                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4459



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JAMAAL WALKER,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge. (CR-
04-131-RDB)


Submitted:   June 23, 2006                 Decided:   July 25, 2006


Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Jonathan P. Van Hoven, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Jonathan M. Mastrangelo,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       For his part in the 2003 carjacking, abduction, robbery, and

shooting of Edward Hawkins in Baltimore, Maryland, Jamaal Walker

was convicted of carjacking, in violation of 18 U.S.C. § 2119,

using a firearm during and in relation to a crime of violence, in

violation of 18 U.S.C. § 924(c), and conspiring to use a firearm

during and in relation to a crime of violence, in violation of 18

U.S.C. § 924(o).      The district court sentenced Walker to 255

months’ imprisonment. On appeal, Walker assigns an array of errors

allegedly committed by the district court during his trial and

sentencing.    Rejecting Walker’s challenges, we affirm.



                                  I

       Walker contends first that the district court abused its

discretion in admitting into evidence irrelevant and prejudicial

evidence in violation of Federal Rules of Evidence 403, 404(b), and

802.    In particular, he challenges the district court’s rulings

admitting testimony from a police officer that when Walker was

arrested, he was wearing body armor; admitting testimony of a co-

conspirator who believed that Walker approached him to steal a van

to commit robberies because that is what they had done in the past;

admitting testimony of a co-conspirator that Walker suggested to

the other co-conspirators during the course of the conspiracy

charged that they rob some men at a gas station; and admitting


                                 -2-
testimony     that    Walker   stored    the    gun    that    was       used    in    the

carjacking in the closet of a child’s bedroom.                            Contrary to

Walker’s assertion, all of these matters were probative of intent,

the nature and scope of the conspiracy, and the actual course of

events    that   took    place   in     preparation      for       and    during       the

conspiracy.      While Walker contends that they should have been

excluded as evidence of other crimes under Rule 404(b), Rule 404(b)

does   not   govern     testimony   probative     of    the        charged      conduct.

Walker’s contention that the evidence was prejudicial was also

properly rejected because the probative value of the evidence was

not substantially outweighed by the danger of unfair prejudice to

Walker.      See Fed. R. Evid. 403.            And with respect to Walker’s

contention that the evidence constituted inadmissible hearsay, that

objection was interposed as to statements of co-conspirators made

during the course and in furtherance of the conspiracy, which

sometimes     contained    statements        attributed       to    Walker.           Such

evidence, however, does not constitute hearsay. See Fed. R. Evid.

801(d)(1), 801(d)(2)(E).



                                        II

       Walker next contends that the district court abused its

discretion in admitting evidence that he threatened co-conspirator

Cypress during the course of the trial.                   Cypress had finished

testifying against Walker on direct examination, but had not yet


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been cross-examined, when Walker complained to Cypress, while both

were in the holding cell, that Cypress had “snitched” on him, that

Cypress had better watch his back, and that Walker had previously

prevented his cousin from harming Cypress’ mother, but would now no

longer do so.   The district court properly admitted this testimony

as evidence of consciousness of guilt, see United States v. Young,

248 F.3d 260, 272 (4th Cir. 2001), and accordingly we reject

Walker’s argument that the court abused its discretion in admitting

it.



                                III

      Walker also contends that the district court abused its

discretion in failing to grant his motion for a mistrial or in

failing to give curative instructions with respect to two allegedly

improper remarks made by the prosecutor during closing arguments.

      The first remark was made in response to Walker’s counsel’s

statement during closing argument that the government had failed to

call certain friends and relatives of the co-conspirators to

corroborate the co-conspirators’ testimony.      In rebuttal, the

prosecutor responded that the defense also had the ability to call

the same witnesses but had chosen not to.    When Walker’s counsel

objected, the district court sustained the objection, but refused

to give a curative instruction.    Because the district court need

not have sustained the objection, we conclude a fortiori that the


                                -4-
court    need    not    have       given    a     curative         instruction.       We   have

previously held that the government may respond to a defendant’s

argument     that      the        failure    to        call    a    witness    weakens       the

government’s case by noting that the defendant could also have

called the witness. See United States v. Molovinsky, 688 F.2d 243,

247-48 (4th Cir. 1982).                    In his response in this case, the

prosecutor did not comment on Walker’s failure to testify; he was

only    refuting      the    argument        that      the    failure     to   call   certain

witnesses who were equally available to the defense was a reason to

discredit       the    government’s         evidence.              See   United   States      v.

