                       REVISED, August 4, 1998

                   UNITED STATES COURT OF APPEALS
                        For the FIFTH CIRCUIT

                   _______________________________

                             No. 97-60153
                   _______________________________

                      UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,


                                  VERSUS


            SANTONIO LAMOND WALKER AND JERRY LEE QUINN,

                                                 Defendants-Appellants.



      _____________________________________________________

           Appeals from the United States District Court
              For the Northern District of Mississippi

     ______________________________________________________
                          July 28, 1998



Before POLITZ, REYNALDO G. GARZA, and DENNIS, Circuit Judges.

Dennis, Circuit Judge:

     A   Federal   Grand   Jury   returned   a   three-count   indictment

charging defendant-appellant Jerry Lee Quinn with one count of

suborning Santonio Lamond Walker to commit perjury, in violation of

18 U.S.C. § 1622 (Count 1), and charging defendant-appellant Walker

with two counts of knowingly making false material declarations

while under oath, in violation of 18 U.S.C. § 1623(a) (Counts 2 and

3). The indictment was based on Walker’s allegedly false testimony


                                    1
on Quinn’s behalf in the trials of a felon in possession of a

firearm charge against Quinn.1             Walker moved for severance, but the

motion was denied.         After a jury trial, Quinn and Walker were found

guilty on all three counts.                At sentencing, Quinn received 24

months imprisonment as to Count 1 of the indictment, while Walker

received 24 months each as to Counts 2 and 3, to run concurrently.

     Walker appeals, alleging: (1) The admission of four out-of-

court statements by his codefendant, Quinn, violated his Sixth

Amendment right to cross-examination (i.e., a Bruton violation 2);

(2) the trial court erroneously denied his motion for severance in

light of      the    alleged   Bruton      violation;    (3)   the    evidence   was

insufficient to support his convictions; and (4) his offense level

calculated for purposes of the United States Sentencing Guidelines

(U.S.S.G.) was improperly based on the underlying offense of

possession of a firearm.

     Quinn also appeals, alleging: (1) Admission of an out-of-court

statement by his codefendant, Walker, was a Bruton violation; (2)

testimony about Quinn’s attempt to suborn perjury from someone

other than Walker was improperly admitted because it was evidence

of “other acts” not admissible pursuant to Federal Rule of Evidence

404(b);      and    (3)   admission   of    statements    made   by    Quinn   to   a

         1
        See United States v. Quinn, Criminal Number 1:95CR083-S,
aff’d, United States v. Quinn, No. 96-60089, summary calendar, 101
F.3d 697 (5th Cir. 1996).
     2
       Referring to Bruton v. United States, 391 U.S. 123 (1968),
which held that a defendant’s Sixth Amendment right to confront a
witness is violated by the admission of a non-testifying
codefendant’s out-of-court, inculpatory statement, and that the
violation cannot be cured by a jury instruction.

                                            2
jailhouse informant violated his Sixth Amendment right to counsel.

     Having considered each alleged point of error, we affirm.



                                 Facts

     On May 12, 1995, Jerry Lee Quinn was under surveillance by

Aberdeen (Mississippi) Police Officer Pete Conwill and Bureau of

Alcohol, Tobacco and Firearms Agent Joey Hall pursuant to their

investigation of Quinn for possession of a firearm by a convicted

felon.3   Quinn detected their surveillance and fled.     Conwill and

Hall pursued a black and gold Pontiac Grand Am, which they believed

to be driven by Quinn.   Conwill attempted to apprehend the driver

of the Grand Am at an impromptu roadblock.      The Grand Am driver

avoided the roadblock, however, by speeding in reverse around a

corner into the yard of James Kilan, abandoning the Grand Am, and

fleeing on foot.   After impounding the Grand Am, police found a

loaded 9mm semiautomatic handgun in the backseat armrest.     Further

investigation led to the arrest of Quinn for possession of a

firearm by a convicted felon.

     At Quinn’s first firearms possession trial, Santonio Lamond

Walker, an acquaintance of Quinn’s, testified that he, and not

Quinn, had been driving the Grand Am on May 12, 1995 during the

pursuit by Hall and Conwill.       The jury deadlocked.   At Quinn’s

second firearms possession trial, Walker again testified that he

had been driving the Grand Am during the chase.            Quinn was

convicted in the second trial.

     3
      See 18 U.S.C. § 922(g)(1).

                                   3
     Suspecting that Quinn had suborned Walker’s perjury in the

firearms possession trials, Hall asked Quinn’s cellmate, Rodney

Seaton, to be attuned to anything Quinn might say about his recent

trial, but not to initiate any conversation with Quinn; Hall gave

Seaton no details concerning the investigation of Quinn.        On

Thanksgiving night, Quinn volunteered to Seaton that he should not

be in jail because his “home boy” had “stood up in court and took

the rap for him being in the car.”    After Quinn volunteered this

information, Seaton asked him if he was driving the car during the

chase, to which Quinn replied that he was, but that his “home boy”

had claimed to be the driver.   Seaton relayed this information to

Hall, which, along with the results of further investigation, led,

eight months later, to the indictments of Walker for perjury and

Quinn for subornation of perjury.

