UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 96-4263

JOHNNY MACK BROWN,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-94-27)

Argued: June 3, 1997

Decided: September 4, 1997

Before RUSSELL, MURNAGHAN, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Deborah C. Wyatt, WYATT & CARTER, Charlottes-
ville, Virginia, for Appellant. Thomas Ernest Booth, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Robert P. Crouch, Jr., United States Attorney,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., 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Unpublished opinions are not binding precedent in this circuit.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:

Johnny Brown was convicted of one count of conspiracy to distrib-
ute crack cocaine and two counts of distributing cocaine. He was sen-
tenced to life in prison. Brown appeals.

I.

Federal and state authorities arrested Brown in 1994 for distribut-
ing cocaine and crack cocaine. During a search of his home and adja-
cent garage, the agents seized drug paraphernalia, 55 grams of crack
cocaine, guns and cash.

Before trial, the district court ordered a psychiatric evaluation of
Brown's competency to stand trial because the court learned Brown
had been briefly committed for psychiatric evaluation in January
1995. After the court-appointed psychiatrist assessed Brown, the dis-
trict court found him competent to stand trial, and denied his request
for an independent evaluation. The court also denied Brown's request
for financial assistance in preparing his defense.

During Brown's jury trial, witnesses testified that Brown began
distributing cocaine in 1992 or earlier. Other witnesses testified about
the daily operations and scope of Brown's drug conspiracy. Most of
the witnesses against Brown had been involved in the conspiracy, and
the Government secured their testimony through plea agreements for
lenient sentences.

The Government elicited the following testimony at trial that is
pertinent to this appeal. Joseph Bergas testified he sold cocaine to
Michael Terrell, who in turn sold it to Brown. Richie Hernandez also
testified to selling cocaine to Brown. Other witnesses, including infor-
mants assisting the Virginia State Police, testified they bought cocaine

                    2
from Brown's subordinates, including Brown's son, Hines Washing-
ton.

Sol Cepero testified she was a drug courier and that she delivered
cocaine from New York to Brown in Virginia. After she was arrested
for shoplifting during one courier trip, she agreed to cooperate with
police in their drug investigations. She allowed Virginia police and
the FBI to tape record a phone call she placed to Brown's residence,
during which she hoped to arrange a cocaine delivery with Brown.
Whoever answered the phone neither identified himself nor made any
incriminating remarks. The Virginia police later destroyed the tape
recording.

II.

Brown raises numerous issues, which we address in turn.

A.

Brown's main challenge to his convictions is that the district court
abused its discretion in limiting his cross-examination of witnesses
who testified pursuant to plea bargains with the United States. We
review the district court's rulings limiting cross-examination for
abuse of discretion.1

The bulk of the evidence against Brown consisted of testimony by
other drug dealers and coconspirators. Most of these witnesses agreed
to testify against Brown as part of their plea bargains with the United
States. They promised to provide "substantial assistance" to the prose-
cution in exchange for recommendations by the United States Attor-
ney to the court that they receive reduced sentences. In a pretrial
motion, Brown's attorney sought permission to inquire about the
minimum and maximum penalties each witness faced. The district
court denied the motion and forbade such questioning by Brown's
attorney.

Brown now argues that these restrictions on cross-examination
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1 United States v. Moore, 27 F.3d 969, 974 (4th Cir. 1994).

                    3
unfairly hampered his defense. We disagree. It is true that a defendant
has the right to explore a witness' bias or motivation in testifying by
cross-examining that witness.2 But it is also true that the district court
may limit cross-examination that is cumulative, confusing or only
marginally relevant.3

In United States v. Tindle,4 we held that where evidence of a coop-
eration agreement between a witness and the government was before
the jury, the court did not abuse its discretion in refusing to admit evi-
dence of a potential life sentence faced by the witness.5 Similarly, in
United States v. Ambers,6 we held that the court did not err in refusing
to allow cross-examination of the witness regarding his understanding
of his agreement and its application of the Sentencing Guidelines.7
The cross-examination proposed by the defendant would have
required that the witness engage in a technical analysis of the Sen-
tencing Guidelines. We reasoned that such testimony would do little
to illuminate the witness' subjective understanding of his plea agree-
ment, and would also confuse the jury.8 In Tindle and Ambers, the
defendant had the opportunity to cross-examine the witness concern-
ing the existence of the plea agreement and its general terms. In
Ambers, the defense also entered several plea agreements into evi-
dence.

Here, the record reflects that Brown questioned the Government's
witnesses about their plea agreements, their subjective understanding
of what the plea agreements meant, and put into evidence the written
plea agreement of one witness (redacted to remove any mention of
that witness' maximum sentence). Thus, Brown was able to expose
before the jury the witnesses' possible biases and motives in testifying
on behalf of the Government, thereby satisfying his constitutional
_________________________________________________________________
2 Davis v. Alaska, 415 U.S. 308, 316-17 (1974).
3 Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986). See also Fed.
R. Evid. 611(a).
4 808 F.2d 319 (4th Cir. 1986).
5 Id. at 328.
6 85 F.3d 173 (4th Cir. 1996).
7 Id. at 176-77.
8 Id.

