UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 96-4739

RICO LAMONT SPURLOCK,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CR-95-29)

Argued: June 6, 1997

Decided: September 5, 1997

Before MURNAGHAN, WILLIAMS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John Stuart Bruce, Acting Federal Public Defender,
Greensboro, North Carolina, for Appellant. Zelda Elizabeth Wesley,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee. ON BRIEF: William D. Wilmoth, United States Attorney,
Wheeling, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted Rico Lamont Spurlock of attempted possession of
crack cocaine with the intent to distribute and the district court sen-
tenced him to 235 months imprisonment. On appeal, Spurlock chal-
lenges the refusal to suppress his post-arrest statement, the admission
of grand jury testimony of an unavailable witness, the sufficiency of
the evidence, and the prosecutor's closing argument. Finding no
reversible error, we affirm.

I.

On September 28, 1995, Brian Smith was stopped for speeding; a
legal search of his car uncovered approximately 760 grams of crack
cocaine. Smith was arrested and quickly entered into a plea agreement
with the Government. Smith agreed to set up a controlled delivery of
the 760 grams of crack to Spurlock. Accordingly, that night Smith
made a police-monitored telephone call to Spurlock. Pretending that
his car had broken down, Smith asked Spurlock to meet him at a rest
stop on Interstate 79. Smith told Spurlock he didn't want to "sit with
that shit on me all night."

Spurlock arrived, and Smith, who was wearing a body wire, told
him that the crack was hidden in (or near) a garbage can. Neither
Spurlock nor Smith retrieved the crack from the garbage can, and as
Spurlock turned to leave he was arrested. The arresting officers
searched Spurlock and found $522.

Spurlock was indicted for conspiracy to possess with the intent to
distribute crack cocaine and for attempted possession with the intent
to distribute crack cocaine. See 21 U.S.C.§§ 841(a)(1) and 846
(1994). The jury convicted him of attempted possession, and dead-
locked on the conspiracy count. Spurlock moved for a new trial and

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judgment of acquittal. After the district court denied those motions,
Spurlock appealed to this court. Spurlock raises four issues on appeal.
We address these issues in order.

II.

First, Spurlock asserts that the district court erred in denying his
motion to suppress statements made following his arrest.

When Spurlock was arrested at the rest area on I-79 he was advised
of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). About
an hour later, Agents Lowell J. Maxey and Brian K. Purkey trans-
ported Spurlock from the rest area on I-79 to the Weston Detachment
of the West Virginia State Police. During the drive, Spurlock asked
Agent Maxey what law he had violated. Agent Maxey advised Spur-
lock that he had been arrested for attempted possession of crack
cocaine. Spurlock responded,

          You can't charge me with possession man, I never took pos-
          session of the shit. You got to catch me with the shit man
          before you can charge me with possession and I never took
          possession man. I knowed something was up with the dude
          man, you know what I mean. So you ain't got shit on me.

Spurlock moved to suppress this statement. The district court held
a suppression hearing on the first day of the trial. After the court
heard testimony from Agent Maxey, Agent Purkey, and Spurlock, it
denied the suppression motion. The court found:"Agent Maxey sim-
ply responded to questions that the defendant asked him about what
he was being charged with."

That finding was certainly not clearly erroneous. See United States
v. Johnson, 114 F.3d 435, 439 (4th Cir. 1997) (We review "the district
court's factual findings" concerning a suppression motion "for clear
error."). Spurlock spontaneously asked the officers about his arrest
charge and then volunteered his statement disputing the charge. These
statements were uncoerced and not the result of any subtle interroga-
tion. "Any statement given freely and voluntarily without any com-
pelling influences is, of course, admissible in evidence. . . .

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Volunteered statements of any kind are not barred by the Fifth
Amendment . . . ." Rhode Island v. Innis, 446 U.S. 291, 299-300
(1980) (quoting Miranda, 384 U.S. at 478); see also United States v.
Wright, 991 F.2d 1182, 1186 (4th Cir. 1993). Consequently, the dis-
trict court did not err in refusing to suppress Spurlock's statement.

