PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                        No. 96-4675

MELVIN E. HOWARD, a/k/a Mu,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                        No. 96-4676

GEORGE H. JONES,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                        No. 96-4677

JIMMY BACON,
Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(CR-95-123)

Argued: May 7, 1997

Decided: June 13, 1997
Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and
COPENHAVER, United States District Judge for the Southern
District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Michael and Judge Copenhaver joined.

_________________________________________________________________

COUNSEL

ARGUED: Michael R. Ramos, RAMOS & LEWIS, Shallotte, North
Carolina, for Appellant Howard; Vaughan S. Winborne, Jr., Raleigh,
North Carolina, for Appellant Jones; Edwin Mitchell Hardy, Wash-
ington, North Carolina, for Appellant Bacon. Anne Margaret Hayes,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lees. ON BRIEF: Janice McKenzie Cole, United States Attorney,
William W. Webb, Assistant United States Attorney, Amanda L.
Eller, Third Year Law Student, Duke University, Raleigh, North Car-
olina, for Appellees.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Melvin Howard, George Jones, and Jimmy Bacon were convicted
in May 1996 of conspiracy to distribute cocaine base in violation of
21 U.S.C. § 846. Howard, Jones, and Bacon appeal their convictions
on several grounds -- that Howard's confession should not have been
admitted, that Howard's counsel should not have been disqualified,
that the judge made prejudicial comments at trial, that a co-
conspirator's statement should have been excluded, that the jury
should have been given instructions regarding multiple conspiracies,
that the government presented insufficient evidence to support How-
ard and Bacon's convictions, and that Jones' sentence was improperly
enhanced. Finding the defendants' contentions to be without merit,
we affirm the judgment of the district court.

                    2
I.

Howard, Jones, and Bacon were part of a large cocaine distribution
network in and around Raleigh, North Carolina for some time prior
to their arrest in 1995. Several of the co-conspirators regularly trans-
ported cocaine from Florida, and members of the conspiracy used
houses and hotels in the Raleigh area for the sale of the drugs.

On May 18, 1995, Howard flew to Florida for the purpose of sur-
rendering to his probation officer for a violation of the terms of his
probation. At the airport, Howard was approached by Agent Jimmy
Waddell and two other agents of the Drug Enforcement Administra-
tion (DEA), who wanted to question him about suspected drug activi-
ties. The agents drove Howard to the state probation office, where he
had an appointment with his probation officer. At the probation
office, the agents questioned Howard. Howard revealed that he was
part of an organization responsible for transporting two to three kilo-
grams of crack cocaine from Florida to North Carolina every month.
He further indicated that he would be willing to cooperate with the
government but for the fact that his attorney, Louis Vernell, would
inform other members of the cocaine organization of his cooperation.
Portions of these statements were later admitted at trial despite How-
ard's efforts to have them suppressed.

Larry Davis, an organizer in the conspiracy, testified at trial that he
had recruited defendants Jones and Bacon, both childhood friends
from Florida, to come to North Carolina to sell drugs for him. Davis
testified that Jones and Bacon were given guns to protect themselves
while selling drugs. He identified the guns during trial. He further tes-
tified that he was around Jones daily, and that Jones and Bacon kept
$600 to $700 per day as their take from sales of drugs. Numerous
other government witnesses, many of them co-conspirators, testified
to the participation of Howard, Jones, and Bacon in the drug conspir-
acy.

The jury found all three defendants guilty of conspiracy. Howard
was sentenced to 262 months, Jones to life, and Bacon to 324 months
in prison. Each sentence also provided for supervised release after
prison -- five years for Howard and ten years for Jones and Bacon.

                     3
II. Pre-Trial Issues

A.

Howard first claims that the trial judge erred in denying Howard's
motion to suppress the statements he made to DEA Agent Waddell.
He argues that he was in the custody of the DEA agents at the time
the statements were made and therefore should have been advised of
his Miranda rights. We are mindful that while we review mixed ques-
tions of law and fact de novo, "a reviewing court should take care
both to review findings of historical fact only for clear error and to
give due weight to inferences drawn from those facts by resident
judges." Ornelas v. United States, 116 S.Ct. 1657, 1663 (1996).

