UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                     No. 96-4618
ROBERT DONNELL PARKS, a/k/a
Robert Earl,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CR-95-347-L)

Submitted: September 30, 1997

Decided: October 28, 1997

Before MURNAGHAN, WILKINS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William B. Purpura, Michael D. DeMartin, Baltimore, Maryland, for
Appellant. Lynne A. Battaglia, United States Attorney, Gregory
Welsh, Assistant United States Attorney, Robert R. Harding, Assis-
tant United States Attorney, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Robert D. Parks was convicted of murder in furtherance of a racke-
teering activity, in violation of 18 U.S.C.A. § 1959(a)(1) (West Supp.
1997); conspiracy to murder as part of a racketeering activity, in vio-
lation of 18 U.S.C.A. § 1959(a)(5) (West Supp. 1997); and conspiracy
to distribute heroin, in violation of 21 U.S.C.A.§ 846 (West Supp.
1997). He appeals his convictions, challenging the admission of cer-
tain evidence. We affirm.

I

In the fall of 1993 and the winter of 1993-94, Joel Washington
operated a heroin trafficking organization in Baltimore. Robert Parks
(also known as Robert Earl) and Brenton Pullen were two of his sub-
ordinates, responsible for the street distribution of the drug. The orga-
nization sold several kilograms of heroin during this time period. On
February 1, 1994, Washington met with Pullen and three others to set-
tle a drug debt and sell additional heroin. Instead, Pullen shot Wash-
ington, and the group took most of the drugs and money from the
transaction. Washington survived the assault, although word on the
street was that he had died.

The next day, Washington instructed Parks to retaliate against the
assailants. Parks agreed to do so. On February 2, 1994, Parks beeped
Pullen several times. Pullen told Calvin Vaughn that Parks wanted to
meet him and two others who had been involved in the Washington
shooting, and that he was going to meet with Parks. Of Washington's
assailants, only Pullen showed up at the meeting. Parks and another
man, who has not been identified, shot Pullen several times in the
head. Washington testified that Parks called him on the evening of
February 2 and told him to watch the eleven o'clock news. Washing-
ton did so, and heard a report that Pullen had been found dead. Parks

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later that night described the shooting to Washington. Washington
gave Parks a BMW and quantities of drugs in payment for the mur-
der.

In addition to the three counts for which he was convicted, Parks
was indicted for the attempted murder of Michael Rubin, in further-
ance of racketeering activity, in violation of 18 U.S.C. § 1959(a)(5);
and use of a firearm in relation to Pullen's murder, in violation of 18
U.S.C.A. § 924(c) (West Supp. 1997). He was acquitted of those
counts. Parks was sentenced to life imprisonment for murder and her-
oin distribution, and 120 months for conspiracy to murder, all to run
concurrently.

II

Before trial, the Government, anticipating that certain witnesses
might recant their grand jury testimony or claim a loss of memory of
the events, alerted the court that it might move for admission into evi-
dence of certain grand jury testimony pursuant to Fed. R. Evid.
801(d)(1). During direct examination by the Government, James Cro-
mer spoke in a barely audible voice, and stated frequently that he
could not recall matters about which he had testified to the grand jury.
The district court allowed the prosecutor to ask Cromer a specific
question and, if he denied memory, to attempt to refresh his recollec-
tion with the grand jury transcript. Frustrated by Cromer's lack of
cooperation with this approach, the district court ruled Cromer
unavailable and the grand jury transcript admissible under Fed. R.
Evid. 804(b)(5). The prosecutor read the grand jury transcript aloud
to the jury. Cromer then testified, somewhat equivocally, that his
grand jury testimony was truthful. Defense counsel cross-examined
Cromer, who admitted that he gave information to the Government
hoping to gain more favorable treatment in his own criminal cases.
Cromer also admitted that, while his testimony about Parks's drug
dealing came from Cromer's transactions with him, his testimony that
Parks was responsible for Pullen's death came only from rumor he
had heard on the street.

Parks argues on appeal that the admission of Cromer's grand jury
testimony violated both the Sixth Amendment Confrontation Clause
and the residual hearsay exception, Fed. R. Evid. 804(b)(5). Under the

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Sixth Amendment, the accused in a criminal prosecution has the right
to be confronted by the witnesses against him. While there are occa-
sions when certain hearsay statements are admissible, Maryland v.
Craig, 497 U.S. 836, 847-48 (1990), before introducing such state-
ments the prosecution must establish (1) that use of the hearsay is
necessary due to the declarant's unavailability; and (2) that the hear-
say bears sufficient "indicia of reliability." Ohio v. Roberts, 448 U.S.
56, 65-66 (1980). The trustworthiness of out-of-court statements is
judged from the totality of the circumstances. Idaho v. Wright, 497
U.S. 805, 819-20 (1990).

Admission of evidence under the hearsay rule is reviewed for abuse
of discretion. United States v. Ellis, 951 F.2d 580, 582 (4th Cir.
1991). To admit evidence under the residual hearsay exception, Fed.
R. Evid. 804(b)(5), the district court must find that the declarant is
unavailable and the statement has circumstantial guarantees of trust-
worthiness. In addition, the court must determine (1) the statement
relates to a material fact; (2) the statement is more probative on the
point for which it is offered than any other reasonably obtainable evi-
dence; and (3) the interest of justice would be served. Here, Parks
challenges only the statement's trustworthiness.

