UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4499

RICHARD ALLEN WAGER,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Thomas A. Wiseman, Jr., Senior District Judge,
sitting by designation.
(CR-96-30)

Submitted: September 30, 1998

Decided: November 13, 1998

Before WILLIAMS and MICHAEL, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Richard A. Culler, CULLER & CULLER, P.A., Charlotte, North Car-
olina, for Appellant. Mark T. Calloway, United States Attorney,
Brian L. Whisler, Assistant United States Attorney, David C. Keesler,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Richard Allen Wager appeals from his conviction following a jury
trial for armed bank robbery, in violation of 18 U.S.C. § 2113(d)
(1994). Wager was sentenced to 175 months imprisonment, five years
supervised release, $17,374 restitution, and a $50 special assessment.
Wager contends that the district court erred by: denying his motion
to suppress the evidence seized from the wall safe in his hotel room
and his confession, denying his motion for a new trial because the
prosecutor allegedly improperly commented on his refusal to testify,
providing a supplemental jury instruction outside of the defendant's
presence, and awarding a two-level enhancement to his base offense
level for obstruction of justice under U.S. Sentencing Guidelines
Manual § 3C1.1 (1995). Finding no error, we affirm.

On January 23, 1996, Wager donned a ski mask and entered the
Centura Bank in Charlotte, North Carolina. Wager approached a
vacant teller window, and while displaying a firearm, ordered the
teller to place money in a white grocery bag. The teller tripped the
bank alarm and also placed a bundle of bills which contained an
exploding dye pack into the bag. Wager left the bank, but while he
was still in the parking lot, the dye pack in the bag exploded. Wager
sped away, leaving some of the dye stained money behind.

On January 25, 1996, Charlotte vice officers responded to a tip
from a confidential informant that illegal drug activity was being con-
ducted in Room 207 of the Comfort Inn in Matthews, North Carolina.
At approximately 9:00 p.m., two officers arrived at the Inn and
knocked on the door of Room 207. The officers, displaying their
badges, identified themselves and their purpose to Wager, who
answered the door. Wager invited the officers into the room. Once
inside the room, the officers immediately noticed on a table crack
cocaine, marijuana, and a large amount of red dye-stained currency.

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Present in the room at the time of the search was a woman and
Wager's nephew, who initially locked himself in the bathroom.
Wager was handcuffed for the officers' protection, but at that time,
he was not under arrest. The officers asked for and received consent
to search the room; the search revealed an additional bag of currency
also stained with red dye. The officers then searched a locked wall
safe in the room, where they found a BB pistol, a bag with more red
dye-stained currency, and some pantyhose.

Wager was arrested for possession of drugs and drug paraphernalia.
After Wager was taken into custody, FBI Agent Mark Rozzi and
police officer Mike Sanders interviewed him. Wager was informed of
his constitutional rights and signed a waiver-of-rights form. Wager
confessed to the bank robbery and identified himself in writing on the
back of a bank surveillance photograph depicting the robbery. The
officers then asked for and received consent to search Wager's vehi-
cle, where they found the black ski mask worn during the robbery.1

Wager contends that the district court erred in denying his motion
to suppress the items found in the locked hotel room wall safe and his
confession. He asserts that he did not validly consent to the search
and the search was not a lawful search incident to arrest. Further, he
contends that the subsequent confession was inadmissible as "fruit of
the poisonous tree."

A police officer may conduct a search of an area without a warrant
and without probable cause if the person in control of the area volun-
tarily consents to a search. See Schneckloth v. Bustamonte, 412 U.S.
218, 219 (1973). In determining whether consent is voluntary, the
court should look to the totality of the circumstances. Id. at 227.
Appropriate factors to consider include "the characteristics of the
accused (such as age, maturity, education, intelligence, and experi-
ence) as well as the conditions under which the consent to search was
given (such as the officer's conduct; the number of officers present;
and the duration, location, and time of the encounter)." United States
v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996). The government need
not produce evidence that the defendant "knew of his right to refuse
_________________________________________________________________
1 The vehicle was titled to Wager's nephew, who signed a consent to
search form to search the vehicle.

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consent to prove that the consent was voluntary." Id. (citations omit-
ted).

On motions to suppress evidence, this court reviews the factual
findings under the clearly erroneous standard and reviews the legal
conclusions de novo. See United States v. Rusher , 966 F.2d 868, 873
(4th Cir. 1992). Whether Wager voluntarily consented to the search
of the wall safe in his hotel room is a factual question which is
reviewed for clear error. See United States v. Elie, 111 F.3d 1135,
1144 (4th Cir. 1997).