An individual is "in custody" for Miranda purposes when, under
the totality of the circumstances, the "suspect's freedom of action is
curtailed to a `degree associated with formal arrest.'" Berkemer v.
McCarty, 468 U.S. 420, 440 (1984) (citation omitted). The facts in
this case fail to support Howard's claim that a reasonable person in
his position would have understood that he was in custody. See id. at
442. Because the district court in this case found Agent Waddell's tes-
timony to be credible, and Howard's testimony to be"not credible,"
"untruthful," and "impeached," we must examine the circumstances of
Howard's statement as described by Agent Waddell.

According to Waddell's testimony, three DEA agents met Howard
at the airport, identified themselves, and offered him a ride to his
intended destination -- the probation office. Howard accepted the
offer. Agent Waddell testified that had Howard refused the ride, the
agents would have left without him. The DEA agents did not brandish
their weapons, nor did they step out of the car with Howard and flank
him as he moved. Once at the probation office, the DEA agents inter-
viewed Howard. He was not placed under arrest or handcuffed prior
to or during the interview, nor was he restricted in his use of the tele-
phone at the probation office. Following the interview, Howard went
about his business with the probation officer, and later surrendered at
the jail for violation of his probation. The district court specifically
found that up until the time Howard surrendered at the jail:

          he had the right and opportunity and knowledge and free-
          dom to leave; that he was free to accompany or not accom-

                       4
          pany the DEA agents upon their initial contact with him;
          that his questioning and response to examination and brief-
          ing and debriefing was voluntary, that it was noncustodial,
          that it was noncoercive, that he was not under any duress.
          He was not under any threat or intimidation at the time, no
          weapons were brandished. He was never put in custody; he
          was never handcuffed or otherwise restrained and that he
          had the ability to not make any statements and the right to
          leave had he chosen to do so.

Howard contends, however, that two factors militate in favor of
custody in his case. One, the interview with police took place in the
office of his probation officer. Two, the sole purpose of the interview
was for the police to learn about Howard's drug activities. The
Supreme Court has made clear, however, that neither the location nor
the purpose of the interview is dispositive of whether a suspect is in
custody. The fact that the questioning takes place at a police station
is not by itself enough to establish custody so long as the individual
being interviewed would perceive that his freedom of movement was
not constrained to a degree associated with arrest. California v.
Beheler, 463 U.S. 1121, 1125 (1983). The Court has further held that
even a clear statement by an officer that the person being questioned
is a suspect does not alone determine custody, but is only "one among
many factors" that bear on an assessment of whether a reasonable per-
son would feel free to depart. Stansbury v. California, 511 U.S. 318,
325 (1994). The Court has held, in fact, that Miranda warnings are
not required when a suspect voluntarily accompanies police to the sta-
tion, answers questions, and then is allowed to leave. Oregon v.
Mathiason, 429 U.S. 492, 495 (1977). The district court did not err
in determining that Miranda warnings were similarly not required in
this case.

B.

Howard next argues that the trial court erred in disqualifying How-
ard's counsel based on a conflict of interest. During the pretrial hear-
ing on the motion to suppress, Agent Waddell stated that Howard had
admitted that he was part of a drug trafficking organization and that
he would cooperate with authorities except for the fact that his attor-
ney, Louis Vernell, would tell other members of the conspiracy for

                    5
whom Vernell was also working. Following this hearing, the court
ruled that Howard's statements to Waddell were admissible, then sua
sponte raised the issue of whether Vernell could continue to represent
Howard in the trial.

The court expressed concern over Vernell's representation on two
grounds. Initially, the court was troubled that Vernell was represent-
ing defendants who were Howard's superiors in the alleged drug
organization and whose interests appeared to conflict with Howard's.
In addition, the court noted that should Howard's statement concern-
ing his attorney be introduced at trial, either Vernell or Howard would
have to testify in order to rebut Agent Waddell's testimony. A lawyer
is prohibited, of course, from being a witness while serving in a repre-
sentative capacity at trial. In order to preserve Howard's Fifth
Amendment right to remain silent, the court concluded that Vernell
would have to be disqualified so that Vernell would be available to
testify on Howard's behalf.

