                                                 Filed:   May 16, 2001

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                            No. 00-4092
                            (CR-99-201)



United States of America,

                                                Plaintiff - Appellee,

          versus


Nathan Dante Young,

                                            Defendant - Appellant.



                             O R D E R



     The court amends its opinion filed April 20, 2001, as follows:

     On page 2, second full paragraph, line 7 -- the caliber of the

Bersa is corrected to read “.380.”

     On page 2, third full paragraph, line 9 -- a hyphen is added

to correct the page reference to “J.A. 570-72.”

     On page 4, second full paragraph, line 8 -- a hyphen is added

to correct the word to read “cross-examination.”

     On page 12, footnote 6, line 3 -- the cross-reference is

corrected to read “See supra at 8-9.”
                              - 2 -




     On page 17, second full paragraph, line 7 -- the phrase is

corrected to read “when he told him.”

                                        For the Court - By Direction




                                        /s/ Patricia S. Connor
                                                 Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 00-4092

NATHAN DANTE YOUNG,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-99-201)

Argued: December 8, 2000

Decided: April 20, 2001

Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Luttig wrote the majority opin-
ion, in which Judge Michael joined. Judge Widener wrote a concur-
ring opinion.

_________________________________________________________________

COUNSEL

ARGUED: Joseph John McCarthy, DELANEY, MCCARTHY,
COLTON & BOTZIN, P.C., Alexandria, Virginia, for Appellant. Jus-
tin W. Williams, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
ON BRIEF: Helen F. Fahey, United States Attorney, Alessandra
DeBlasio, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
OPINION

LUTTIG, Circuit Judge:

Appellant Nathan Young was convicted of interstate kidnapping,
interstate stalking, and two counts of causing the death of a person
through the use of a firearm during and in relation to a crime of vio-
lence. For the reasons that follow, we affirm Young's convictions.

I.

On September 13, 1997, the decomposed body of 19-year-old
Diana Medina ("Diana") was recovered near an eastbound exit ramp
to Interstate 66 in Fauquier County, Virginia. J.A. 633-36. When her
body was discovered, she was clothed only in a t-shirt and bra. J.A.
685. The uncontradicted evidence at trial established that on the eve-
ning of September 9, 1997, four days prior to the recovery of her
body, Diana was shot ten times with a Bersa .380 caliber automatic pis-
tol, dragged by the legs more than 37 feet, and placed behind a tree
near a wire fence. J.A. 633, 677, 770.

On the day of the murder, appellant Nathan Young drove Diana
from her home in Clinton, Maryland, to her sister's residence in
Washington, D.C. J.A. 564-67. When they arrived, Vanida Medina
("Vanida"), Diana's sister, walked up to the passenger-side window
of Young's automobile and noticed that there was a gun on the dash-
board. J.A. 568. After Vanida inquired about the gun, Young grabbed
it off the dashboard and stashed it either in the passenger compart-
ment or on his person. J.A. 570. Diana and Young then accompanied
Vanida into her residence to watch a movie. J.A. 570-72. After watch-
ing the movie for several minutes, the three decided to go to McDon-
ald's for lunch. As they got into Young's car, Vanida, who sat in the
backseat of the car, accidentally knocked over a brown paper bag
filled with approximately five boxes of bullets. J.A. 574-76. Young
told Vanida that he used the bullets for practice at the shooting range.
J.A. 577.

After returning to Vanida's house, the three resumed watching the
movie. According to Vanida, Young kept "grabbing [Diana] by her

                  2
waist and pulling her towards him." J.A. 579. During the course of the
afternoon, Diana told Vanida on several occasions that she could not
be late to work again. J.A. 580-81. Because Diana had forgotten her
work uniform, Young agreed to drop her off at her home in Maryland
prior to her shift. J.A. 582. Diana and Young left "a bit after four."
J.A. 585. The last time anyone heard from Diana was when she tele-
phoned the shift manager at Ledo Pizza in Clinton, Maryland, shortly
before 5:00 p.m. to let him know that she would be late for work. J.A.
611.

The following morning, Young's rental car was found completely
engulfed in flames three-quarters of a mile from his grandmother's
residence in Prince George's County, Maryland. J.A. 710-11, 724-25.
Earlier that morning, Young had filed a report with local police stat-
ing that the car had been stolen, a story he later retracted at trial. J.A.
724-25.

Several days following the murder, Virginia State Investigators
Carroll S. Miller and Robin Ebersole interviewed Young. J.A. 830.
Young changed his story during the course of the interview. Initially,
he told agents that after he left Vanida's house, he dropped Diana off
near Ledo Pizza sometime between 5:00 and 6:00 p.m. J.A. 834. The
agents then specifically inquired as to whether or not the two had
engaged in sexual relations. J.A. 836. In response to that question,
Young altered his story and explained that rather than immediately
dropping Diana off, they had first stopped at his house and unsuccess-
fully attempted sexual intercourse; according to Young, he was
unable to sustain an erection. J.A. 836. Later that same day, Agent
Miller arrested Young for the murder of Diana Medina. J.A. 847-48.

