UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 98-4624

ANTHONY AYENI JONES, a/k/a AJ,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge
(CR-96-458-WMN, CR-97-355-WMN)

Argued: December 3, 1999

Decided: May 26, 2000

Before WILKINSON, Chief Judge, KING, Circuit Judge,
and BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: William Collins Brennan, Jr., KNIGHT, MANZI, NUSS-
BAUM & LAPLACA, Upper Marlboro, Maryland, for Appellant.
Robert Reeves Harding, Assistant United States Attorney, Baltimore,
Maryland, for Appellee. ON BRIEF: Robert L. Lombardo, Jr.,
KNIGHT, MANZI, NUSSBAUM & LAPLACA, Upper Marlboro,
Maryland, for Appellant. Lynne A. Battaglia, United States Attorney,
Baltimore, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Anthony Ayeni Jones was charged and convicted of conspiracy to
murder and kidnap in aid of racketeering, three counts of murder in
aid of racketeering, conspiracy to murder in aid of racketeering, con-
spiracy to retaliate against witnesses, and conspiracy to distribute nar-
cotics. On August 25, 1998, the district court sentenced Jones to life
imprisonment. Jones appeals his conviction on several grounds, and
we affirm.

The charges against Jones alleged a wide-ranging, drug-selling
conspiracy and several acts of violence in furtherance of the conspir-
acy from 1989 to 1997. The trial lasted two months and involved over
fifty-eight witnesses. The errors Jones alleges on appeal refer to dis-
crete decisions by the trial court, and we present here only the factual
context surrounding each claim.

I

In October 1991, Jones was arrested by Baltimore City police and
charged in 17 Maryland state indictments alleging primarily conspir-
acy to distribute narcotics, distribution of narcotics, and firearms vio-
lations. Jones entered into a plea agreement on April 1, 1992, in
which he agreed to plead guilty to one count of conspiracy to distrib-
ute cocaine during the period of March 27, 1991, to October 10, 1991,
in exchange for certain recommendations and promises by the state
prosecutors. The plea agreement was never reduced to writing, and
the only record of its parameters is contained in a colloquy among
Jones' attorney, the state prosecutor, and the state judge during Jones'
plea hearing in state court. The transcript of this proceeding reveals
that the state prosecutor stated that there would be no federal prosecu-
tion "with respect to this particular incident," and the state judge clari-
fied that "the Federal Government will not be prosecuting their
charge." J.A. 453-55.

                     2
In the federal proceedings, the state prosecutor testified that, during
Jones' 1991-92 state prosecution, she knew that the U.S. Attorney's
Office was investigating the straw purchase of handguns by Jones and
that federal officials were not involved in the drug investigation at
that time. The Assistant United States Attorney involved in both cases
testified that on November 5, 1991, she initiated"an investigation into
violations of federal firearms law specifically relating to the making
of false statements in connection with the purchase of firearms from
a federally licensed firearm dealer." J.A. 195-96. Her investigation
authorization sheet, bearing the date November 5, 1991, was admitted
into evidence and showed an investigation only of straw purchases of
firearms pursuant to 18 U.S.C. § 922(a)(6). She further testified that,
before Jones' state plea hearing, she told the state prosecutor that she
was not going to prosecute the firearms charges and that the state
prosecutor could relay this to Jones' attorney. Neither Jones nor his
attorney in the state case testified as to their understanding of the
scope of the April 1992 plea agreement.

Counts I and VII of the indictment in the federal case charged rack-
eteering activity and a conspiracy to distribute narcotics, respectively,
from 1989 through May 14, 1997. At Jones' federal trial, a Baltimore
City detective testified about narcotics and firearms that he seized
from Jones on June 21, 1991, and October 10, 1991. Jones contends
that the charges brought in Counts I and VII and the introduction of
evidence gathered between the state-charged dates of March 27 and
October 10, 1991, constituted a violation by the federal government
of his April 1992 plea agreement.

When a district court's construction of a plea agreement hinges on
a factual determination, its decision is reviewed only for clear error.
United States v. Conner, 930 F.2d 1073, 1076 (4th Cir. 1991). The
district court, after reviewing the evidence presented to it concerning
the scope of the 1992 plea agreement, held that"the only reasonable
conclusion that can be reached is that all of the parties understood that
[the federal prosecutor's] promise was limited to an agreement not to
prosecute Mr. Jones on the federal firearms charge. There was no evi-
dence presented to the Court that any broader agreement was ever dis-
cussed, much less agreed upon." United States v. Jones, Nos. CR-96-
458; CR-97-355 (D. Md. April 20, 1998), at 5-6 (unpublished memo-
randum opinion).

