                  UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT


                          __________________

                              No. 92-7435
                           Summary Calendar
                          __________________



     UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

                                versus

     FRANKIE B. WILLIAMS,

                                           Defendant-Appellant.

         ______________________________________________

      Appeal from the United States District Court for the
                Northern District of Mississippi
         ______________________________________________
                          June 4, 1993
                      (                  )


Before GARWOOD, JONES and EMILIO M. GARZA, Circuit Judges.

GARWOOD, Circuit Judge:

     Appellant, Frankie B. Williams (Williams), was convicted of

one count of making false declarations before a grand jury in

violation of 18 U.S.C. § 1623.           The district court sentenced

Williams to a term of imprisonment of twelve months, a three-year

term of supervised release, and imposed a $3000 fine and a $50

assessment.   Williams now appeals her conviction.

                    Facts and Proceedings Below

     During 1991, the federal grand jury for the Northern District

of Mississippi was engaged in an investigation of a drug conspiracy

involving the Rodgerick Williams drug organization (Organization)
based in Greenville, Mississippi.               The grand jury heard testimony

that the Organization supplied over sixty-five pounds of cocaine to

Connie Green (Green) who distributed it in the Lake Village,

Arkansas area with the assistance of Williams and her daughter

Audrey Williams, who were both residents of Lake Village, Arkansas.

Testimony further established that after Green was incarcerated,

Williams    and   her    daughter     took       over     the    drug   distribution

operation.

     Having been identified as a co-conspirator with knowledge of

the Organization, Williams was subpoenaed to appear in Oxford,

Mississippi before the federal grand jury.                      Williams was served

with the subpoena on October 3, 1991, and an attachment to the

subpoena advised Williams of her rights before the grand jury,

including her right to counsel.                On October 18, 1991, Williams

testified    before     the   grand   jury.          At    the    beginning    of   her

testimony, Assistant United States Attorney Charles W. Spillers

(Spillers)    informed        her   that       she   was    the     subject    of   an

investigation, that she did not have to answer any questions or

make any statements if the answer might tend to incriminate her,

and that she could be prosecuted for perjury for knowingly making

false statements.       Williams acknowledged that she understood her

rights.    Spillers questioned Williams about Al Jackson (Jackson),

a major leader in the Organization and one of the principal targets

of the investigation.         She denied that Jackson had ever given her

cocaine or arranged for cocaine to be delivered to her.                       She also




                                           2
denied that she had ever distributed cocaine.1    At the conclusion


1
     The specific parts of her testimony that served as the basis
for her indictment were:

     "Q.    Have you ever sold cocaine?

     A.     No.

     Q.   Have you ever distributed or given anyone any
     cocaine?

     A.     (Witness shakes haed [sic] in the negative.)

     Q.     Ma'am?

     A.     No.

     Q.     Have you ever used cocaine?

     A.     No, sir.

     . . . .

     Q.   When you were living in a mobile home or house did
     you or anyone else sell cocaine out of that residence
     on April 21, 1990 at about 6:25 p.m., ma'am?

     A.     I didn't.

     Q.     Well, did anyone else that you know of?

     A.   Well, looking I can't say what went on.     I don't
     be home all the time.

     Q.   I am not asking you what you don't know. I am
     asking you whether you know if anybody else did?

     A.     No, no, no.

     Q.   On June 9, 1990 at about 11:40 p.m., did you or
     your daughter or anyone else sell cocaine out of your
     residence in the 400 block of Lee Street?

     A.     What for?   I don't be at home that time of night.

     Q.     Your answer is no?

     A.    No.

     . . . .


                                   3
of her testimony, Williams was given an opportunity to avoid

prosecution for perjury by amending or correcting her testimony,

but she declined to do so.

     Prior to Williams's grand jury appearance, she and others had

been the targets of an investigation by the Southeast Arkansas

Regional Drug Task Force of the Federal Bureau of Investigation,

and the Arkansas State Police.    On October 2, 1991, an Arkansas

bill of information was filed with, and a bench warrant issued by,

the Circuit Court of Chicot, Arkansas for the arrest of Williams on

four counts of delivery of a controlled substance contrary to

Arkansas law. Williams was not arrested or served with the warrant

or the information until October 24, 1991.

     Williams was indicted on December 12, 1991, for knowingly

making a false material declaration in front of a federal grand

jury in violation of 18 U.S.C. § 1623.       Prior to trial, the

district court denied Williams's motions to quash the grand jury



     Q.   On or about September 25, 1990, at about 11:04
     p.m., did you or your daughter or anyone else sell
     cocaine from your residence on Lee Street?

