UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 98-4027

PABLO GONZALEZ ARIAS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 98-4028

ANGEL D. BELASQUEZ,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Huntington.
Joseph Robert Goodwin, District Judge.
(CR-97-94)

Argued: March 1, 1999

Decided: April 9, 1999

Before WIDENER and LUTTIG, Circuit Judges, and
VOORHEES, United States District Judge for the
Western District of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: Edward Henry Weis, First Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant Belasquez; Debra
C. Price, Charleston, West Virginia, for Appellant Arias. Miller Alli-
son Bushong, III, Assistant United States Attorney, Charleston, West
Virginia, for Appellee. ON BRIEF: Hunt L. Charach, Federal Public
Defender, Charleston, West Virginia, for Appellant Belasquez.
Rebecca A. Betts, United States Attorney, Charleston, West Virginia,
for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Angel Belasquez and Pablo Arias appeal their jury convictions and
sentences for conspiring to distribute and to possess with the intent to
distribute cocaine from February 1997 until June 22, 1997, in viola-
tion of 21 U.S.C. § 846; for distributing cocaine on June 22, 1997, in
violation of 21 U.S.C. § 841(a)(1); and for possessing with the intent
to distribute cocaine on June 22, 1997, in violation of 21 U.S.C.
§ 841. We affirm.

I.

Police arrested appellants Belasquez and Arias on June 22, 1997,
in Huntington, West Virginia, after a staged cocaine purchase from
them by Michael Moore, an informant whom police had wired for
monitoring and tape recording. As Moore was leaving the motel room
where the purchase occurred, the police made a warrantless entry,
arrested appellants, and seized six ounces of cocaine. The district
court suppressed this cocaine, however, after rejecting the police offi-
cers' claim that exigent circumstances justified their failure to secure

                    2
a warrant. In particular, the district court found the testimony of
Moore and of Lieutenant Wallace Adkins at the suppression hearing
to be "plainly inconsistent" with their prior testimony before the grand
jury that had indicted appellants. Notwithstanding the suppression, the
government proceeded to trial, relying chiefly upon the testimony of
Moore and of Woody Adkins and Dale Lyons. Lyons and Woody
Adkins had been indicted with appellants, pleaded guilty, and were
cooperating with the government. On October 1, 1997, a jury found
appellants guilty on the three charges mentioned above.

II.

Appellants collectively advance five claims of error on appeal. For
the reasons that follow, we find no reversible error as to any of the
five.

First, they both argue that the district court, by denying their
motion in limine to allow them to impeach Moore and Lieutenant
Adkins without opening the door to the suppressed evidence, improp-
erly limited their ability to cross-examine those government wit-
nesses. Because the district court never definitively ruled on the
motion in limine and the issue did not arise at trial, we conclude that
no error was committed by the district court.

A motion in limine may preserve an objection for appeal without
any need to renew the objection at trial, but only if the trial court
clearly and definitively rules on the motion. See United States v.
Williams, 81 F.3d 1321, 1325 (4th Cir. 1996); United States v. Mejia-
Alarcon, 995 F.2d 982, 986-88 (10th Cir. 1993). If the court does not
do so, and the party that brought the motion in limine does not at trial
either object to a ruling by the court or at least renew his request for
a ruling, he waives for appeal the issue in the motion. Williams, 81
F.3d at 1326; United States v. Valenti , 60 F.3d 941, 944-45 (2d Cir.
1995). Applying the rule of Williams and Mejia-Alarcon, the record
is clear that the district court did not unequivocally rule on the motion
in limine and thus that that motion did not preserve appellants' argu-
ment for appeal.

Appellants wished to impeach the expected testimony of Moore
and Lieutenant Adkins concerning the events of June 22 with the

                     3
inconsistency between their prior testimony before the grand jury and
in the suppression hearing. But appellants did not want such impeach-
ment to open the door for the government to introduce either the sup-
pressed cocaine seized that day or the fact of its seizure. Therefore,
at a conference the morning of trial, the appellants made an oral
motion in limine to allow them to cross-examine these two witnesses
regarding their prior testimony, free of the risk of opening the door
to admission of the incriminating evidence.

The district court initially did seem inclined to deny the motion, but
by the end of the conference rather clearly decided to defer its deci-
sion until trial. The court first explained that"the Government might
well be given the opportunity to respond," and that that response
"may well get into the areas that have previously been suppressed and
would become invited by the defendant." It added as follows:

          So I'm not to going to rule that you can't go into those
          areas, but if you do, I'll -- well, let me just tell you. There's
          no point in beating around the bush about it. If you do, I
          think you're opening it up to the Government.

J.A. at 108. Counsel for Belasquez, Mr. Weis, however, successfully
pressed the matter further, leading the court to observe that "perhaps
it's better for [the court] to rule on this at trial," and then to conclude
by reserving the question as follows:

          I'll be frank to tell you that I'm a little bit concerned about
          the issue that Mr. Weis raises with regard to impeaching
          [Moore].