                     3
We cannot conclude that this finding was clearly erroneous.
Because Jones was not prosecuted for firearms violations in the fed-
eral case, the United States District Court did not fail to adequately
enforce the plea agreement.

II

On March 6, 1997, codefendant Daniel Ross entered an agreement
with the prosecution by which he agreed to plead guilty and cooperate
as a witness against, among others, Jones. After he pled guilty, he was
sent to the Charles County Detention Center (Charles County) in
Maryland. One to two months later, the United States Marshals Ser-
vice, which is responsible for federal prisoner movement, sent Jones
to Charles County. When Ross first saw Jones in his housing unit, he
was "shocked" and afraid for his safety. J.A. 233. Ross stated that he
was moved to Charles County in the first place for his protection, so
that he would not have contact with the codefendants against whom
he would be testifying.

The federal prosecutor stated that the prosecution"didn't have any-
thing to do with placing these two people together and it came as
much of a surprise and shock to us as it did to Mr. Ross." J.A. 256.
Ross testified that the prosecutors never gave him instructions to elicit
information from Jones at Charles County. Ross had several conver-
sations with Jones when they were in the same housing unit at Charles
County, but Ross testified that he could not recall who initiated the
conversations. During one of these conversations, Jones told Ross that
the prosecution would not have anyone to identify him for one of the
murders in the indictment "because we were wearing masks." J.A.
265. This statement was consistent with eyewitness accounts of the
murder, and Ross testified about Jones' statement at trial. Jones con-
tends that the use of Ross' testimony violated his Sixth Amendment
right to counsel under Massiah v. United States , 377 U.S. 201 (1964).

In Massiah, the Supreme Court held that the Sixth Amendment was
violated "when there was used against [the defendant] at trial evi-
dence of his own incriminating words, which federal agents had
deliberately elicited from him after he had been indicted and in the
absence of his counsel." Id. at 206. The critical question here is
whether the government deliberately elicited the statements Jones

                    4
made to Ross. The district court found that there was no evidence that
the government instructed Ross to speak to Jones, that it deliberately
placed the two together, or that it paid Ross to provide information
concerning Jones. In fact, out of concern for the safety of their wit-
ness, the prosecution specifically did not want Ross and Jones to have
any contact before Jones' trial. There can be no finding of deliberate
elicitation, and thus no Massiah violation, when the above-mentioned
"crucial indicia of government cooperation are lacking." United States
v. Love, 134 F.3d 595, 604 (4th Cir. 1998). Based on the district
court's findings, the use of Ross' testimony at trial did not violate
Jones' Sixth Amendment rights.

III

One of the crimes charged in Jones' indictment was the murder of
Keith Westmoreland on October 25, 1994. Two gunmen wearing
masks entered Westmoreland's home, and one of them shot West-
moreland to death. Frederick Ceruti, a Baltimore homicide detective,
was called to investigate the murder. At the crime scene, Sheila Cole-
man, the mother of the victim, told Detective Ceruti that she believed
Jones might have been involved in the murder because he and West-
moreland were having a dispute over a woman. She also informed
Detective Ceruti that Jones had an outstanding arrest warrant for mali-
cious destruction of property. Witnesses at the scene of the West-
moreland murder described one of the criminals as approximately six
feet tall, dark complected, thinly built, and wearing a multicolored
shirt. When Detective Ceruti returned to his office, he received a
phone call from an anonymous male caller stating that the person
involved in the killing of Westmoreland was Jones and that the masks
and guns could be found in Jones' home.

Detective Ceruti located an open arrest warrant for malicious
destruction of property that had been issued approximately one year
earlier and arrested Jones at his home. Jones matched the physical
description given by witnesses at the murder scene and was wearing
a multicolored shirt. When they returned to the police station, Ceruti
requested a crime lab technician to perform a gunshot primer residue
(GSR) test on Jones. The GSR test consists of dabbing part of the sub-
ject's hands, primarily the web of flesh between the thumb and fore-
finger, with a cloth pad or swab. The sample is then scanned by an

                    5
electron microscope for three rare elements that are usually only
found together in gunshot primer. The test revealed primer residue on
both of Jones' hands, and this evidence was introduced at trial.

