.3d 302, 325-26 (4th Cir.  2009). 

The district court did not abuse its discretion in admitting

evidence concerning the uncharged robbery because the robbery

was relevant to Williams’ means, motive, identity, and modus

operandi, as required by Rule 404(b), and the court admitted the

evidence solely for a limited purpose.                Details concerning the

                                      8
uncharged       robbery    also    helped        to   establish      that       Williams

possessed   a     firearm   in     the    days    leading      up   to    the    robbery

charged in Count Thirteen.                Any risk that the jury could have

misused    this    evidence       was    mitigated      by    the    district      court

judge’s appropriate limiting instruction.                     See United States v.

Branch, 537 F.3d 328, 342 (4th Cir.  2008), cert.  denied, 129 S.

Ct.  943 (2009). 

     Williams’ argument that the 911 call was not probative of

any element of a crime is without merit.                      In the recording, the

clerk provided a description of the robber and stated that the

robber    had    carried    a    firearm       during   the    commission        of   the

robbery.         Furthermore, the danger of unfair prejudice did not

substantially outweigh the probative value of the evidence so as

to require exclusion under Rule 403:                  (1) the recording was the

only available description of the robbery and robber for Counts

Thirteen and Fourteen since the only witness, the clerk, had

returned to his home in India at the time of trial; 2 and (2) the

district    judge     excluded      the    more       gruesome      and   potentially

prejudicial portions of the recording. 




     2
       The district court found that the absence of the clerk
from the country was in no way the fault of the government. 
Williams does not contest this finding. 



                                           9
                                        III. 

     Williams argues that pursuant to Rule 29 of the Federal

Rules     of    Criminal    Procedure,        the    trial    court     should     have

acquitted him of the robbery charged in Counts Eleven and Twelve

because    the    indictment        incorrectly      listed    the     name   of    the

convenience store which was robbed as “Uncle Bob’s Mini Mart”

instead of “Uncle Bill’s Mini Mart.”                    “A variance between the

indictment      and    proof   at    trial    does    not    require    reversal     or

dismissal of those charges unless it affected the substantial

rights     of    the     defendant     and     thereby       resulted    in      actual

prejudice.”        United States v. Mehta, 594 F.3d 277, 280 (4th Cir. 

2010).      Prejudice is apparent if “the variance surprises the

defendant at trial and thereby hinders his ability to prepare

for his defense. . . .”                 Id. at 281.             The burden to show

prejudice is on the defendant.            Id.

     Williams has never claimed that he was surprised by the

discrepancy between the indictment and the evidence presented at

trial.      Before trial, Williams received copies of the police

reports regarding the robbery, which referred to the business by

both names.            Furthermore, the indictment correctly lists the

address of the store that was robbed and all but one word of the

store’s    name    is    correctly     stated.         We    therefore    affirm     the

district court’s refusal to acquit Williams of Counts Eleven and

Twelve. 

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                             IV. 

    Based on the foregoing, we affirm Williams’ conviction and

sentence. 

                                                      AFFIRMED




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