UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4102

LOUIS R. JACKSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, Leonie M. Brinkema, District Judges.
(CR-96-260-A)

Argued: October 30, 1997

Decided: December 12, 1997

Before WILKINSON, Chief Judge, MOTZ, Circuit Judge,
and CAMPBELL, Senior Circuit Judge of the United States Court
of Appeals for the First Circuit, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Veta Medica Carney, CARNEY & CARNEY, Alexan-
dria, Virginia, for Appellant. Deborah Ann Brinley, Trial Attorney,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. ON BRIEF: Helen F. Fahey, United States Attor-
ney, Gerald E. McDowell, Chief, Asset Forfeiture and Money Laun-
dering Section, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted Louis Jackson of two counts of distribution of
crack cocaine in violation of 21 U.S.C. § 841(a)(1), and the court sen-
tenced him to a term of imprisonment of 121 months on each count
to run concurrently. Jackson appeals, raising multiple issues. Finding
no reversible error, we affirm.

I.

In September 1994, Detective John Wallace of the Fairfax County
Police Department, working as an undercover agent, investigated a
crack cocaine dealer named "Louie." A confidential informant, now
dead, informed Detective Wallace about Louie, but did not provide
the agent with a last name. Detective Wallace then arranged to buy
crack from Louie.

On September 14, 1994, Louie met with Detective Wallace and the
informant. Louie sold Detective Wallace 25 grams of crack cocaine
for $1,300. Detective Wallace and Louie discussed further crack
cocaine sales and Louie gave the informant permission to give Detec-
tive Wallace Louie's pager number. On September 27, Detective
Wallace paged Louie and asked to buy two ounces of crack cocaine
from Louie. Louie agreed and, the next day, sold the agent approxi-
mately 46 grams of cocaine for $2,100.

Louis Jackson was not indicted until July 2, 1996-- almost two
years after the drug buys that gave rise to the charges. Although at
trial Detective Wallace could not positively identify Jackson as
"Louie," the prosecution presented other evidence linking Jackson to
these crimes and the jury convicted him of two counts of distribution
of crack cocaine. This appeal followed.

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II.

Jackson argues that the delay of approximately two years between
the date of the drug transactions and his indictment constituted preju-
dicial error, requiring dismissal of the indictment. To determine
whether preindictment delay gives rise to a violation of the Due Pro-
cess Clause of the Fifth Amendment, we examine: (1) whether the
defendant can show that he has suffered any actual substantial preju-
dice, and, if so, (2) whether the reasons for the delay justify the preju-
dice to the defendant. See United States v. Automated Medical
Laboratories, Inc., 770 F.2d 399, 403 (4th Cir. 1985).

In order to show that he has suffered actual substantial prejudice,
a defendant cannot rely on speculation. Id. at 404. For example,
although the defendant in Automated Medical Laboratories identified
a particular witness that would have testified had there not been pre-
indictment delay, we noted that the content of the witness' testimony
remained "highly speculative" and found little, if any, prejudice to the
defendant from the delay. Id. In this case, Jackson's submission is
even more speculative. He generally asserts that because of the delay
he could not develop favorable information from witnesses to the
drug transactions but is unable to identify any favorable witness or
evidence that was lost because of delay. Asserted general difficulty
in developing a potential defense does not amount to actual prejudice.
Id. at 403; United States v. Townley, 665 F.2d 579 (5th Cir. 1982).
Because Jackson has not demonstrated actual substantial prejudice
resulting from the preindictment delay, we need not examine the Gov-
ernment's reasons for the delay. See Townley, 665 F.2d at 581-82
("[T]he accused bears the burden of proving prejudice and, if the
threshold requirement of proof of actual prejudice is not met, the
inquiry ends there.").

III.

Prior to trial, the defense moved to suppress Detective Wallace's
identification of Jackson and for a hearing on that motion out of the
presence of the jury. Jackson asserts that the district court erred in
denying both motions.

We review the district court's decision as to whether to grant an
evidentiary hearing for abuse of discretion. See United States v.

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Whittington, 26 F.3d 456 (4th Cir. 1994). Its decision as to whether
to suppress an identification is a mixed question of law; we subject
the court's ultimate conclusion to de novo review, but "construe the
[underlying] evidence in the manner most favorable to the govern-
ment." United States v. Han, 74 F.3d 537, 540 (4th Cir. 1996).

Conducting a hearing outside the presence of the jury to "determine
the admissibility of identification evidence" has long been recognized
as the "prudent" course. See Watkins v. Sowders, 449 U.S. 341, 345
(1981). However, the Supreme Court has held that, because cross-
examination before the jury is ordinarily sufficient to determine the
trustworthiness of identification evidence, the Constitution generally
does not require a judicial determination outside the presence of the
jury. Id. at 349.

