UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                       No. 94-5741
JAMES SMITH, a/k/a Shorty Stupid,
a/k/a Little Rock,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                     No. 94-5742

MITCHELL VAN HORNE, a/k/a Twin,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                       No. 94-5762
RAYNALDO BRANDON, a/k/a Nardo,
a/k/a Naldo,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-94-141-A)

Argued: November 3, 1995

Decided: March 1, 1996
Before ERVIN, WILKINS, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Frank Salvato, Alexandria, Virginia, for Appellant Bran-
don; Suzanne Little, Alexandria, Virginia, for Appellant Van Horne;
Joseph John McCarthy, DELANEY, MCCARTHY, COLTON &
BOTZIN, Alexandria, Virginia, for Appellant Smith. Andrew Gerald
McBride, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
ON BRIEF: Alan Yamamoto, Alexandria, Virginia, for Appellant
Van Horne. Helen F. Fahey, United States Attorney, Michael E. Rich,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellants James Smith, Mitchell Van Horne and Raynaldo Bran-
don, together with Rodney Blanton, were charged in a seven count
indictment with conspiracy to murder under 18 U.S.C.§ 1117 (Count
1), aiding and abetting murder under §§ 1111, 1112 (Count 2), pos-
session of contraband under § 13, assimilating Va. Code § 53.1-
203(4) (Counts 3 and 4),1 and witness tampering under§ 1512(b)
_________________________________________________________________
1 Only Smith and Brandon, respectively, were charged with Counts 3
and 4.

                    2
(Counts 5 and 6).2 The indictments arose out of the April 21, 1993,
prison murder of Rory Randolph, an inmate at the medium security
facility of the Lorton Correctional Complex. All three appellants were
convicted by a jury and received life sentences; co-defendant Blanton
was acquitted of all charges against him.

The evidence introduced at trial showed that Randolph may have
owed a drug debt that Smith was attempting to collect. Randolph gave
Smith cigarettes and sodas as "payments" on the debt, but finally quit
making the "payments" because the debt was owed not to Smith, but
to the drug supplier for whom Smith and Randolph allegedly had
been distributors prior to their incarceration.

The evidence further showed that, on April 21, at about 6:45 p.m.,
a few days after Randolph told Smith that he was not going to make
any more payments, Blanton approached Randolph in the T.V. room
at the prison and asked him to step outside. Once outside, Van Horne
grabbed Randolph from behind in a choke hold, and Smith and Bran-
don approached Randolph and started stabbing him. Randolph stum-
bled back into the T.V. room, bleeding, and eventually died from his
wounds. The pathologist who performed the autopsy testified that the
two principal stab wounds, one in the head and one in the chest, were
inflicted by different instruments.

Witnesses to the incident included Leslie Perkins, who was later
warned not to testify by Van Horne and Blanton on two different
occasions. The government also offered a witness, Walter Harris, who
relayed incriminating statements made by Smith while he and Smith
were incarcerated together awaiting trial, and who also stated that
both Smith and Van Horne threatened him after he met with the FBI
concerning the statements.

The defense theory of the case was initially that Smith, Van Horne,
and Brandon were all at an Arabic class at the time of the stabbing,
as evidenced by an attendance sheet which all three had signed. At
trial, however, Smith recanted the alibi and claimed self-defense. He
_________________________________________________________________
2 Only Smith and Van Horne, respectively, were charged with Counts
5 and 6. Count 7 was apparently a count of witness tampering brought
against Blanton.

                    3
testified that he was attacked by Randolph, who had a knife, and that,
after Randolph dropped the knife, he (Smith) picked it up and stabbed
Randolph in self-defense. Smith testified that, after the stabbing, he
ran away in fear, threw the knife in a dumpster, went and got Bran-
don, and that the two walked over to the prison academic building,
where they signed the Arabic class attendance sheet, and then went
to the prayer trailer after the class. The defense also put on a witness
who testified that Van Horne was at the Arabic class at the time of
the stabbing, and another witness who testified that Brandon was
"stoned" and watching a movie the entire evening.

Appellants raise seven claims of trial error which in their view war-
rant dismissal or remand for a new trial. We affirm the convictions
on all counts.

I.

Appellants make three challenges to the trial court's voir dire, chal-
lenges which are not only meritless, but which border on frivolous.