Jones contends that the GSR test was conducted in violation of his
Fourth Amendment rights and that the district court erred in allowing
it to be introduced into evidence. Jones does not challenge the validity
of his arrest under the warrant but argues that, because the GSR test
was unrelated to the crime for which he was arrested, it amounted to
an illegal search.

Though a search of an individual usually requires a valid warrant
supported by probable cause, government agents may conduct a war-
rantless search if exigent circumstances exist. In Cupp v. Murphy, 412
U.S. 291 (1973), for example, Murphy, the husband of a strangulation
victim, voluntarily made an appearance at the police station. Although
he was not arrested, the police had probable cause to believe that
Murphy had committed the murder. Id. at 294-95. During question-
ing, the police noticed that Murphy had blood on one of his finger-
nails. They then forcibly took scrapings from his fingernails without
his consent. The Supreme Court upheld this warrantless search, citing
the limited intrusion undertaken and the readily destructible nature of
the evidence. Id. at 296; cf. Schmerber v. California, 384 U.S. 757
(1966) (upholding the removal of blood from a DUI suspect due to
the evanescence of the evidence of alcohol content).

As in Cupp, the warrantless search of Jones was supported by prob-
able cause. Based on Coleman's statement suggesting Jones as a sus-
pect, the similarities between Jones' appearance and the eyewitness
descriptions, and the anonymous tip stating that Jones committed the
murder, Detective Ceruti had probable cause at the time he requested
the GSR test to believe that it would uncover evidence of the crime.
This conclusion is supported by the fact that Detective Ceruti was
able to obtain a search warrant for Jones' residence on the same day.

The fingernail scraping in Cupp and the GSR test here are very
similar. In both cases, the evidence sought could be easily destroyed
by the suspect washing his hands. Both searches involved removing
a substance from the surface of the suspect's hands by unobtrusive
means. Jones was also subjected to a less severe personal intrusion

                    6
than was involved in Cupp. The police temporarily seized Murphy in
order to take the fingernail scrapings. Cupp, 412 U.S. at 294. In con-
trast, Jones was lawfully in police custody pursuant to a valid arrest
warrant. Given the existence of probable cause, the very limited intru-
sion to Jones' privacy interest, and the ready destructibility of the evi-
dence sought, the GSR test was a reasonable search under the Fourth
Amendment. The district court did not err in admitting it into evi-
dence at trial.

IV

Jones' remaining claims can be addressed summarily. Jones chal-
lenges the decision of the district court allowing government witness
Winzell Hinton to give opinion testimony as to coded conversations
in which he was not a participant. Because Hinton's testimony was
rationally based on his perceptions and helpful to the determination
of a fact in issue, see Fed. R. Evid. 701, the district court did not
abuse its discretion by admitting it. See United States v. Fowler, 932
F.2d 306, 312 (4th Cir. 1991).

Jones also contends that the district court erred by refusing to per-
mit him to dismiss his counsel during trial and to conduct his own
closing argument. In denying Jones' request, the district court cited
the continuity of the proceedings, the possible confusion of the jury,
the risk of a mistrial, and the competence of Jones' counsel. In light
of these considerations, the district court did not abuse its discretion
in refusing to allow Jones to conduct his own closing argument. See
United States v. Dunlap, 577 F.2d 867, 869 (4th Cir. 1978).

Jones finally contends that the district court violated 18 U.S.C.
§ 3432 by allowing government witness Kenneth Fuller to testify at
trial. Although Fuller's name was not on the witness list that the gov-
ernment produced a week before the trial began, his indictment and
plea agreement were included in the Jencks and Giglio material that
the government turned over at the same time. The government also
included Fuller on a witness list used during voir dire of prospective
jurors, which began on April 6, 1998. Opening arguments and testi-
mony began in the case on April 16, 1998. Because Jones did not
allege any particular prejudice suffered due to a possible technical
violation of § 3432, the district court did not err by allowing Fuller

                     7
to testify at trial. See United States v. Tipton , 90 F.3d 861, 889 (4th
Cir. 1996) ("[A] defendant claiming a violation of the right to access
that § 3432 is designed to protect must show actual prejudice from
any impairment or interference with the right.").

Finding no reversible error in the proceedings below, we affirm
Jones' conviction.

AFFIRMED

                     8