     The government presented its evidence in two stages of a joint

trial of the charges against Walker and Quinn.   The first stage of

the government’s case addressed whether Walker had knowingly made

false material declarations while under oath as a witness in

Quinn’s firearms possession trials.   Seaton testified that Quinn,

in his jailhouse statements on Thanksgiving night, said that Walker

had “taken the rap for him” in the firearms possession trials, and

that the police were unaware that his “home boy” was not the driver

of the Grand Am because its windows were darkly tinted.       Hall

testified that, during the car chase, when he pulled his vehicle’s

left side up to the Grand Am’s left side at an intersection, the

driver of the Grand Am, whom Hall identified definitely as Quinn,


                                 4
rolled down his window and looked at him.                      Conwill testified that

he blocked the road with his car after seeing the Grand Am

approaching from behind, and got out of his car to apprehend the

driver.     When he was close enough to the Grand Am to place his hand

on its hood, the Grand Am backed around the corner.                              Conwill

testified, however, that he was able to see through the tinted

glass and identify Quinn as the driver and sole occupant of the

car. Conwill further testified that, in a separate municipal court

trial related to the chase, Quinn offered two different exculpatory

stories regarding driving the Grand Am on the day of the chase;

each story related that Quinn had driven the Grand Am to a mechanic

(the first     story    related      that       the    mechanic    was     in   Columbus,

Mississippi, and the second story changed the mechanic’s location

to Aberdeen), and neither story involved Walker’s driving the Grand

Am at any point.

      Although James Kilan testified that he was not positive that

Quinn was the driver who abandoned the Grand Am in his yard, he

described the driver as resembling Quinn but not Walker.                         Barbara

Byrd, the court clerk of the city of Aberdeen, testified that

Walker was in the City Court appearing on two unrelated matters on

the   day   and   at   the    time   of     the       chase.      Robert    Taylor,    an

acquaintance      to   both   Walker      and     Quinn,       testified    that,   in a

conversation prior to the firearms possession trial, Quinn had

admitted to having driven the Grand Am during the chase.                              The

foreman of the jury that convicted Quinn of the firearms violation

testified that the identity of the driver was a major issue in


                                            5
determining whether Quinn possessed the firearm found in the Grand

Am’s backseat armrest.      The transcripts from the two firearms

possession trials were entered as evidence, demonstrating that

Walker had testified under oath that he was the driver of the hotly

pursued Grand Am.

     The second stage of the prosecution’s case addressed whether

Quinn had knowingly acted to suborn Walker’s false testimony.

Taylor testified that Walker told him in a conversation after

Quinn’s firearms possession conviction that he testified falsely

that he was driving the Grand Am, and that Quinn promised to give

him $5,000 and two ounces of cocaine if Quinn was acquitted of the

firearms possession charges.    Taylor also testified that Quinn had

tried to persuade him to testify falsely at the firearms possession

trial that he, not Quinn, was the driver of the Grand Am.

     Neither Walker nor Quinn testified at the perjury/subornation

trial.



                               Analysis

I.   Walker’s appeal

     A.   The alleged Bruton violation.

     “‘[T]he right of cross-examination is included in the right of

an accused in a criminal case to confront the witnesses against

him’ secured by the Sixth    Amendment.”   Bruton v. United States,

391 U.S. 123, 126 (1968) (quoting Pointer v. State of Texas, 380

U.S. 400, 404 (1965)).   Where an out-of-court statement by a non-

testifying codefendant is admitted, the defendant inculpated by the


                                  6
statement     is     denied     the     opportunity    to   cross-examine     his

codefendant, thus leaving the reliability of the codefendant’s

statement untested.       Therefore, the inculpated defendant is denied

his constitutional right to confront the witnesses against him.

Bruton, 391 U.S. at 127 (citing Douglas v. State of Alabama, 380

U.S. 415, 419 (1965)); see also United States v. Wilson, 116 F.3d

1066, 1083 (5th Cir. 1997) (examining a possible Bruton violation).

This type of constitutional violation is termed a Bruton violation

after the case of Bruton v. United States in which the Supreme

Court held that a curative instruction for the jury to consider an

inculpatory        statement     only     in    determining       the   confessing

codefendant’s       guilt,     rather    than   that   of   the    non-confessing

inculpated defendant, does not cure the Sixth Amendment violation.

See Bruton 392 U.S. at 131.

     There are two well-established exceptions to the Bruton rule,

however.    First, Bruton only applies to out-of-court statements

that are “facially incriminating.”              Richardson v. Marsh, 481 U.S.

200, 209 (1987).       Therefore, for a Bruton violation to occur, the

codefendant’s statement must directly implicate the defendant.

Where the reference to the defendant is indirect and the jury can

only complete the inference by relying on other evidence in the

trial, Bruton will not apply.             United States v. Wilson, 116 F.3d

1066, 1083 (5th Cir. 1997) (where reference to the defendant is as

“the man with the sack,” the reference was not sufficient to

trigger a Bruton violation); but see Gray v. Maryland, --- U.S. ---

, 118 S. Ct. 1151, 1152 (March 9, 1998) (where a direct implication


                                          7
of the defendant is redacted by replacing defendant’s name with an

obvious indication of deletion, a Bruton violation is not avoided).