           I think I said -- at least I meant to say, that you may raise
          it and I'm not precluding you from attempting to impeach
          any witness with anything you want. What I will rule there-
          after is an entirely separate matter.

J.A. at 112. Thus, the court did not clearly rule on the motion in
limine; on the contrary, it fairly clearly postponed any ruling until
trial. The motion in limine, therefore, did not preserve appellants'
argument for this appeal.

                      4
As a result, and because there was at trial no objection or ruling on
a renewed motion, we would at most review only for plain error.
United States v. Ellis, 121 F.3d 908, 918 (4th Cir. 1997). But since
this issue did not arise at all at trial, there is simply no ruling for us
to review, not even for plain error. Lieutenant Adkins did not testify.
Moore did, but counsel for appellants neither cross-examined him
about his prior testimony nor requested any ruling during trial as to
what the consequence of such a cross-examination would be.

At oral argument, appellants appeared to retreat to an alternative
contention regarding their ability to impeach Moore. Rather than
claiming that the trial court had actually ruled on and denied their
motion in limine, they argued that the court's refusal to rule amounted
to a decision effectively precluding them from impeaching Moore
with his prior testimony; deprived of assurance from the court, they
contended, they avoided such impeachment at trial for fear of opening
the door to the suppressed evidence. However, "[i]t is well established
that the court need not rule on a motion in limine." United States v.
Luce, 713 F.2d 1236, 1239-40 (6th Cir. 1983), aff'd, 469 U.S. 38
(1984). At trial, appellants simply should have renewed their request
for a definite ruling. See Valenti, 60 F.3d at 945. The court's refusal
to rule pre-trial was not error.

Even if, as appellants chiefly contend in their brief, the trial court's
statements regarding the motion in limine did amount to a ruling, and
an erroneous one, precluding them from fully impeaching Moore (for
fear of opening the door to the suppressed cocaine), this alleged
abridgement of appellants' rights under the Sixth Amendment's Con-
frontation Clause was harmless error. See Delaware v. Van Arsdall,
475 U.S. 673, 684 (1986) (holding that violation of right under Con-
frontation Clause to impeach witness's credibility is subject to
harmless-error analysis); Sherman v. Smith, 89 F.3d 1134, 1137 (4th
Cir. 1996) (en banc) (listing the numerous constitutional errors sub-
ject to harmless-error analysis, including violation of Confrontation
Clause and admission of illegally seized evidence).

Appellants were able to impeach Moore's credibility even without
using his prior inconsistent testimony, and his testimony at trial was
fully corroborated. First, on cross-examination appellants brought out
that Moore had used and dealt in drugs, had pleaded guilty to drug

                     5
charges and been imprisoned, and was on probation; Moore also
admitted that he had cooperated with the government and was testify-
ing in order to benefit himself, and that, on at least one occasion, he
had lied to Arias. Second, Moore's testimony as to the June 22, 1997,
drug buy in the motel room was supported by the tape recording of
the deal, which was admitted into evidence. Moore's testimony about
his drug dealings with appellants in Florida in 1997 was corroborated
by the testimony of both Lyons and Woody Adkins. Lyons testified
about purchasing four ounces of cocaine from Arias in March of
1997, about meeting Belasquez during that trip and learning that
Belasquez and Arias knew each other, and about an April 1997 con-
versation between Dan Coltrane (a co-conspirator) and Belasquez
regarding Belasquez's efforts to purchase cocaine for Lyons and
Adkins. Adkins, too, testified about the March cocaine purchase,
placed Belasquez with Arias at the time of and immediately after that
purchase, and said that Belasquez and Arias knew each other. Adkins,
like Lyons, also testified about the April conversation between Col-
trane and Belasquez. He added that after that conversation Belasquez
tried without success to obtain cocaine for them, but that Arias was
able to supply six ounces of cocaine a few days later. In light of all
of this evidence, we can "confidently say" that even if the court had
improperly limited the right to impeach Moore, that error "[would
have been] harmless beyond a reasonable doubt." Van Arsdall, 475
U.S. at 681.

As the second claim of reversible error, Belasquez contends that
the district court erred by admitting the testimony of Lyons and
Woody Adkins about Coltrane's conversation with Belasquez in April
1997. Coltrane, according their testimony, related to them in English
what Belasquez had told him during a conversation in Spanish, a con-
versation that Lyons and Adkins both overheard. Coltrane said that
Belasquez had told him that he (Belasquez) was going to make some
phone calls to try to find some cocaine for Lyons and Adkins. Adkins
testified that after the discussion Belasquez did indeed go to the tele-
phone and make some calls. Belasquez was not successful in getting
the cocaine, however. Appellants argue that the court erred because
it should not have admitted this testimony without first finding that
Coltrane's statements to Lyons and Adkins were reliable (by finding
that Coltrane was fluent in Spanish), and that the finding of fluency
that the court did make was insufficient.