Howard contends that by disqualifying Vernell, the court deprived
him of his Sixth Amendment right to counsel of choice. Howard
denies that he made the statement to Agent Waddell about his attor-
ney, and he maintains that he was satisfied with Vernell's representa-
tion. Furthermore, he argues that the court should have foreseen that
the conflict would never arise because any statement Howard may
have made about his attorney was not relevant to any fact at issue at
trial.

Howard is correct in identifying a right to be represented by an
attorney of his own choosing, but that right is not absolute. See Wheat
v. United States, 486 U.S. 153, 163 (1988). The right is circumscribed
by, among other things, the obligation of trial courts to safeguard the
integrity of the proceedings before them. Trial judges may on occa-
sion be required to decline a defendant's offer to waive his own attor-
ney's conflict of interest and indeed district courts "must be allowed
substantial latitude" in rejecting waivers of this sort. Id. This circuit
has insisted that a trial court "must have sufficiently broad discretion
to rule without fear that it is setting itself up for reversal on appeal"
if it disqualifies a defendant's chosen lawyer. United States v.
Williams, 81 F.3d 1321, 1324 (4th Cir. 1996).

                    6
We hold that the district court did not abuse its discretion in dis-
qualifying Vernell as Howard's counsel. A district court has an obli-
gation to foresee problems over representation that might arise at trial
and head them off beforehand. Here, the court had already heard evi-
dence regarding Howard's statement about his attorney and had ruled
that statement admissible at trial. The court's concern about Vernell's
representation of Howard's superiors in the alleged drug organization,
as well as its concern about the potential need for Vernell to testify
on Howard's behalf, were well-founded. The district court thus acted
within its discretion in ensuring that the vigor of Howard's defense
would not be compromised by the competing allegiances of his attor-
ney or an inability to rebut important adverse evidence, which in
Howard's case essentially conceded his role in the Raleigh drug con-
spiracy. We find no basis to overturn the court's disqualification rul-
ing.

III. Trial Issues

A.

The defendants contend that they were deprived of a fair hearing
by the prejudicial comments and actions of the trial judge during
defense counsel's opening and closing arguments. During the opening
arguments, after an objection by the government, the court questioned
Jones' counsel as to the "point" of his statements, criticizing him for
getting "a little far afield." This, say the defendants, amounted to an
expression of disapproval by the judge, and tainted the jurors' percep-
tion of the case. Furthermore, the defendants argue, the court was not
paying attention during closing arguments, as evidenced by the fact
that it asked defense counsel to repeat a statement before the court
could rule on a government objection. The defendants contend that
this alleged nonchalance signaled to the jurors that the defense argu-
ment was not of sufficient importance to hear.

These assignments of error go right to the heart of a trial judge's
ability to conduct a trial. A trial judge is charged with ensuring that
irrelevant and improper evidence is excluded, and that the trial pro-
ceeds in a fair and orderly way. See Fed.R.Evid. 611(a), 614(b);
United States v. Castner, 50 F.3d 1267, 1272 (4th Cir. 1995). Review-
ing the trial court's conduct for an abuse of discretion, United States

                    7
v. Seeright, 978 F.2d 842, 847 (4th Cir. 1992), we find none. The
court did not err in seeking to ensure that information presented by
counsel in an opening statement was neither misleading nor diver-
sionary. Likewise, we find nothing remarkable in the fact that the trial
court requested that defense counsel repeat a statement during closing
argument after an objection had been made. A trial judge is entitled
to make certain that he understands a particular statement before rul-
ing on its propriety.

B.

Howard next objects to the admission of the statement of a co-
conspirator, Larry Davis. Another co-conspirator, Tracy Floyd, testi-
fied that while in jail he had conversations with his nephew, Larry
Davis, relating to, among other things, Howard's role in the conspir-
acy. Floyd's testimony as to Davis' statements was admitted under
the Fed.R.Evid. 801(d)(2)(E) exception to the hearsay rule, which
allows for the admission of statements made by co-conspirators dur-
ing the course and in furtherance of the conspiracy. The defendants
argue that the statements at issue do not satisfy the requirements of
801(d)(2)(E) because both Floyd and Davis were incarcerated at the
time the statements were made.