The Commonwealth of Virginia subsequently elected to take a
nolle prosse on the charges against Young. A little more than a year
later, a federal grand jury returned a superseding four-count indict-
ment against him. J.A. 108-13. The indictment charged Young with
kidnapping resulting in death, interstate stalking resulting in death,
and two counts of causing the death of a person through the use of
a firearm during and in relation to a crime of violence. J.A. 108-13.

At trial, the government called Ashon Henderson, Young's long-
time friend, as a prosecution witness. During cross-examination,

                   3
defense counsel asked a series of inflammatory questions suggesting
that Henderson was the one who had abducted and murdered Diana.
Of particular significance, counsel asked whether Henderson recalled
any telephone conversations with Young in the month and a half prior
to trial. Henderson responded that he could not recall any such con-
versations. J.A. 963. Henderson also denied shooting a round through
his mattress with the murder weapon on the Sunday following the
murder. J.A. 961.

At that point, defense counsel attempted to introduce an audiotape
of the conversations between Henderson and Young in order to
impeach Henderson. J.A. 968. Defense counsel had not previously
provided a transcript or copy of the tape to the government and the
government objected, arguing that counsel's conduct violated the
court's discovery order.11 J.A. 974. The district court ruled that intro-
duction of the tape during cross-examination did not violate the dis-
covery order because it was being offered as an impeachment exhibit,
not as part of Young's case-in-chief. J.A. 970, 973, 975.

The next morning, however, the district court admonished defense
counsel for representing that there was an admission of guilt by Hen-
derson on the tape when "there was no such thing." J.A. 989. While
the court allowed defense counsel to play the tape outside the pres-
ence of the jury to refresh Henderson's recollection, it did not allow
him to play the tape before the jury and limited counsel's impeach-
ment of Henderson to the mattress incident; other statements made by
Henderson during cross-examination were not directly contradicted by
anything on the tape. J.A. 991.

During defense counsel's continued cross-examination of Hender-
son, he admitted that he recalled the conversations with Young prior
to trial and stated that he remembered discussing the mattress inci-
dent, though he believed that the incident occurred months prior to the
_________________________________________________________________

1 The discovery order issued by the district court stated in pertinent part
that "[t]he defendant shall permit the Government to inspect and copy or
photograph books, papers, documents, photographs, tangible objects, or
copies or portions thereof, which are within the possession, custody or
control of the defendant and which the defendant intends to introduce as
evidence in chief at the trial." J.A. 24.

                   4
murder. J.A. 1061-62. At the conclusion of Henderson's cross-
examination, the government rested.

In a continued effort to have the audiotape played, Young elected
to call Henderson as a witness in his case-in-chief. The district court
ruled that the tape was inadmissible because it both violated the
court's discovery order and did not meet the requirements of Rule
403. J.A. 1299-1301. The district court did allow Young to question
Henderson about any matter he wished regarding the tape and even
read from the transcript if Henderson's testimony was inconsistent.
J.A. 1300.

Nathan Young also took the stand in his own defense. Young testi-
fied that on the Sunday following the murder, Henderson confessed
to the crime and described the murder to him in graphic detail. J.A.
1218. Henderson told him that he and Diana had had sex, and
"[a]fterwards, she wouldn't stop crying." J.A. 1220. Henderson then
panicked, grabbed Diana out of the car, and stuffed her in the trunk.
J.A. 1220-21. After driving for several hours, Henderson stopped at
a dark exit on the side of the road, opened the car's trunk, grabbed
Young's gun, and turned on the night sight. J.A. 1221. Henderson told
Young that he didn't want to go to jail for the rest of his life for rape,
so he shot Diana and "he kept shooting until he thought the clip was
empty." J.A. 1221. Henderson then grabbed Diana by the leg and
pulled her over to the grass and bushes. J.A. 1222. Henderson dis-
posed of Diana's clothing in some dumpsters in Washington and then
burnt the rental car because "when he was obviously raping her . . .
he ejaculated on the seat, and he had to get rid of it." J.A. 1223.

At the close of the defense case, the district court denied Young's
motion for judgment of acquittal. J.A. 1337. The jury rendered a
guilty verdict on all counts of the indictment, J.A. 1493-94, and the
district court sentenced Young to life imprisonment on each count.
J.A. 1660. Young then filed a timely notice of appeal challenging his
convictions. J.A. 1663.

II.