                     4
right to confront witnesses against him. We hold that the district court
did not abuse its discretion in refusing to allow Brown to cross-
examine the cooperating witnesses regarding their potential maximum
sentences.

B.

Next, Brown raises two issues relating to pretrial procedures.

1.

He first argues his convictions should be reversed because the dis-
trict court erred in denying him in forma pauperis ("IFP") status for
defense services. The United States concedes that the district court
erred in denying Brown IFP status for defense services, but asserts the
error does not require the reversal of Brown's convictions. We agree.

A defendant's request for financial assistance for defense services
must be made in an ex parte application, and the district court must
consider the request in an ex parte proceeding. 9 In this case, Brown's
counsel made the request, and the court denied it, during a motions
hearing in open court.

Brown's counsel did not object to either the ruling or to the court's
failure to consider the request in an ex parte proceeding. We therefore
review the district court's action for plain error under Federal Rule of
Criminal Procedure 52(b). To find reversible error under this stan-
dard, we must establish that: (1) an error occurred; (2) the error was
obvious; and (3) the error was so prejudicial that it affected the out-
come of the trial.10 If those requirements are satisfied, we must also
decide if the error "seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings."11

The district court erred in two respects. Even though a defendant
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9 18 U.S.C.A. § 3006A(e)(1) (West Supp. 1997).
10 United States v. Olano, 507 U.S. 725, 732-37 (1993); United States
v. Perkins, 108 F.3d 512, 516 (4th Cir. 1997).
11 Olano, 507 U.S. at 736.

                     5
is able to afford a lawyer, he may still be entitled to financial assis-
tance for defense services.12 The district court, therefore, erred in
refusing Brown's request for services based solely on the fact that he
was represented by retained counsel. The district court also erred in
failing to evaluate Brown's request in an ex parte proceeding.13 The
errors meet the first two prongs of Olano, but Brown's claim fails
under the third prong, because Brown failed to demonstrate prejudice
to his defense resulting from the district court's ruling.14 Brown pres-
ented nine witnesses at trial, and six at the sentencing hearing. He
made no showing of necessity as to other witnesses. 15 He never identi-
fied to the district court, or to this court, any witnesses he was unable
to call because he lacked subpoena fees. Nor did he identify any other
defense services he was deprived of as a result of the district court's
ruling.

For the foregoing reasons, we hold the district court's errors do not
require reversal of Brown's convictions.

2.

Second, Brown argues the district court erred because before trial,
and again before sentencing, it denied Brown's request for an inde-
pendent examination to determine his mental status and competency
to stand trial. We review the district court's rulings for abuse of
discretion.16

In January 1995, a psychiatrist temporarily committed Brown to a
hospital for observation. When this information came to the attention
of the district court, it conducted a hearing on the matter and ordered
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12 Proffitt v. United States, 582 F.2d 854, 857 (4th Cir. 1978).
13 See Lawson v. Dixon, 3 F.3d 743, 752 (4th Cir. 1993) (noting 18
U.S.C. § 3006A(e)(1) specifically requires ex parte proceeding).
14 See United States v. Perrera , 842 F.2d 73, 77 (4th Cir. 1988) (show-
ing of actual prejudice necessary for reversal of conviction after denial
of § 3006A(e)(1) request).
15 See 18 U.S.C.A. § 3006A(e)(1) (requiring finding of indigence and
necessity); Fed. R. Crim. P. 17(b) (same); Lawson, 3 F.3d at 750 (same).

16 United States v. George, 85 F.3d 1433, 1436-37 (9th Cir. 1996).

                    6
Brown to undergo a mental competency examination. 17 Although the
court ordered Brown to be examined at a facility in Butner, North
Carolina, the Government had him examined in Petersburg, Virginia,
by Dr. Michael Morrison. Dr. Morrison concluded that Brown was
mentally competent to stand trial, and that he was"malingering,"
meaning that Brown was attempting to feign mental illness. The dis-
trict court then found Brown competent to stand trial, and subse-
quently denied his motion for an independent evaluation.

Although Brown was diagnosed as schizophrenic in 1969, there
was no evidence showing abnormal behavior by him after that time.
Brown did not allege any other facts indicating he was insane at the
time of the crimes, nor did he ever propose to assert an insanity defense.18
Under these circumstances, we hold that the district court did not err
in refusing Brown's request.

3.

Brown asserts numerous other errors, all of which we find merit-
less.

a.

