                                                     Opinion on Rehearing



UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                          No. 97-4893

DEREK YANCEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
Samuel G. Wilson, Chief District Judge.
(CR-96-20)

Submitted: June 23, 1998

Decided: September 10, 1998

Before MURNAGHAN and HAMILTON, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Timothy S. Coyne, FOWLER, GRIFFIN, COYNE & COYNE, P.C.,
Winchester, Virginia, for Appellant. Robert P. Crouch, Jr., United
States Attorney, Thomas J. Bondurant, Jr., Assistant United States
Attorney, Robbie S. Westermann, Third Year Law Student, Roanoke,
Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Derek Yancey was convicted by a jury of endeavoring to obstruct
justice, 18 U.S.C.A. § 1503 (West Supp. 1998), and sentenced to a
term of 110 months imprisonment for attempting to create a false alibi
after he was charged with murder. Yancey was acquitted of the mur-
der, as well as related robbery, firearms, and drug offenses. He con-
tends that the district court erred in allowing the government to
introduce, during rebuttal, statements and a recorded conversation
which had been excluded from its case-in-chief. He also contends that
the evidence was insufficient to convict him of endeavoring to
obstruct justice and he challenges his sentence, arguing that the dis-
trict court erred in applying USSG § 2J1.2(c), 1 a cross reference to
USSG § 2X3.1 (Accessory After the Fact to murder). We affirm the
conviction and the sentence.

While Yancey was in custody awaiting trial for murder and the
related offenses, he discussed his case with another inmate, Robert
Funk, a jailhouse lawyer. Funk wrote to the Assistant U.S. Attorney
handling his own case to report that Yancey was trying to involve him
in a conspiracy to commit perjury. An agent from the Federal Bureau
of Investigation (FBI) met with Funk and his attorney on March 4,
1996. Funk told the agent that Yancey wanted his help in fabricating
an alibi. On March 8, 1996, as pre-arranged, Funk called another FBI
agent and put Yancey on the phone. The agent was posing as an
acquaintance of Funk's who was willing to say, for a fee, that Yancey
had been working for him in North Carolina for two weeks in March
1995--the period when the murder and robbery occurred. The tele-
phone conversation was recorded. A week later, Yancey filed a notice
of alibi asserting that he was in North Carolina on the date of the mur-
der.
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1 U.S. Sentencing Guidelines Manual (1995).

                    2
Yancey was charged with endeavoring to obstruct justice and the
case was consolidated for trial with the other charges. Yancey sought
to suppress all evidence relating to his conversations with Funk and
the recorded telephone conversation. After a suppression hearing, the
district court found that Funk became a government agent on the day
the recorded conversation was made. The court excluded the recorded
call and all statements made by Yancey to Funk after March 8, 1996,
under Maine v. Moulton, 474 U.S. 159, 180 (1985), finding that the
recorded conversation had been obtained in violation of Yancey's
Sixth Amendment right to counsel because the government created a
situation where Yancey was likely to make statements incriminating
himself in the murder.2 However, the court noted that the evidence
could be introduced for impeachment purposes should Yancey testify,
citing Michigan v. Harvey, 494 U.S. 344, 349 (1990). The court
rejected Yancey's claim that his Fifth Amendment right to have coun-
sel present during police-initiated custodial interrogation had been
violated, finding that the rights protected by Miranda v. Arizona, 384
U.S. 436 (1966), did not extend to voluntary statements to undercover
government agents. See Illinois v. Perkins, 496 U.S. 292, 298 (1990).

During his trial, Yancey testified that Funk initiated the idea of cre-
ating a false alibi and that his lawyer also told him he needed to come
up with an alibi. In rebuttal, the government called Funk and the FBI
agent who spoke with Yancey during the recorded phone call to tes-
tify about the call. The government also introduced the tape recording
of the call and a letter Yancey wrote later thanking his supposed bene-
factor.

On appeal, Yancey maintains that the district court erred in permit-
ting the government to introduce the tape recording and other evi-
dence which was excluded from the government's case-in-chief. He
acknowledges that, in Michigan v. Harvey, 494 U.S. at 351, the
Supreme Court held that a defendant's statement to police may be
used to impeach his false or inconsistent testimony even if the state-
ment was obtained in violation of his Sixth Amendment right to coun-
sel. However, he argues that the government's conduct here violated
the core value of the Sixth Amendment's constitutional guarantee,
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2 In fact, Yancey did not say anything during the recorded call which
implicated him in the murder, the robbery, or the drug offense.