Parks admits that the disputed statements were made under oath,
with a contemporaneous transcript, and that Cromer knew he was
subject to prosecution for perjury if he lied before the grand jury.
Statements that he made as to his involvement in drug trafficking
were against his penal interests. These factors give the testimony a
"ring of reliability." United States v. Clarke, 2 F.3d 81, 85 (4th Cir.
1993). Cromer was not subject to cross-examination during the grand
jury proceedings, but the grand jurors were free to question him. "The
nature of grand jury testimony thus provides some indicia of trustwor-
thiness." United States v. McHan, 101 F.3d 1027, 1038 (4th Cir.
1996). Parks argues that the grand jury statement is made suspect by
the facts that Cromer was trying to obtain favorable treatment from
the government and was a heroin addict at the time, and that rumors
formed the basis for much of his testimony. But all these factors were
brought out on cross-examination at trial, so that the jury could weigh
Cromer's motivation. Therefore, Parks's Sixth Amendment rights
were adequately safeguarded, and the testimony was sufficiently
trustworthy under the Constitution and Fed. R. Evid. 804(b)(5).

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III

Calvin Vaughn, a participant in Washington's drug conspiracy, tes-
tified that he spent most of February 2, 1994, with Pullen. Over
Parks's objection, Vaughn was permitted to testify that Pullen
received several pages during the day, and that Pullen looked at the
number several times and said that Robert Earl (aka Parks) was pag-
ing him. After Pullen spoke on the phone, he told Vaughn that Robert
Earl wanted to meet with him. That evening, Vaughn testified, Pullen
dropped him off and said he was going to see Robert Earl. Parks
argues that these statements were inadmissible hearsay. The district
court ruled the statements about the pages to be admissible as present
sense impressions, Fed. R. Evid. 803(1), and as non-hearsay co-
conspirator statements under Fed. R. Evid. 801(d)(2)(E). Pullen's
statement that he was going to meet Earl was admitted as a statement
of intent, Fed. R. Evid. 803(3), and under Fed. R. Evid. 801(d)(2)(E).

Parks argues that the statements in issue were not admissible under
Fed. R. Evid. 801(d)(2)(E), because the Government never proved a
conspiracy existed between Parks and Pullen on the day in question.
He asserts that the conspiracy ended when Pullen tried to murder
Washington, and that this action evidenced Pullen's intent to with-
draw from the conspiracy.* The district court found that a conspiracy
to distribute drugs existed before Washington was shot, and included
Pullen and Parks. After the shooting, all the co-conspirators except
Parks thought that Washington was dead, and Pullen intended to meet
with Parks "with a view toward continuing the drug enterprise with-
out Mr. Washington but with the group that had existed before." The
district court found that there was no clear and definitive withdrawal,
despite the fact that Pullen was part of the group that shot Washing-
ton.

Under Fed. R. Evid. 801(d)(2)(E), the court must conclude that a
conspiracy existed that included the declarant and the party against
whom the testimony is sought to be admitted, and that the statements
at issue were made in the course of and in furtherance of the conspir-
acy. United States v. Neal, 78 F.3d 901, 905 (4th Cir.), cert. denied,
_________________________________________________________________
*Parks does not dispute the other grounds on which the court admitted
the evidence.

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___ U.S. ___, 65 U.S.L.W. 3260 (U.S. Oct. 7, 1996) (No. 95-9410).
Here, Washington testified that a conspiracy existed for the distribu-
tion of heroin, and that Pullen and Parks were members of the con-
spiracy. Pullen agreed to meet with Parks after the supposed death of
Washington, and it is plausible that he perceived the purpose of the
meeting to be to plan for the future of the conspiracy without Wash-
ington. Therefore, the district court's findings were not clear error,
and the court did not abuse its discretion in allowing the testimony.

IV

Parks next argues that Vaughn's evidence deprived him of his due
process rights. Parks did not raise this claim before the district court;
therefore, we review it for plain error. United States v. Olano, 507
U.S. 725, 731-32 (1993).

Parks asserts that the admission of Pullen's out-of-court statements
allowed Parks to be convicted on unreliable evidence, citing United
States v. Houlihan, 92 F.3d 1271, 1282 (1st Cir. 1996), cert. denied,
___ U.S. ___, 65 U.S.L.W. 3559 (U.S. Feb. 18, 1997) (No. 96-1036).
The First Circuit rejected the due process argument in Houlihan, rul-
ing that "other evidence abundantly corroborates" the statements in
question. Id. Parks argues that there is no evidence corroborating that
Parks paged Pullen and arranged to meet with him that evening. But
Parks's telephone number was in Pullen's pager, and Washington and
another witness testified that the meeting did occur. Therefore, inde-
pendent evidence corroborated the contested evidence, and admission
of Pullen's statements was not error under a due process analysis.

V

Parks was indicted for the attempted murder of Michael Rubin in
November 1993 for the purpose of maintaining his position in the
drug enterprise, but was found not guilty. Vaughn testified about a
phone conversation he had with Pullen concerning Rubin's shooting.
Vaughn testified that, according to Pullen, Parks shot Rubin six times
because Rubin had stolen some drugs. The district court ruled that the
evidence was admissible under Fed. R. Evid. 801(d)(2)(E), as the con-
versation was in furtherance of the conspiracy.

                     6
Parks was acquitted of the attempted murder charge. The state-
ments at issue relate only to that offense. If there was any error in
admitting the testimony, it is harmless. The general rule recognizes
that jurors follow instructions to consider each count separately.
United States v. Sarin, 10 F.3d 224, 225 (4th Cir. 1993). Parks does
not allege that they failed to do so in this case, or that the jury was
not properly instructed. Therefore, any error was harmless.

Accordingly, we affirm Parks's conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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