First, appellants argue that the trial court abused its discretion in
refusing to send a lengthy defense-prepared questionnaire to prospec-
tive jurors and in refusing to ask a number of defense-requested ques-
tions at the voir dire itself. Relying on our opinion in United States
v. Evans, 917 F.2d 800 (4th Cir. 1990), appellants argue that they
were thereby denied the opportunity to intelligently exercise their
peremptory challenges. Unlike the voir dire at issue in Evans, how-
ever, id. at 805, the voir dire conducted in this case was extensive;
it included the submission of the court's own questionnaire to pro-
spective jurors (the results of which were made available to counsel),
questions aimed at uncovering racial or religious bias, and questions
aimed at uncovering bias in favor of law enforcement officers -- the
very question not asked in Evans which necessitated reversal in that
case. Id. The questions proffered by the defense were either cumula-
tive to those asked by the court, vague and confusing, or designed to
inject bias into the venire. As such, they did not enhance the prospect
for a fair and impartial jury, a prospect that was already more than
adequately insured by the substantial voir dire actually conducted.
Accordingly, the district court did not abuse its discretion in refusing
the questionnaire or questions requested by the defense.

                     4
Second, appellants argue that the trial court erred in allowing them,
collectively, only twenty peremptory challenges. Rule 24(b) of the
Federal Rules of Criminal Procedure provides that"each side" in cap-
ital cases is entitled to twenty peremptory challenges. FED. R. CRIM.
P. 24(b). Appellants argue that this rule entitled each of them to
twenty challenges. That argument is simply contradicted by the last
sentence of the rule, which gives the trial court discretion on whether
to award additional challenges: "If there is more than one defendant,
the court may allow the defendants additional peremptory challenges
and permit them to be exercised separately or jointly." Id. (emphasis
added); see also United States v. Meredith, 824 F.2d 1418, 1423 (4th
Cir.), cert. denied, 484 U.S. 969 (1987), and cert. denied, 485 U.S.
991 (1988). Since appellants do not suggest that the district court
abused its discretion or that they were denied a fair and impartial jury,
we find no error in the district court's refusal to award additional
peremptory challenges.

Third, appellants argue that the government violated Batson v.
Kentucky, 476 U.S. 79 (1986), by using one of its peremptory chal-
lenges to strike a black woman from the venire . In order to claim a
Batson violation, a defendant must make a prima facie showing of
purposeful discrimination by the government. Purkett v. Elem, 115 S.
Ct. 1769, 1770 (1995). Appellants made no such showing in this case,
but even if they had, the government clearly offered legitimate, race-
neutral reasons to strike the juror in question, see id.: she had a close
friendship with, and had visited, a Lorton inmate; she had friendships
with guards at Lorton; she had heard of this particular case through
her Lorton associations; and she found it difficult to understand how
the guards could have let the murder occur.

Once the government tendered its race-neutral explanation, the bur-
den shifted to the appellants to demonstrate that the explanation was
pretext for purposeful racial discrimination. Id . at 1770-71. Although
appellants speculate that the government's explanation must be pre-
text because the juror's friendship with law enforcement officials
demonstrated "precisely the profile the government should have been
striving to place on the jury," Appellant's Br. at 44, they offered no
evidence that the government's decision to strike Ms. Bracey was
motivated by race. We will not ascribe such base motives to the gov-
ernment in the face of the much more plausible race-neutral explana-

                     5
tions, accepted by the district court, see J.A. at 264, that the
government struck Ms. Bracey because of her prior knowledge of the
case and because of her friendship with an inmate at Lorton.

II.

Appellants also challenge two evidentiary rulings of the district
court, and raise a sufficiency of the evidence claim, none of which
have any merit.

Smith claims that the district court abused its discretion when, after
Blanton had put his motive at issue by claiming that he "didn't run
with Smith," the court allowed the government to introduce evidence
that Smith routinely supplied Blanton with heroin and that the two
routinely used heroin together. Smith argues that the door to this evi-
dence was opened by Blanton and could not therefore be used against
Smith. He also argues that there was no link between the evidence
and Randolph's murder which would render the evidence admissible
to show motive under Fed. R. Evid. 404(b). Both of Smith's argu-
ments are beside the point. First, the evidence did not come in as
character evidence under Fed. R. Evid. 404(a), so whether Smith
opened the door to the evidence is immaterial to whether it was
admissible as motive evidence under Fed. R. Evid. 404(b). Second,
Smith was charged with conspiracy to commit murder, not just mur-
der, and, as the district court found, the evidence was relevant to the
issue of Smith's motive to engage Blanton in the conspiracy as well
as to Blanton's motive to participate. If anything, the district court's
subsequent instruction that the evidence could be considered only
against Blanton was unnecessarily cautious.

