UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4249

JIMMY SCURRY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-95-409)

Submitted: March 31, 1997

Decided: August 7, 1997

Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Jan S. Strifling, Columbia, South Carolina, for Appellant. J. Rene
Josey, United States Attorney, Mark C. Moore, Assistant United
States Attorney, Columbia, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Jimmy Scurry was found guilty by a jury of one count of conspir-
acy to possess with intent to distribute heroin, three counts of posses-
sion with intent to distribute heroin, and one count of possession of
heroin, in violation of 21 U.S.C. §§ 846, 841(a)(1), 844 (1994)
respectively. He timely appeals his convictions and sentences and
alleges that the district court erred by: (1) denying his Batson chal-
lenges; (2) admitting heroin into evidence that was obtained without
probable cause and by choking; (3) allowing the jury to use tran-
scripts when listening to the prosecution's audiotapes of controlled
buys; (4) denying his request to conduct a demonstration, in front of
the jury, where Scurry would hide objects on his person and then see
if a government witness could find the hidden objects; and (5)
improperly attributing over 100 grams of heroin to him for sentencing
purposes. Because we find these claims to be without merit, we
affirm. We address Scurry's issues in order.

During voir dire, the Government used six of its seven peremptory
strikes against African Americans. Scurry, who is black, challenged
the Government's strikes at trial alleging that they were made because
of race in violation of Batson v. Kentucky, 476 U.S. 79 (1986). We
do not find that the trial court clearly erred in denying Scurry's
Batson challenge. The Government provided race neutral reasons for
each of its strikes, see Hernandez v. New York , 500 U.S. 352, 358-59
(1991) (plurality opinion); Batson, 476 U.S. at 97, and Scurry ulti-
mately failed to show purposeful discrimination by the Government.
See Purkett v. Elem, 115 S. Ct. 1769, 1771 (1995) (holding that the
burden of persuasion to demonstrate purposeful discrimination ulti-
mately rests with the opponent of the strike).

Second, Scurry alleges that because police obtained a small amount
of heroin from him without probable cause and by choking him, the
district court should have granted his motion to suppress the heroin
as evidence. We review a district court's pure legal findings in deter-
mining whether to grant a motion to suppress de novo and the court's
pure factual findings for clear error. See United States v. Han, 74 F.3d
537, 540 (4th Cir.), cert. denied, 116 S. Ct. 1890 (1996). Mixed ques-

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tions of law and fact, however, are evaluated under a hybrid where
the appellate court reviews the trial court's ultimate conclusions de
novo, but in reaching its independent resolutions construes the evi-
dence in a manner most favorable to the government. Id. Probable
cause is defined as "facts and circumstances within the officer's
knowledge that are sufficient to warrant a prudent person . . . in
believing . . . that the suspect has committed, is committing, or is
about to commit an offense." United States v. Williams, 10 F.3d 1070,
1073-74 (4th Cir. 1993) (internal quotations and citations omitted).

Based upon the following uncontested evidence, however, the dis-
trict court found that police had probable cause to arrest Scurry and
seize the heroin from him: (1) police officers were searching a partic-
ular area in response to citizen complaints of drug sales; (2) Scurry
ran when he saw an officer approaching; (3) as Scurry moved away
from the first officer toward the second officer he placed a cellophane
bag into his mouth; (4) when questioned by the second officer Scurry
could only mumble, indicating he did have something in his mouth;
and (5) because Scurry refused to spit out the substance in his mouth,
one of the officers placed his hands around Scurry's neck until the
package came out of his mouth. Viewing the district's courts factual
findings and legal conclusions as required under Han, 74 F.3d at 540,
we find no error in the district court's decision to deny Scurry's
motion to suppress.

