PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5770

JOHN MICHAEL WILLIAMS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-95-206-A)

Argued: September 24, 1996

Decided: February 14, 1997

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

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Affirmed by published opinion. Judge Widener wrote the opinion, in
which Judge Russell and Judge Hall joined.

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COUNSEL

ARGUED: Michael Andrew Dawson, COVINGTON & BURLING,
Washington, D.C., for Appellant. Thomas More Hollenhorst, Assis-
tant United States Attorney, Alexandria, Virginia, for Appellee. ON
BRIEF: Robert A. Long, Jr., COVINGTON & BURLING, Washing-
ton, D.C., for Appellant. Helen F. Fahey, United States Attorney,
Alexandria, Virginia, for Appellee.

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OPINION

WIDENER, Circuit Judge:

John M. Williams was indicted April 27, 1995 on three counts of
distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1).
After a one-day trial on June 27, 1995, the jury convicted Williams
of all three charges. The district court then sentenced Williams to a
prison term of 121 months. Williams now appeals his convictions on
several grounds. We affirm.

I.

Factual Background

In August 1994, Michael Angel, a confidential informant, agreed
to make recorded telephone calls for the purpose of purchasing
methamphetamine from Williams. Angel eventually made three such
calls for the government. During the first call, Angel stated that he
would "shoot" the defendant $400. Shortly thereafter, the informant
and an agent from the Northern Virginia Drug Enforcement Adminis-
tration Task Force shipped an express mail package containing $400.
The package was addressed to "John Williams, 2515 Sonoma Ave.,
Torrance, California 90503," with a return address of "P.O. Box 164,
Merrifield, Virginia 22116." Later, a Task Force agent retrieved a
package from Post Office Box 164 containing a computer disk and
9.187 grams of methamphetamine.

Angel then placed another recorded call to Williams. Williams
asked Angel if he had gotten "it." Angel responded that he had and
that he would probably "double." A few days later, Angel and a Task
Force agent sent an envelope containing $800 in cash to the defendant
for a controlled delivery. A second package addressed to Angel was
subsequently retrieved from the Merrifield post office box. It con-
tained a computer disk and 15.15 grams of methamphetamine, which
was 10 to 12 grams less than Angel had expected.

That same day, Angel placed a third recorded call to Williams to
inform him that the recent shipment was short. Another envelope

                     2
eventually arrived. Inside was an Auto Parts Club newspaper and
3.145 grams of methamphetamine.

Angel died on November 1, 1994. In January 1995, after Angel's
death, a Task Force agent tried to purchase additional methamphet-
amine from the defendant. His attempts failed. On January 19, 1995,
the DEA executed a search warrant on Williams' home. Seized items
included a triple beam scale, a pocket scale with residue similar to
methamphetamine, a baggie of suspected methamphetamine, and an
address book listing an address for Mike Angel in handwriting match-
ing that on the envelope sent to the Merrifield post office box.

II.

Constructive Amendment of Indictment

Williams' first contention on appeal is that the prosecutor construc-
tively amended the indictment at trial by arguing that the defendant's
admitted distribution of marijuana constituted an admission of guilt
to the charged offenses--distribution of methamphetamine. This situ-
ation arose after Williams took the stand and testified that he had dis-
tributed marijuana, but not methamphetamine, to Angel. In closing
argument, the prosecutor made several references to this admission,
stating that the defendant had admitted guilt to the indictment's first
two counts.1 These counts related to the first two shipments of
methamphetamine.
_________________________________________________________________
1 The prosecutor made the following statements during closing argu-
ments:

          So even though the Government has alleged a distribution of
         methamphetamine, and even if you believe the defendant, he has
         just admitted his guilt to two of the counts in the indictment,
         Count 1 and Count 2.

          He has admitted that he has received drug money. He has
         admitted that he has sent drugs through the mails on or about
         those dates. It is not important that the defendant knew the nature
         of the drug or the quantity of the drug. He has, in essence, judi-
         cially admitted his guilt to Counts 1 and 2.

          ....

                   3
Williams charges that the prosecutor's comments amounted to a
constructive amendment of the indictment from distributing metham-
phetamine to distributing marijuana. He bases this claim on our deci-
sion in United States v. Floresca, 38 F.3d 706 (4th Cir. 1994) (en
banc). There, we held that "[a] constructive amendment to an indict-
ment occurs when either the government (usually during its presenta-
tion of evidence and/or its argument), the court (usually through its
instructions to the jury), or both, broadens the possible bases for con-
viction beyond those presented by the grand jury." Floresca, 38 F.3d
at 710. Such a constructive amendment would violate the grand jury
clause of the Fifth Amendment. Williams suggests that the prosecu-
tor's improper statements in closing argument, coupled with the pros-
ecutor's extensive development of Williams' admitted marijuana
distribution on cross-examination, broadened the possible bases of
conviction to include distribution of marijuana.

