UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 96-4688

JEFFREY ROY CROSBY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-96-361)

Submitted: June 24, 1997

Decided: April 2, 1998

Before NIEMEYER and HAMILTON, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Debra O. Jackson, Florence, South Carolina, for Appellant. J. Rene
Josey, United States Attorney, Nancy C. Wicker, Assistant United
States Attorney, Kelly E. Shackelford, Assistant United States Attor-
ney, Columbia, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Jeffrey Roy Crosby appeals his jury conviction and sentence on
two counts of solicitation of the murder-for-hire of his United States
Probation Officer in violation of 18 U.S.C. #8E8E # 373, 1114 (1994).1 The
district court sentenced Crosby on August 29, 1996, to a term of
imprisonment of 240 months on count one and 125 months on count
two, with those sentences to run consecutively with each other and
with the federal sentence Crosby was serving at the time of his sen-
tencing on the instant charges. In addition, the district court sentenced
Crosby to a supervised release term of three years on each count, to
run concurrently, ordered Crosby to participate in an inpa-
tient/outpatient program of mental health, and further ordered pay-
ment of the $100 special assessment. Crosby's sentence was based on
an offense level of thirty-five and a criminal history category VI.

Crosby noted a timely appeal, claiming, by counsel, that the district
court abused its discretion in denying his pre-trial and pre-sentencing
motions for a psychiatric examination, and that the court's enhance-
ment of his criminal history category pursuant to U.S. Sentencing
Guidelines Manual § 4A1.1(d) (1995), was inappropriate. As to the
second issue, Crosby specifically contends that the crime of solicita-
tion was completed during his first, or, at the latest, his second, con-
tact with the intended perpetrator, and was therefore completed before
he was imprisoned. In addition, Crosby raises several issues pro se:
(1) the wiretaps used against him were illegally obtained; (2) the
wiretap tapes were unintelligible, prejudicial, confusing, misleading,
and not protected against tampering; (3) the district court erred in
_________________________________________________________________
1 Count one alleged the solicitation of others in violation of § 373
between September 18, 1995, and October 31, 1995; Count two alleged
the solicitation of another in violation of § 373 between February 9,
1996, and April 16, 1996.

                    2
denying his motion for acquittal on the ground of insufficiency of evi-
dence to support the solicitation charge; (4) the district court erred in
denying Crosby's motion to suppress certain statements Crosby made
on the tapes; (5) violation of the double jeopardy clause;
(6) prosecutorial misconduct; and (7) ineffective assistance. For the
reasons stated below, we affirm Crosby's conviction and sentence.

The district court's denial of Crosby's motions for psychiatric
examination are subject to review for abuse of discretion. United
States v. West, 877 F.2d 281, 285 n.1 (4th Cir. 1989). The record
reveals that the district court conducted a hearing on Crosby's motion
in compliance with 18 U.S.C. § 4241(a) (1994). In addition, the dis-
trict judge had extensive opportunities to observe and talk with
Crosby in hearings in this case and in a previous criminal case, and
specifically found Crosby to be lucid, competent, and involved in his
defense. The judge reviewed multiple presentence reports from Cros-
by's prior criminal cases as well as the record of supervision from a
period of supervised release, none of which indicated that Crosby had
any problem being able to understand the nature and consequences of
proceedings against him, or in assisting in his defense. Moreover, as
to Crosby's pre sentence motion for psychiatric examination, the dis-
trict judge also heard Crosby testify during the four-day trial in this
case. Under these circumstances, we cannot say that the district judge
abused her discretion in denying Crosby's pre-trial and pre-sentencing
motions for psychiatric examination.

Crosby's second claim, by counsel, is that the offense of solicita-
tion was completed prior to his being under a criminal justice sen-
tence, and that the district court erred in enhancing his criminal
history category pursuant to USSG § 4A1.1(d), with the resultant
requirement that Crosby serve a portion of his sentence consecutively
to an earlier sentence pursuant to USSG § 5G1.3(a). Count two of
Crosby's indictment alleged conduct committed from on or about
February 9 to April 16, 1996. Crosby was sentenced on February 20,
1996, for unrelated forearms violations and cocaine charges, and,
thus, began a criminal justice sentence of imprisonment on that date.
Crosby alleges that the offense alleged in Count two of the indictment
was concluded on February 9, 1996 (or at the latest February 14,
1996), when Crosby first approached Michael Ray about murdering
Crosby's probation officer.