Young argues on appeal that the district court erred in excluding
the audiotape of the conversations between him and Henderson. First,

                   5
Young contends that the district court abused its discretion in exclud-
ing the tape under the Federal Rules of Evidence. Alternatively,
Young asserts that even if the tape was inadmissible on evidentiary
grounds, due process required that it be played before the jury.

A.

We review the district court's decision to admit or exclude evi-
dence for an abuse of discretion. See United States v. Hassouneh, 199
F.3d 175, 182 (4th Cir. 2000). Young attempted to introduce the tape
of the conversations between him and Henderson on two separate
occasions during trial. Young first moved that the tape be admitted as
impeachment evidence during defense counsel's cross-examination of
Henderson in the government's case-in-chief. Later, Young recalled
Henderson as a witness in his own case in an effort to admit the tape
as substantive evidence of Young's innocence. In both instances, the
district court did not abuse its discretion in excluding the tape.

1.

Young contends that the district court erred in denying him the
opportunity to play the entire audiotape during his cross-examination
of Henderson at trial. The district court rejected defense counsel's
argument that the tape in its entirety was probative of Henderson's
credibility because only Henderson's statements concerning the dis-
charge of the murder weapon into a mattress were contradicted by any
statements on the tape. Though the court found inconsistency in that
one area, it nevertheless exercised its discretion and excluded the
audiotape, which was being offered as extrinsic evidence of Hender-
son's prior inconsistent statement.

Fed. R. Evid. 613(b) mandates that certain foundational prerequi-
sites be fulfilled prior to the introduction of extrinsic proof of a prior
inconsistent statement.2 2 The Rule provides:
_________________________________________________________________

2 Rule 613(b) also mandates that a witness be afforded an opportunity
to explain or deny the prior statement, and that the opposing party be per-
mitted to interrogate the witness about such statement. Neither party dis-
putes that these requirements were met in this case.

                  6
       Extrinsic evidence of a prior inconsistent statement by a wit-
       ness is not admissible unless the witness is afforded an
       opportunity to explain or deny the same and the opposite
       party is afforded an opportunity to interrogate the witness
       thereon, or the interests of justice otherwise require. This
       provision does not apply to admissions of a party-opponent
       as defined in rule 801(d)(2).

Rule 613(b) first requires that a prior statement be inconsistent. At
trial, Henderson unequivocally denied that he "put a round right
through [his mattress]." J.A. 961. That testimony was arguably incon-
sistent with the following colloquy on the audiotape:

       Young: You remember that night back, um, it was like
       around, it was around that same September and we was up
       in your joint and you shot a hole up in your bed ?

       Henderson: Uhm-hmm.

       Young: What did you ever do with that bullet, Joe?

       Henderson: Threw that s--t away.

       Young: Did you keep the bed?

       Henderson: Yeah, I still got the bed.

       Young: Man, do you realize they can connect the little frag-
       ment joints in that bed, back to you having your hands on
       the joint?

       Henderson: Oh, yeah?

       Young: Yes. The fragments, they can connect the fragments
       in her back to the fragments in that bed, and you done, Joe.
       Between the witness and that -- but they trying to catch you
       up with the s--t first, and you ain't even know they been
       trying to do it for weeks.

                  7
J.A. 1028 (emphasis added). On appeal, Young fails to identify any
other material inconsistencies between Henderson's statements on
cross-examination and the tape.33 Therefore, the district court properly
limited its inquiry under Rule 613 to the colloquy pertaining to the
mattress incident.

Rule 613(b), however, speaks only to when extrinsic proof of a
prior inconsistent statement is inadmissible; it says nothing about the
admissibility of such evidence. Thus, even if all the foundational ele-
ments of Rule 613 are met, a district court is not unequivocally bound
to admit any or all extrinsic evidence of a prior inconsistent statement.
Rather, a district court may still exercise its discretion to exclude such
evidence when its "probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence." See Fed. R. Evid. 403; cf.
United States v. Ince, 21 F.3d 576, 580 (4th Cir. 1994) (declaring that
when determining whether impeachment evidence is admissible or a
"mere subterfuge" to get before the jury substantive evidence which
is otherwise inadmissible hearsay, a court must apply Rule 403).
Indeed, even if this were not self-evident, our sister circuits have rec-
ognized that a district court may continue to exercise its gatekeeping
function even though the requisite foundation is laid under Rule
613(b). See United States v. Higa, 55 F.3d 448, 452 (9th Cir. 1995);
United States v. Hudson, 970 F.2d 948, 956 n.2 (1st Cir. 1992); Wade
v. Haynes, 663 F.2d 778, 783 (8th Cir. 1981); United States v. King,
560 F.2d 122, 128 (2d Cir. 1977).

