UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4684

BOBBY PALMER,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., District Judge.
(CR-97-52)

Submitted: July 28, 1998

Decided: September 21, 1998

Before ERVIN, WILLIAMS, and MOTZ, Circuit Judges.

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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

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COUNSEL

Albert Q. Taylor, Jr., TAYLOR & HENRY, Greenville, South Caro-
lina, for Appellant. J. Rene Josey, United States Attorney, Harold W.
Gowdy, III, Assistant United States Attorney, Greenville, South Caro-
lina, 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Unpublished opinions are not binding precedent in this circuit.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:

Bobby Palmer appeals from his conviction and thirty-seven month
sentence for being an accessory after the fact to bank robbery. See 18
U.S.C.A. § 3 (West Supp. 1998). He asserts that the trial court erred
in interrupting defense counsel's cross-examination of a witness and
stating that counsel had erroneously stated the law and erred in
excluding exculpatory statements he made during a recorded tele-
phone conversation. He also asserts that a government agent's false
testimony denied him a fair trial and that his sentence was errone-
ously enhanced based on the express threat of death made during the
bank robbery. For the reasons that follow, we affirm Palmer's convic-
tion, but vacate his sentence and remand for resentencing.

I.

The evidence at trial showed that Gregory Daniels robbed a feder-
ally insured bank in Inman, South Carolina. Although he did not have
a weapon, during the robbery Daniels put his hand in his jacket to
suggest that he had one. Several days later, after admitting to the bank
robbery in a telephone message to the state prosecutor, Daniels trav-
eled to Spartanburg, contacted Palmer and told Palmer that the police
were looking for him. In Spartanburg, Daniels registered in his own
name for two nights at a motel.

Daniels testified that he told Palmer that he had robbed a bank, that
agents from the Federal Bureau of Investigation were looking for him,
and asked Palmer to help him. Palmer took Daniels from the motel
where he was staying, registered him at the Main Street Motel in
Palmer's name, and paid for the room. Daniels also testified that
while he was in the nightclub owned by Palmer, he saw his picture
on television in connection with the bank robbery. Palmer was with
him when he watched this broadcast.

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II.

To discredit Daniels' testimony, Palmer's attorney sought to
emphasize that Daniels' plea agreement provided that the government
would move for a downward departure in Daniels' sentence if he fur-
nished substantial assistance to the government. Counsel inquired of
Daniels on cross-examination whether in his plea agreement the gov-
ernment agreed to move for the downward departure"as a result of
any testimony or assistance you furnished them." After receiving an
affirmative response and establishing that Daniels was represented by
the public defender at the time, counsel queried:"And, of course, the
public defender advised you that that was an enforceable agreement
between you and the government, didn't they?"

The court interrupted and stated: "That's bad law and you know it."
The court then clarified that the question incorrectly implied that Dan-
iels would get a sentence reduction simply for testifying in this case.
However, the law requires that Daniels testify truthfully and that the
decision of whether to grant the departure and how much, if any, to
depart from the guideline range was entirely up to the judge. Counsel
then resumed cross-examination, effectively presenting to the jury
that Daniels hoped to obtain a lesser sentence because of his testi-
mony against Palmer.

We find no error--much less plain error--in the trial judge's inter-
ruption of counsel to correct a potential misunderstanding by the jury
of the enforceability of the relevant provision in the plea agreement.
See United States v. Olano, 507 U.S. 725 (1993). As we have often
stated, the trial judge is to take an active role in ensuring that the jury
understand the evidence presented and the relevant legal doctrines.

          It cannot be too often repeated, or too strongly emphasized,
          that the function of a federal trial judge is not that of an
          umpire or of a moderator at a town meeting. He sits to see
          that justice is done in the cases heard before him; and it is
          his duty to see that a case on trial is presented in such a way
          as to be understood by the jury, as well as by himself.

Simon v. United States, 123 F.2d 80 (4th Cir. 1941). Although the
government's agreement to move for the downward departure if Dan-

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iels provided substantial assistance was an enforceable agreement, see
United States v. Dixon, 998 F.2d 228, 231 (4th Cir. 1993), the trial
judge properly interrupted counsel's line of questioning to prevent the
jury from believing that Daniels would automatically receive a lesser
sentence in exchange for his testimony against Palmer. Our review of
the record does not support Palmer's assertion that the court's
remarks completely gutted counsel's attack on Daniels' credibility.
Rather, counsel continued his cross-examination and effectively com-
municated to the jury that Daniels was testifying in the hope of
obtaining a lesser sentence.

III.

