                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4296



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JERMAINE K. SMITH, a/k/a Smitty,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:04-cr-01046-DCN)


Submitted:   November 21, 2007            Decided:   January 9, 2008


Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Capers G. Barr, III, BARR, UNGER, & MCINTOSH, LLC, Charleston,
South Carolina, for Appellant. Robert Hayden Bickerton, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                 A jury convicted Jermaine K. Smith of conspiracy to

possess and distribute 50 grams or more of cocaine base and 5

kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841, 846

(2000); four counts of possession with intent to distribute and

distribution of cocaine base, in violation of 21 U.S.C. § 841; and

two counts of unlawful use of communication facilities in causing

and facilitating conspiracy to possess with intent to distribute

and distribution of cocaine base and cocaine, in violation of 21

U.S.C.       §    843(b)      (2000).        He   was       sentenced    to    240   months’

imprisonment. Smith appeals his conviction. Finding no reversible

error, we affirm.

                 Counsel has filed a brief and supplemental brief in

accordance         with       Anders   v.    California,        386    U.S.    738   (1967),

concluding         there       are   no    meritorious        issues    for    appeal,     but

questioning whether: (1) the district court erred in admitting

evidence under Fed. R. Evid. 404(b); (2) the district court erred

in    admitting         hearsay      statements        of   co-conspirators;         (3)   the

district court erred in instructing the jury that a single act may

be sufficient to draw a defendant within the scope of a conspiracy;

(4)    the       district      court      erred   in    admitting       redacted     proffer

statements         of     a    non-testifying      co-defendant;         (5)    Smith      was

illegally arrested without a warrant; (6) Smith’s convictions were

illegal because some of his co-defendants were permitted to plead


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guilty to lesser charges; (7) Smith’s convictions were illegal

because they were based on evidence of intercepted telephone calls

and testimony of co-defendants; and (8) Smith’s convictions were

illegal because of improprieties before the grand jury.       Smith has

submitted a pro se supplemental brief.    The Government has elected

not to file a responsive brief.



I.   Admission of Fed. R. Evid. 404(b) Evidence

           Counsel first questions whether admission of evidence

under Federal Rule of Evidence 404(b) was proper.           We review a

district court’s determination of the admissibility of evidence

under 404(b) for abuse of discretion.    See United States v. Queen,

132 F.3d 991, 995 (4th Cir. 1997).    Evidence of other crimes is not

admissible to prove bad character or criminal propensity.       Fed. R.

Evid. 404(b).    Such evidence is admissible, however, to prove

“motive,   opportunity,   intent,    preparation,   plan,    knowledge,

identity, or absence of mistake or accident.”          Fed. R. Evid.

404(b); see Queen, 132 F.3d at 994.      Rule 404(b) is an inclusive

rule, allowing evidence of other crimes or acts except that which

tends to prove only criminal disposition.     See Queen, 132 F.3d at

994-95; United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir.

1988).

           Evidence of prior acts is admissible under Rules 404(b)

and 403 if the evidence is: (1) relevant to an issue other than the


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general   character   of   the    defendant,   (2)   necessary,   and   (3)

reliable, and (4) if the probative value of the evidence is not

substantially outweighed by its prejudicial effect.           Queen, 132

F.3d at 997.   A limiting jury instruction explaining the purpose

for admitting evidence of prior acts and advance notice of the

intent to introduce evidence of prior acts provide additional

protection to defendants.        Id.

           The Government filed a notice of intent to use evidence

pursuant to Rule 404(b).          The evidence was necessary to prove

intent, plan, knowledge, and absence of mistake on Smith’s part in

participating in the conspiracy. Smith was not unfairly prejudiced

because the convictions involved the same type of drug and the

conduct occurred during the same time period and at the same

location as the offenses charged in the indictment.           See United

States v. Boyd, 53 F.3d 631, 637 (4th Cir. 1995) (holding there is

no unfair prejudice when the prior act is no more sensational or

disturbing than the crimes with which the defendant was charged).

The district court conducted a balancing analysis under Fed. R.

Evid. 403 and gave the jury a limiting instruction.          We conclude

the district court did not abuse its discretion in admitting the

prior acts evidence.




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II.   Admission of statements of co-conspirators

            Counsel questions whether the district court erred in

admitting    testimony     of     a    co-conspirator,    Steven     Dantzler,

concerning conversations between him and Smith, and him and other

co-conspirators.   The court reviews evidentiary rulings under Fed.