We decline to hold that statements made during incarceration auto-
matically fall outside the scope of Rule 801(d)(2)(E). Unfortunately,
a conspiracy's activities do not always end when some of its members
go to jail. Here, the record amply supports the district court's ruling
that the statements were made during the course of the conspiracy.
Floyd and Davis were not engaged in "idle chatter" about an unrelated
topic, see United States v. Urbanik, 801 F.2d 692, 697-98 (4th Cir.
1986), but rather were discussing where certain drugs were being
obtained and who was making money. Floyd was seeking information
about drug transactions, in part because he felt that some members of
the conspiracy were endangering his family. The avid interest that the
conversants were taking in the continued mechanics and operations of
the conspiracy is apparent from the transcript. Floyd testified that:

          [Davis] [t]old me that Mu [Howard] is the person who Poo-
          chie was going out to some motel past Crabtree Mall to pick
          the drugs up and deliver to him. . . . . And then[Davis] said

                    8
          eventually it came to the point where when he called he can
          get it right away, so that's how we got into the conversation
          of Mu, because at the particular time, you know, I wanted
          to know what's going on . . . . And so, you know, I'm press-
          ing everybody to find out, well, you know, how is this com-
          ing about.

These conversations plainly dealt with what was currently transpiring
in the conspiracy. We find no error in the district court's admission
of Davis' statements through Floyd's testimony under Rule
801(d)(2)(E). See Bourjaily v. United States, 483 U.S. 171, 175-81
(1987).

C.

Howard and Bacon also contend that the district court erred in fail-
ing to instruct the jury on multiple as well as single conspiracies.
Howard argues that he presented sufficient evidence to show that a
1989 conviction he had for felony possession of cocaine was uncon-
nected to the people or events of the 1993-95 conspiracy.

Assuming that Howard's 1989 conviction was unconnected to the
later activities, the district court's failure to give a multiple conspiracy
instruction in this case was at most harmless error. This court has
explained that failure to give a multiple conspiracy instruction is not
reversible error "unless the defendants demonstrate that they have
been prejudiced by the variance between the single conspiracy
charged in the indictment and the multiple conspiracies proven at
trial." United States v. Kennedy, 32 F.3d 876, 884 n.1 (4th Cir. 1994)
(internal quotations omitted); accord United States v. Curry, 977 F.2d
1042 (7th Cir. 1992). Howard and Bacon could demonstrate prejudice
only if they could show that they "were involved only in separate con-
spiracies unrelated to the overall conspiracy charged in the indict-
ment." Kennedy, 32 F.3d at 884 (internal quotations omitted). This
they cannot do. As discussed in the following section, the government
marshaled significant evidence to prove Howard and Bacon's connec-
tion with the actors and activities in the overall conspiracy charged.
Howard and Bacon thus suffered no prejudice from the lack of
instruction on multiple conspiracies.

                     9
D.

Howard and Bacon next argue that the government did not intro-
duce sufficient evidence to support their conspiracy convictions. They
contend that the evidence established only general allegations of the
sale of drugs, not that Howard and Bacon had any knowledge of a
conspiracy or became members of it. See United States v. Chambers,
985 F.2d 1263, 1270 (4th Cir. 1993).

We find the sufficiency contentions quite remarkable given the evi-
dence introduced against the defendants at trial. Larry Davis testified
that he recruited Bacon and co-conspirator Jones, childhood friends
from Florida, to come to North Carolina to sell drugs for him. Davis
further testified that Bacon and Jones were given guns to protect
themselves during the sale of drugs, and that they kept approximately
$600 to $700 per day as their take from sales. Troy Davis testified
that he was the middleman for one of the houses where Bacon sold
drugs. He also stated that Bacon processed and sold crack cocaine.
Tracy Floyd testified that Bacon was a "worker" for Larry Davis in
the drug business. The government presented guns and drugs found
at an address where Jones was arrested and where government wit-
nesses testified Jones and Bacon had sold drugs. Raleigh Police
Detective Moss testified that Bacon told him he was selling crack
cocaine in Raleigh.