     The second established exception to Bruton is a statement that

falls within certain “firmly rooted hearsay exception[s].” Ohio v.

Roberts, 448 U.S. 56, 66 (1980); see also United States v. Saks,

964 F.2d 1514, 1525 (5th Cir. 1992).    For example, in Saks, this

court held that Federal Rule of Evidence 801(d)(2)(D), the agency

exception, was one such “firmly rooted” exception, and identified

other “firmly rooted” hearsay exceptions that qualify as Bruton

exceptions, viz. the hearsay exception for co-conspirators provided

in Rule 801(d)(2)(E), the “spontaneous declaration” exception, and

the “medical examination” exception.    Saks, 964 F.2d at 1525.

     Walker contends that a Bruton violation resulted from four

out-of-court statements by Quinn, contained in the testimonies of

Taylor, Seaton, and Conwill.   At issue are Quinn’s statements to

Taylor that he was driving the Grand Am during the chase, to Seaton

that Quinn’s “home boy” had taken the rap for Quinn in court, to

Seaton that the Grand Am’s darkened windows prevented the police

from seeing that his “home boy” was not the driver, and to the

municipal court, as reported by Conwill, that Quinn was driving the

Grand Am on the morning of the chase.   The testimony of Taylor and

Conwill was admitted over Walker’s Bruton objections.    We review

these possible Bruton violations for abuse of discretion.    United

States v. Fletcher, 121 F.3d 187, 197 (5th Cir. 1997).    We review

the introduction of the second-hand statements testified to by

Seaton for plain error, however, because there was no objection to


                                8
their admission.

      Regardless of the standard of review, however, the district

court did not commit error in allowing any of these statements into

evidence against Walker.        None of them directly implicates Walker

in perjuring himself during Quinn’s firearms possession trials.

Thus, with respect to Walker, each of the statements fall squarely

within   the    Richardson    exception       to   Bruton.    Neither    Quinn’s

statement to Taylor nor Conwill’s testimony about Quinn’s municipal

court statements, that he was the one driving the Grand Am,

directly inculpate Walker in perjury. They reflect that Quinn said

in municipal court that he was driving the Grand Am, and do not

refer, directly or indirectly, to Walker or to his testimony in the

firearms possession trials.

      Quinn’s statements to Seaton that his “home boy took the rap

for him” and that his “home boy” was not driving the car do not

facially implicate Walker.        See United States v. Basey, 816 F.2d

980, 1005 (5th Cir. 1987) (the out-of-court statement must “clearly

implicate the codefendant”).           To deduce inculpation of Walker from

Quinn’s statements about his “home boy” would require the jury to

draw inferences from other evidence at the trial.              See Wilson, 116

F.3d at 1083 (finding no Bruton violation where other evidence from

trial was necessary to complete inference that person referred to

in testimony as “man in the sack” was defendant).                    Because the

identity of Walker within the statement by Quinn is not evident on

the   face     of   the   statement,    the    statement     falls   within   the

Richardson exception to Bruton.


                                         9
      Therefore, because the four out-of-court statements by Quinn

of   which     Walker   complains       fall    within       the   well-established

Richardson exception, we conclude that their admission did not

constitute a Bruton violation.4



      B.   Insufficiency of the evidence.

      Walker    contends    that    there      was    insufficient     evidence   to

support his conviction of perjury. In considering insufficiency of

the evidence claims, the court reviews the evidence to determine

whether a      rational    trier   of    fact,       after   considering   all    the

evidence and reasonable inferences drawn therefrom in a light most

favorable to the verdict, could have found the defendant guilty

beyond a reasonable doubt of the offense charged. United States v.

Carrillo-Morales, 27 F.3d 1054, 1064 (5th Cir. 1994).

      At trial, Hall identified Quinn as the Grand Am’s driver when

its driver rolled down his window at the intersection and looked at

him; Conwill identified Quinn as the driver and sole occupant of

the Grand Am when he attempted to apprehend the driver at the

improvised roadblock; Byrd, the court clerk, testified that Walker

was in City Court at the time of the chase; Kilan’s description of


     4
      Because we find that Walker’s Bruton claim is without merit,
we must find that his contention that the district court abused its
discretion in denying his motion of severance is equally without
merit. United States v. Park, 531 F.2d 754, 761-62 (5th Cir. 1976)
(denial of severance reviewed for abuse of discretion). Severance
is improper where there is no direct incrimination by the
codefendant. United States v. Beaumont, 972 F.2d 91, 95 (5th Cir.
1992) (“[s]everance of the trials is proper . . . only in cases
where a defendant's statement directly incriminates his or her
co-defendants without reference to other, admissible evidence”).