Sblendorio, 830 F.2d 1382, 1391-92 (7th Cir. 1987).

        Walker also argues that the prosecutor improperly attacked

defense counsel for criticizing the credibility of Dominic Peters,

a government witness and a resident of the neighborhood where the

shooting took place.               During closing argument, Walker’s counsel

argued that the placement of the conspirators’ vehicle in relation

to the victim’s vehicle during the shooting was an important

detail, because it went to whether Peters was “telling you the

truth    about    what       he    saw.”         During       rebuttal,    the    prosecutor

addressed this argument by warning the jury to “be wary of somebody

who’s asking you to disbelieve everyone in this case, including

somebody like Mr. Peters.              You saw him come in.               This is a guy who

lives there.       Do you think he’s lying about these details?”                           After

addressing       inconsistencies            in    and    among       witnesses’    testimony


                                                 -5-
involving the placement of the vehicles during the shooting, the

prosecutor continued, “To sit there and say that the testimony

about precisely where those things were positioned somehow means --

this was the suggestion, that Dominic Peters is lying -- is a

stretch.”

      Even though the prosecutor warned the jury to be “wary of

somebody whose’s asking you to disbelieve everyone,” his argument

was clearly directed at defense counsel’s argument that each

government witness should be disbelieved.         The prosecutor did not

unfairly impugn defense counsel’s motives or methods; he was

commenting on the credibility of witnesses, as he was entitled to

do.

      Finding neither remark by the prosecutor to be improper, we

conclude that the district court did not err in refusing to give a

curative instruction or to grant a mistrial.



                                    IV

      Finally, Walker contends that the district court clearly erred

in increasing his base offense level by four after finding that he

was an organizer or leader of the conspiracy, see U.S.S.G. §

3B1.1(c),   and   after   finding   that   he   obstructed   justice,   see

U.S.S.G. § 3C1.1.     Because both determinations were essentially

factual, we review the district court’s conclusions for clear

error.


                                    -6-
      We conclude that the record contained a substantial factual

basis for the district court’s finding that Walker was an organizer

or leader of the conspiracy.           Walker approached Cypress and asked

him to help steal the car to be used in the robbery, and he asked

Ms. Poole to contact Hawkins to arrange the meeting.                        Walker

supplied the firearm, ammunition, gloves, and face masks used

during   the    carjacking.         Walker    drove    the   stolen   van   to   the

carjacking site and then led the group to the site of the shooting.

Walker gave orders to his co-conspirators, including ordering them

to get into Hawkins’ car after the shooting and ordering Cypress to

dispose of Hawkins’ car afterwards.            In short, the evidence showed

that Walker conceived of the crime, recruited others to help him,

provided the equipment necessary to commit the crime, and directed

the physical movements of the other co-conspirators.                     There was

thus ample evidence from which the district court could have

concluded that Walker was a leader or organizer of the conspiracy.

      With     respect   to    the    district        court’s    enhancement     for

obstruction of justice, the district court relied on Walker’s

threat to Cypress made during the trial.               U.S.S.G. § 3C1.1 applies

if the obstructive conduct occurs “during the course of the . . .

prosecution . . . of the instant offense of conviction,” and

Comment 4 specifically identifies “threatening [or] intimidating .

. . a witness . . . directly or indirectly, or attempting to do so”

as   conduct    to   which    the    adjustment       applies.     Two   witnesses


                                        -7-
testified to the threat that Walker made to Cypress, and that

threat   qualified   as   an   obstruction   of   justice   justifying   an

increase in the total offense level.         Again we conclude that the

district court had substantial evidence on which to base its

finding.

    The judgment of the district court is accordingly



                                                                AFFIRMED.




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