Here, the district court properly exercised its gatekeeping authority
under Fed. R. Evid. 403. In assessing the probative value of the prior
inconsistent statement, the district court noted that much of the tape
"falls into the category of participating in the conversation and not
being probative." J.A. 1011. That observation is especially true with
_________________________________________________________________

3 The district court also found that Henderson's statement that he did
not speak with Young a month and a half before trial was contradicted
by the existence of the tape itself. J.A. 991. The district court ruled, how-
ever, that whether or not the conversations took place was a collateral
matter and that a stipulation should be entered if Henderson persisted
with his denials of that fact. J.A. 998, 1010.

                   8
regard to the discussion about the mattress incident since Henderson
responded to Young's questions with answers such as "Uhm-hmm"
and "oh yeah," which are just as likely to be acknowledgment of the
questions as to be an affirmative answer to them.

The district court also considered the risk that the jury would be
confused or misled by the tapes. The court correctly noted that the
tapes were replete with Young's self-serving hearsay. Such hearsay
included, inter alia, Young's fabrication of nonexistent fingerprint
and DNA evidence against Henderson, and in the case of the excerpt
regarding the mattress incident, a fictitious informant. J.A. 991, 1006,
1011, 1301. Taking into account the low probative value of Hender-
son's statements, coupled with the confusing fabrications on the tape,
we cannot say that the district court abused its discretion in excluding
the tape under Rule 403.4  4 See United States v. Morlang, 531 F.2d
183, 190 (4th Cir. 1975) (recognizing that the admission of prior
statements for impeachment purposes can inject a"danger of confu-
sion").

Moreover, even if the district court had abused its discretion, any
error was harmless. See Fed. R. Crim. P. 52(a). After the tape was
played outside the jury's presence to refresh Henderson's recollec-
tion, the jury returned for the remainder of Young's cross-
examination of Henderson. At that time, defense counsel inquired as
to whether Henderson recalled "when [Young] asked him if, when he
reminded you that [the mattress incident] happened in September, and
you shot the bullet, you recall now agreeing with him by saying `Uh-
huh'?" J.A. 1062. Henderson then responded, "I said `Uh-huh,' yeah."
J.A. 1062. Thus, Henderson impeached himself by categorically
admitting that he made the prior inconsistent statement. Once Hender-
son made that admission, Young accomplished his objective of
_________________________________________________________________

4 While the district court did not explicitly cite Rule 403 in excluding
the audiotape during Henderson's cross-examination, it discussed many
of the factors that are relevant to a Rule 403 analysis. Because the court
made the necessary factual findings and in fact excluded the audiotape
on Rule 403 grounds later in the trial, we have no trouble affirming on
this ground. Cf. Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262
(4th Cir. 1999) ("[W]e can affirm the evidentiary ruling of the district
court on a ground different from that employed below.").

                  9
impeaching Henderson, and thus undermining his credibility. There-
fore, any error in excluding the audiotape during Henderson's cross-
examination was rendered harmless. See United States v. Lashmelt,
965 F.2d 179, 183 (7th Cir. 1992) (declaring that any error was harm-
less when a district court failed to admit extrinsic evidence of a prior
inconsistent statement when other evidence achieved the objective of
showing the inconsistency); Kines v. Butterworth, 669 F.2d 6, 12 (1st
Cir. 1981) (stating that error in excluding a prior inconsistent state-
ment was harmless because it was merely cumulative of the witness'
own vacillation on the stand); Williams v. United States, 403 F.2d
176, 179 (D.C. Cir. 1968) (holding that the defendant was not preju-
diced by the exclusion of extrinsic evidence of a prior inconsistent
statement by a witness since, inter alia, the "basic fact of an inconsis-
tency . . . became known to the jury").

2.

Young also challenges the district court's exclusion of the tape in
his own case-in-chief. After recalling Henderson, Young requested
that the entire audiotape be played during Henderson's testimony. The
district court denied Young's motion on two grounds. First, the court
found that Young's failure to disclose the audiotape to the govern-
ment constituted a violation of the court's discovery order. Alterna-
tively, the court held that the audiotape was inadmissible under Rule
403.

The district court's discovery order required the defendant to per-
mit the government, upon its request, to inspect or copy "tangible
objects . . . which are within the possession, custody or control of the
defendant and which the defendant intends to introduce as evidence
in chief at the trial." J.A. 24. The discovery order was entered upon
motion of the defendant under Fed. R. Crim. P. 16, and explicitly
tracks the language of that Rule. As a result, any violation of the
court's discovery order also constituted a violation of Rule 16. See
United States v. Gomez, 191 F.3d 1214, 1218 (10th Cir. 1999).