In Watkins, the Court did leave open the possibility that, "[i]n some
circumstances ... such a determination [outside the jury's presence]
may be constitutionally necessary." Id. In this case, however, Jackson
has failed to demonstrate any circumstances that would require such
a hearing, or that would establish that the district court abused its dis-
cretion in refusing to grant such a hearing. Jackson had knowledge
of Detective Wallace's identification prior to trial and the opportunity
to cross-examine Detective Wallace about the in-court identification.
Cf. United States v. Muse, 83 F.3d 672, 675 (4th Cir. 1996); United
States v. Mills, 704 F.2d 1553, 1565 (11th Cir. 1983) (requiring a
hearing outside the jury's presence only when there are "unusual" cir-
cumstances). As the Supreme Court noted in Watkins, "cross-
examination has always been considered a most effective way to
ascertain truth." 449 U.S. at 349.

Nor did the district court err in refusing to suppress Detective Wal-
lace's in-court identification. Jackson contends that because the drug
buys preceded the trial by two years, and so Detective Wallace had
not seen Louie for two years, the agent's in-court identification was
unreliable. While Detective Wallace testified that he believed Jackson
was Louie, he admitted that he was unable to identify Jackson as
Louie in court with "a hundred percent" degree of certainty. Detective
Wallace stated that Jackson looked older and more cleaned up than
he had remembered Louie. All these facts go to the weight to be given
an identification, not its admissibility. Determination of the weight to

                     4
be given evidence is a question for the jury, rather than a reason for
the court to suppress an identification. See Watkins v. Sowders, 449
U.S. 341, 347 (1980) (noting that evaluating the weight of the evi-
dence is for the jury).

IV.

Next, we address the admission of a tape and transcript of recorded
drug transactions with Louie. We review decisions regarding the
admission of evidence for abuse of discretion. United States v.
Whittington, 26 F.3d 456, 465 (4th Cir. 1994).

At trial, the Government introduced a tape recorded conversation
between Detective Wallace and Louie and transcript of the tape.
Detective Wallace had paged Louie on October 6, 1994, and then
recorded their subsequent telephone conversation. The recording was
played for the jury and DEA Agent Timothy Scott, the officer who
processed Jackson upon his arrest, identified Louie's voice on the
tape as Jackson's. Jackson makes two arguments concerning the
admission of the tape and transcript.

First, Jackson argues that Agent Scott was incompetent to identify
Jackson's voice. Agent Scott processed Jackson when Jackson was
arrested and spoke with Jackson during the processing. Agent Scott
then identified the voice of the drug dealer on the tape as Jackson's.
Under Rules 601 and 701 of the Federal Rules of Evidence, Agent
Scott is competent to make such a voice identification as lay opinion
testimony. Fed. R. Evid. 701, 601.

Alternatively, Jackson argues that the prejudice caused by admis-
sion of the tape far outweighs any possible probative value. Jackson
points to the comments on the tape concerning the distribution of a
larger quantity of crack cocaine, which never took place. He argues
that references to that larger quantity of illegal drugs unduly preju-
diced him.

Only if unfair prejudice substantially outweighs the probative value
of evidence must the evidence be excluded. Fed. R. Evid. 403. In this
case, that standard has not been met. Jackson's willingness to discuss

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drug sales is highly probative to the charge that he completed those
sales. Any unfair prejudice was slight -- the larger uncharged drug
sale was not discussed in detail on the tape. Nor did the Government
base any argument on that larger sale; in fact, Detective Wallace testi-
fied that the larger drug sale discussed on the tape never occurred.

The district court did not err in admitting the tape and transcript.

V.

Jackson contends that the district court should have declared a mis-
trial when Detective Wallace referred to a photograph of Jackson as
a "police" photograph. We review the district court's denial of a
motion for mistrial for abuse of discretion. See United States v.
Arrington, 757 F.2d 1484, 1485 (4th Cir. 1985).

Detective Wallace testified at trial that as part of his investigation
he had obtained a 1980 photograph of Louis Jackson, which was
introduced at trial as Exhibit 3. Jackson stipulated that Exhibit 3 was
a photograph taken of him on August 11, 1980. Detective Wallace
testified that he looked at this photograph before and after he met with
Louie, and that he was absolutely certain the man pictured in Exhibit
3 was Louie. While testifying at trial, Detective Wallace referred to
Exhibit 3 as a "police photograph." Based on this characterization,
defense counsel moved for mistrial. The court denied this motion and
instead offered to give a curative instruction, but defense counsel
declined that offer.

Detective Wallace's one-time reference to Exhibit 3 as a "police"
photograph does not mandate a new trial. Cf. United States v. Bennett,
984 F.2d 597, 608 (4th Cir. 1993) (prosecutor's reference to defen-
dant as being in custody was not so prejudicial as to warrant a new
trial); United States v. Carrillo, 20 F.3d 617, 620 (5th Cir. 1994)
(admission of photographs upheld despite police officer's comment
that photographs were from police files). United States v. Harmon,
349 F.2d 316 (4th Cir. 1965), upon which Jackson relies, is not to the
contrary. There, we held that the district court erred in admitting pho-
tographs showing the defendant in prison attire and clearly identifying
the defendant as an inmate. Here, Detective Wallace made only one
reference to Exhibit 3 as a police photograph and the photograph

                     6
itself does not indicate that Jackson had been arrested or convicted of
any crime.