                                         10
the driver fit Quinn but not Walker; and the firearms possession

trial transcripts reflected that Walker testified that he was

driving the Grand Am during the chase.          Viewing this evidence in

the light most favorable to the verdict, a reasonable fact finder

could have found Walker guilty beyond a reasonable doubt, even in

the face of the testimony of three witnesses to the contrary.           In

fact, Walker, himself, argues that the contrary testimony would

create a reasonable doubt only if Quinn’s out-of-court statements

to Seaton, Taylor and Conwill were to be excluded as Bruton

violations. Because there was no Bruton violation in the admission

of Quinn’s statements (which further implicate Walker when taken

with the other evidence), and also because of the independent

strength of the prosecution’s other evidence, we conclude that

there     was   sufficient   evidence    to   support   Walker’s   perjury

conviction.



     C.    Sentencing Guidelines.

     Section 2J1.3 of the U.S.S.G. applies to, inter alia, a

sentence based on a conviction for perjury.        However, § 2J1.3 also

provides that “[i]f the offense involved perjury, . . . apply §

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

offense, if the result is greater than that determined above.”

Section 2X3.1 provides for a base offense level of six levels lower

than the offense level for the underlying offense.           The district

court found the underlying offense of Walker’s perjury to be

Quinn’s firearms possession (base offense level of 22), which made


                                    11
for a perjury base offense level for Walker of 16 (one level higher

than   what   would   have   been    applicable     under   §   2J1.3   without

application of § 2X3.1).            Walker contends that subornation of

perjury should have been the underlying offense used, rather than

the firearms possession.      This argument is without merit.

       In referring to the accessory-after-the-fact guideline, the

perjury sentencing guideline essentially directs the sentencing

court to determine to what crime Walker’s perjury made him an

accessory-after-the-fact.            That   crime    was    Quinn’s     firearms

possession offense.      It was in Quinn’s firearms possession trial

that Walker perjured himself.         Walker’s perjury had the potential

to help Quinn evade the firearms possession conviction. The counts

of the indictment concerning Walker’s perjury were based on his

testimony at the firearms possession trial.                 Walker’s perjury

conviction does not turn on whether Quinn suborned that perjury,

but only on whether Walker made false declarations under oath about

a material fact in the firearms possession case.5



II.    Quinn’s appeal

       A.   Alleged Bruton violation.


       5
       We also reject Walker’s contention that the offense level
increase for a stolen firearm should not apply. The Guidelines
mandate the increase, regardless of the defendant’s knowledge that
the gun was stolen. U.S.S.G. § 2K2.1, Application Note 19; see
also United States v. Singleton, 946 F.2d 23, 27 (5th Cir. 1991)
(holding that defendant’s knowledge of whether gun was stolen was
irrelevant to court’s upward adjustment of sentence for stolen
gun); United States v. Dancy, 947 F.2d 1232, 1234 (5th Cir. 1991)
(remanding for resentencing where the upward level adjustment was
not applied to defendant who did not know the gun was stolen).

                                       12
           1.    The constitutional violation.

      Quinn contends that a Bruton violation was triggered by the

admission of Taylor’s testimony as to Walker’s statement that

“Quinn was going to pay [Walker] $5,000 and give him two ounces of

cocaine if he won the case.”        Quinn contends that admission of this

testimony was a clear violation of his Sixth Amendment right of

confrontation as defined by Bruton.         Bruton, 391 U.S. at 127.       The

government, however, argues that Walker’s statement was not offered

to prove Quinn suborned perjury, but to show that Walker had

knowledge of the perjury and the intent to commit perjury.               It is

unclear from this argument whether the government is claiming that

Bruton would not apply in this case because Walker’s out-of-court

statement does not amount to inadmissible hearsay at all, or

whether the government is claiming that Walker’s statement, since

it was not intended to prejudice Quinn, should be added to the list

of   “firmly    rooted”   hearsay    exceptions   that   are    also     Bruton

exceptions.       Because    of     this   ambiguity,    we    address    both

implications.

      The Supreme Court has in one case directed that the confession

of one defendant, inculpating his codefendant, when not introduced

to prove the guilt of that codefendant, may not fall within the

purview of Bruton.        Tennessee v. Street, 471 U.S. 409 (1985).

Street, however, is distinguishable from the instant case in two

respects: 1) The implicated codefendant had testified, and the

defendant’s out-of-court statement was being used specifically to

impeach that testimony, not to prove the truth of any of the


                                      13
matters asserted within the out-of-court statement, id. at 412, and

2) before the out-of-court statement was introduced, the jury was

twice instructed that it was not being introduced to prove the

assertions contained within it, but to impeach the codefendant’s

testimony.   Id. at 413.

      In the present case, however, Quinn did not testify, and the

record reveals no attempt to clearly instruct or warn the jury that

Walker’s out-of-court statement was not being introduced to prove

that Quinn had offered Walker cocaine and money to commit perjury,

either before it was introduced in Taylor’s testimony or at the end

of the trial.    Where these warnings are absent, we cannot assume

that the statement will not be “misused by the jury.”                 Id. at 414-

15.   Because the Street court relied on these instructions to the

jury to   distinguish    the      holding     in   Bruton,    and    because      such

instructions are absent here, we must find that Bruton still

applies in the present case.

      The government argues for expansion of the list of “firmly

rooted” hearsay exceptions to include any out-of-court statement

that is not introduced to prove the truth of the matter asserted.