Young argues that the district court erred in finding that his failure
to disclose the tape was in contravention of the court's discovery
order and Rule 16. But decisions regarding whether a party has com-
plied with Rule 16 are left to "the sound discretion of the trial court"

                   10
and we review such orders only "for an abuse of discretion." United
States v. Fletcher, 74 F.3d 49, 54 (4th Cir. 1996). Here, the district
court did not abuse its discretion in finding that Young failed to com-
ply with his discovery obligations.

Specifically, Young contends that he did not violate Rule 16
because he had no intention of introducing the audiotape as "evidence
in chief," but rather intended to use the audiotape to impeach Hender-
son during the government's case-in-chief. Defense counsel did
attempt to offer the tape during his cross-examination of Henderson,
yet the record supports the district court's conclusion that Young
intended to offer the tapes not for impeachment purposes, but as "evi-
dence in chief" that Henderson committed the crime.

For instance, Young argues on appeal -- as he did below -- that
the "tapes were offered, not merely to impeach yet another govern-
ment witness, but to prove Henderson murdered Diana Medina."
Appellant's Br., at 19 (emphasis added). Young's attempt to introduce
the tape during cross-examination could have been interpreted by the
district court as an effort to circumvent the court's unambiguous dis-
covery order and thus escape disclosure when his true intent was to
introduce the tape as "evidence in chief." Therefore, we cannot say
that the district court abused its discretion when it ruled that Young's
failure to disclose the audiotape violated Rule 16. Exclusion of undis-
closed evidence is a permissible sanction for a violation of Rule 16.5
                                                                     5

In addition, not only was the sanction of exclusion explicitly autho-
rized by the Rule, but it was also an appropriate response to defense
counsel's conduct. Young knew of the audiotape prior to trial and
could have disclosed it easily. However, he did not provide notice of
the tape until literally moments before the close of the government's
case-in-chief. As a result, the district court could have reasonably
concluded that the government -- which unlike Young, disclosed all
evidence subject to the discovery order prior to trial -- was preju-
diced because it was unable to coordinate its case to account for the
_________________________________________________________________

5 Rule 16(d)(2) provides that if "a party has failed to comply with [Rule
16], the court may . . . prohibit the party from introducing evidence not
disclosed, or it may enter such other order as it deems just under the cir-
cumstances."

                  11
audiotape. Under these circumstances, we cannot say that the district
court abused its discretion in excluding the audiotape.6  6 See United
States v. Ford, 986 F.2d 57, 59 (4th Cir. 1993) (reviewing the sanc-
tion imposed for a violation of a discovery order for an abuse of dis-
cretion).

Moreover, even if the district court erred in excluding the audi-
otape during Henderson's case, any such error was harmless. At argu-
ment, defense counsel conceded that the district court allowed him to
inquire into virtually all of the relevant areas on the tape by question-
ing Henderson directly about them. J.A. 1325-34. Henderson admitted
to each statement he was asked about. Thus, though the tape was not
played before the jury, there is no dispute that its contents were
brought before the jury by way of Henderson's testimony.

Indeed, defense counsel candidly conceded at argument that the
real harm resulted from the fact that the jury did not listen to the tape
itself, which according to counsel, deprived them of the benefit of
hearing Henderson's voice intonations and the rising frustration in his
voice. See also Appellant's Br., at 20. The district court, however,
addressed that point specifically by finding that there were no "nu-
ances that the written word doesn't reflect." J.A. 1318. Since there is
no showing that this factual finding by the district court was clearly
erroneous, if any error occurred in this case, we can say "with fair
assurance . . . that the judgment was not substantially swayed by the
error" and was thus harmless. United States v. Ince, 21 F.3d 576, 583
(4th Cir. 1994) (quoting Kotteakos v. United States, 328 U.S. 750,
765 (1946)).

B.

Finally, Young contends that even if the tape was not admissible
as an evidentiary matter, its exclusion violated his constitutional right
to due process. See Green v. Georgia, 442 U.S. 95, 97 (1979); Cham-
bers v. Mississippi, 410 U.S. 284, 302 (1973). We disagree.
_________________________________________________________________

6 Of course, the district court's conclusions under Fed. R. Evid. 403
also support exclusion of the tape in Young's case-in-chief for the same
reasons outlined in Part II.A.1. See supra at 8-9.

                  12
In Chambers and Green, "the Supreme Court held that, to prevent
a defendant from being deprived of a fair trial, the Due Process
Clause required admission of exculpatory confessions by third parties
-- even if otherwise excludable on the basis of state evidentiary rules
-- where the evidence is `highly relevant to a critical issue' in the
case, and sufficient indicia of reliability exist."7
                                                   7 Huffington v.Nuth,
140 F.3d 572, 584 (4th Cir. 1998). However, unlike the evidence at
issue in Chambers and Green, this case does not involve a third-party
confession.