                    6
We review for abuse of discretion a district court's decision to
admit, under Fed. R. Evid. 801(d)(2)(E), testimony about statements
by a defendant's co-conspirator made in furtherance of the conspir-
acy. United States v. Neal, 78 F.3d 901, 905 (4th Cir. 1996). Appel-
lants argue, however, that it is a question of law, reviewable de novo,
whether a court must make a finding of reliability when the co-
conspirator's statement is a translation. Under either standard of
review, however, there was no reversible error. First, Coltrane did
make his statements (the translation) to Lyons and Woody Adkins in
furtherance of his conspiracy with Belasquez to sell cocaine to them,
thus satisfying Rule 801's terms, and no additional finding of the
translation's reliability was necessary for its admission. United States
v. Aboumoussallem, 726 F.2d 906, 910 (2d Cir. 1984). Cf. Bourjaily
v. United States, 483 U.S. 171, 183-84 (1987) (holding that Constitu-
tion "does not require a court to embark on an independent inquiry
into the reliability of statements that satisfy the requirements of Rule
801(d)(2)(E)"). Rather, the reliability of Coltrane's report of what
Belasquez said "is to be assessed by the jury on the basis of all the
circumstances under which the report is made." Aboumoussallem, 726
F.2d at 910.* Second, even if we were to require some evidence of
reliability beyond that which Rule 801 requires, Belasquez's actions,
which were consistent with Coltrane's translation, provide it, see id.,
and we agree with the district court that the testimony of witnesses
who had observed Coltrane conversing readily with Belasquez in
Spanish was sufficient evidence that Coltrane was fluent in that lan-
guage.

Next, and as the third claim of error, Belasquez asserts that the dis-
trict court abused its discretion by denying his motion for a mistrial
_________________________________________________________________
*Contrary to appellants' suggestion, the question of whether a court
must make a finding of the translation's reliability is separate from the
question of what evidence suffices to satisfy Rule 801(d)(2)(E)'s require-
ments that there be a conspiracy between the declarant and the defendant,
and that the declarant make his statement in furtherance of that conspir-
acy. On the latter question, see Bourjaily, 483 U.S. at 175; United States
v. Clark, 18 F.3d 1337, 1341-42 (6th Cir. 1994); Neal, 78 F.3d at 905.
Indeed, Bourjaily itself highlighted this distinction, as the quotation
above indicates. Appellants do not claim that there was insufficient evi-
dence to meet the explicit requirements of Rule 801.

                    7
after Woody Adkins, in response to a question from counsel for co-
defendant Arias, said that he had been in jail with appellants.
Belasquez argues that this statement "impaired" his right to a pre-
sumption of innocence. But the district court immediately instructed
the jury to ignore the question and answer. The jury is presumed to
be able to follow the judge's instruction, and we see no reasonable
probability that Adkins' statement affected the jury's verdict regard-
ing Belasquez. See United States v. Jones, 907 F.2d 456, 460 (4th Cir.
1990). We thus find no abuse of discretion.

Fourth, appellants both charge that the district court abused its dis-
cretion by allowing the government, during its closing argument, to
comment on their failure to testify, thus compromising their right
against self-incrimination. The government stated as follows:

          [L]et me say this about the witnesses that we put on the
          stand and a word about the one, [Phil Dunfee], we didn't put
          on the stand. . . . [I]n assessing the truth of what a witness
          says, you can gather information from what they don't [sic]
          say. If these guys are unfettered by the bounds of truth and
          can say anything, what kind of stories could they have told?

J.A. at 363. The district court immediately confirmed that "these
guys" referred to the witnesses called by the government and there-
fore overruled appellants' objection. The government then continued:
"They could have made up all kinds of stories, but they tried to tell
the truth as best they could about the involvement of these two indi-
viduals." J.A. at 363-64. We agree with the district court that "these
guys," taken in context, in no way referred to appellants, much less
to their failure to testify. Nor could the jury reasonably have so taken
the phrase. See United States v. Francis , 82 F.3d 77, 78 (4th Cir.
1996). There was no abuse of discretion.

Finally, Arias asserts that the district court clearly erred by enhanc-
ing his offense level by two points for being an organizer, leader,
manager, or supervisor in the criminal activity pursuant to U.S.S.G.
§ 3B1.1(c) (1997). The district court adopted the findings of the pre-
sentence report, which concluded that Arias directed the actions of
Belasquez. The evidence was that, on June 22 at the motel room,
Belasquez opened the door for Moore but Arias then took over, han-

                     8
dling all conversations with Moore, handing over the cocaine to him,
and accepting the money from him. There was also evidence that
Arias directed Belasquez's actions during some of the events in Flor-
ida. Thus, the district court's finding that Arias was a leader or orga-
nizer of the drug activity was not clearly erroneous.

III.

Finding no reversible error on any of appellants' five arguments,
we affirm their convictions and sentences.

AFFIRMED

                     9
