                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-1608
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri
Darrell Henry Williams,                 *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: March 12, 2002

                                  Filed: July 3, 2002
                                   ___________

Before McMILLIAN, HEANEY and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                          ___________

McMILLIAN, Circuit Judge.

       Darrell Henry Williams appeals from a judgment of the district court1 entered
upon a jury verdict finding him guilty of conspiracy to distribute cocaine and escape
from custody. The district court sentenced him to 310 months imprisonment and five
years of supervised release. On appeal, he raises six issues, all of which are subject
to plain error review. We affirm.

      1
       The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.
BACKGROUND

      On October 12, 1999, acting on a tip from a confidential informant and
surveillance, St. Louis, Missouri, airport police officers and federal Drug
Enforcement Authority agents stopped Williams, Derrick Howard, Alicia Howard,
Brianne Carr, and Chastity Dorsey shortly after they arrived from a flight from
Houston, Texas. The officers and agents found cocaine on the women and cash on
the men.

      After being arrested and charged with conspiracy to distribute cocaine,
Williams and the others pled guilty. While Williams was in custody, he escaped, but
was captured. Williams then withdrew his guilty plea to the conspiracy charge. A
superseding indictment charged him with conspiracy to distribute cocaine and escape
from custody.

       In opening argument, Williams' counsel told the jury about the withdrawn
guilty plea. Williams' co-defendants testified for the government pursuant to plea
agreements. Derrick Howard testified that he and Williams had flown to Houston to
buy cocaine and that the women traveled with them to carry the cocaine back to St.
Louis. The women corroborated Howard's testimony.

       Williams testified in his defense. Outside the presence of the jury, Williams
said he understood that by testifying he had "open[ed] the door to all sorts of things."
Before the jury, Williams admitted that he had convictions for assault, robbery,
attempted escape, and possession of firearms. He also admitted that he had
distributed heroin, cocaine, and marijuana at a correctional facility. Williams
acknowledged that he had admitted guilt in letters he had written to Howard, but
claimed that he had lied in the letters. According to Williams, he went to Houston
with Howard to buy a car, not cocaine, and only learned that Howard had purchased
cocaine when he brought it to the hotel. Williams explained that he pled guilty

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because the assistant United States Attorney (AUSA) had promised that he would
receive an 18-month sentence if he lied and admitted involvement in the conspiracy.

       As to the escape, William claimed that he escaped from jail because he had had
threats on his life. He asserted that the threats came after the government had
breached the plea agreement by releasing his identity as a "snitch." Williams,
however, admitted that he never told anyone, except for his mother, about the threats
or asked for protection from the jail.

       Among other things, the government impeached Williams' testimony with his
proffer statement and a stipulation of facts in support of the guilty plea, which both
detailed his participation in the conspiracy. The government, in rebuttal, presented
the testimony of the attorney who had represented Williams during the plea
negotiations and agreement. The attorney testified that to his knowledge the AUSA
did not tell Williams to lie and did not, and could not, promise a particular sentence
in exchange for the plea. On redirect, the attorney stated that after the plea sentencing
had been delayed because the AUSA believed that Williams had not been entirely
truthful in his proffer.

DISCUSSION

       On appeal, Williams alleges errors relating to the joinder of the conspiracy and
escape counts, admission of evidence, and the government's closing argument.
However, he concedes that his allegations of error are subject to plain error review.
To establish plain error, Williams has to show an obvious error that affected his
substantial rights. United States v. Campa-Fabela, 210 F.3d 837, 840 (8th Cir. 2000),
cert. denied, 532 U.S. 1010 (2001). Moreover, "we reverse for plain error only where
the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings." Id.



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       As to the joinder of the counts, there was no error, much less plain error.
Contrary to Williams argument, the joinder did not prejudice his defense to the escape
charge. Williams did not, and could not, show "a well-grounded fear of immediate
death or serious injury and no opportunity to avoid the threatened harm other than the
commission of the act, in this case, escape from custody." United States v. J.L.K., Jr.,
880 F.2d 993, 995 (8th Cir. 1989) (per curiam). His failure to report the alleged
threats to his life to anyone except his mother "refute[s] his theory of defense that he
faced an actual and immediate threat to his life or safety and had no choice but to
escape." Id.

        Nor does Williams show prejudice as to the conspiracy charge. Williams
admits that evidence of the fact of the escape would have been admissible to show
consciousness of guilt in a separate trial on the conspiracy charge. However, he
argues that he was prejudiced by the joinder because, in order to explain his motive
for the escape, he had to open the door to evidence of his withdrawn guilty plea.
Williams has mischaracterized his trial strategy. He did not introduce evidence of the
guilty plea solely to offer a defense to his escape charge. Indeed, Williams' counsel
did not even mention that reason in explaining to the district court why he was going
to tell the jury about the withdrawn guilty plea. Counsel told the court he was doing
so to cast doubt on Howard's credibility. Although, as Williams notes, Fed. R. Crim.
P. 11(e)(6) and Fed. R. Evid. 410 provide that evidence of a withdrawn plea
agreement and statements made during plea negotiations are generally inadmissible
in a criminal proceeding against a defendant, a defendant may waive, as Williams did,
the protection offered by the rules. See United States v. Swick, 262 F.3d 684, 686 (8th
Cir. 2001) (citing United States v. Mezzanatto, 513 U.S. 196, 210 (1995)).

      Likewise, there was no plain error in the government's cross-examination of
Williams concerning his proffer statement and plea stipulation. The proffer statement
expressly provided that, in the event that Williams testified at a trial and offered
testimony different from his proffer statement, "the Government may cross-examine

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him concerning any statements made or other information provided during the
[proffer] interview." Appellant's Addendum at 9. See Swick, 262 F.3d at 686
(holding plea agreement waived plea statement rules); United States v. Young, 223
F.3d 905, 909-910 (8th Cir. 2000), cert. denied, 531 U.S. 1168 (2001) (same).

       We also reject Williams' plain error arguments concerning admission of bad
acts evidence under Fed. R. Evid. 404(b), the district court's instructions concerning
such evidence, and the government's closing argument. As to the closing argument,
we note that although there may have been no evidence that Williams and Howard
had gotten the "girls hooked" on drugs, given the overwhelming evidence of guilt,
Williams has failed to produce prejudice. Although Williams suggests substantial
evidence did not support the verdict because his co-defendants' testimony was not
credible, it was for the jury to assess it, not this court. We also reject Williams'
argument that cumulative errors deprived him of a fair trial.

      Accordingly, we affirm.

      A true copy.

            Attest:

               CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT




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