When defense counsel was asked at oral argument to cite the single
most exculpatory excerpt on the tape, he recounted the following pas-
sage:

       Young: Lord have mercy. Well look, Joe. I'm telling you,
       I'm sitting up here. I said, even though -- I'm sitting up at
       Cindy's crib. I wouldn't tell the FBI nothing, and they know
       they -- they went after my grandmother and they know I
       got a good alibi and s--t. And somebody down there drop-
       ping a dime, as soon as I found out who it is --

       Henderson: Who the hell would even --

       Young: -- as soon as I find out who it is, I'm going to let
       you know, Joe.

       Henderson: All right, man.

J.A. 1033. As the district court pointed out, however, this passage is
fraught with ambiguity. J.A. 1008. Henderson's statement "[w]ho in
the hell would even" is as likely to be a manifestation of Henderson's
anger at being falsely accused as it is to be an acknowledgment that
someone else knew that he committed the crime. Even defense coun-
sel admitted at trial that there was more than one plausible interpreta-
tion of Henderson's statement. J.A. 1008. Indeed, all the statements
_________________________________________________________________

7 We have previously applied Chambers and Green to cases prosecuted
under the Federal Rules of Evidence. See United States v. Hinkson, 632
F.2d 382, 386 (4th Cir. 1980).

                  13
cited by defense counsel are ambiguous at best, and none rises to the
level of a third-party confession.

Accordingly, we hold that the district court's exclusion of the audi-
otape did not implicate due process.

III.

Young next argues that the district court erred in admitting evi-
dence of Young's prior convictions for the assault and reckless endan-
germent of Pyboon Medina, Diana's mother. Young first asserts that
the convictions were inadmissible under Fed. R. Evid. 404(b) or
609(a). Alternatively, he contends that even if the convictions satis-
fied those Rules, Rule 403 mandated exclusion because the probative
value was substantially outweighed by the danger of unfair prejudice.
The government responds that the prior convictions established con-
sciousness of guilt and were thus admissible. We agree.

Rule 404(b) prohibits evidence of other crimes or bad acts to show
bad character or propensity to break the law. See United States v.
Hayden, 85 F.3d 153, 159 (4th Cir. 1996). However, "bad acts" evi-
dence is still admissible for other purposes, which include, but are not
limited to, "proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident." Fed. R. Evid.
404(b); United States v. Van Metre, 150 F.3d 339, 349 (4th Cir.
1998). Rule 404(b) is viewed as "an inclusive rule, admitting all evi-
dence of other crimes or acts except that which tends to prove only
criminal disposition." Van Metre, 150 F.3d at 349.

In United States v. Hayden, 85 F.3d 153 (4th Cir. 1996), we recog-
nized that evidence of witness intimidation is admissible to prove
consciousness of guilt if it is both related to the offense charged and
reliable. 85 F.3d at 159. While Young correctly notes that Pyboon
Medina was not yet officially a witness in any case against him, it is
also without dispute that Young knew that she was cooperating with
federal authorities and was a potential witness against him if a federal
prosecution occurred. J.A. 1167, 1176, 1184-85.

Threats or intimidation against an actual witness are admissible
because they establish a defendant's "consciousness that his case is a

                  14
weak or unfounded one; and from that consciousness may be inferred
the fact itself of the cause's lack of truth and merit." Van Metre, 150
F.3d at 352 (quoting 2 Wigmore on Evidence § 278 (Chadbourn Rev.
1979)). We see no reason why our holding in Hayden should not be
extended to the facts before us today; a defendant's decision to intimi-
date a potential witness or a cooperating individual is similarly proba-
tive in establishing that a defendant may believe his case is weak, thus
demonstrating consciousness of guilt and warranting admission under
Rule 404(b). See United States v. DeAngelo, 13 F.3d 1228, 1232 (8th
Cir. 1994) ("[E]vidence of death threats against witnesses or other
parties cooperating with the government is generally admissible
against a criminal defendant to show consciousness of guilt of the
crime charged."); United States v. Bein, 728 F.2d 107, 114-15 (2d Cir.
1984) ("Evidence of threats by a defendant against a potential witness
against him can . . . be used to show guilty knowledge.").

Hence, we apply the factors set forth in Hayden, and accordingly
hold that the evidence of intimidation in this case was both reliable
and related to the offense charged. The evidence proffered by the gov-
ernment was reliable since Young was convicted by a jury in Mary-
land state court. And, of course, the convictions were related to the
murder of Diana Medina. Young did not chase and assault a random
bystander; he assaulted the victim's mother, who was a potential wit-
ness against him in a federal prosecution for murder.