The actions complained of here occurred wholly within the context
of closing argument. It is doubtful at best if any error occurred under
Floresca in this case.2 Even more importantly, however, there was no
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           He's [the defendant is] desperate. He's come up with a recent
          fabrication to somehow explain this away. He does it in a not
          very clever way, that is he's admitted to Counts 1 and 2 essen-
          tially.

           ....

            The Government has proven its case, and, in fact, the defen-
           dant has really admitted to at least two of the counts of the case.
2 The district court's clear and unambiguous instructions to the jury
eliminated any further concern we might have on this issue. The district
court instructed in its opening charge that the lawyers' statements
throughout the trial are not evidence and that the jury "must always keep
that in mind." In its final charge, the court instructed that whenever a dis-
parity appears to the jury between the law as stated by the attorneys and
the law as stated by the court in its instructions, the instructions govern.
The court then reiterated that counsels' statements, objections, and argu-
ments were not evidence. The court further instructed that the govern-
ment must show that the defendant knowingly and intentionally
distributed the controlled substances described in the indictment. The
court added that the government had the burden of proving beyond a rea-
sonable doubt that the defendant distributed a mixture and substance con-
taining methamphetamine.

                     4
contemporaneous objection to the prosecutor's statements and no
motion for a mistrial. In such circumstances, we will not entertain the
question on appeal. United States v. Rhodes, 779 F.2d 1019, 1030 (4th
Cir. 1985). In all events, we are of opinion there was no plain error
under United States v. Olano, 507 U.S. 725 (1993).

III.

Ineffective Assistance of Counsel

Williams next asserts that his defense counsel's closing argument
constituted ineffective assistance of counsel. For Williams to succeed
on this claim on direct appeal, the record must demonstrate conclu-
sively that defense counsel did not provide effective representation.
United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995). It must
appear that the performance of Williams' counsel fell below an objec-
tive standard of reasonableness and that the deficient performance
was "so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable." Strickland v. Washington , 466 U.S. 668, 687-88
(1984). We believe Williams has failed to make these showings.

Williams points to two sentences in his counsel's closing argument
as undermining his defense. Defense counsel stated,"I would tell you
what John Williams says happened isn't what happened. It's the
stupidest story I have ever heard." The defendant, however, has
divorced this language from the context in which it was spoken.3
Although the meaning of counsel's statements may not be entirely
clear, he obviously was arguing that Williams' story was so prepos-
terous (in that his testimony admitted to committing a crime) that in
_________________________________________________________________
3 In its entirety, the paragraph in which defense counsel made these
statements is as follows:

           I would tell you what John Williams says happened isn't what
          happened. It's the stupidest story I have ever heard. I am not
          vouching for the credibility of John Williams. And Mr. Hollen-
          horst [the prosecutor] doesn't vouch for the credibility of his wit-
          nesses. But I think it's a pretty bitter pill to swallow to get up on
          the witness stand and say, Yes, I mailed marijuana. I mailed
          drugs to Mike Angel. That's what I did. And I got money in
          return, but I didn't mail methamphetamine.

                     5
fact he is most likely telling the truth. Rather than disparaging his cli-
ent's unusual defense (that Williams is not guilty of the charged
offense because the drug he sent was not methamphetamine), he was
trying to make what little sense could be made of it for the jury to but-
tress Williams' credibility. This became more apparent later in coun-
sel's argument when he asserted that Williams' testimony should
create a reasonable doubt as to whether the defendant mailed metham-
phetamine or marijuana to Angel and when he requested the jury to
set aside "the fact that he sent marijuana to Mike Angel" in deciding
whether Williams did the act charged in the indictment.

Although defense counsel might have worded his argument more
carefully, he was putting the best slant he could on his client's pecu-
liar testimony. Thus, we are of opinion that the record fails to demon-
strate that defense counsel's actions fell below an objective standard
of reasonableness, much less deprived the defendant of a fair trial.

IV.