III.

The second issue Spurlock raises on appeal is whether the district
court erred in admitting the grand jury testimony of Brian Smith.
"[W]e review the admission of hearsay statements for abuse of discre-
tion." United States v. Ellis, 951 F.2d 580, 582 (4th Cir. 1991).

Before the grand jury, Brian Smith testified concerning Spurlock's
involvement in a conspiracy to sell crack cocaine. Smith testified that
he delivered crack from Richard Watts in Pittsburgh to Spurlock in
Charleston. Smith related that he would telephone Spurlock, deliver
the cocaine, and Spurlock would pay him $500. Smith also testified
as to the details of his arrest and cooperation with the authorities.

After Smith was arrested he was released on a $10,000 bond. On
Thursday, January 11, 1996 (five days before the first day of trial),
an Assistant United States Attorney telephoned Smith, who was living
with his parents in Pittsburgh. Smith stated that he had arranged for
a friend to drive him to the trial and asked the prosecutor about travel
money. The prosecutor responded that Smith would be subpoenaed
and then receive a witness fee. A subpoena for Smith was issued and
sent to Pittsburgh, but was never served on him. On the morning of
the first day of trial, Monday, January 16, 1996, Smith's lawyer tele-
phoned the prosecutor and indicated that Smith would arrive at the
courthouse by 11:00 a.m. Smith never appeared, however, and despite
a lengthy search by marshals, Smith was never located.

The next morning (on the second day of trial), the Government
informed Spurlock and the court of Smith's absence, and moved to
have Smith's grand jury testimony admitted into evidence under Fed-
eral Rule of Evidence 804(b)(5). The district court granted the Gov-
ernment's motion on January 18, 1996, and Smith's testimony was
read into the record. Spurlock asserts that the district court's order
granting the Government's motion was erroneous for three reasons.

                    4
A.

First, Spurlock maintains that Smith was not "unavailable." "`Un-
availability as a witness' includes situations in which the declarant . . .
is absent from the hearing and the proponent of a statement has been
unable to procure the declarant's attendance . . . by process or other
reasonable means." Fed. R. Evid. 804(a)(5). "The ultimate question is
whether the witness is unavailable despite good-faith efforts
undertaken prior to trial to locate and present that witness." Ohio v.
Roberts, 448 U.S. 56, 74 (1980). "The lengths to which the prosecu-
tion must go to produce a witness . . . is a question of reasonable-
ness." Id. (quoting California v. Green, 399 U.S. 149, 189 n.22 (1970)
(Burger, C.J., concurring)).

Spurlock argues that the Government took insufficient steps to pro-
duce Smith because there was no attempt to subpoena Smith until a
week before trial and the subpoena was never served. We disagree.
Although the Government never served Smith, it did prepare a sub-
poena and plan to serve him. The plea agreement required Smith to
testify. Smith, who was released from jail on a $10,000 bail bond paid
for by his parents, had testified willingly before the grand jury. Smith
had never shown any hesitation about testifying at trial. Less than a
week prior to trial the prosecutor talked with Smith and confirmed
that he would testify. When Smith did not appear at trial, the marshals
searched for him. In sum, the Government had no reason to fear that
Smith would fail to testify at trial, and when he did not appear the
prosecution made reasonable, good-faith efforts to locate him.

B.