However, even if both factors in Hayden are met, evidence of the
convictions must still satisfy Rule 403. See United States v. Sanders,
964 F.2d 295, 299 n.4 (4th Cir. 1992). Young argues that the similar-
ity between the crimes of violence against Diana Medina and Pyboon
Medina -- including the use of a handgun in both crimes -- required
exclusion under Rule 403. If Young's convictions for assault and
reckless endangerment were completely unrelated to Diana's murder,
then Young's arguments would be worthy of considerable attention.
See id. at 298-99. But that is simply not the case here. The district
court held that the convictions were admissible precisely because of
the nexus between Young's crimes against Diana and Pyboon Medina
-- namely, the relationship between the two victims and the probative
value of establishing witness intimidation. J.A. 1184-86. Further,
Young's defense that Henderson committed the murder rendered the
prior convictions particularly probative in this case. For, it was Young

                  15
-- and not Henderson -- who chased Pyboon Medina and assaulted
her.

Accordingly, we hold that the district court did not abuse its discre-
tion in admitting evidence of Young's prior convictions for the reck-
less endangerment and assault of Pyboon Medina.

IV.

Young next claims that the evidence was insufficient to convict
him of interstate kidnapping. Specifically, Young contends that the
government failed to prove that he formed the requisite intent to com-
mit the crime prior to crossing state lines. See Van Metre, 150 F.3d
at 350; United States v. Hughes, 716 F.2d 234, 237, 239 (4th Cir.
1983).

The relevant question in reviewing for sufficiency of the evidence
"is whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt." Jackson v. Vir-
ginia, 443 U.S. 307, 319 (1979). To establish a violation of 18 U.S.C.
§ 1201(a), the government must show, inter alia, that the victim was
seized, confined, inveigled, decoyed, kidnapped, abducted or carried
away prior to the crossing of state lines. See United States v. Wills,
234 F.3d 174, 177 (4th Cir. 2000).

The evidence supports the jury's determination that Young invei-
gled or decoyed Diana prior to leaving Maryland and entering into Vir-
ginia.8
      8 See Hughes, 716 F.2d at 239 (noting that a person "who
accepted a ride from someone who misled her into believing that she
would be taken to her desired location was `inveigled' or `decoyed'
within the meaning of the federal kidnapping statute"). First, the jury
could have concluded based on the evidence that Diana had no inter-
est in traveling to Virginia with Young, thus undercutting his conten-
tion that she traveled with him there voluntarily. Instead, the record
confirms that Diana's primary concern was that she not miss her shift
_________________________________________________________________

8 Young's cellular telephone records indicated that he and Diana drove
through Prince George's County, Maryland, following their departure
from Vanida's house. J.A. 656-59.

                  16
at Ledo Pizza, her place of employment located in Clinton, Maryland.
For instance, throughout the afternoon, Diana was insistent that she
not be late for work again, and she even called work twice to assure
her supervisor that she would not miss her shift. J.A. 611, 617. As a
result, Diana accompanied Young in exchange for his specific assur-
ance that he would drop her off at home so that she could retrieve her
work uniform. J.A. 581-82. Diana's expressed intention and state of
mind could have led a rational jury to conclude that Diana would not
have willingly accompanied Young to Virginia and thus that he invei-
gled or decoyed her prior to traversing state lines. See Hughes, 716
F.2d at 239 (stating that in many cases, intent "can be inferred only
from circumstantial evidence").

Second, Young recounted a chilling tale, which purported to be
Henderson's version of the graphic details of the murder. By Young's
own admission, that series of events established that Diana was
abducted, raped, and then transferred across state lines before she was
finally shot ten times. J.A. 1219-23, 1239. While Young ascribed this
harrowing recitation to Henderson, the jury was entitled to disbelieve
Young and conclude that Young was relaying the details of the crime
that he himself committed.

Finally, we held in Hughes that a defendant's pattern of false
explanations and fabrication of evidence may be considered by a jury
in determining whether a defendant inveigled or decoyed a victim
under section 1201. 716 F.2d at 240-41. In this case, Young was
deceitful throughout the investigation and trial. Young admitted to a
whole series of lies during his testimony at trial, including, inter alia,
the following: (1) he lied to Agent Miller when he told him that he
dropped Diana off near Ledo Pizza, J.A. 1240; (2) he lied when he
told an officer that his rental car had been stolen, J.A. 1248; and (3)
he lied when he told an officer that he had left his gun in the trunk
of his rental car, J.A. 1249. These false statements, among others,
were "properly considered by the jury as probative evidence of his
illicit intent." Hughes, 716 F.2d at 241.

In sum, we conclude that the jury's verdict on the interstate kidnap-
ping count was sufficiently supported by the record, and that the dis-

                   17
trict court therefore did not err in denying Young's motion for
judgment of acquittal.9
                      9

V.