Palmer next argues that the trial court erred in excluding as sub-
stantive evidence, a tape-recorded telephone conversation between
Daniels and Palmer during which Palmer made self-serving, exculpa-
tory comments. Considering the totality of the circumstances, includ-
ing the content of the recording and the manner in which it was
obtained, the district court determined that the tape recording was
inadmissable hearsay. We review questions of admissibility of evi-
dence only for clear abuse of discretion. See United States v.
Whittington, 26 F.3d 456, 465 (4th Cir. 1994); see also Bourjaily v.
United States, 483 U.S. 171, 181 (1987) (admissibility under Fed. R.
Evid. 801(d)(2)(E)); United States v. Heater, 63 F.3d 311, 324 (4th
Cir. 1995) (admissibility pursuant to Fed. R. Evid. 801(d)(2)).

Palmer sought to introduce the tape recording of the phone conver-
sation in which he stated that at the time he assisted Daniels, he did
not know that Daniels had robbed the bank. The recording was sought
to be introduced as evidence of Palmer's lack of knowledge. This is
inadmissible hearsay, which, due to its lack of any indicia of reliabil-
ity or trustworthiness, does not fit into any of the exceptions to the
rule mandating the exclusion of hearsay. See United States v. Jackson,
780 F.2d 1305, 1316 (7th Cir. 1986); United States v. Woosley, 761
F.2d 445, 449 (8th Cir. 1985) (inadmissibility of letter asserting inno-
cence and entrapment written to the grand jury after indictment);
United States v. DeLuca, 692 F.2d 1277, 1285 (9th Cir. 1982). The
evidence sought to be admitted--that Palmer was not aware that Dan-
iels had robbed the bank--was more appropriately admitted through
Palmer's direct testimony at trial. See Woosley , 761 F.2d at 449. We

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find no abuse of discretion in the trial court's denial of admission of
Palmer's self-serving statements.

IV.

The third issue Palmer asserts on appeal is that he was denied his
right to a fair trial based on allegedly false information in the arrest
warrant and allegedly false testimony by a government agent. How-
ever, Palmer had ample opportunity before the trial to investigate the
facts of this case. Also, Palmer had the opportunity during the trial to
cross-examine the government agent. We find no denial of a fair trial.
To the extent that Palmer is asserting a claim of ineffective assistance
of counsel, such claim should be raised by motion under 28 U.S.C.A.
§ 2255 (West 1994 & Supp. 1998), in the district court and not on
direct appeal, unless it "conclusively appears" on the record that coun-
sel provided ineffective representation. See United States v. DeFusco,
949 F.2d 114, 120-21 (4th Cir. 1991); United States v. Fisher, 477
F.2d 300, 302 (4th Cir. 1973). Because the record does not establish
conclusively that Palmer received ineffective assistance of counsel,
we will not address the issue.

V.

Finally, Palmer challenges the two-level enhancement to his sen-
tence based on Daniels' use of a threat during the commission of the
robbery. The base offense level for accessory after the fact is six
levels lower than "the offense level for the underlying offense."
USSG § 2X3.1 (Accessory After the Fact).1 The commentary to this
section defines "underlying offense" as "the offense as to which the
defendant is convicted of being an accessory" and instructs the court
to "[a]pply the base offense level plus any applicable specific offense
characteristics that were known, or reasonably should have been
known, by the defendant." Id. § 2X3.1, comment. (n.1). Here, the
offense level for the underlying offense of robbery is governed by
USSG § 2B3.1. Section 2B3.1(a) provides for a base offense level of
twenty. Subtracting six levels from this to obtain the base offense
level for accessory after the fact, USSG § 2X3.1, results in a base
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1 U.S. Sentencing Guidelines Manual § 2X3.1 (1995).

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offense level of fourteen. The offense level is then increased by the
specific offense characteristics that were known or reasonably should
have been known by Palmer. The evidence in the record discloses that
Palmer knew or should have known that the property of a financial
institution was taken, therefore, Palmer's offense level was properly
increased by two. USSG § 2B3.1(b)(1). It is unclear from the record
whether Palmer knew or reasonably should have known the amount
of the loss or whether an express threat of death was made during the
robbery.2 Therefore, we vacate Palmer's sentence and remand to the
district court for resentencing. On resentencing, the district court
should make factual findings as to which, if any, specific offense
characteristics were known or reasonably should have been known by
Palmer.

VI.

In conclusion, we affirm Palmer's conviction, but vacate his sen-
tence and remand for resentencing in accordance with this opinion.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED IN PART; VACATED
IN PART; AND REMANDED
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2 The district court erred in applying the increase for use of an express
threat of death based only on its conclusion that, because Palmer knew
Daniels robbed a bank, "it reasonably should have been known by
[Palmer] that some form of threat against the employees was known."
The two-level increase for robbery of a financial institution adequately
accounts for the additional danger involved in robbery of a bank.

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