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The factual findings of the sentencing court are reviewed under a
clearly erroneous standard; mixed questions of law and fact regarding
the Sentencing Guidelines are reviewed with due deference give to
the district court. United States v. Nale, 101 F.3d 1000, 1003 (4th Cir.
1996); United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).
The district court found that while Crosby in fact made his initial
approach prior to the date of sentencing on the firearms and narcotics
charges, he did not finalize the approach or actually reach a firm
agreement relative to the murder of his probation officer until after
February 20, 1996, and that it was not until that firm agreement was
reached that the offense of solicitation occurred.

The record reveals that it was not until Crosby's third contact with
Michael Ray, on March 21, 1996, in which Ray gave Crosby specific
details about how and when the murder of the probation officer would
take place, and until other post-February 20, 1996, evidence was
uncovered by the Government, that the Government had sufficient
evidence which was essential to the Government's proof of circum-
stances strongly corroborative of Crosby's intent to solicit to commit
a crime of violence. We agree with the district court that the Govern-
ment proved by a preponderance of the evidence that while Crosby
made his initial contacts of solicitation to commit the murder-for-hire
of a United States Probation Officer prior to the time he was sen-
tenced and imprisoned on unrelated firearms violations and cocaine
charges, Crosby's relevant contact for purposes of the crime of solici-
tation occurred after Crosby was under a criminal justice sentence.
See United States v. Nelson, 6 F.3d 1049, 1054-55 (4th Cir. 1993)
(discussing standard for enhancement).

Given the facts of this case, we find that the district court's deter-
mination that Crosby committed part of the offense alleged in Count
two of the indictment while under a criminal justice sentence, and its
enhancement of Crosby's criminal history category pursuant to USSG
§ 4A1.1(d), was proper. See Nale, 101 F.3d at 1003; Daughtrey, 874
F.2d at 217. Finally, because the district court properly enhanced
Crosby's criminal history category pursuant to USSG§ 4A1.1(d), we
find that the court's imposition of a consecutive sentence as to Count
two of the indictment was appropriate pursuant to USSG § 5G1.3(a).

                    4
Crosby's first pro se claim is that the wiretap used by the Govern-
ment informant was illegal. Specifically, he alleges that there was no
authorization or court order as required under Title III of Omnibus
Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C.A.
§§ 2510-2521 (West 1970 & Supp. 1993), for the taped intercepts on
February 16, 21, or March 21, 1996. He claims that no order or appli-
cation for order of the surveillance, as required by Title III, has ever
been produced by the Government. A review of the transcript of the
pre-trial motions hearing before the district court on July 12, 1996,
reveals that Crosby's counsel expressly withdrew any Title III objec-
tions to the Government's electronic surveillance evidence. More-
over, upon questioning by the trial judge, Crosby stated that he
understood that his attorney was withdrawing the motion to suppress
the evidence of the taped conversations, and that he agreed with the
withdrawal of the motion. See generally Blackledge v. Allison, 431
U.S. 63, 73-74 (1977); Via v. Superintendent, Powhatan Correctional
Ctr., 643 F.2d 167, 171 (4th Cir. 1981). Given that Crosby withdrew
his Title III objections below, we review his claim on appeal for plain
error. See United States v. Olano, 507 U.S. 725, 734 (1993); United
States v. Young, 470 U.S. 1, 16 (1985); United States v. Cedelle, 89
F.3d 181, 184-85 (4th Cir. 1996). We find no plain error in the record
warranting review of Crosby's claim.2