In seeking to add such an exception to Bruton, the government asks

us to stretch Roberts and Saks beyond the scope of their holdings.

The Court in Roberts makes clear that all of the exceptions to the

hearsay   rule   are   not   to     be   considered   as     exceptions      to   the

guarantees of the Confrontation Clause.              Roberts, 448 U.S. at 62-

63.   The Court notes that the hearsay rules are “riddled with

exceptions   developed       over    three    centuries,”      and    that     these


                                         14
exceptions “vary among jurisdictions as to number, nature, and

detail.”     Id at 62.    When the Court in Roberts excepted from the

Confrontation Clause guarantee those statements that “fall[] within

a firmly rooted hearsay exception,” id. at 66, it did so with the

understanding that every exception to the hearsay rule is not

“firmly rooted.”

     In Saks, this court deliberated very cautiously before adding

Rule 801(d)(2)(D) to the list of these “firmly rooted” hearsay

exceptions.     Careful and thorough consideration is required of a

court entertaining an argument for a new exception to Bruton and

the Sixth Amendment.      “In all cases the constitutional safeguards

are to be jealously preserved for the benefit of the accused, but

especially    is   this   true   where   the   scales   of    justice   may   be

delicately poised between guilt and innocence.”              Glasser v. United

States, 315 U.S. 60, 67 (1942) (in considering a Sixth Amendment

claim).    With this “jealous[] preserv[ation]” in mind, the Saks

court recognized an addition to the list of “firmly rooted” hearsay

exceptions only after evaluating how “rooted in our jurisprudence,”

Saks, 964 F.2d at 1525, was the particular hearsay exception as

correlative with an indicia of unquestionable reliability. Id. We

exercise the same caution in determining whether the government’s

proffered hearsay exception is “firmly rooted” enough to serve as

a Bruton exception.

     The Roberts Court stated that the Confrontation Clause would

only countenance “hearsay marked with such . . . ‘indicia of

reliability which have been widely viewed as determinative of


                                     15
whether a statement may be placed before the jury though there is

no confrontation of the declarant.’”                 Roberts, 448 U.S. at 65

(quoting Mancusi v. Stubbs, 408 U.S. 204, 213 (1972)).                Each of the

hearsay exceptions listed by the Saks court contains such an

indicia of reliability.         The agency and co-conspirator exceptions

specifically provided for in Rules of Evidence 801(d)(2)(D) and

(E),   and     the   medical   examination     and   spontaneous   declaration

exceptions are all excepted because statements falling within them

carry a strong “indicia of reliability.”

       A stalwart “indicia of reliability” is not inherent in every

statement introduced for a purpose other than to prove the truth of

the matter asserted, however.           The government’s proposed addition

to the list of “firmly rooted” hearsay exceptions would eviscerate

the    Bruton    rule,     allowing     the   introduction    of   out-of-court

statements by unconfronted declarants inculpating the defendant,

but having no particular indicia of reliability, so long as they

were offered for a purpose other than to prove the truth of the

matter asserted.       If we allowed this exception to Bruton, we would

be    guilty    of   not   “jealously    preserving”    the   Sixth    Amendment

“constitutional safeguards,” as we are clearly directed to do. See

Glasser, 315 U.S. at 67.         To make such an addition to the list of

hearsay exceptions that double as Bruton exceptions would be

counter to this circuit’s deliberately cautious approach in Saks

and to the Supreme Court’s reasoning in Roberts.              Consequently, we

must hold that the admission of Walker’s direct implication of

Quinn in his out-of-court statement was a violation of Quinn’s


                                         16
Sixth Amendment right to confrontation as it is defined in Bruton,

and therefore an abuse of discretion.           See Fletcher, 121 F.3d at

197.



           2.   Harmless Error Analysis.

       Since the Supreme Court’s landmark decision in Chapman v.

California, 386 U.S. 18 (1967), in which it adopted the general

rule that a constitutional error does not automatically require

reversal of a conviction, the Court has applied harmless error

analysis to a wide range of errors and has recognized that most

constitutional errors can be harmless, including the admission of

the out-of-court statement of a non-testifying codefendant in

violation of the Sixth Amendment Counsel Clause. Id., citing, inter

alia, Brown     v.    United   States,   411   U.S.   223,   231-232   (1973).

Accordingly,    the    erroneous   admission    of    Walker’s   out-of-court

statement that directly tended to show Quinn’s guilt of subornation

will not require reversal of the conviction if the prosecution can

“show ‘beyond a reasonable doubt that the error complained of did

not contribute to the verdict obtained.’”             Sullivan v. Louisiana,

508 U.S. 275, 279 (1993), quoting Chapman, 386 U.S. at 24.              Thus,

“the question [Chapman] instructs the reviewing court to consider

is not what effect the constitutional error might generally be

expected to have upon a reasonable jury, but rather what effect it

had upon the guilty verdict in the case at hand.” Id., citing

Chapman, supra, at 24 (analyzing effect of error on “verdict

obtained”).     In other words, “[h]armless-error review looks, we


                                     17
have said, to the basis on which the jury actually rested its

verdict.’”    Id., quoting Yates v. Evatt, 500 U.S. 391, 404 (1991)

(emphasis added).      The inquiry is “whether the guilty verdict

actually rendered in this trial was surely unattributable to the

error.” Id. (underline added); see also O’Neal v. McAninch, 513

U.S. 432, 435 (1995) (in conducting a harmless error analysis, the

court   should    examine   whether   the   error   affected   the   jury’s

verdict); Harry T. Edwards, To Err is Human, but not Always

Harmless: When Should Legal Error be Tolerated?, 70 N.Y.U. L. Rev.