                    3
rather than a mere prophylactic rule designed to protect the right to
counsel, and thus should have been excluded from rebuttal.

The Sixth Amendment right to counsel attaches once formal
charges are initiated. See United States v. Gouveia, 467 U.S. 180, 187
(1984). "The essence of this right . . . is the opportunity for a defen-
dant to consult with an attorney and to have him investigate the case
and prepare a defense for trial." Harvey, 494 U.S. at 348 (internal
citation omitted). After the right has attached, police may not deliber-
ately elicit uncounseled statements from a defendant without an
express waiver of the right to counsel. See id. Similarly, once a defen-
dant has asserted his right to counsel, a waiver of counsel given in a
police-initiated discussion is presumed invalid, see Michigan v.
Jackson, 475 U.S. 625, 636 (1986), unless the defendant is again
given a Miranda3 warning. See Patterson v. Illinois, 487 U.S. 285
(1988). The Jackson rule is a prophylactic rule designed to protect the
Sixth Amendment right to counsel at any interrogation occurring after
arraignment and to ensure voluntary waivers of that right. See Harvey,
494 U.S. at 350. Statements obtained in violation of the Jackson rule
may be used to impeach the defendant's trial testimony, see id. at 351,
as may statements obtained in violation of Miranda. See Harris v.
New York, 401 U.S. 222, 225-26 (1971).

The district court here equated the Moulton rule with the Jackson
rule in holding that Yancey's suppressed statements could be used to
impeach his testimony. Yancey provides no authority that the court
was wrong in doing so. Reviewing the court's decision under the
harmless error standard, see Tuggle v. Netherland, 79 F.3d 1386,
1392 (4th Cir. ), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3263 (U.S.
Oct. 7, 1996) (No. 96-5364), we have difficulty in finding that any
error occurred. Assuming, arguendo, that an error occurred, it was
harmless because it did not affect the outcome of the trial. The harm-
less error standard for constitutional issues on direct appeal is
"whether the error `was harmless beyond a reasonable doubt.'"
Tuggle, 79 F.3d at 1392 (quoting Chapman v. California, 386 U.S.
18, 22 (1967)). "[A] constitutional error may not be declared harmless
if there is a `reasonable possibility' that the`error contributed to the
verdict.'" Id. (quoting Brecht v. Abrahamson, 507 U.S. 619, 637
_________________________________________________________________
3 Miranda v. Arizona, 384 U.S. 436 (1966).

                    4
(1993)). Yancey was acquitted of all the charges on which his right
to counsel had attached when he attempted to create the false alibi.

Yancey argues that the introduction of the tape recording of his
conversation with the undercover agent was not harmless because it
made Funk's testimony more credible and thus created a reasonable
possibility that constitutional error affected the verdict on the obstruc-
tion of justice count. This argument is meritless because Yancey's
Sixth Amendment right had not attached with regard to the obstruc-
tion charge and evidence of the recorded call could have been intro-
duced in the government's case-in-chief had Yancey been tried
separately on that charge. See Moulton, 474 U.S. at 179-80 & n.16
(incriminating statements obtained in violation of the Sixth Amend-
ment relating to pending charges must be excluded in trial of those
charges but may be admitted in trial for the other crimes); Perkins,
496 U.S. at 299 (once charge has been filed, use of undercover agent
to interfere with defendant's right to counsel is error). The evidence
was excluded only because Yancey was placed in a position where he
might have incriminated himself in the murder, robbery, or drug
offenses with which he had been charged, outside the presence of his
attorney and without making an express waiver of his right to counsel.
Error in the admission of Yancey's suppressed statements on rebuttal
could occur only with respect to the murder, robbery, and drug
charges. Because Yancey was acquitted of those charges, any error
was necessarily harmless.4

Yancey next argues that the evidence was insufficient to prove
beyond a reasonable doubt that he obstructed justice. A conviction
will be upheld "if there is substantial evidence, taking the view most
favorable to the Government, to support . . . the conviction." United
States v. Guay, 108 F.3d 545, 553 (4th Cir. 1997) (quoting Glasser
v. United States, 315 U.S. 60, 80 (1942)). Here, the government was
required to prove that Yancey had "knowledge or notice of a pending
judicial proceeding and acted . . . with the intent to influence,
_________________________________________________________________
4 Yancey contends that, in the event his case is remanded for a new
trial, this court should find that the government's dealings with him
through Funk violated his Fifth Amendment right against police-initiated
uncounseled interrogation after he had asserted his Miranda right to
counsel. We need not address this issue.