VI.

Jackson also maintains that the admission of another photograph of
him and the prosecutor's reference to it constitute reversible error.

A.

The Government introduced as Exhibit 5 a photograph, which
Jackson stipulated was in fact a photograph of him taken on October
6, 1993. The Government informed the court that it sought admission
of Exhibit 5 for the purpose of demonstrating that Jackson's appear-
ance had changed since the time of the drug transactions; this would
explain why Detective Wallace had trouble identifying Jackson as
Louie in court. Jackson objected, asserting that the photograph, which
no witness connected to any criminal act, lacked relevance and, in the
alternative, unduly prejudiced him. The court rejected this argument
and admitted the photograph.

It is unclear whether Jackson continues to maintain on appeal that
the photograph unfairly prejudiced him. In any event, we can discern
no unfair prejudice; nothing about the photograph indicates that it is
a mug shot.

As to relevance, Jackson stipulated that Exhibit 5 depicted him.
True, no witness testified that Exhibit 5 closely resembled Jackson's
appearance at the time of the drug transactions and the district court,
upon examination of Exhibit 5, commented that it more closely
resembled Jackson's appearance at trial than the 1980 photograph.
However, these facts go to the weight of the evidence not its admissi-
bility or relevance. The prosecution maintained that examination of
Exhibit 5 demonstrated that Jackson's appearance had changed
between the time of the crack sales and the day of trial; this evidence
was significant because Detective Wallace had testified that he could
not be sure that the person from whom he purchased cocaine was
Jackson. Clearly, a photograph taken of Jackson near the time of the
drug transactions was, therefore, relevant.

                    7
B.

During the Government's rebuttal argument, the prosecutor
referred to Exhibit 5 for the first time:

          When you look at another photograph that we have put into
          evidence, Government Exhibit 5. This is the photograph of
          the defendant taken in 1993. You decide. You can see how
          his appearance has changed today.

Without specifically referencing either Exhibit 3 or Exhibit 5, the
prosecutor later stated, "[t]here is no doubt that the Wallace ID -- that
Detective Wallace identified the defendant through the photograph."
At the close of all evidence, Jackson moved for a mistrial. Before the
jury began to deliberate, he requested that Exhibit 5 be withheld from
the jury's consideration; the court refused to do this.

Jackson contends that the prosecutor's reference to Exhibit 5 con-
stituted prosecutorial misconduct. A two-prong test determines
whether a prosecutor's remarks rise to the level of prosecutorial mis-
conduct: (1) the prosecutor's remarks or conduct must have been
improper, and (2) such remarks must have prejudicially affected the
defendant's substantial rights so as to deprive the defendant of a fair
trial. United States v. Chorman, 910 F.2d 102, 113 (4th Cir. 1990).
Even if we assume that Jackson is able to satisfy the first prong --
that the prosecutor's remarks were improper -- the comments were
not sufficiently prejudicial so as to deny Jackson a fair trial.

Factors relevant to the issue of prejudice are: (1) the degree to
which the remarks tend to mislead the jury; (2) whether the remarks
were isolated or extensive; (3) the strength of the evidence supporting
guilt in the absence of the remarks; (4) whether the remarks were
deliberately placed in front of the jury to divert attention to extrane-
ous matters; (5) whether the prosecutor's remarks were invited by
improper conduct of defense counsel; and (6) whether curative
instructions were given to the jury. See United States v. Young, 470
U.S. 1, 12 (1985); United States v. Harrison, 716 F.2d 1050, 1053
(4th Cir. 1983). The issue of "[w]hether improper argument by gov-
ernment counsel has so prejudiced the trial process as to require

                     8
reversal must be gauged from the facts of each trial." Young, 470 U.S.
at 1051.

Whether the prosecutor's remarks misled the jury is not clear, but
it is clear that they were isolated. Moreover, no evidence indicates
that the Government deliberately confused the jury. Rather, the prose-
cution used the 1993 photo in precisely the manner it had previously
informed the court it intended to. Furthermore, the Government pro-
duced ample evidence to convict Jackson without the assertedly
improper remarks. Along with Detective Wallace's testimony, the
1980 photograph, and the tape recording of a telephone conversation
concerning drug sales with Louie, whose voice was identified as Jack-
son's, the prosecution also offered evidence that connected Jackson
to a pager and telephone numbers used in those drug sales.*

VII.

For all of these reasons, the convictions and sentences are

AFFIRMED.
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*In view of this evidence, the district court clearly did not err in deny-
ing Jackson's motion for acquittal.

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