     A.   No.

     Q.   Ma'am?

     A.   No.

     Q.   Is it your sworn testimony under oath today that
     neither you nor your daughter sold cocaine on any of
     the dates I asked you about?

     A.   Well, I can testify for myself.

     Q.   That you didn't?

     A.   I didn't."

                                 4
indictment and to suppress evidence as being obtained in violation

of her Sixth Amendment right to counsel.                 The trial was conducted

on March 2 and 3, 1992, during which the prosecution presented

evidence of the materiality of Williams's statements                  through the

testimony of, among others, the foreman of the grand jury, Charles

Frederick (Frederick), and Spillers.              Frederick testified that the

grand   jury    was   investigating       the   Organization     in   Greenville,

Mississippi, that Williams had been identified as being associated

with the Organization, and that the grand jury wanted to determine

which members of the Organization were supplying Williams with

cocaine.     Frederick further testified that he did not think that

Williams's     testimonySQwhereby         she   denied    any   involvement   with

cocaineSQinfluenced         the   grand    jury    investigation.        Spillers

testified that other grand jury witnesses had indicated that

Williams had associated with two major figures in the Organization,

Danny Williams and Jackson.           Spillers explained that if Williams

had admitted selling cocaine, then she could be asked to identify

her drug sources and may have been able to serve as another witness

in the criminal case against Danny Williams, Jackson, and other

members of the Organization.

     At    trial,     the   defense   during      cross-examination      elicited

testimony from Clarence Cunningham, a prosecution witness, that he

had been subpoenaed by the government, had been told that he had to

go to court, and that he was scared not to because of threats to

his life.      On redirect, the government asked if he knew where the

threats came from.          Cunningham responded that he was threatened

over the telephone and that he could not identify the voice.                   The

                                          5
defense moved to strike the answer as being hearsay and because

Cunningham could not authenticate the telephone conversation.   The

district court overruled the objection.

       Williams was found guilty of the one charge of perjury.

Subsequently, the district court denied Williams's motions in

arrest of judgment and for judgment of acquittal notwithstanding

the verdict of the jury.       The district court then sentenced

Williams to a term of imprisonment of twelve months, a three-year

term of supervised release, and imposed a $3000 fine and a $50

assessment.   Williams now appeals her conviction.

                             Discussion

I.   The Grand Jury's Jurisdiction

       Williams first argues that her perjury conviction must be

reversed because the grand jury exceeded its jurisdictional and

investigatory authority by making inquiries into her activities in

Arkansas. This argument was raised before this Court by Williams's

daughter and was rejected.   United States v. Williams, No. 92-7524

(5th Cir. March 4, 1993) (unpublished).   Williams points out that

a false statement made before a grand jury acting beyond its

authority is not perjury.    Brown v. United States, 245 F.2d 549,

554-55 (8th Cir. 1957).   However, as noted by the Williams panel,

in the Brown case the appellant was convicted in Nebraska for

perjury before the Nebraska grand jury concerning false statements

he made regarding activities in Missouri.   Under the facts there,

the testimony was irrelevant to possible indictment of anyone for

an offense committed, in whole or in part, in Nebraska.     Id. at

554.   Here, "[t]he foreman of the grand jury connected Williams's

                                 6
appearance in front of the grand jury to the investigation of the

Mississippi-based Rod Williams Organization, and established that

the scope of the grand jury's investigation included activities in

Mississippi as well as Arkansas."           Williams, slip op. at 7.        A

grand jury's investigation into a conspiracy is not limited to the

district where the grand jury is located.         See Matter of Grand Jury

Proceedings: Marc Rich & Co., A. G. v. United States, 707 F.2d 663,

667 (2nd Cir.), cert. denied, 103 S.Ct. 3555 (1983); United States

v. Antill, 601 F.2d 1049, 1050-51 (9th Cir. 1979); United States v.

Phillips, 540 F.2d 319, 328 (8th Cir.), cert denied, 97 S.Ct. 530

(1976); United States v. Girgenti, 197 F.2d 218, 219 (3rd Cir.

1952).     Since the foreman had sufficiently established that the

grand jury in its questioning of Williams was investigating a drug

conspiracy that took place partially in Mississippi, jurisdiction

was proper.