The record supports the district court's finding that Wager volun-
tarily consented to the search of the room safe. As the district court
found, Wager was coherent, able to understand what he was saying
and doing and what the officers were saying to him. The officers testi-
fied that Wager did not stagger, slur his words, or appear to be trem-
bling. Further, nothing in the conditions surrounding Wager's consent
would render the consent involuntary. The incident was not of inordi-
nate duration, the officers did not display their weapons, and Wager
was handcuffed for the officers' safety and only after a third individ-
ual was found hiding in the bathroom. See Elie , 111 F.3d at 1145
(noting that handcuffing the accused does not in and of itself establish
involuntariness of consent). Nothing in the record indicates that the
environment was coercive or intimidating. In fact, the officers testi-
fied that Wager was very talkative and cooperative, and he engaged
them in conversation. We therefore find that Wager voluntarily con-
sented to the search of the room and the wall safe.

Moreover, we find no merit in Wager's contention that his confes-
sion was obtained in violation of his constitutional rights. Voluntari-
ness of a confession is assessed by examining the totality of the
circumstances surrounding the confession. See Mincey v. Arizona,
437 U.S. 385, 401 (1978); United States v. Braxton, 112 F.3d 777,
781 (4th Cir.) (in banc), cert. denied, ___ U.S. ___, 66 U.S.L.W. 3260
(U.S. Oct. 6, 1997) (No. 97-5073). When determining the admissibil-
ity of a confession, we consider: (1) the delay between arrest and
arraignment, (2) whether the defendant was advised of the nature of
the charges against him, (3) whether he was informed of his right to
remain silent and that his confession could be used against him, (4)
whether he was informed of his right to counsel, and (5) whether

                    4
counsel was present when he gave the confession. See 18 U.S.C.
§ 3501(b) (1994).

Wager does not dispute that he signed a waiver-of-rights form.
Rather, he contends that the confession was tainted fruit of the unlaw-
ful search of his hotel room and safe. After Wager was arrested he
was taken to the Mecklenburg Law Enforcement Center where he was
read his Miranda2 rights and signed a waiver-of-rights form. Wager
then proceeded to detail his involvement in the bank robbery. He was
shown a surveillance photograph of the bank and not only signed and
dated the back of the photograph indicating it was him, but he also
wrote the statement "This is me, I didn't have a real gun." Further,
based on the aforementioned finding that the search of the hotel room
and wall safe were constitutional, Wager's contention that the search
tainted his confession is unfounded. Based on the totality of the cir-
cumstances, we find that Wager's confession was voluntarily
obtained and therefore admissible.

Next, Wager contends that the district court erred in denying his
motion for a new trial because the prosecutor improperly commented
on his refusal to testify in closing argument. During closing argument,
the prosecutor stated:

          So you consider all the evidence, folks. Listen to anything
          Mr. Culler has to say. I submit to you beyond any reason-
          able doubt that this man is guilty as charged. Now, he
          wouldn't 'fess up to it, so I would ask you to assign respon-
          sibility for this act to him. Thanks.

(J.A. 506). Wager asserts that the improper comment on his refusal
to accept responsibility for the offense placed a burden on him to
present some evidence of his innocence. The judge gave the jury an
extensive curative instruction. He told the jury that the defendant did
not have to testify or present any evidence and that the prosecutor was
required to prove all elements beyond a reasonable doubt. (J.A. 507).

The prosecutor is forbidden from commenting upon the defen-
_________________________________________________________________

2 Miranda v. Arizona, 384 U.S. 436 (1966).

                    5
dant's silence at trial. See Griffin v. California, 380 U.S. 609, 613-14
(1965). "The test for determining whether an indirect remark consti-
tutes improper comment on a defendant's failure to testify is: `Was
the language used manifestly intended to be, or was it of such charac-
ter that the jury would naturally and necessarily take it to be a com-
ment on the failure of the accused to testify.'" United States v.
Whitehead, 618 F.2d 523, 527 (4th Cir. 1980) (emphasis omitted)
(quoting United States v. Anderson, 481 F.2d 685, 701 (4th Cir.
1973), aff'd, 417 U.S. 211 (1974)). An impermissible comment on the
defendant's refusal to testify requires reversal of the conviction unless
the comment is harmless beyond a reasonable doubt. See Chapman
v. California, 386 U.S. 18, 24 (1967). We review the district court's
denial of a motion for a new trial for an abuse of discretion. See
United States v. Bynum, 3 F.3d 769, 773 (4th Cir. 1993).

From the record it appears that the prosecutor's comment was not
intended as a comment on Wager's failure to testify, but was intended
to ask the jury to hold the defendant accountable for the offense. Even
if the prosecutor's statement could be considered to implicate
Wager's decision not to testify, any error was harmless. See United
States v. Hasting, 461 U.S. 499, 508 (1983). The evidence at trial was
more than sufficient to support Wager's conviction, and the prosecu-
tor's statement was so tangentially related to Wager's silence at trial
that the jury would not have reached a different conclusion in the
absence of the prosecutor's comment. Further, the district court
immediately issued an appropriate curative instruction. Accordingly,
the district court did not err in denying Wager's motion for a new
trial.