Spurlock next argues that Smith's statement does not bear adequate
indicia of reliability, as required by the Confrontation Clause. Idaho
v. Wright, 497 U.S. 805, 814-15 (1990). The district court held that
the statement contained sufficient indicia of reliability, reasoning:

          Brian Smith testified under oath before the grand jury. He
          was represented by an attorney. The facts that he recited in
          his testimony were those strictly within his personal knowl-
          edge and observation. . . . Moreover, his testimony regard-
          ing the events at the stop on I-79, [and] later events at the

                     5
          rest stop were confirmed by every other witness who was
          involved in those events. The witness, Brian Smith, was out
          on bond secured by his parents who strapped themselves
          financially to procure his release on bond. He had entered
          into a plea agreement with the government which required
          him to be truthful. The fact that his testimony was within his
          personal knowledge and was corroborated by other individ-
          uals at trial and that it related to past facts is persuasive to
          this court . . . .

Spurlock correctly notes that insofar as the district court relied
upon "the presence of corroborating evidence," such evidence "may
not be considered in determining the reliability of hearsay testimony."
Ellis, 951 F.2d at 582. As the Supreme Court has explained, "`particu-
larized guarantees of trustworthiness' must be shown from the totality
of the circumstances, [and] . . . the relevant circumstances include
only those that surround the making of the statement and that render
the declarant particularly worthy of belief." Wright, 497 U.S. at 819
(emphasis added). Trustworthiness must emanate from the circum-
stances of a hearsay statement, not from its consistency with other
evidence offered in the case. Id. at 822-23. Consequently, the district
court erred to the extent that it looked beyond the immediate circum-
stances of Smith's statements to other corroborating evidence in the
record.

However, "[b]ecause we find that the district court needed to look
no farther than the circumstances of the challenged statements for suf-
ficient guarantees of their trustworthiness . . . any error in the court's
approach was harmless." United States v. Shaw , 69 F.3d 1249, 1253
n.5 (4th Cir. 1995). There were several factors, inherent in the cir-
cumstances of the statement itself, supporting a finding of reliability.
"First, [Smith] testified before the grand jury voluntarily. . . . Second,
because [Smith] had participated with [Spurlock] in the narcotics
offenses, he testified from personal knowledge." United States v.
McHan, 101 F.3d 1027, 1038 (4th Cir. 1996) (citations omitted).
Finally, Smith testified pursuant to a plea agreement which required
truthfulness. See Ellis, 951 F.2d at 583 (witness testified pursuant to
a plea agreement).

Spurlock's assertion that Smith's testimony was unreliable because
of conflicts between the transcript of their phone call and Smith's

                     6
grand jury testimony is meritless. The only inconsistency involves the
transcribed nicknames for Smith and Richard Watts. Watts was
known as "Mook," but the transcript read "Milk;" Smith was known
as "Beano," but the transcript read "B Note." This inconsistency is not
substantive, and does not demonstrate that Smith likely lied before the
grand jury.

C.

Spurlock contends that the Government did not provide the defense
with sufficient notice of Smith's unavailability. Rule 804(b)(5)
requires "the offering party [to] provide[ ] the opposing party reason-
able notice before trial of its intention to use the statement." Shaw, 69
F.3d at 1253 (citing Fed. R. Evid. 804(b)(5)). In this case, the Govern-
ment became aware of Smith's absence during the first day of trial,
and immediately dispatched the authorities to track him down. When
unsuccessful, the Government informed the court and Spurlock of
Smith's absence first thing the next day. Because the Government
notified Spurlock shortly after Smith failed to appear, and as soon as
it became clear that he could not be found, the Government provided
Spurlock with sufficient notice of the witness's unavailability. See
United States v. Heyward, 729 F.2d 297, 299 n.1 (4th Cir. 1984)
(holding that when "new evidence is uncovered on the eve of trial . . .
advance notice is obviously impossible"); United States v. Baker, 985
F.2d 1248, 1253 n.3 (4th Cir. 1993) (holding that when "reasonable
efforts" have been taken to locate an unavailable witness, and "pretrial
notice was wholly impracticable," a court should grant "notice flexi-
bility" under Rule 804(b)(5)).

IV.