As to the evidence against Howard, Larry Davis testified that he
heard the name "MU" or "MU Melvin" from co-conspirator Tracy
Floyd and also from another drug dealer, "Poochie." (Howard's full
name is Melvin Eugene Howard.) Davis said that during the operation
of the conspiracy, he would give money to Poochie, who would call
"MU" and go meet him at the local Wal-Mart to buy drugs. Tracy
Floyd testified that an individual named Rod told him to take money
to "MU," and that Floyd had delivered between $4,000 and $6,000 to
a man he identified as defendant Howard. Christopher Davis testified
that he had received multi-ounce quantities of crack cocaine from
Howard on several occasions, including one on which he was arrested
by Raleigh police while carrying 80 grams of crack. Samuel
Cheatham, a co-conspirator, testified that Poochie had put him in
touch with Howard to get drugs. Cheatham subsequently purchased
4.5 ounces of crack from Howard for $3,500.

                    10
The jury verdicts against Bacon and Howard are thus amply sup-
ported by the evidence in this case.

IV. Sentencing Issue

Finally, Jones contends that the trial court improperly relied on a
North Carolina drug conviction to enhance his sentence. Jones' sen-
tence was enhanced to mandatory life imprisonment pursuant to 21
U.S.C. § 841(b)(1)(A), which states in part,"If any person commits
a violation of this subparagraph . . . after two or more prior convic-
tions for a felony drug offense have become final, such person shall
be sentenced to a mandatory term of life imprisonment . . . ." Jones
was arrested for this conspiracy charge February 28, 1995. A month
before, on January 23, 1995, Jones was convicted in North Carolina
of committing a drug felony. Jones argues that the North Carolina
conviction cannot provide the basis for enhancement under section
841(b)(1)(A) because: (1) the January 23 conviction occurred after
the commencement of the conspiracy charged in this case, and (2) the
January 23 conviction was not yet final at the time he was arrested
for this conspiracy.

We disagree. The statute itself contains no definition of the terms
"prior" and "final" convictions. Although this circuit has not yet had
occasion to address the question of whether convictions during the
course of a conspiracy can form the basis for a sentencing enhance-
ment under section 841, we find the reasoning of the Eleventh Circuit
in United States v. Hansley, 54 F.3d 709 (11th Cir. 1995), persuasive.
The Hansley court held that because the"purpose of the mandatory
minimum enhancement is to target recidivism, it is more appropriate
to focus on the degree of criminal activity that occurs after the defen-
dant's conviction for drug-related activity is final rather than when the
conspiracy began." Id. at 717 (internal quotation omitted). In Jones'
case, the government presented ample evidence of Jones' continued
involvement in the conspiracy after his North Carolina conviction.
Jones was arrested on February 28, 1995 at 1107-B State Street in
Raleigh. Witness Larry Davis testified that he rented this apartment
to provide Bacon, Jones, and others a place from which to sell drugs.
The arresting officers found 46 grams of cocaine base and two guns
in the apartment at the time of the arrest. The only thing that aborted
Jones' participation in the drug conspiracy was his arrest in this case.

                     11
Jones' continued participation in the conspiracy after his North Caro-
lina drug conviction is precisely the type of recidivism to which sec-
tion 841 is addressed.

Jones next argues that his North Carolina conviction cannot sup-
port a section 841 enhancement because it was not"final" within the
meaning of the federal statute. He concedes that he had not filed an
appeal within the ten-day time limit set forth in Rule 4 of the North
Carolina Rules of Appellate Procedure. He argues, however, that his
conviction was still not final because Rule 21 of the North Carolina
Rules of Appellate Procedure affords him the opportunity to file a
special petition for certiorari "without unreasonable delay," even if he
misses the ten-day appeal deadline.

Again, we find Jones' assertion unpersuasive. The finality of a con-
viction is a matter of federal rather than state law. United States v.
Campbell, 980 F.2d 245, 250 n.6 (4th Cir. 1992). This court held in
Campbell that a prior conviction is final for the purposes of a section
841 enhancement when the time for taking a direct appeal has
expired. Id. at 250-51. Jones had not filed an appeal within the
required time, and he cannot rely on Rule 21 to forestall indefinitely
the finality of his conviction when he had shown no intention of tak-
ing advantage of the special petition for certiorari.

V.

For the foregoing reasons, we affirm the judgment of the district
court.

AFFIRMED

                    12
