                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 08-4844


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ANTHONY W. HORNE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:07-cr-00212-JBF-JEB-1)


Argued:   May 15, 2009                     Decided:   July 31, 2009


Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, and NIEMEYER
and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Edward Anthony Fiorella, Jr., FRAIM AND FIORELLA,
Norfolk, Virginia, for Appellant.   D. Monique Broadnax, OFFICE
OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.
ON BRIEF: Dana J. Boente, Acting United States Attorney,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Following his arrest in a prostitution sting operation at a

Norfolk, Virginia motel, Anthony Horne was searched, and Norfolk

police officers found on him heroin and cocaine, and in his

room, cocaine base.             Horne was charged in three counts with

possessing illegal drugs with the intent to distribute them.                        On

the government’s motion, the court later dismissed Count III,

charging Horne with possession of cocaine base with intent to

distribute it, and the jury convicted him on Counts I (heroin)

and   II    (cocaine).          The   district       court   imposed   a     variance

sentence of 144 months’ imprisonment -- the advisory Guideline

range was 262-327 months’ imprisonment.

      On appeal, Horne challenges numerous aspects of his arrest

and trial.     Having carefully considered each, we affirm.



                                          I

      Horne    contends    first      that     the   district      court   erred    in

denying his motion to suppress the drug evidence retrieved from

his   pocket    during    the    search   incident      to   his    arrest    because

police officers did not have probable cause to arrest him for

solicitation of prostitution.

      The     record   shows     that     at    approximately       8:00     p.m.   on

September 20, 2007, Horne approached undercover police officer

Kim Cole, who was dressed like and posturing as a prostitute.

                                          2
When Horne inquired as to what Officer Cole was doing, she told

Horne that she was “working” because she needed money to pay for

her motel room.           Horne asked for Cole’s motel room number, which

she provided, and Horne then instructed Cole to return to her

room and that he would be “up in a few minutes.”                     Officer Cole

asked Horne if he had any money, and Horne told her that he had

“the next best thing,” explaining that he meant “coke.”                      Before

he could give her “coke,” however, he indicated that he needed a

baby food jar and some baking soda in order to cook it.                     Officer

Cole told Horne that she could obtain the baking soda and a jar

from her room.            When Officer Cole returned to her room, Horne

called, but she did not answer.

       A    few    minutes   later,     Officer   Cole   exited     her   room   and

returned to the sidewalk, where she again saw Horne, now wearing

only   boxer      shorts.      He   initiated     a   second   encounter,    during

which he talked about cooking the cocaine and told Officer Cole

that   he    did    not    need   the   baking    soda   anymore.     Horne      told

Officer Cole to return to her room and that he would be up in 15

or 20 minutes because they were “doing the cook now.”                        Before

separating, Horne asked Cole to pull up her sweatshirt.                          When

she did, Horne touched Cole between her legs and told her to

“hold that thing” for him.              Cole responded that Horne would have

to “wait for that.”            As Cole walked away, Horne asked Cole to

pull up the back of her sweatshirt, which Cole did.

                                           3
      Approximately 20 minutes later, Horne knocked on Officer

Cole’s door.        When Cole opened the door and let Horne in, Horne

was     arrested         by   police        officers       for      solicitation     of

prostitution.           The police searched Horne and found drugs in the

pockets of his shorts.

      In        these     circumstances,         we     have     little      difficulty

concluding that the police officers had reason to believe that

Horne came to Officer Cole’s room to follow through with his

offer      to    exchange     drugs   for    sexual       favors.      The    two   had

conversations that were sexual in nature, one of which included

Horne making physical sexual advances toward Officer Cole, and

Horne changed into his shorts after the first conversation and

before returning to Cole’s room.                      Because Cole had previously

informed Horne that she was “working” and needed money, it was

reasonable for Officer Cole to conclude that when Horne said he

would come to her room with crack cocaine, he was intending to

pay for sex with the drugs.