Brandon challenges the district court's decision to admit an incrim-
inating statement made by Van Horne that was redacted so as not to
implicate co-defendant Smith. Brandon alleges that by replacing
Smith's name with a neutral pronoun so as to comply with Bruton v.
United States, 391 U.S. 123 (1968), the district court created the pos-
sibility that the jury might improperly infer that the neutral pronoun
referred to Brandon. The district court specifically instructed the jury
that the statement could be used only against Van Horne, however, so
any negative inference against Brandon was foreclosed.

                    6
Finally, Van Horne and Brandon challenge the sufficiency of the
evidence supporting their respective convictions. Three witnesses
placed both defendants at the scene or described their direct involve-
ment in the murder, including George Ball, who testified that Van
Horne held Randolph from behind and that Brandon stabbed him with
a knife. J.A. at 386. Ball's testimony alone is sufficient to sustain the
convictions, since, "viewing [it] in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." Jackson v.
Virginia, 443 U.S. 307, 319 (1979).

III.

Appellants' last argument is that the government withheld alleg-
edly exculpatory information contained in six summary reports of
witness interviews conducted by the FBI, thereby violating the rule
set down in Brady v. Maryland, 373 U.S. 83, 87 (1963), that "the sup-
pression by the prosecution of evidence favorable to an accused upon
request violate[s] due process where the evidence is material either to
guilt or to punishment irrespective of the good faith or bad faith of
the prosecution." As we have repeatedly held, however, "Brady does
not compel the disclosure of evidence available to the defendant from
other sources, including diligent investigation by the defense."
Stockton v. Murray, 41 F.3d 920, 927 (4th Cir. 1994) (citing United
States v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990)), cert. denied, 116
S. Ct. 37 (1995); see also United States v. Kelly, 35 F.3d 929, 937
(4th Cir. 1994); Epperly v. Booker, 997 F.2d 1, 9-10 (4th Cir.), cert.
denied, 114 S. Ct. 611 (1993); cf. McCleskey v. Zant, 499 U.S. 467,
498 and n.* (1991) (distinguishing between 1) whether defendant
knew about a document containing a statement by a witness, and 2)
"the relevant question," namely, "whether he knew about or could
have discovered the evidence the document recounted"); United
States v. Agurs, 427 U.S. 97, 111 (1976) (rejecting "the suggestion
that the prosecutor has a constitutional duty routinely to deliver his
entire file to defense counsel").

Appellants acknowledge that three of the reports-- those summa-
rizing the interviews with witnesses Leslie Perkins, Tyrone Watson,
and George Stokes -- were provided to defense counsel, but they
argue that some exculpatory information was excised before the

                     7
reports were provided. Our review of the unredacted versions of these
reports does not support appellants' claim that any exculpatory mate-
rial was withheld, but in any event, the information was otherwise
available to the defense. All three witnesses had testified before the
grand jury, and that testimony was provided to the defense. The three
witnesses were also listed on the government's witness list, and
defense counsel could have interviewed them. Defense counsel's own
lack of diligence does not give rise to a Brady violation. Stockton, 41
F.3d at 927.

Similarly, defense counsel knew of two of the three witnesses
whose 302 reports were not provided; the names of Antonio Tirado
and Charles Scott were both included on the government's witness list
given to defense counsel prior to trial. No effort, apparently, was
made to interview Scott, and appellants never apprised either the gov-
ernment or the court that Tirado was "unavailable" because of his
refusal to speak with Brandon's attorney.

From the record before us, it does appear that appellants did not
have access to the information in the 302 Report on Samuel Giles;
Giles did not testify before the grand jury, nor was he listed on the
government's witness list. But the Giles 302 Report does not include
any exculpatory evidence, much less evidence that could be deemed
"material." See United States v. Bagley, 473 U.S. 667, 682 (1985)
("The evidence is material only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. A `reasonable probability' is
a probability sufficient to undermine confidence in the outcome.").

Giles' 302 Report is highly incriminating as to Smith and Blanton,
but does not identify either Van Horne or Brandon as participating in
Randolph's murder. Appellants argue that this omission makes the
report exculpatory as to both Van Horne and Brandon. Their argu-
ment, however, is without merit. Giles reported that"other inmates"
were present in front of the dormitory where the assault occurred, but
he said that he "had his head turned so that[Smith] and the other
inmates would think [that he] did not see what happened." J.A. at
1010. Thus, the most that can be said of the Giles Report is that it did
not incriminate Van Horne and Brandon, not that it exculpated them.
Brady does not require the production of such evidence.

                    8
CONCLUSION

For the reasons stated herein, we affirm the judgment of the district
court.

AFFIRMED

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