1167, 1201 (1996) (“Sullivan seems to swing the focus of harmless-

error analysis back where Chapman and Kotteakos directed it: to the

effect that an error may have had upon the verdict actually

rendered”).      Applying the Chapman standard, we conclude that the

prosecution has carried its burden of showing beyond a reasonable

doubt that the error complained of did not contribute to the guilty

verdict in the case at hand.

     The jury’s guilty verdict regarding Quinn’s subornation of

perjury count must reflect a two-pronged finding: (1) That there

was false testimony material to the indicted crime, and (2) that

the accused said or did something to influence the person providing

the false material testimony to do so.        United States v. Brumley,

560 F.2d 1268, 1275-76 (5th Cir. 1977).

     Quinn does not contest the jury’s finding of the first prong,

i.e., that Walker testified falsely as to a fact material to proof

of the charged offense.     In this particular case, however, because

of the nature of the testimony and the kind of relationship between


                                      18
the defendants, evidence relevant to one prong tends to be equally

probative as to the other.   It is extremely unlikely that a person,

who gives intentionally untrue testimony incriminating himself in

order to exonerate another, does so without some persuasion or

inducement by the beneficiary of his false swearing.      Completely

uninvited self-incriminating testimony may be somewhat more likely

if the witness is closely related to the beneficiary by blood or

marriage.   Quinn and Walker, however, are merely acquaintances.

Consequently, in the present case, every piece of evidence that

tends to prove that Walker’s self-incriminating testimony was false

also tends to prove that Quinn persuaded or induced Walker to so

testify in behalf of an acquittal on Quinn’s firearms possession

charge.

     Independently   of   Wallace’s   out-of-court   statement,   the

prosecution introduced substantial evidence tending to prove that

Quinn instigated, persuaded or induced, and thus suborned, Walker’s

false testimony: (1) Two eyewitnesses positively identified Quinn

as the driver of the Grand Am during the chase; (2) A third

eyewitness described the driver as resembling Quinn but not Walker;

(3) Quinn’s testimony in city court, in an attempt to exculpate

himself from separate charges arising from the chase, related that

he had driven the Grand Am to a mechanic on the day of the chase,

and did not relate that Walker had driven the Grand Am that day;

(4) The city court clerk testified that Walker was in court at the

time of the Grand Am chase; (5) Taylor testified that Walker

admitted to falsely swearing for Quinn; (6) Seaton testified that


                                 19
Quinn claimed his “home boy” had taken the rap for him; (7) Taylor

testified that Quinn had attempted to suborn perjury from him

before he approached Walker; (8) Walker testified in Quinn’s

firearms possession case that he drove the Grand Am during the

chase and illegally possessed the firearms; (9) the foreman of the

jury that convicted Quinn of the firearms violation testified that

the identity of      the Grand Am’s driver was a major issue in

determining whether Quinn had possessed the firearms.

     A consideration relevant to whether the verdict was “surely

unattributable” to the Bruton violation is the degree of importance

placed on Walker’s out-of-court statement by the prosecution in its

presentation and argument of the case to the jury.           The emphasis,

or lack thereof, placed on the statement by the prosecution can

affect the perception of that statement by the jurors.                  See

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (looking to the

importance   of   the     erroneously   admitted     testimony     to   the

prosecution’s case in resolving a harmless error analysis). In its

direct examination of Taylor, the prosecution did not specifically

ask Taylor whether Walker said that he had been induced to testify

by Quinn, or seek to emphasize the portion of Walker’s statement

referring to Walker’s expectation of reward if Quinn were to be

acquitted;   in   Taylor’s   testimony,    that    portion    of   Walker’s

statement followed a larger portion wherein Taylor related that

Walker   confessed   to   testifying    falsely    at   Quinn’s    firearms




                                   20
possession trial.6 The prosecution did not question Taylor further

about Quinn’s inducement or persuasion of Walker’s testimony, and

did not re-visit the issue in its redirect.          In its closing

argument, the prosecution did not refer at all to the allusion to

a   possible     reward    in   Walker’s   out-of-court   statement.7


         6
        Specifically, Walker’s statement about Quinn’s offer of
money and cocaine emerged in Taylor’s testimony as follows:
          Q: . . . Where did you go after you were
          playing basketball?
          A: I went and found Santonio and asked him if
          he had testified at Quinn’s trial, and he told
          me yeah. He told me that he testified that he
          was driving the car.

             [Quinn’s attorney objects on the basis of
             Bruton, and is overruled by the court, then:]

             Q: What did Santonio Walker say when you asked
             him had he testified in Quinn’s trial?
             A: He said he had testified that he was
             driving the car and that the gun was his. He
             said that Quinn was going to pay him $5,000
             and give him two ounces of cocaine if he won
             the case.