Admission of Out-of-Court Statement

Williams' challenge to the district court's admission of an out-of-
court statement by Angel is equally unavailing. During re-direct
examination of the Task Force agent who worked most closely with
Angel, the prosecutor asked, "And did he [Angel] say whether or not
he had ever obtained methamphetamine from the defendant?" The
defense objected to this question on hearsay grounds. The court over-
ruled the objection on the ground that the defendant had "opened the
door." The Task Force agent then responded that Angel told him that
he had made "multiple purchases from John Williams, both person-
ally and through the mail."4

We agree with the district court that the defendant opened the door
to this line of questioning and therefore find that the court did not
_________________________________________________________________
4 Without objection, the government next asked whether Angel pro-
vided the modus operandi for obtaining drugs from the defendant. The
agent answered that when Angel was in California he would go to the
defendant's residence where he would obtain drugs from him, and when
going through the mail, "it was basically the way that I conducted it."

                     6
abuse its discretion in admitting the out-of-court statement. In cross-
examining the Task Force agent, defense counsel elicited testimony
that the agent had no "personal knowledge" as to any dealings
between Williams and Angel over the last four years. He also asked
the agent if he had any "personal knowledge" of business dealings
between the defendant and Angel for which Angel might have owed
the defendant money. The agent responded that he did not.

Although the defendant now emphasizes the use of the term "per-
sonal" knowledge regarding Angel and Williams' relationship, the
term has not been before defined. The phrase can imply either first or
secondhand knowledge, as the district court obviously found it, and
the agent apparently interpreted defense counsel's questions as inquir-
ing into his firsthand knowledge only. His answers thus had the
potential to mislead the jury into thinking the agent had no knowledge
regarding Angel's dealings with Williams. The district court therefore
permitted the prosecution to introduce Angel's out-of-court statement
to close the door opened by the defense.

V.

Warrantless Search

Williams next argues that the district court's admission into evi-
dence of the envelopes containing methamphetamine was plain error
because the investigating agents opened them without a search war-
rant. Because the defense did not object to the evidence in the district
court, we review the court's decision for plain error. Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993); United
States v. Hanno, 21 F.3d 42, 45 (4th Cir. 1994).

We are of opinion that the admission of the contents of the three
envelopes did not constitute error at all, much less plain error. Even
assuming Williams had standing to challenge the admissibility of the
envelopes, the record indicates that Angel's consent was implied from
his conduct during the investigation. Angel had the right to open, or
give consent to open, the envelopes because they were addressed to
him. Also at this time, Angel, as an informant, and the Task Force
agents who actually opened the packages were cooperating. Angel
had agreed to buy methamphetamine using government money. At

                     7
Angel's instance, the drugs procured with that money were sent to
him at a post office box under the exclusive custody and control of
the DEA Task Force. We believe this evidence of the relationship
between Angel and the Task Force agents establishes Angel's implied
consent. Accordingly, the agents' search of the packages did not vio-
late Williams' constitutional rights as sender of the package. See
United States v. Kurck, 552 F.2d 1320, 1321 (8th Cir. 1977) (evidence
of cooperative relationship between an informant driver of a car and
arresting officers established implied consent to search trunk for
counterfeit money and other evidence while defendant was passenger
in informant's automobile).

VI.

Sufficiency of Evidence

Williams' final contention on appeal is that the evidence was insuf-
ficient to convict him. In reviewing sufficiency claims on direct
appeal, our inquiry is whether there is substantial evidence taking the
view most favorable to the government to support the conviction.
Glasser v. United States, 315 U.S. 60, 80 (1942).

After reviewing the record, we find that Williams' sufficiency chal-
lenge is without merit. The government proved that its informant had
called Williams and sent Williams money three times. Each time, a
package followed, in accordance with the terms of the conversations.
All three shipments contained methamphetamine. The government
also demonstrated that Williams himself signed for envelopes con-
taining the money to pay for the goods discussed in the first two tele-
phone calls. All three packages of methamphetamine were addressed
in a handwriting that matched handwriting in an address book found
in Williams' residence. The third envelope also contained an Auto
Parts Club newspaper in addition to the methamphetamine, and Wil-
liams is an auto mechanic.

During a search of Williams' residence, the government seized evi-
dence including a triple beam scale, a pocket scale with residue simi-
lar to methamphetamine, and a baggie of methamphetamine.5
_________________________________________________________________
5 The defendant admitted that the substance in the baggie was metham-
phetamine, but denied it belonged to him.

                    8
Drawing all favorable inferences from this evidence, we conclude that
it supports Williams' conviction on the indictment's three counts. We
therefore reject Williams' sufficiency challenge.

The judgment of the district court is accordingly

AFFIRMED.

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