      Officer Cole testified that she had significant experience

working as an undercover prostitute, having previously served as

one seven or eight times, leading to 35 or 40 arrests.                        Based on

her experience and the facts of her encounter with Horne, she

reasonably concluded that Horne was soliciting sex, for which he

intended to pay with crack cocaine, a proposal that -– once he

came to her room to consummate -- violated Virginia Code § 18.2-

                                             4
346(B) (providing that “[a]ny person who offers money or its

equivalent to another for the purpose of engaging in sexual acts

. . . and thereafter does any substantial act in furtherance

thereof shall be guilty of solicitation of prostitution”).

       We affirm the district court’s findings that the police

officers had probable cause to arrest Horne for solicitation of

prostitution      in    violation    of     Virginia    law.      And    because   the

officers made a valid arrest upon probable cause, we conclude

that   the     search    incident    to     arrest    was   constitutional.        See

Virginia v. Moore, 128 S. Ct. 1598, 1608 (2008).



                                            II

       Horne    next    contends    that     the     district   court     abused   its

discretion       in     refusing    to      appoint     substitute       counsel    to

represent him for a second time -– which would have been a third

appointed counsel.

       At the outset, the district court appointed Arenda Wright

Allen to represent Horne.             But because Allen refused to file a

specific       pretrial    motion    designated        by   Horne,      Horne   became

displeased with her.            Allen filed a motion to withdraw, and the

district court discharged her and appointed another attorney,

Jon Babineau, as substitute counsel.

       Thereafter       Horne      became        displeased     with     his    second

appointed counsel and sought to discharge him because he refused

                                            5
to follow Horne’s script for trial.                  When Babineau brought the

issue to the attention of the court with a “motion for inquiry,”

the court held a hearing, during which it advised Horne that the

court would not appoint a third counsel for Horne.                        Horne then

insisted that he would represent himself, a request that the

court granted.

      In denying Horne’s request for a third substitute counsel,

the   district      court   found    first    that   Horne’s   request      was    not

timely, inasmuch as it was made only five days before trial and

the   court   had    already     postponed     the    trial   once   in    order    to

provide Horne with the second substitute counsel.

      The district court also found, after a thorough inquiry,

that Horne had not shown good cause for substitution of counsel

and   that    any     friction      between    Horne    and    Babineau      stemmed

“largely from the defendant’s own belligerence and disagreements

with Mr. Babineau as to trial strategy.”               The court explained:

      Mr. Babineau did not join in the defendant’s request
      for new counsel to be appointed because Mr. Babineau
      stated that he did not feel that there had been a
      total breakdown in communication and that he could
      still zealously represent the defendant at trial. Mr.
      Babineau is the defendant’s second court-appointed
      counsel and the defendant has had the benefit of two
      well-respected and experienced defense attorneys. The
      defendant’s first court-appointed counsel, Ms. Allen,
      asked   to  withdraw  because   the  defendant  became
      belligerent when she refused to file the motions the
      defendant requested because she found them to be
      without merit and frivolous.   After listening to both
      the defendant and Mr. Babineau explain the situation,
      the court finds the defendant’s problem with Mr.

                                         6
       Babineau to be almost identical.   The defendant does
       not want Mr. Babineau to represent him because Mr.
       Babineau will not follow the defendant’s exacting
       instructions about how to proceed and what to say at
       trial.    The defendant does not want any of Mr.
       Babineau’s legal advice or trial strategy, but merely
       wants   Mr.  Babineau  to  read  verbatim   from  the
       defendant’s script.

       Finally, the district court found that there had not been a

total breakdown in communication between Horne and Babineau so

as to preclude an adequate defense.                  Babineau himself confirmed

that   he    did    not   “believe       there   [was]     a    basis   for   [him]     to

withdraw as counsel in this particular case,” and he promised

“zealously [to] represent [Horne] in the case.”

       In   light    of   the    facts     found    by    the   district      court,    we

cannot conclude that the district court abused its discretion in

refusing to appoint a third substitute counsel for Horne.                              “An

indigent defendant . . . has no right to have a particular

lawyer represent him and can demand a different appointed lawyer

only with good cause.”                United States v. Gallop, 838 F.2d 105,

108 (4th Cir. 1988); see also United States v. Gonzalez-Lopez,

548 U.S. 140, 151 (2006) (“[T]he right to counsel of choice does

not extend to defendants who require counsel to be appointed for

them”).       Moreover,      the       determination      of    whether    good   cause

exists      rests   within      the    discretion    of    the    trial    court,      see

Gallop, 838 F.2d at 108.               We conclude that in the circumstances

of this case, the district court did not abuse that discretion.