Third, Scurry alleges that the district court erred in allowing the
jury to use transcripts during the playing of the Government's audi-
otapes of alleged drug purchases. A trial court's decision to allow the
use of transcripts to aid in the presentation of tape-recorded evidence
is within the district court's sound discretion and overturned only for
an abuse of discretion. See United States v. Capers, 61 F.3d 1100,
1107 (4th Cir. 1995), cert. denied, 116 S. Ct. 1830 (1996). Like the
defendant in Capers, Scurry's counsel had the opportunity to explore
through cross-examination any inaccuracies in the transcripts, includ-
ing inaccuracies with respect to the identification of speakers on the
tapes. Id. Also, the court gave an appropriate limiting instruction,
explaining that only the tapes constituted evidence and the transcripts
were merely an aid--therefore any prejudice caused by inaccuracies
of the transcripts was cured by the court's limiting instruction. See
United States v. Collazo, 732 F.2d 1200, 1203 (4th Cir. 1984) (finding

                    3
that cautionary instructions cured prejudice that may have resulted
from discrepancies between tape and transcript). Thus we do not find
that the district court abused its discretion in allowing use of the tran-
scripts.

Fourth, Scurry alleges the district court abused its discretion by
denying him the opportunity to secrete several dummy packets of her-
oin on his person and then have a government agent attempt to find
the packets. Scurry wished to conduct such a demonstration in an
effort to show that persons participating with the Government in con-
trolled buys from him, may have been able to hide heroin on them-
selves and then falsely claim they bought it from him. As a general
rule, the district court has wide discretion to admit evidence of experi-
ments conducted under substantially similar conditions. See Barnes v.
General Motors Corp., 547 F.2d 275, 277 (5th Cir. 1977). The burden
is on the party offering a courtroom demonstration or experiment to
lay a proper foundation establishing a similarity of circumstances and
conditions. See United States v. Gaskell, 985 F.2d 1056, 1060 (11th
Cir. 1993). Although the conditions of the demonstration need not be
identical to the event at issue, "they must be so nearly the same in
substantial particulars as to afford a fair comparison in respect to the
particular issue to which the test is directed." Id.

We do not find the district court abused its discretion in denying
Scurry's motion to conduct this demonstration. The district court
denied the motion for several reasons: (1) the test would at most show
what the jury already knew, e.g. items can be missed in a search; (2)
the test could not duplicate the actual searches of the Government's
cooperating witnesses because of the different clothes they wore and
how tightly their clothes fit; and (3) the test created the risk of Scurry
being subjected to a strip search in front of the jury which the court
would not allow.1 Also, Scurry provided the court with no grounds to
suspect that the cooperating witnesses had attempted to set him up.
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1 Although not expressly stated by the trial court, it appears that the
court determined the probative value of a strip search would be out-
weighed by the risk of unfair prejudice to the Government under Fed. R.
Evid. 403.

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Fifth, Scurry contends that the district court erred by attributing
100 grams of heroin to him for purposes of sentencing under the
guidelines.2 We do not find that the court clearly erred in determining
the quantity of drug for which Scurry was responsible. See 18 U.S.C.
§ 3742(e) (sentencing court's factual finding on drug amounts over-
turned only for clear error); United States v. Fletcher, 74 F.3d 49, 55
(4th Cir.) (same), cert. denied, 117 S. Ct. 157 (1996). Based upon tes-
timony from the trial, the Government proved by a preponderance of
the evidence, see United States v. Goff, 907 F.2d 1441, 1444 (4th Cir.
1990), that Scurry distributed over 100 grams of heroin. Because the
Government's witness testified in his capacity as a fellow drug dealer
(using the same supplier) and later as Scurry's direct supplier, we find
that the information on which the court relied had a"sufficient indicia
of reliability to support its probable accuracy." United States v.
Uwaeme, 975 F.2d 1016, 1021 (4th Cir. 1992) (quoting USSG
§ 6A1.3(a), p.s.).

Accordingly, because we find no merit in the issues raised by
Scurry, we affirm his convictions and sentences. We dispense 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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2 United States Sentencing Commission, Guidelines Manual (Nov.
1995).

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