In two of his pro se claims, Crosby alleges that the wiretap tapes
were unintelligible, prejudicial, confusing, misleading, and not pro-
tected against tampering (claim two), and that the district court erred
in denying his motion to suppress certain statements Crosby made on
the tapes (claim four). He claims that witness testimony as to the por-
tions of the tapes that were unintelligible was inaccurate, misleading,
and prejudicial, and specifically claims discrepancies between what
he actually said on portions of the tape and what the witness testified
(and the transcripts reflected) that he said. Crosby also claims that he
was forced to testify to explain what he said on the tapes and to clar-
_________________________________________________________________
2 Also, to the extent Crosby's counsel objected to the March 21, 1996,
tape during the trial on other grounds, we find that the district court did
not abuse its discretion in allowing the tape into evidence, given the
proof of authorization by the Federal Bureau of Investigation and the
Department of Justice, which the Government produced. See United
States v. Chin, 83 F.3d 83, 87 (4th Cir. 1996).

                    5
ify inaccurate and prejudicial testimony by the Government's infor-
mant regarding what Crosby had said on the tapes.

The district court's admission of evidence under Fed. R. Evid.
404(b) is subject to an abuse of discretion standard, and will only be
overturned if the judge's decision was "`arbitrary or irrational.'" Chin,
83 F.3d at 87 (quoting United States v. Powers , 59 F.3d 1460,
1464-65 (4th Cir. 1995)). A district court may in its sound discretion
exclude a tape if unintelligible or inaudible portions of it are so signif-
icant that the whole recording is rendered untrustworthy. See United
States v. Watson, 594 F.2d 1330, 1335 (10th Cir. 1979).

Crosby's counsel had the opportunity to explore through cross-
examination any inaccuracies in the tapes, the testimony relating to
the tapes, and the transcripts. The district court gave limiting instruc-
tions to the jury regarding the tapes themselves and the transcripts,
specifically instructing the jury, on repeated occasions, that the tapes
themselves were the best evidence, and that the transcripts were to be
used only as an aid. Proof of the accuracy of the transcripts was
offered both pre-trial and at trial. Plus, Crosby testified regarding his
statements on the tapes. Moreover, the record reflects that the district
judge systematically and thoroughly considered each objection made
by Crosby's attorney concerning each specific portion of the tapes
which Crosby was claiming were prejudicial, not relevant, or mislead-
ing, in some cases listening to the portion of the tapes herself, prior
to making her rulings regarding admissibility. Under these circum-
stances, we cannot say that the district court abused its discretion
regarding the admissibility of the portions of the tapes that ultimately
were entered into evidence. See United States v. Capers, 61 F.3d
1100, 1106 (4th Cir. 1995) (standard), cert. denied, ___ U.S. ___, 64
U.S.L.W. 3779 (U.S. May 20, 1996) (No. 95-7022). Finally, as to the
admissibility of statements Crosby made on the tapes which he con-
tends were prejudicial, taken out of context, misleading, and/or not
relevant, we find that the district court's thorough consideration of
Crosby's objections to those statements, and ultimate determination
that the probative value of the statements outweighed any prejudice,
was not an abuse of its discretion. See Chin, 83 F.3d at 87.

Crosby's third pro se claim is that the district court erred in deny-
ing his motion for acquittal on the ground of insufficiency of evidence

                     6
to support the solicitation charge. In evaluating the sufficiency of the
evidence supporting a criminal conviction on direct review, "the ver-
dict must be sustained if there is substantial evidence, taking the view
most favorable to the Government to support it." Glasser v. United
States, 315 U.S. 60, 80 (1942).

This court considers circumstantial and direct evidence, and allows
the government the benefit of all reasonable inferences from the facts
proven to those sought to be established. See United States v. Burgos,
94 F.3d 849, 858 (4th Cir. 1996) (en banc), cert. denied, ___ U.S.
___, 65 U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No. 96-6868); United
States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). In resolving
issues of substantial evidence, this court does not weigh evidence or
review witness credibility. See United States v. Saunders, 886 F.2d
56, 60 (4th Cir. 1989). Circumstantial evidence need not exclude
every reasonable hypothesis of innocence. See United States v.
Jackson, 863 F.2d 1168, 1173 (4th Cir. 1989).