             [Quinn’s attorney asks for a continuing
             objection, which is granted, then:]

             Q: What did Santonio Walker say about what had
             happened when he testified? . . .
     7
         Regarding the subornation count, the prosecution related:
            Then Quinn tried to get Robert Taylor to be a
            witness. Taylor refused. The next thing you
            know is Santonio Walker is that witness. Then
            Santonio Walker over in January of this year
            told Robert Taylor that he lied at Quinn’s
            trial. You know that Quinn told Rodney Seaton
            that he had been the one in the car but one of
            his buddies had testified that it was him
            instead of Quinn and so he shouldn’t be even
            having a problem with it but that one of his
            buddies had taken the rap for it . . .. He
            persuaded one of his buddies, Santonio Walker,
            to give perjury.

                                  21
Additionally, no other testimony introduced at the trial had as a

foundation     information    contained      in    Walker’s       out-of-court

statement.     Thus, exclusion of that statement would not have

undermined the probative effect of any other evidence.

     Considering the error complained of in the context of the

entire body of evidence presented by the prosecution, and taking

into account the lack of emphasis placed upon the erroneously

admitted material by the prosecution and the insignificant effect

its exclusion would have had on the government’s case,             we conclude

that the prosecution has shown beyond a reasonable doubt that the

error did not contribute to the verdict of guilt of subornation of

perjury     rendered    against   Quinn.      In    other   words,    Quinn’s

conviction was “surely unattributable” to the Bruton violation.

Admission    of   the    statement,    therefore,    did    not    constitute

reversible error.



     B.   Alleged Rule 404(b) violation.

     Taylor testified that Quinn approached Taylor and asked him to

lie for him in the firearms possession trials.         Quinn contends that

admission of Taylor’s testimony in the subornation of perjury trial

was tantamount to admitting evidence of “other crimes,” extrinsic

to the indicted crime of suborning Walker’s perjury in violation of

Fed. R. Evid. 404(b). This court reviews admissibility of evidence

questions for abuse of discretion.         United States v. Pace, 10 F.3d

1106, 1114-15 (5th Cir. 1993).

     Taylor’s testimony is not governed by Rule 404(b), because it


                                      22
did not describe acts extrinsic to those in the indicted crime.

Simply stated, an uncharged crime arising from the same transaction

should not be considered extrinsic for 404(b) purposes.     United

States v. Dula, 989 F.2d 777 (5th Cir. 1993); see also United

States v. Maceo, 947 F.2d 1191, 1199 (5th Cir. 1991), cert. denied,

503 U.S. 949 (1992). Quinn’s attempt to suborn perjury from Taylor

was part of the same transaction of shopping for an alibi of which

the subornation of Walker’s perjury was a part.

     In United States v. Aleman, 592 F.2d 881 (5th Cir. 1979), this

court explained:

            The extrinsic acts rule is based on the fear
            that the jury will use evidence that the
            defendant has, at other times, committed bad
            acts to convict him of the charged offense.
            In the usual case, the “other acts” occurred
            at different times and under different
            circumstances from the crime charged.     The
            policies underlying the rule are simply
            inapplicable when some offenses committed in
            a single criminal episode become “other acts”
            because the defendant is indicted for less
            than all of his actions.
Id. at 885; see also United States v. Moeller, 80 F.3d 1053, 1060

(5th Cir. 1996) (where the evidence is not extrinsic, there was no

error in admitting it).     Because Quinn was seeking to suborn

perjury, to gain an alibi for possession of a firearm, all of his

actions in attempting to elicit that particular perjury and gain

that particular alibi were part of the “same criminal episode.”

     The district court did not abuse its discretion in admitting


                                23
this testimony.



       C.     Alleged Sixth Amendment violation.

       Seaton’s testimony about Quinn’s Thanksgiving night confession

regarded a conversation Seaton and Quinn had while cellmates

following Quinn’s firearms possession conviction.                              Quinn argues

that admission of this testimony violated his Sixth Amendment right

to counsel.         See Massiah v. United States, 377 U.S. 201, 206 (1964)

(“[defendant] was denied the basic protections of [the Sixth

Amendment guarantee to counsel] when there was used against him at

his trial evidence 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”).           We   review

constitutional challenges de novo.                      United States v. Asibor, 109

F.3d       1023,    1037      (5th   Cir.   1997);       see   also    United       States   v.

Hamilton,          128     F.3d      996,   999        (6th    Cir.    1997)        (reviewing

constitutional challenge to admission of evidence de novo).

       We need not address the question of whether admission of

Quinn’s volunteered statement to Seaton or his answer to Seaton’s

follow-up question was the product of a deliberate design to elicit

incriminating information8; there was no violation of Quinn’s Sixth


       8
       See Kuhlman v. Wilson, 477 U.S. 436 (1986) (holding that no
Sixth Amendment violation had occurred where the defendant’s
statements to the informant were volunteered and the volunteering
of the information was precipitated by events beyond the
informant’s control); see also Maine v. Moulton, 474 U.S. 159, 177
n.13 (1985) (Sixth Amendment right to an attorney violated when the
informant "frequently pressed . . . for details of [crime] and in
so doing elicited much incriminating information”).