                                            7
                                         III

    As a corollary to the previous argument, Horne contends

that he “never clearly and unequivocally asserted his desire to

represent himself.”        See Faretta v. California, 422 U.S. 806,

821 (1975) (holding that a defendant has a Sixth Amendment right

to self-representation); United States v. Frazier-El, 204 F.3d

553, 558 (4th Cir. 2000) (providing that a court may grant a

defendant’s request to represent himself if the request is (1)

timely, (2) clear and unequivocal, and (3) knowing, intelligent,

and voluntary).

     During the hearing on Babineau’s motion for inquiry about

continued representation, Horne repeatedly expressed a desire to

represent himself if Babineau would not follow Horne’s script

for trial.     And the district court repeatedly advised Horne that

it did not think it would be in his best interest to represent

himself,     warning      Horne     of        the     disadvantages     of        self-

representation.           Nonetheless,          Horne     persisted.              After

admonishing and questioning Horne carefully, the district court

said to Horne, “And you are not going to come back to this court

later   on   and   say,   hey,    the    judge      should   never    have   let     me

represent myself,” to which Horne responded, “I’m all right.”

The court then granted Horne’s request, concluding that Horne

“established       that   he      had    a     full     understanding        of     his

responsibilities and the possible consequences, and he clearly

                                          8
and unequivocally expressed his desire to represent himself at

trial.”

       On this record, we conclude that Horne effectively waived

his    right      to    counsel       and    asserted       his      right        to    self-

representation         and    that    the    district    court       did     not       err   by

allowing Horne to proceed pro se.                   See Faretta, 422 U.S. 806;

United States v. Singleton, 107 F.3d 1091, 1096-98 (4th Cir.

1997).



                                             IV

       Horne further contends that “[r]ather than permitting [him]

to    represent    himself      at    trial,      the   Trial     Court      should      have

imposed reasonable conditions on trial counsel, or have provided

advisory counsel to [him].”

       There   is,     however,      no     constitutional        right      to    advisory

counsel or some other form of hybrid representation during self-

representation.          See    Singleton,        107   F.3d    at   1102.         On     this

record, we conclude that the district court did not abuse its

discretion in refusing to provide advisory counsel to Horne,

especially when it explicitly warned Horne before he chose to

represent      himself       that    the    court   would      not    appoint          standby

counsel or advisory counsel.




                                             9
                                        V

       Horne next contends that “the trial court committed ‘Plain

Error’ in failing to instruct the jury on the lesser included

offense of simple possession of a controlled substance.”                        He

argues that “the evidence would have permitted a jury rationally

to find [him] guilty of simple possession,” in violation of 21

U.S.C. § 844.

       A review of the record, however, does not support Horne’s

assertion that evidence existed to support the lesser-included

offense, and thus we conclude that the district court did not

err in instructing the jury on only the offense of possession

with    intent      to    distribute,   in    violation    of    21    U.S.C.   §

841(a)(1).

       At   trial,       the   government     introduced     Horne’s     written

statement that he intended to exchange the controlled substances

on his person for sexual favors.             The government also introduced

testimony regarding Horne’s statements to Officer Cole that he

would pay her with cocaine, the “next best thing” to money, and

testimony of Horne’s actions and sexual advances toward Cole,

implying     that    he    would   exchange    drugs   for      sexual   favors.

Moreover, Horne presented no evidence from which a reasonable

jury could have found that his intent was to possess the drugs

for personal use.          Indeed, no one testified at trial that Horne



                                        10
used drugs or that he possessed drugs for any purpose other than

distribution.

     Thus, we cannot conclude that the district court erred in

not having given an instruction on the lesser-included offense

of simple possession.        See United States v. Wright, 131 F.3d

1111, 1112 (4th Cir. 1997) (holding that a defendant is entitled

to an instruction on a lesser-included offense when the element

distinguishing   the   two   offenses    is   “sufficiently   in   dispute

[such] that the jury could rationally find the defendant guilty

of the lesser offense but not guilty of the greater offense”

(internal quotation marks and citation omitted)).



