                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 03-4414
TIRON WHEELER,
              Defendant-Appellant.
                                       
           Appeal from the United States District Court
            for the District of Maryland, at Baltimore.
           William M. Nickerson, Senior District Judge.
                        (CR-01-422-WMN)

                  Submitted: December 10, 2003

                      Decided: December 29, 2003

    Before LUTTIG, WILLIAMS, and SHEDD, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

James Wyda, Federal Public Defender, Denise C. Barrett, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant.
Thomas M. DiBiagio, United States Attorney, Jacabed Rodriguez-
Coss, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
2                     UNITED STATES v. WHEELER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Tiron Wheeler appeals his convictions for conspiracy to commit
carjacking, in violation of 18 U.S.C. § 371 (2000); carjacking, in vio-
lation of 18 U.S.C. § 2119 (2000); interstate transportation of stolen
property, in violation of 18 U.S.C. § 2314 (2000); and using or carry-
ing a firearm during and in relation to a crime of violence, in violation
of 18 U.S.C. § 924(c) (2000). He was sentenced to 120 months on
each of the first three counts, to be served concurrently, and a consec-
utive sentence of 120 months on the fourth count.

   On appeal, Wheeler asserts: (1) his Fifth Amendment right to coun-
sel and to remain silent were violated; (2) any waiver of his right to
remain silent and to an attorney was not knowing and voluntary; and
(3) the district court erred in denying Wheeler’s motion for a mistrial
after an FBI agent on cross examination mentioned evidence linking
Wheeler to another crime. We have examined these claims and con-
clude that they lack merit.

   Wheeler was arrested on March 10 and questioned by Pennsylvania
police about selling a stolen car. Wheeler was advised of his rights
and stated that he understood them, waived them, and would talk to
police. He added that he "wanted to call his family to see about a law-
yer." Wheeler was then taken to the hospital for treatment of an injury
to his right hand. Later that day, on being readvised of his rights
Wheeler again agreed to waive them and talk to police. He gave state-
ments during the subsequent interview. On March 23, Wheeler spoke
to Baltimore police regarding the carjacking offense at issue in this
case. Wheeler was again advised of his rights and again agreed to
waive them and talk to police. He provided a lengthy statement.

   Wheeler contends that his comment that he wanted to call his fam-
ily to see about a lawyer was an assertion of his right to counsel, suf-
                       UNITED STATES v. WHEELER                         3
ficiently clear to require cessation of questioning. The district court
concluded this was not a clear invocation of the right to counsel. We
agree. In Davis v. United States, 512 U.S. 452, 455 (1994), the
Supreme Court held that a suspect must clearly and unambiguously
request a lawyer to invoke his Fifth Amendment right to counsel.
Davis’s statement, "Maybe I should talk to a lawyer," was not a suffi-
ciently unambiguous request for counsel to require that authorities
cease questioning. Id. We hold that Wheeler’s statement in this case
that he wanted to "call [his] family to see about a lawyer," (J.A. at
84.), likewise is not a clear, unambiguous request for counsel. See id.

   Wheeler argues that his case is distinguishable, as Davis applies
only where a waiver of rights has already occurred and in this case
he had not made that initial waiver. However, the record reveals that
Wheeler had been informed of his rights and agreed to waive them
and speak to police before he made his ambiguous comment. Thus,
we need not decide whether Davis applies to pre-waiver, ambiguous
requests for counsel.

   Wheeler next claims he did not make a knowing and intelligent
waiver of his Fifth Amendment rights. In order for a waiver of the
rights protected by the Miranda warning to be valid, it must be (1)
voluntary rather than forced through intimidation, coercion or decep-
tion; and (2) made with an awareness of the right being waived and
the consequences of such a waiver. United States v. Cristobal, 293
F.3d 134, 139-40 (4th Cir.), cert. denied, 537 U.S. 963 (2002). Here,
there is no allegation that Wheeler’s will was overborne by police
coercion or that his ability to comprehend his situation was seriously
impaired. Id. at 140.

   For a waiver to be knowing and intelligent, the totality of the cir-
cumstances must demonstrate that the defendant understood that had
the right to remain silent and that if he waived that right, anything that
he said could be used against him. Id. at 142. Wheeler argues he did
not understand that, if he chose to invoke his right to counsel or to
silence after interrogation had begun, information he had already dis-
closed could be used against him.

  There is no reason to believe that Wheeler’s waiver in this case was
not knowing and intelligent. The fact that Wheeler asked whether "he
4                     UNITED STATES v. WHEELER
was waiving is [his rights] forever" does not reveal a lack of under-
standing of the rights that he was waiving. The police gave Wheeler
an accurate response, and Wheeeler did not subsequently invoke his
rights. Therefore, the motion to suppress was properly denied.

   Finally, Wheeler alleges that the district court erred in denying his
motion for a mistrial. Wheeler asserts that, on cross-examination, gra-
tuitous testimony by a government witness linked him to a homicide
in another state and improperly prejudiced him before the jury. We
review the denial of a motion for mistrial for abuse of discretion.
United States v. Hayden, 85 F.3d 153, 156-57 (4th Cir. 1996). The
testimony that Wheeler complains of came in direct response to ques-
tions asked by defense counsel while he was probing into the contents
of Wheeler’s statements to the police and the quality of Wheeler’s
cooperation. Wheeler had insisted that his counsel pursue the particu-
lar line of inquiry over his counsel’s objection and after being warned
by the court that "if he continue[d] this cross-examination, . . . infor-
mation may come out from the agent that would be very damaging
to [him]." (J.A. 329.) "If such behavior on the part of the defendant
were held to require a mistrial, ‘it would provide an easy device for
defendants to provoke mistrials whenever they might choose to do
so.’" United States v. Stewart, 256 F.3d 231, (4th Cir. 2001) (quoting
United States v. West, 877 F.2d 281, 289 (4th Cir. 1989)). Because
Wheeler elicited the allegedly prejudicial testimony, the court did not
abuse its discretion when it denied his mistrial motion.

   We affirm Wheeler’s conviction and sentence. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

                                                            AFFIRMED