                     5
obstruct, or impede that proceeding in its due administration of jus-
tice." United States v. Littleton, 76 F.3d 614, 619 (4th Cir. 1996).
Although Funk testified that Yancey initiated the scheme to set up a
false alibi, Yancey maintains that Funk was not a credible witness.
The jury's decision concerning the credibility of witnesses is not
reviewable on appeal. See United States v. Johnson, 55 F.3d 976, 979
(4th Cir. 1995). Given that the jury found Funk more credible than
Yancey, the evidence was sufficient to support the conviction.

Finally, Yancey argues that the district court erred in applying
USSG § 2J1.2(c) and USSG § 2X3.1 (Accessory After the Fact) to
determine his sentence. Because the issue is a legal one involving
application of the sentencing guidelines, our review is de novo. See
United States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995).

Guideline section 2J1.2(a) provides a base offense level of 12, but
subsection (c) states that, "[i]f the offense involved obstructing the
investigation or prosecution of a criminal offense,[the court should]
apply § 2X3.1 (Accessory After the Fact) in respect to that criminal
offense, if the resulting offense level is greater." Section 2X3.1 pro-
vides for an offense level 6 levels lower than the offense level for the
underlying offense, but no more than 30. Finding that Yancey had
attempted to obstruct the prosecution of a criminal offense involving
first degree murder (base offense level 43), the district court applied
the cross reference and determined that Yancey's offense level was
30.5 See United States v. Aragon, 983 F.2d 1306, 1315 (4th Cir. 1993)
(section 2J1.2(c) applies to conviction for endeavoring to obstruct jus-
tice).

Yancey argues that the cross reference should not apply because
(1) he obstructed justice to protect himself, not someone else, and (2)
he was not guilty of murder. He relies on United States v. Huppert,
917 F.2d 507 (11th Cir. 1990), which held that the cross reference
was inapplicable when the defendant obstructed an investigation to
protect only himself. We took the same approach until the commen-
tary to USSG § 2J1.2 was amended in 1991. See United States v.
Pierson, 946 F.2d 1044, 1047-49 (4th Cir. 1991) (following Huppert
in limiting application of USSG § 2X3.1 to cases in which defendant
_________________________________________________________________
5 Yancey received a 2-level adjustment for acceptance of responsibility,
see USSG § 3E1.1(a), which reduced his offense level to 28.

                    6
makes false statements to assist other persons). After the 1991 amend-
ment we held, in United States v. Heater, 63 F.3d 311, 330-31 (4th
Cir. 1995), that the cross reference applied to a defendant who
obstructs justice to protect himself and that Pierson was no longer
good law. Yancey acknowledges the holding in Heater, but argues
that Heater is not controlling because he"did not commit the underly-
ing offenses as evidenced by his acquittal of the drug, murder and
robbery charges." Yancey states that "the District Court essentially
found that the Defendant did not commit the crime of murder." In
fact, the district court did not make such a finding in the course of
determining Yancey's sentence. In deciding whether the cross refer-
ence applied, the court stated, "I believe that whether he was, in fact,
guilty of the underlying offense is not the issue at this point, that the
question is what was the underlying offense concerning which he . . .
attempted to create a false alibi, and that offense was murder." Only
later, after applying the cross reference, determining the guideline
range, and deciding not to depart, did the judge state that the evidence
had not convinced him that Yancey was guilty of murder.

In any case, the cross reference applies when the defendant's "of-
fense involved obstructing the investigation or prosecution of a crimi-
nal offense," see USSG § 2J1.2(c)(1), regardless of "whether
defendant or anybody else was convicted of the underlying offense or
whether an offense could be shown to have been committed at all."
United States v. McQueen, 86 F.3d 180, 182 (11th Cir. 1996). The
application of USSG § 2X3.1 "is intended not to treat the defendant
as having committed the underlying offense, but to weigh the severity
of one's actions in obstructing justice based on the severity of the
underlying offense that was the subject of the judicial proceeding
sought to be obstructed, impeded or influenced." United States v.
Brenson, 104 F.3d 1267, 1285 (11th Cir.), cert. denied, ___ U.S. ___,
66 U.S.L.W. 3261 (U.S. Oct. 6, 1997) (No. 97-5252). Therefore, we
conclude that the district court properly applied the cross reference in
Yancey's case.

Accordingly, we affirm the conviction and the 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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