                                   VI

     Horne also contends that the district court “failed to make

a satisfactory record of whether Horne knowingly and voluntarily

waived his right to testify.”           Because he did not raise the

issue below, Horne asserts that “the error was plain, that it

affected his substantial rights, and [that it] warrants this

court’s review.”

     While a waiver of the right to testify must be knowing and

intelligent, there is no affirmative duty on a district court to

advise the defendant of his right or to obtain an on-the-record

waiver of that right.        See United States v. McMeans, 927 F.2d

162, 163 (4th Cir. 1991); see also Sexton v. French, 163 F.3d

                                   11
874, 882 (4th Cir. 1998) (“[T]rial counsel, not the court, has

the primary responsibility for advising the defendant of his

right to testify and for explaining the tactical implications of

doing so or not”).

      Thus, the district court did not err in failing to advise

Horne formally of his right to testify or to obtain an on-the-

record waiver of that right.               Horne nonetheless was well aware

of   the   right.         He   discussed    the     right   to   testify      with   his

attorney prior to the suppression hearing, at which he elected

to   testify.        In    addition,     the    district    court     advised      Horne

before trial of the instructions that the court intended to give

in   the   event     that      Horne    decided   to    testify,      and    the   court

revisited      the    issue       and     advised      Horne     of    the    possible

implications of deciding to testify at the conclusion of the

government’s case-in-chief, noting that “you are going to have

to decide overnight whether you want to testify or whether you

don’t   want    to   testify.”          Because     Horne   “knew     that    he   could

testify if he wanted to, his failure to testify . . . cannot be

the product of ignorance of his right.                  Instead, his failure to

testify was of his own choosing; he can not now approach the

court and complain of the result of his decision.”                      McMeans, 927

F.2d at 163.




                                           12
                                   VII

     Finally, Horne contends that he was denied the opportunity

of having two police officers (Officer R.M. Jackson and Officer

J.V. Natiello) testify as witnesses in his defense.            He contends

that these officers would have impeached the testimony of other

officers who testified at trial.            Horne also contends that he

was denied access to witness Kennette Alleyne, the woman with

whom he shared his motel room.       He argues that he “was not told

that he could have asked Alleyne what, if any, promises were

made to her in exchange for her refusing to cooperate with the

ongoing      internal   affairs    investigation”       regarding    money

allegedly stolen from his motel room.

     On the morning of trial, Horne advised the district court

that he did not intend to call any witnesses.              But after the

government    rested,   Horne   requested    that   Officers   Jackson   and

Natiello be summoned by the court to testify to impeach the

other officers based on his claim that money in his room was

missing after the search.         Horne, however, did not make the

required showing that either of the witnesses would testify in

his favor by providing testimony material to his defense.                See

United States v. Rivera, 412 F.3d 562, 569-70 (4th Cir. 2005).

These two officers had no contact with Horne, and they did not

provide any information regarding prior inconsistent statements

of any government witness.        As a consequence, Horne could not

                                    13
have shown that they would have provided testimony in his favor.

While Horne had a right to have witnesses called in his favor,

he did not have a right to conduct “an exploratory foray based

on mere speculation.”     Rivera, 412 F.3d at 570.

     In addition, we note that had the district court permitted

Horne to present evidence regarding money taken from his motel

room during the course of the search, the testimony might have

exposed Horne to the government’s introducing evidence of crack

cocaine found in his motel room –- the basis for Count III.                 As

it turned out, without the evidence, the government moved to

dismiss    Count   III   on   its    agreement   not    to    introduce    this

evidence   in   its   case-in-chief      based   on    questions   about    the

constitutionality of the search of Horne’s motel room.

     With respect to Kennette Alleyne, Horne did subpoena her to

trial, but she asserted her Fifth Amendment right to refuse to

testify in light of pending state charges.                   For that reason,

Horne said she could go.            Accordingly, there is no issue that

the court denied Horne access to Alleyne.             Moreover, had Alleyne

been willing to testify, she too might have opened the door to

the government’s presentation of evidence on Count III.

     For the reasons given, the judgment of the district court

is

                                                                    AFFIRMED.



                                       14