II.   Materiality

      In   a   similar   vein,   Williams   argues   that   her   grand   jury

testimony concerning her activities in Arkansas was immaterial to

the grand jury's investigation in Mississippi and therefore her

perjury conviction must be reversed.           To convict for perjury the

government must prove that statements made by the defendant were

false, material, and not believed by the defendant to be true.

United States v. Abroms, 947 F.2d 1241, 1245 (5th Cir. 1991).

Materiality is a legal issue that is decided by the district court

and is reviewed on appeal de novo.             Id. at 1246.   The test for

materiality     is   "'whether   the   false    testimony   was   capable   of

influencing the tribunal on the issue before it.'"            United States

                                       7
v. Salinas, 923 F.2d 339, 341 (5th Cir. 1991) (emphasis in Salinas)

(quoting United States v. Giarratano, 622 F.2d 153, 156 (5th Cir.

1980)).   Materiality need not be proved beyond a reasonable doubt.

Abroms, 947 F.2d at 1246-47.

     Williams argues that the false statements were not material to

the grand jury investigation because they related only to Arkansas.

She offers as proof of this assertion the testimony of grand jury

foreman Frederick who stated that he did not think that Williams's

false answers influenced the grand jury's investigation.2 However,

he also testified that Williams had been identified to the grand

jury as   being    associated   with       the   Organization   and   that   the

questions asked of Williams concerning whether she sold drugs were

important because "we wanted to get to the bottom of the drug

organization or get to the source of where the drugs were coming

from that was being dispensed."          Frederick further testified that

the grand jury was interested specifically in Williams's testimony

as to whom she was receiving the cocaine from; and if she had

admitted to sales of cocaine the grand jury would have been

interested in her sources.

     False statements "need not be material to any particular

issue, but   may    be   material   to     collateral   matters   that   might

influence the court or the jury in the decision of the questions

before the tribunal."     United States v. Damato, 554 F.2d 1371, 1373


2
     Williams also points out that the grand jury indictment
against her did not state why or how her false statements were
material to the investigation. However, this Court is not
limited to considering the grand jury's indictment in order to
prove the scope of the investigation and thereby the materiality
of the witness's statements. Abroms, 947 F.2d at 1248.

                                       8
(5th Cir. 1977).3    Here, if Williams had answered truthfully

concerning whether she distributed cocaine, then the grand jury

would have been able to ask more pertinent questions concerning

from whom Williams (who had been identified to the grand jury as

associated with the Organization) had received the cocaine; and if

someone in the Organization was a source for her cocaine, her

knowledge of the Organization itself.     This testimony had the

legitimate potential to lead to further evidence concerning the

known targets of the investigation and possible other persons that

the grand jury was not yet aware of.4    In light of the lawfully

broad scope of this investigation, Williams's testimony was capable

of influencing the grand jury.




3
     It is not determinative that Frederick testified that he did
not think the grand jury was influenced by Williams's testimony.
As this Court has recognized, "the false statement need not
actually affect the tribunal's decision; it need only be capable
of affecting the tribunal's decision." Salinas, 923 F.2d at 341.
4
     As noted by the Williams panel:

          "A transcript of Williams's statements in front of
     the grand jury and the foreman's testimony that the
     grand jury's objective was to investigate the Rod
     Williams Organization is . . . sufficient to
     demonstrate materiality. The foreman explained that
     the grand jury received information indicating that
     Williams's source was the Rod Williams Organization.
     In the context of the investigation of the Rod Williams
     Organization it is clear that truthful answers might
     have allowed the grand jury to ask more probing
     questions about Williams's knowledge of the Rod
     Williams Organization and the source of her drugs.
     Truthful answers to these questions might have enabled
     the grand jury to carry out its charge more
     efficiently, effectively, and extensively." Williams,
     slip op. at 6.

                                 9
III.    Sixth Amendment Right to Counsel

       Williams contends that she was questioned by the grand jury in

violation of her Sixth Amendment right to counsel because Spillers

did not tell her prior to her grand jury testimony of her right to

counsel, nor did he mention the possibility of use immunity for her

testimony.5     She argues that Spillers was required to make such

statements because a prior bill of information charging a violation

of Arkansas law had been filed against her, so that her Sixth

Amendment right to counsel had attached and her interrogation by

the grand jury was in violation of that right.