Even the uncorroborated testimony of an accomplice may be suffi-
cient to sustain a conviction, see United States v. Burns, 990 F.2d
1426, 1439 (4th Cir. 1993), and it is the role of the jury to judge the
credibility of witnesses, resolve conflicts in testimony, and weigh the
evidence. See United States v. Manbeck, 744 F.2d 360, 392 (4th Cir.
1984). This Court may reverse a jury verdict only when there is no
"substantial evidence, viewed in the light most favorable to the Gov-
ernment, to uphold it." Burks v. United States, 437 U.S. 1, 17 (1978).

The trial evidence fully supports Crosby's conviction. Crosby was
detained prior to trial and incarcerated in the Florence County Deten-
tion Center in Effingham, South Carolina, on firearms and cocaine
charges arising out of conduct occurring while he was on supervised
release from a prior offense. While in the Florence County Detention
Center, Crosby met two inmates, Terry McKnight and Jimmy Parker,
to whom he expressed his hatred for his probation officer, Robbie
Baird, whom he blamed, together with his common-law wife, Dixie
Welch, for the revocation of his supervised release, return to prison,
and the firearm and drug indictments. Both McKnight and Parker tes-
tified that in late September 1995 Crosby spoke with them in separate
conversations, asking for help in murdering both Baird and Welch.
They each testified as to specific details Crosby gave them individu-

                    7
ally about how the murders could be carried out, including where and
how the murders could take place. They also each testified that
Crosby spoke with them individually about how he would pay them
for murdering Baird and Welch and/or arranging for their murders.
McKnight testified that in late September 1995 he informed authori-
ties that Crosby had solicited him to murder federal probation officer
Baird and Crosby's estranged common-law wife, Welch. McKnight
told FBI agents that Crosby had also been talking to Parker about car-
rying out the murders. Parker testified that he was uncooperative
when interviewed by FBI agents, and that he told Crosby that FBI
agents had approached him regarding Crosby's murder-for-hire plot.

Michael Ray, the Government's primary witness as to Count two,
testified that he was Crosby's new pod-mate, and that immediately
upon their introduction, Crosby told Ray of his hatred for his proba-
tion officer, Baird. Ray testified that Crosby then attempted to solicit
Ray to help him hire someone to murder Baird. Ray testified that he
contacted his probation officer, Vic Bartell, and informed Bartell of
Crosby's plot to kill Baird. On February 13, 1996, Ray met with
Agent Kevin Harvey of the Federal Bureau of Investigation and
agreed to tape record conversations he had with Crosby. The first
such conversation was taped on February 16, 1996, the second on
February 21, 1996, and the third on March 21, 1996.

The actual tape recordings were played for the jury at trial, and the
jury was supplied with a transcript of the tapes, of which Ray assisted
in the preparation. In addition, Ray testified to his recollection of
what Crosby was saying on the tapes.

Through the tape recordings, transcripts, and Ray's testimony,
Crosby's murder-for-hire plot was described. Ray testified as to how
Crosby was going to sell his boat and use some of the proceeds to hire
a hit man to kill Baird. Crosby initially offered Ray $1000 from the
boat proceeds to kill Baird; $1500 was the final figure to which
Crosby agreed. Crosby and Ray negotiated the price of the murder
and discussed the potential dates for the murder, as well as the iden-
tity of the potential hit man. Ray told Crosby that the hit man had
been staking Baird out, determining his daily schedule. He then
detailed to Crosby the time, manner, and circumstances in which
Baird was to be murdered. Ray testified that at no time in his conver-

                     8
sation with Crosby did Crosby state or indicate that he had changed
his mind about having Baird killed. Ray testified that at the end of the
discussion on March 21, 1996, Crosby was made to understand that
Baird's murder was to take place either the next day on Friday or on
the following Monday.