R. Evid. 801(d)(2)(E) for an abuse of discretion.                   See United

States v. Blevins, 960 F.2d 1252, 1255-56 (4th Cir. 1992).                   A

statement is not hearsay if it is offered against the defendant and

is a statement by a co-conspirator of the defendant during the

course of and in furtherance of the conspiracy.                  Fed. R. Evid.

801(d)(2)(E). We find Dantzler’s testimony was not hearsay because

the   statements    were        made    by     co-conspirators    under   Rule

801(d)(2)(E).



III. Jury Instruction

            Counsel asserts the district court erred in instructing

the jury that “even a single act may be sufficient to draw a

defendant within the scope of the conspiracy.”             The content of a

jury instruction is reviewed for an abuse of discretion.                   See

United States v. Burgos, 55 F.3d 933, 935 (4th Cir. 1995). “[A

defendant] may become a member of the conspiracy without full

knowledge of all of its details, but if he joins the conspiracy

with an understanding of the unlawful nature thereof and willfully

joins in the plan on one occasion, it is sufficient to convict him


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of conspiracy, even though he had not participated before and even

though he played only a minor part.” United States v. Roberts, 881

F.2d 95, 101 (4th Cir. 1989) (emphasis added).             We find the court

did not abuse its discretion in its instruction to the jury that a

single act can be enough to establish a defendant was part of the

conspiracy.



IV.   Admission of Non-Testifying Co-Defendant’s Statements

            Counsel next questions whether the admission of a non-

testifying co-defendant’s proffer statements would violate Smith’s

right of confrontation under Bruton v. United States, 391 U.S. 123

(1968).   Under Bruton, admission of a statement of a nontestifying

co-defendant is prohibited “if it could be fairly understood to

incriminate the accused.”      United States v. Campbell, 935 F.2d 39,

43 (4th Cir. 1991).       However, if the statement is redacted to

eliminate   any    reference   to   the     defendant,     the   statement   is

admissible.    See Richardson v. Marsh, 481 U.S. 200, 211 (1987).

            Here, all identification of Smith was redacted from the

proffer statement evidence and it could not be fairly understood to

incriminate Smith.      We conclude the district court did not abuse

its   discretion   in   allowing    evidence    of   the    redacted   proffer

statements.




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V.     Warrantless Arrest

            The grand jury indicted Smith, a warrant for his arrest

was issued the same day, and he was arrested and arraigned days

later.    Thus, his arrest was not warrantless and any such claim is

without merit.



VI.    Selective Prosecution

            Counsel asserts and Smith reasserts in his pro se brief

that     Smith’s    convictions        were     illegal   based     on   selective

prosecution because some of his co-defendants were allowed to plead

guilty to lesser charges.           So long as there is probable cause to

believe the accused committed a criminal offense, the decision to

prosecute is within the prosecutor’s discretion as long as it is

not tainted by an unconstitutional motive.                See United States v.

Armstrong,    517    U.S.    456,      464    (1996).     Because    there    is    a

presumption the prosecutor used his discretion appropriately, the

defendant must present clear evidence to the contrary.                       Id. at

464-65.     We find no clear evidence in the record of disparate

treatment of Smith in relation to the charges against him or his

convictions.



VII. Remaining Anders and Pro Se Claims

            We find no support in the record for the challenge to

Smith’s    convictions      on   the    grounds    that   they    were   based     on


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intercepted telephone calls and testimony of co-defendants nor his

claim of improprieties before the grand jury.

             Smith argues in his pro se supplemental brief that the

district court erred in denying his co-defendants Horace Campbell’s

and Joseph Campbell’s motion to suppress evidence elicited from

wiretaps.     We find this claim meritless.              The claim was raised by

the Campbells in their direct appeal and this court found the

motions to suppress were properly denied.                   See United States v.

Campbell,     2007     WL     1600494,     *1     (4th    Cir.    June       4,   2007)

(unpublished).

             In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.     We therefore affirm the district court’s judgment.                      This

court requires that counsel inform his client, in writing, of his

right to petition the Supreme Court of the United States for

further review.       If the client requests that a petition be filed,

but counsel believes that such a petition would be frivolous, then

counsel   may   move    in     this    court     for   leave     to   withdraw      from

representation.       Counsel’s motion must state that a copy thereof

was served on the client.         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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