Spurlock next argues that the Government produced insufficient
evidence to support his conviction for attempt to possess crack
cocaine with intent to distribute. "[C]hallenges to the sufficiency of
the evidence must overcome a heavy burden . . . ." United States v.
Neal, 78 F.3d 901, 906 (4th Cir.), cert. denied, 117 S. Ct. 152 (1996).
"On review, we examine the evidence in the light most favorable to
the government, considering circumstantial as well as direct evidence
and allowing the government all reasonable inferences, to determine

                    7
whether any rational trier of fact could have found the defendant
guilty beyond a reasonable doubt." Id.

"[A] defendant can be convicted of an attempt only if the govern-
ment proves beyond a reasonable doubt (1) culpable intent to commit
the crime charged and (2) a substantial step towards the completion
of the crime that strongly corroborates that intent." Id. There is suffi-
cient evidence that Spurlock had the requisite intent and took a sub-
stantial step. Smith testified that he had delivered drugs to Spurlock
in the past. Spurlock agreed to meet Smith at the rest stop after Smith
said that he didn't want to "sit with that shit on [him] all night." Spur-
lock arrived with $522, and Smith testified that Spurlock typically
paid him $500 for delivery of this quantity of crack. Thus, there was
evidence of an existing relationship, and that Spurlock came to the
rest stop to pick up drugs and to pay Smith for delivering them. This
is sufficient evidence of both intent and a substantial step.

Spurlock maintains that he took no "substantial step" because he
walked away from the deal without buying the crack. Spurlock argues
that this case is analogous to United States v. Joyce, 693 F.2d 838 (8th
Cir. 1982), where the Eighth Circuit held that there was no attempt
to possess cocaine when a defendant's intention"to procure cocaine
was abandoned prior to the commission of a necessary and substantial
step to effectuate the purchase." Id. at 841. Even if Spurlock were cor-
rect that he abandoned his purpose to obtain the crack, there is enough
evidence here of a substantial step prior to that abandonment to distin-
guish Joyce. In Joyce the potential purchaser had never before bought
drugs from that supplier. Id. at 839-40. In this case Smith testified that
he had delivered drugs to Spurlock before. As such, Spurlock's arrival
at the rest area after the phone call with $500 to pay Smith for deliv-
ery was a substantial step.

V.

Finally, Spurlock maintains that the prosecutor impermissibly
vouched for Smith's testimony. During closing argument the prosecu-
tor stated "You heard one of the agents testify that the last thing we
heard is that Brian was traveling here to testify on Tuesday. No one
has seen or heard from him since." In fact, the agent had testified that
Smith's lawyer's secretary had spoken to Smith on Tuesday morning.

                     8
No one testified that "last we heard Brian was traveling here to testify
on Tuesday."

Spurlock failed to object to the prosecutor's argument, so we
review for plain error. United States v. Adam , 70 F.3d 776, 780 (4th
Cir. 1995). "To reverse for plain error, we must find that an error
occurred, that the error was plain, that the error affected substantial
rights, and that the error `seriously affected the fairness, integrity, or
public reputation of the judicial proceedings.'" Id.

In Adam we applied the plain error standard to a claim of prosecu-
torial vouching and listed "several factors" relevant to a finding of
prejudice:

          (1) the degree to which the prosecutor's remarks have a ten-
          dency to mislead the jury and to prejudice the accused; (2)
          whether the remarks were isolated or extensive; (3) absent
          the remarks, the strength of competent proof introduced to
          establish the guilt of the accused; and (4) whether the com-
          ments were deliberately placed before the jury to divert
          attention to extraneous matters.

Id. (quoting United States v. Harrison , 716 F.2d 1050, 1052 (4th Cir.
1983)). Under this standard it is clear that the district court did not
commit plain error here. The prosecutor's remark was unlikely to
mislead the jury or prejudice Spurlock because the remark was iso-
lated, there was sufficient evidence of guilt absent the comment, the
comment was not particularly deliberate, and likely did not divert the
jury. In short, the comment had little, if any, harmful effect on Spur-
lock's trial.

AFFIRMED

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