On Friday, March 22, 1996, Crosby was transported to the Orange-
burg Detention Center where Crosby met another inmate named
James Roy Toothe. Toothe testified that upon Crosby's arrival at
Orangeburg, Crosby asked Toothe whether they could receive news
from Florence, and that a man in a high position in Florence was sup-
posed to be killed. Crosby explained to Toothe that he had arranged
for the murder of his probation officer, and told Toothe details as to
how the murder was to be committed and what Crosby's role was in
arranging for the murder. Given the trial testimony and evidence, and
construing that evidence in the light most favorable to the Govern-
ment, we find that the evidence was sufficient for a reasonable jury
to have found Crosby guilty of solicitation of the murder-for-hire of
his United States Probation Officer, as alleged in both counts of the
indictment. See Glasser, 315 U.S. at 80.

Crosby next alleges violation of the Double Jeopardy Clause
regarding the two counts of his indictment. Specifically, he claims
that the evidence was insufficient to convict him on the first count
(having the time frame of from on or about September 19, 1995, until
on or about October 31, 1995), and that his conviction on the two
counts was based on facts related to the time frame set forth in the
second count only (having the time frame of from on or about Febru-
ary 9, 1996, to the date of the indictment), resulting in multiple
charges of the same offense, and multiple convictions on the same
offense. He bases his argument on testimony of Special Agent Harvey
before the grand jury that there was insufficient evidence to prosecute
Crosby on the first count of the indictment involving McKnight and
Parker. Crosby misconstrues the law and the evidence.

Even assuming, arguendo, that the Government decided not to
prosecute Crosby after his first round of solicitation to murder based
upon the lack of evidence strong enough to obtain a conviction, that
same evidence apparently was strong enough, when coupled with the
ample evidence to support a conviction on the second count, for the

                    9
jury to convict on both counts. Crosby was indicted on separate trans-
actions involving separate attempts and separate solicitations. As we
have found, the evidence was sufficient for the jury to convict on both
counts. There was no double jeopardy violation, and we dismiss this
claim.

Crosby next alleges several instances of prosecutorial misconduct.
He claims that the prosecutor ordered him into maximum segregation
lock down status, where he had no access to the law library, based
upon the belief that he had approached another inmate to contract a
murder for hire of the prosecutor, a federal judge, individuals in the
probation office, and others. Even assuming, arguendo, that Crosby
has made a proper allegation of prosecutorial misconduct, we find his
conclusory claims of denial of due process rights to legal research and
a fair trial to be insufficient to state a claim. He also alleges plain
error in several statements made by the prosecution regarding Baird's
children, in asking Crosby at trial if he thought the proceedings
against him for murder-for-hire were a joke, in commenting that he
was willing to fake affidavits or lie, and in confusing the language of
the tapes. Because Crosby has not demonstrated that the statements
made by the prosecutor affected his substantial rights, and seriously
affected the fairness, integrity, or public reputation of the judicial pro-
ceedings, we find this claim to be without merit. See United States v.
Olano, 507 U.S. at 731-32; Muth v. United States, 1 F.3d 246, 250
(4th Cir. 1993).

Finally, Crosby alleges that his attorney was ineffective for failing
to: (1) call to testify certain defense witnesses; (2) obtain certain
documents; (3) pursue an entrapment defense; and (4) adequately
question witnesses. Also, Crosby claims plain error in the fact that his
former court-appointed attorney on charges other than the solicitation
charges at issue in this case was the same individual who was repre-
senting Ray and who negotiated Ray's cooperation with the Govern-
ment to tape record Crosby regarding his solicitation of the murder-
for-hire of his probation officer. He claims that his defense attorney
on the solicitation charges was aware of this conflict of interest, yet
failed to bring the issue to the court's attention, and refused to call the
previous attorney as a witness at trial.

A claim of ineffective assistance of counsel should be raised by
motion under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997), in the

                     10
district court, and not on direct appeal, unless it"conclusively
appears" from the record that the defense counsel did not provide
effective representation. United States v. DeFusco, 949 F.2d 114,
120-21 (4th Cir. 1991). We find that it does not conclusively appear
from the face of the record that Crosby's defense counsel failed to
provide effective representation. Thus, Crosby's recourse must be to
file a motion under 28 U.S.C.A. § 2255.

Accordingly, we affirm Crosby'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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