       The   right   to   counsel   attaches   upon    the   "initiation   of

adversary judicial criminal proceedings."             Kirby v. Illinois, 92

S.Ct. 1877, 1882 (1972); Daigre v. Maggio, 705 F.2d 786, 788 (5th

Cir. 1983).     This Court has explained that the Kirby court viewed

the initiation of such proceedings to occur "'whether by way of

formal charge, preliminary hearing, indictment, information, or

arraignment.'" Daigre, 705 F.2d at 788 (quoting Kirby, 92 S.Ct. at

1882).   A bill of information was filed in Arkansas state court on

October 2, 1991, accusing Williams of two separate counts of



5
     An attachment to the Subpoena that Williams received stated
that "[y]ou may consult with an attorney before testifying; you
may have an attorney outside the jury room, and if you desire,
you will be afforded a reasonable opportunity to step outside the
grand jury room to consult with an attorney before answering any
question." It also informed her that she was "a suspect in [the]
investigation," and that "you will be expected to answer all
questions asked of you, except to the extent that a truthful
answer to a question would tend to incriminate you." Spillers
also informed her at the beginning of her testimony, "you are the
subject of an investigation, and that if you . . . are asked any
question for which the answer may tend to incriminate you then
you need not answer."

                                      10
delivery of a controlled substance in violation of Arkansas law.6

The filing of the bill of information in the Arkansas state court

certainly triggered her right to counsel in the Arkansas state

court proceedings.      Kirby, supra.    However, this filing did not

trigger her right to counsel concerning her October 18, 1991

appearance before the federal grand jury in Mississippi.

     The   initiation   of   adversary   criminal   proceedings   for    an

offense causes the Sixth Amendment right to counsel to attach for

that offense.    United States v. Carpenter, 963 F.2d 736, 739 (5th

Cir. 1992) (noting that "the Sixth Amendment only applies to the

specific offense with which the suspect has been charged").             Only

under extremely narrow circumstances will the Sixth Amendment right

to counsel also attach to other offenses.           Id. at 740; United

States v. Cooper, 949 F.2d 737 (5th Cir. 1991), cert. denied, 112

S.Ct. 2945 (1992).      In Cooper, the defendant        was arrested and

charged for the state offense of robbery, and his car seized as an

instrument in the crime. An inventory search of the car's contents

revealed a sawed-off shotgun in the trunk.       After counsel had been

appointed for the defendant in the state case, a federal agent

questioned him about both the sawed-off shotgun and the state

offense.    He   was   subsequently   charged   under   federal   law    for

unlawful possession of an unregistered weapon, the shotgun.             The

defendant's statements in the interview with the federal agent


6
     Williams was asked about the underlying facts concerning
these two counts during her Mississippi grand jury appearance on
October 18, 1991. Her false answers concerning these facts
served as a partial basis for her perjury indictment. However,
there is no evidence that the grand jury was aware of the prior
bill of information filed in Arkansas.

                                   11
concerning the shotgun, but not the state offense, were used in his

federal trial (but not in his state trial).            The defendant argued

that all of his statements to the federal agent should have been

suppressed    because    the   federal    offense   was    so   "inextricably

intertwined" with the state offense that his right to counsel for

the state charge also attached to the federal offense.            Id. at 743.

We acknowledged that the Sixth Amendment right to counsel might

well attach to a charge that "was extremely closely related to

pending . . . charges," at least where the charges concerned "the

same" type of crime, "victim, residence, time span, and sovereign."

Id. at 744 (emphasis added).        However, such was not the case in

Cooper, because "the federal and state crimes concern different

conduct,     although,    efficiently      for   the      governments,   both

prosecutions could use much of the same evidence."              Id.7

     Here, Williams was also charged with two different offenses:

distributing a controlled substance and perjury.                Williams was

never charged by the federal authorities for her part in the drug

conspiracy, but only for perjuring herself before the grand jury.

These charges, brought by different sovereigns and concerning


7
     We also held in Cooper that the defendant's Sixth Amendment
right to counsel in the federal trial was not violated because
"[e]ven assuming the federal agent erred when he questioned
Cooper about the state offense, that error is harmless because,
as the government points out, it never introduced the statement"
concerning the state offense at the federal trial. Id. at 743.
The issue here is not whether Williams's grand jury testimony
could be used in the Arkansas state case where adversary
proceedings had commenced. And, there is no evidence that
federal charges have ever been initiated against Williams for the
drug transactions she was questioned about. Indeed, she made no
damaging admissions concerning drug offenses before the grand
jury since all of her answers denied culpability.


                                     12
different conduct, are not "extremely closely related." Williams's

Sixth Amendment right to counsel was not violated.