Young's final contention on appeal is that the district court erred
when it did not acquit him on counts two and four of the indictment,
which charged him with violating 18 U.S.C. § 924(j) by causing
Diana's death through the use of a firearm in the course of a violation
of 18 U.S.C. § 924(c). Specifically, Young argues that the govern-
ment failed to prove the jurisdictional element for murder in 18
U.S.C. § 1111(b), which Young claims is incorporated by section
924(j). We disagree.

Section 924(j) provides that:

        A person who, in the course of a violation of [18 U.S.C.
        § 924(c)], causes the death of a person through the use of a
        firearm, shall --

        (1) if the killing is a murder (as defined in section 1111), be
        punished by death or by imprisonment for any term of years
        or for life . . . .

18 U.S.C. § 924(j) (emphasis added). Section 1111, in turn, has two
subsections. Section 1111(a) defines murder and differentiates
between its different degrees. It provides that:

        Murder is the unlawful killing of a human being with malice
        aforethought. Every murder perpetrated by poison, lying in
        wait, or any other kind of willful, deliberate, malicious, and
        premeditated killing; or committed in the perpetration of, or
_________________________________________________________________

9 Young also contends that the crime of interstate stalking required the
government to prove that Young possessed the intent to injure Diana
prior to entering into Virginia. See 18 U.S.C. § 2261A. However, even
if Young is correct about the intent requirement under section 2261A --
a question we need not and do not decide today -- the same evidence
supporting the interstate kidnapping count would also be sufficient to
sustain the jury's verdict on the interstate stalking count.

                   18
        attempt to perpetrate, any arson, escape, murder, kidnap-
        ping, treason, espionage, sabotage, aggravated sexual abuse
        or sexual abuse, burglary, or robbery; or perpetrated from a
        premeditated design unlawfully and maliciously to effect the
        death of any human being other than him who is killed, is
        murder in the first degree.

        Any other murder is murder in the second degree.

18 U.S.C. § 1111(a) (emphasis added). Section 1111(b) prescribes
penalties for those guilty of committing murder:

        Within the special maritime and territorial jurisdiction of the
        United States,

        Whoever is guilty of murder in the first degree shall be pun-
        ished by death or by imprisonment of life;

        Whoever is guilty of murder in the second degree, shall be
        imprisoned for any term of years or for life.

18 U.S.C. § 1111(b). Young argues that 18 U.S.C. § 924(j)(1) incor-
porates both subsections of section 1111, and that the government
was therefore required to prove that Diana's murder occurred within
"the special maritime and territorial jurisdiction of the United States."

Section 924(j)(1), however, incorporates only the definition of mur-
der contained in section 1111. That definition is found exclusively in
section 1111(a). See 18 U.S.C. § 1111(a) ("Murder is the unlawful
killing of a human being without malice aforethought. . . .") (empha-
sis added). Section 1111(b), by contrast, is not a definitional section
at all. Instead, it sets forth penalties for murder under 18 U.S.C.
§ 1111 and creates a jurisdictional requirement for such count --
namely, that the murder be committed "[w]ithin the special maritime
and territorial jurisdiction of the United States." 18 U.S.C. § 1111(b).
Because section 924(j)(1) refers only to the definition of murder in
section 1111, section 924(j)(1) incorporates only section 1111(a). See
United States v. Chong, 123 F. Supp. 2d 563, 566 (D. Haw. 1999);
cf. Nguyen v. United States, 155 F.3d 1219, 1225 (10th Cir. 1998)

                   19
(explaining that a section 924(j) violation requires proof of "a felony
murder under 18 U.S.C. § 1111(a)").

Moreover, section 924(j)(1) incorporates the jurisdictional require-
ment from section 924(c). See 18 U.S.C. § 924(c) ("[A]ny person
who, during and in relation to any crime of violence or drug traffick-
ing crime . . . for which the person may be prosecuted in a court of
the United States . . . ."). Thus, we reject Young's argument that his
conviction under section 924(j) required proof that he murdered
Diana "within the special maritime and territorial jurisdiction of the
United States" because the jurisdictional element of a section 924(j)
violation in this case was already satisfied through the predicate
offenses of interstate kidnapping and interstate stalking -- crimes of
violence as defined for purposes of section 924(c).

CONCLUSION

For the reasons stated herein, the judgment of the district court is
affirmed.

AFFIRMED

WIDENER, Circuit Judge, concurring:

I concur in the result and in the opinion of the court.

So far as reading to the jury, thus admitting into evidence, a tran-
script of a tape recording of a conversation, I continue my opposition
to the circuit rule admitting such. See United States v. Soc'y of Indep.
Gasoline Marketers of America, 624 F.2d 461, 474-75 (4th Cir.
1980).

                   20
