UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 97-4546

RICKY BANKS,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, Chief District Judge; Richard L. Williams,
Senior District Judge, sitting by designation.
(CR-96-115)

Submitted: September 29, 1998

Decided: November 16, 1998

Before LUTTIG and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Edward A. Fiorella, Jr., HARKEY, LAMBETH, NYSTROM, FIO-
RELLA & MORRISON, L.L.P., Charlotte, North Carolina, for
Appellant. Mark T. Calloway, United States Attorney, Gretchen C.F.
Shappert, Assistant United States Attorney, Charlotte, North Carolina,
for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Ricky Banks appeals from his conviction and sentence imposed for
possessing with the intent to distribute heroin. See 21 U.S.C.
§ 841(a)(1) (1994). Banks was a deputy sheriff working as a jailor. He
and a prisoner, Joe Richardson, arranged for Banks to purchase two
ounces of heroin in two separate transactions. Federal agents arrested
Banks after the first transaction, however, after Richardson alerted
them to Banks's desire to purchase heroin. Banks claimed at trial that
he was actually engaged in undercover work when he purchased the
heroin to impress his newly-appointed Sheriff. The government con-
tended that Banks engaged in the transaction to resolve financial trou-
bles. Finding no reversible error, we affirm.

We reject Banks's arguments that he was entrapped as a matter of
law and that he was entitled to a jury instruction on entrapment. A
valid entrapment defense contains two elements: government induce-
ment and a lack of predisposition to commit the crime by the defen-
dant. See United States v. Phan, 121 F.3d 149, 153-54 (4th Cir. 1997),
cert. denied, 66 U.S.L.W. 3388 (U.S. Feb. 23, 1998) (No. 97-863). At
trial, Banks claimed that he was trying to consummate the drug trans-
action in order to impress his superiors at the Sheriff's Department.
Therefore, on the facts of this case, there is not even a scintilla of evi-
dence of entrapment.

Banks next argues that his right to present a defense was violated
when the district court sustained the government's objection to a por-
tion of the testimony of defense witness Alleyne. The district court
sustained the objection because the testimony would have been hear-
say. See Fed. R. Evid. 802 (hearsay generally not admissible). Banks
fails to argue that the testimony was not hearsay or fell within an
exception to the general rule of inadmissibility. Therefore, we find no
abuse of discretion. Even if the district court had abused its discretion,

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the error was harmless. Contrary to Banks's assertion, Alleyne's testi-
mony would not have negated Banks's mens rea. Alleyne was pre-
pared to testify about advice he had given Banks on how to conduct
an undercover drug investigation. The statute in question, 21 U.S.C.
§ 841(a)(1) (1994) requires only the intent to distribute, it does not
require the intent to distribute illegally. As a result, Alleyne's testi-
mony would have hurt Banks by providing evidence of his plan to
distribute heroin.

Banks next contends that certain comments made by the trial court
during his trial deprived him of his right to a fair trial. Banks com-
plains, inter alia, that the district court admonished counsel not to go
on an "Easter egg hunt," referred to certain evidence as irrelevant,
warned counsel not to waste the jury's time on minutia, and noted that
a piece of documentary evidence "doesn't have any significance." The
question is whether the judge's comments rose to a level of prejudice
that they denied him a fair trial. See United States v. Parodi, 703 F.2d
768, 776 (4th Cir. 1983). After reviewing the instances cited by
Banks, we find that they do not rise to such a level of prejudice.
Rather, we conclude that the judge's statements were either legitimate
evidentiary rulings or innocuous attempts to keep counsel focused on
the issues in the case.

Banks argues that his Fifth Amendment privilege against self-
incrimination was violated when the government used his testimony
from his first trial, which ended in a mistrial, against him in his sec-
ond trial. The general rule is that a defendant's testimony at a former
trial is admissible against him in a later proceeding. See Harrison v.
United States, 392 U.S. 219, 222 (1968). We find that the general rule
controls here. See United States v. Baker, 850 F.2d 1365, 1369-70
(9th Cir. 1988). Thus, Banks's Fifth Amendment right was not vio-
lated.

Finally, Banks asserts several arguments that the trial court erred
in determining his sentence. He first claims that the government failed
to produce sufficient evidence to enable the district court to properly
find that he willfully obstructed justice by committing perjury. See
United States Sentencing Guidelines Manual § 3C1.1 (1995). The dis-
trict court determined that Banks committed perjury when he denied
that he made the initial contact with Richardson, when he testified

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that his activities were part of an undercover operation, and when he
testified that he engaged in buying drugs to ingratiate himself with the
new Sheriff. Banks claims that the evidence supports his version of
the truth, that he made the drug purchases to impress superiors, as
much as it supported the government's theory that he made the drug
purchases to resolve his financial difficulties. After reviewing the evi-
dence, we cannot find that the district court clearly erred in enhancing
Banks's sentence on this basis. See United States v. Castner, 50 F.3d
1267, 1279 (4th Cir. 1995).

Banks next challenges the amount of drugs for which the district
court held him accountable. Because the evidence amply supports the
district court's conclusion that Banks had the intent to participate in
the second one-ounce drug transaction, we reject his argument that
the evidence shows that he did not intend to purchase, or was not rea-
sonably capable of purchasing, two ounces of heroin. He was, there-
fore, properly held accountable for the two ounces. See U.S.S.G.
§ 2D1.1 comment. (n.12).

Next, Banks argues that the district court should have reduced his
offense level for acceptance of responsibility under U.S.S.G. § 3E1.1.
He continues to deny having any criminal intent in purchasing the
heroin, and we find that his denial is sufficient to prevent application
of the reduction. See United States v. Gordon , 895 F.2d 932, 936 (4th
Cir. 1990) (defendant must accept responsibility for all criminal con-
duct).

Banks also contends that the district court erred in enhancing his
sentence under U.S.S.G. § 3B1.3 because he abused a position of
trust. He argues that the position of deputy sheriff is not a position of
trust and that he did not use his position to commit the offense. These
arguments are without merit. The district court was correct in catego-
rizing his position as a deputy sheriff as a position of trust. Further,
his duties as a jailor significantly contributed to his commission of
this drug offense. The district court did not err in enhancing his sen-
tence.

Finally, Banks argues that the district court erred in denying his
request for a downward departure under U.S.S.G.§ 5K2.0 for exem-
plary conduct while he was on bond and under U.S.S.G. § 5K2.10

                     4
based on the victim's conduct. He fails to argue that the district court
mistakenly viewed its discretionary authority to depart on these bases.
Thus, these claims are not subject to review. See United States v.
Hall, 977 F.2d 861, 866 (4th Cir. 1992).

Accordingly, we affirm Banks's conviction and sentence. We dis-
pense 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

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