                                               24
Amendment right to counsel because that right had not yet attached

at the time of his statements.              See Kuhlman v. Wilson, 477 U.S.

436,       456    (1986)   (right   to   counsel   not   violated   where   Sixth

Amendment protections had not yet attached); United States v.

Henry, 447 U.S. 264, 272 (1980) (same); Massiah, 377 U.S. at 206

(same).          Sixth Amendment protections are offense-specific.          Maine

v. Moulton, 474 U.S. 159, 180 n.16 (1985); Hurst v. United States,

370 F.2d 161, 165 (5th Cir. 1967).             In Kirby v. Illinois, 406 U.S.

682 (1972), a plurality of the Court concluded that the right to

counsel for an offense attaches at the initiating point of the

adversarial process.9          Id. at 689; see also McNeil v. Wisconsin,

501 U.S. 171, 175 (1991) (right to counsel is offense-specific, not

attaching until the commencement of adverse judicial criminal

proceedings).

       Even without a clear, fact-based delineation marking when the




       9
           The Kirby court reasoned that:
              [t]he   initiation    of    judicial   criminal
              proceedings is far from mere formalism. It is
              the starting point of our whole system of
              adversary criminal justice.     For it is only
              then that the government has committed itself
              to prosecute, and only then that the adverse
              positions of government and defendant have
              solidified.   It is then that the defendant
              finds himself faced with the prosecutorial
              forces of organized society, and immersed in
              the intricacies of substantive and procedural
              law. It is this point, therefore, that marks
              the    commencement      of    the    “criminal
              prosecutions” to which alone the explicit
              guarantees   of   the   Sixth   Amendment   are
              applicable. Kirby, 406 U.S. at 689-90.

                                          25
Sixth Amendment right to counsel attaches,10 we can determine that

adverse judicial criminal proceedings had not commenced at the

point when Quinn made his remarks to Seaton. Quinn’s admissions to

Seaton occurred on Thanksgiving night in 1995.            Under the facts of

the     present   case,   adverse    criminal    proceedings    on     Quinn’s

subornation offense did not commence until months later. Quinn was

indicted for subornation of perjury on July 24, 1996.           His initial

hearing was not held until August 5, 1996, and counsel was not

appointed until August 6, 1996.        Under all theories, there was a

delay of several months between Quinn’s statements to Seaton and

the starting point of the adverse criminal judicial proceedings

against Quinn on the subornation offense.          We conclude, therefore,

that Quinn’s Sixth Amendment right to counsel had not yet attached

with respect to this offense at the time of his Thanksgiving 1995

statements.

      Quinn argues, however, that the subornation of perjury charge

was “inextricably intertwined” with the firearms possession charge.

Where the offense for which incriminating comments are being

elicited is inextricably intertwined with an offense to which the

Sixth      Amendment   protections    have      already    attached,     those

protections cover both offenses.          United States v. Laury, 49 F.3d


      10
       The plurality in Kirby declined to mark the commencement of
adverse criminal judicial proceedings at a particular point, noting
that the commencement point has been variously identified as the
“formal charge, preliminary hearing, indictment, information, or
arraignment.” Kirby, 406 U.S. at 689; see also McNeil, 501 U.S. at
175 (also declining to delineate a fact-based rule of when the
Sixth Amendment right attaches).


                                     26
145, 150, n.11 (5th Cir. 1995) (citing United States v. Carpenter,

963 F.2d 736, 740 (5th Cir.), cert. denied 506 U.S. 927 (1992)).

Quinn maintains that, because the same evidence (concerning whether

Quinn was driving the Grand Am) was crucial to both offenses, the

firearms possession and the subornation of perjury offenses are

inextricably intertwined.

     Quinn’s reliance on the similarity of the evidence as the

standard of whether the two offenses are inextricably intertwined

is misplaced. The Moulton court identifies the correct standard as

whether the conduct leading to each offense is the same.              Moulton,

474 U.S. at 179-80.      Possession of a firearm and subornation of

perjury involve two distinct types of conduct, the one not leading

necessarily to the other.         Also, the distinctly separate offenses

of firearms possession and subornation of perjury did not occur

within a close temporal proximity.         See Carpenter, 963 F.2d at 741

(no close   relatedness      of   offenses   where   the    warrant   for    one

predated the events leading up to the warrant for the other).

     Using the standards applied in Moulton and Carpenter, we

cannot   find   that   the   subornation     of   perjury    charge    was   so

inextricably intertwined with the firearms possession charge that

Quinn’s Sixth Amendment right to counsel, as triggered by the

firearms possession charge, attached also to his subornation of

perjury charge at the time of his statements to Seaton. Therefore,

there was no Sixth Amendment violation in the admission of any of

Quinn’s statements to Seaton.




                                      27
                           Conclusion

     Finding no reversible error in the disposition of this matter

by the district court, the defendants’ CONVICTIONS and SENTENCES

ARE AFFIRMED.




                               28