Brown raises two claims of prosecutorial misconduct. A witness
against Brown, Kenny Keyton, committed perjury. Keyton testified
he had only been charged with driving offenses, when in fact he had
been convicted of a felony and was facing four state charges. Brown
argues the prosecutor knew or should have known of Keyton's per-
jury, and that because Keyton was an important witness against him,
his convictions should be reversed.
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17 See 18 U.S.C.A. § 4241(a) (West 1985) (requiring examination "if
there is reasonable cause to believe that the defendant may presently be
suffering from a mental disease or defect" that prevents him from under-
standing or assisting in his trial).
18 See United States v. Walker, 537 F.2d 1192, 1195 & n.6 (4th Cir.
1976) (no independent exam required absent allegation of insanity);
United States v. Chavis, 476 F.2d 1137, 1142 (D.C. Cir. 1973) (defen-
dant not automatically entitled to independent exam under 18 U.S.C.
§ 3006A(e)).

                    7
After trial, Brown moved for a new trial based on Keyton's per-
jury. While the district court charged the prosecution with knowledge
of the perjured testimony, it denied the new trial because of the over-
whelming evidence against Brown. We agree with the district court
that Keyton's testimony was cumulative, and find no error in its
denial of a new trial.

Next, Brown claims his indictment should have been dismissed
because the Government destroyed potentially exculpatory evidence.
Charlottesville Detective Edward Palmateer testified he destroyed the
tape of Cepero's call to Brown because he believed it had no value.
In Arizona v. Youngblood,19 the Court held that destruction of poten-
tially exculpatory evidence does not rise to the level of a denial of due
process absent a showing of bad faith by the police. Bad faith turns
on the officer's knowledge of the exculpatory nature of the evidence
at the time of destruction.20 Palmateer testified that at the time of
destruction, he was unaware that Brown was the target of an investi-
gation. Furthermore, the person who answered the phone at Brown's
number never identified himself, and Palmateer believed the answerer
was aware the police were listening to the conversation and so spoke
guardedly. The district court ruled that Palmateer did not act in bad
faith when he destroyed the tape, and we agree.

Even if Palmateer acted in bad faith, Brown's claim still fails. In
California v. Trombetta, the Court ruled that lost evidence is constitu-
tionally material if it was exculpatory before destruction and the
defendant cannot obtain comparable evidence by any other means.21
The availability and testimony of the three witnesses to the content of
the phone conversation provided Brown with an adequate substitute
for the tape itself. Brown's defense, therefore, was not prejudiced by
the destruction of the tape. We hold there was no error in the district
court's ruling.
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19 488 U.S. 51 (1988).

20 Id. at 56 & n.*.

21 467 U.S. 479, 487 (1984).

                      8
b.

Brown next argues that his convictions were based on impermissi-
ble hearsay. Joseph Bergas, a coconspirator of Brown's, testified
regarding statements made by other conspirators,"Pee Wee" Mills
and Michael Terrell. Federal Rule of Evidence 801(d)(2)(E) estab-
lishes that statements made by coconspirators are not hearsay when
they are made during the course of, and in furtherance of, the conspir-
acy.

Testimony established that Mills, Terrell and Bergas were involved
in a conspiracy, and that Brown was involved as well. For example,
Bergas asked Mills and Terrell to identify the sub-dealers in the distri-
bution chain so he could be assured of getting paid. Mills and Terrell
identified Brown as a sub-dealer in their organization. Thus, the iden-
tification by Mills and Terrell of Brown was in furtherance of the con-
spiracy and therefore not hearsay.

c.

Next, Brown challenges the sufficiency of the indictment and the
related jury instructions. The indictment alleged that the conspiracy
began "on a date unknown . . ., but not later than the [s]ummer of
1992 . . . ." It also alleged that Brown conspired with "diverse other
people known and unknown." Brown contends that this language ren-
dered the indictment unconstitutionally vague, because it did not sup-
ply him with notice of the crime charged or enable him to plead the
Double Jeopardy Clause if applicable.22

Brown's contentions are without merit. In United States v. Grubb,23
we held that an indictment alleging a conspiracy starting "on or before
January 3, 1972" was sufficient. As to Brown's contention that all of
the alleged coconspirators need to be named, in United States v.
American Waste Fibers Co. Inc.,24 we upheld the sufficiency of an
_________________________________________________________________
22 See United States v. Miller , 471 U.S. 130, 134-35 (1985) (indictment
sufficient where it gave notice allowing defendant to mount defense and
allowed defendant to plead it as a bar to subsequent prosecutions).
23 527 F.2d 1107, 1109 (4th Cir. 1975).
24 809 F.2d 1044, 1046 (4th Cir. 1987).

                    9
indictment alleging a conspiracy with persons known and unknown.
Accordingly, we find no error in the district court's refusal to dismiss
the indictment.

Finally, Brown attacks the jury instruction given by the district
court regarding conspiracy. He claims the instructions were so vague
that they allowed the jury to convict him of other, uncharged conspir-
acies. However, the record reveals the district court instructed the jury
that if it found the charged conspiracy did not exist, it was obligated
to acquit Brown, even if it found the existence of another conspiracy.
Brown's challenge, therefore, is meritless.

d.

Brown alleges several errors in his sentencing. We have reviewed
those assignments of error and find them to be without merit.

III.

For the foregoing reasons, the judgment of the district court is
affirmed.

AFFIRMED

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