Wager also contends that the district court violated Fed. R. Crim.
P. 43 in responding to a question posed by the jury during its delibera-
tions outside the presence of the defendant. Wager asserts that it is
difficult to ascertain the effect the district court's response had on the
jury; however, he contends that the result of the error is apparent
since the jury came back with a guilty verdict within minutes of
receiving the court's response. Because Wager did not object at trial,
we review for plain error. See United States v. Olano, 507 U.S. 725,
732-36 (1993); United States v. Hastings, 134 F.3d 235, 239 (4th
Cir.), cert. denied, ___ U.S. #6D6D 6D#, 66 U.S.L.W. 3758 (U.S. May 26,
1998) (No. 97-8732). To succeed on this claim, Wager must show

                     6
that an error occurred, that the error was plain, that the error affected
his substantial rights, i.e., affected the outcome of the trial, and that
the error affects the fairness or integrity of the trial. See Olano, 507
U.S. at 733-35.

Rule 43 provides that the defendant shall be present at every stage
of the criminal proceedings. See Fed. R. Crim. P. 43(a); see also
United States v. Camacho, 955 F.2d 950, 952-53 (4th Cir. 1992). The
Supreme Court in Rogers v. United States, 422 U.S. 35, 39 (1975),
explained that Rule 43 requires the trial court to notify defense coun-
sel of requests from the jury for further instructions and to respond
to such requests in open court. We have held that it is a technical vio-
lation of Rule 43 for a judge to respond to a question posed by the
jury in the defendant's absence, but that such an error may be consid-
ered harmless. See United States v. Harris, 814 F.2d 155, 157 (4th
Cir. 1987). Even assuming that Wager's right to be present was vio-
lated, reversal is not required unless the error affected his substantial
rights. See Olano, 507 U.S. at 735.

The jury in the instant case posed the following question: "[s]hould
intimidation be included in Count Two, second element, page 13?"
(J.A. at 564). After discussing the jury's question with counsel, but
outside the presence of the defendant, the district court noted that the
court inadvertently omitted the language "or intimidation" from the
charge. Defense counsel noted an exception, but did not object based
on the defendant's absence. The district court thereafter instructed the
jury accordingly.

We find that the district court's response to the jury's question out-
side the presence of the defendant was error, and it is plain. See
United States v. Rhodes, 32 F.3d 867, 874 (4th Cir. 1994). We find,
however, that because the district court's response to the jury's ques-
tion was legally correct, Wager's absence from the discussion did not
affect his substantial rights. See id. Thus, there was no plain error. See
id.

Lastly, Wager contends that the district court erred in awarding a
two-level enhancement under USSG § 3C1.1, for obstruction of jus-
tice. Wager asserts that the district court failed to make specific fac-
tual findings regarding his attempted escape from the Mecklenburg

                     7
County Jail while awaiting sentencing. Wager further asserts that the
evidence presented to support the enhancement was insufficient.

We review the district court's factual findings that Wager
obstructed justice for clear error. See United States v. Puckett, 61 F.3d
1092, 1095 (4th Cir. 1995). The district court's determination that
particular conduct qualifies for the adjustment is reviewed de novo.
See United States v. Saintil, 910 F.2d 1231, 1232 (4th Cir. 1990). If
the defendant objects to an enhancement recommended in the presen-
tence report (PSR), the district court must make an independent reso-
lution of the factual issues raised by the objection. See USSG § 6A1.3
(1995). The trial court can do this either by a separate recitation of
its findings as to the disputed matters or by express adoption of the
findings contained in the PSR. See United States v. Morgan, 942 F.2d
243, 245 (4th Cir. 1991).

Section 3C1.1 provides for a two-level increase if the defendant
"willfully obstructed or impeded, or attempted to obstruct or impede,
the administration of justice during the investigation, prosecution, or
sentencing of the instant offense." USSG § 3C1.1. "A wide range of
conduct falls within the parameters of this section." United States v.
Hicks, 948 F.2d 877, 883 (4th Cir. 1991). The commentary to USSG
§ 3C1.1 contains a non-exhaustive list of examples of the types of
conduct covered by the guideline, including "escaping or attempting
to escape from custody before trial or sentencing." USSG § 3C1.1,
comment. (n.3(e)).

Wager's contention that the district court failed to make specific
factual findings is without merit. The district court, in awarding the
enhancement, explicitly adopted the findings contained in the PSR.
See Morgan, 942 F.2d at 245. Further, we find that Wager's conduct
constituted an attempted escape. While Wager was in custody await-
ing sentencing, authorities were notified of a possible conspiracy
among several inmates, including the defendant, to escape. The
authorities searched Wager's cell and discovered a hacksaw, four
sheets, and two blankets. The authorities also discovered that the bars
on Wager's cell window had been almost completely sawed through.
A laboratory analysis of Wager's jumpsuit and shoes revealed the
presence of metallic shavings and paint fragments consistent with the
cell bars that had been tampered with in Wager's cell. The district

                    8
court's finding that Wagner attempted to escape was not clearly erro-
neous.

Accordingly, we affirm Wager'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 significantly aid the decisional process.

AFFIRMED

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