IV.   Hearsay Objection

      Finally, Williams argues that the district court erred when it

overruled    her   objection    to   prosecution-witness     Cunningham's

testimony that an unidentified voice he heard over the telephone

threatened to kill him if he testified.       Williams alleges that the

testimony was highly prejudicial hearsay and was not authenticated

in violation of the "voice identification" rule. In resolving this

point of error, we are mindful that our review of a trial court's

evidentiary rulings is "highly deferential," and this Court will

generally reverse such rulings only for an abuse of discretion.

United States v. Anderson, 933 F.2d 1261, 1267-68 (5th Cir. 1991).

      The complained of testimony was elicited in response to a

matter opened up by defense counsel.           On cross-examination of

Cunningham, Williams's counsel attempted to impeach his credibility

by showing that the government had subpoenaed him, and had told him

that he had to testify.         Cunningham also testified on cross-

examination that he was scared because his life was threatened.

Cunningham's testimony on cross-examination at least arguably left

the   impression   that   the   government   was   the   entity   that   had

threatened him.8    On redirect, the prosecutor elicited testimony


8
     Specifically, when asked by defense counsel about the
federal official who brought him the subpoena, Cunningham
testified:

      "Q.   What did he tell you about the subpoena?

      A.    He said I had to come to court.


                                     13
from Cunningham that he had been threatened over the phone and that

he could not identify who was making the threats.     Cunningham also

testified that the person said "I would be killed one way or

another, whether they had to burn my mother's house to get me out,

one way or another I would be terminated."

     Williams claims that Cunningham's statements describing the

caller's   threats   were   hearsay.   Hearsay   is   an   out-of-court

statement offered to prove the truth of the matter asserted.       FED.

R. EVID. 801(c).     Here, the government was not seeking to prove

whether the threats were true, but rather to show why Cunningham

feared for his life.     See United States v. Garza, 754 F.2d 1202,

1206 (5th Cir. 1985) (holding that "[t]he evidence was offered as

the fact of an assertion and not as assertion of a fact and was

therefore not hearsay").     Since the defense counsel had arguably

implied that Cunningham's testimony was unreliable because he had

been coerced by the government and was fearful, the government's

questioning had at least some relevance as rebutting the defense

counsel's implication by showing that Cunningham's state of mind

was not the result of government threats.9       Statements regarding


     Q.    You had to come to court?

     A.    Come to court because I am scared.

     Q.    You are scared?

     A.    Yes.

     Q.    Why you are scared?

     A.   Because I have been threatened. My life has been
     threatened and my family's life has been threatened."
9
     Williams did not object below on the ground that the

                                  14
existing state of mind are exceptions to the hearsay rule.       See

FED. R. EVID. 803(3); United States v. Taglione, 546 F.2d 194, 200-01

(5th Cir. 1977) (holding that a defendant's telephone conversation

with a third person was admissible under Rule 803(3) to establish

the defendant's state of mind concerning alleged threats made by

the defendant).

     Williams also claims that the statements of the caller should

have been excluded because they were not authenticated.      Federal

Rule of Evidence 901(a) does require that evidence of telephone

conversations be authenticated as a condition precedent to their

admission.   See FED. R. EVID. 901(b)(5); United States v. Scott, 678

F.2d 606, 611-12 (5th Cir.), cert. denied, 103 S.Ct. 304 (1982).

The Scott court noted that the government had "offered nothing to

identify the parties to the overheard [radio] communications." Id.

at 612.   However, "the radio communication evidence came in not to

prove the truth of the matter asserted . . . but to explain why the

Coast Guard undertook its investigation."      Id.   Similarly, the

telephone threats made to Cunningham came in not to prove the truth

of the threats (or as any kind of admission) but to explain why the

witness was fearful.     Therefore we conclude, as did the Scott

court, that "in view of the strength of the evidence against

[Williams] whose conviction we affirm, any error in admitting these


evidence should be excluded under FED. R. EVID. 403 because its
legitimate probative value was substantially outweighed by the
danger of unfair prejudice. Nor has that contention been raised
on appeal. The objection below was made solely in terms of
hearsay and authentication; there was no mention of prejudice or
Rule 403. See United States v. Martinez, 962 F.2d 1161, 1168 &
n.8 (5th Cir. 1992); United States v. Vitale, 596 F.2d 688, 689
(5th Cir. 1979).

                                 15
rather ambiguous transmissions was harmless."   Id.

                            Conclusion

     Williams has failed to show any reversible error was committed

by the district court below.   Accordingly her conviction is

                                                         AFFIRMED.




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