UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                     No. 95-5776
LACY DAVIS, III, a/k/a Lacy Davis,
3,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CR-94-411-A)

Argued: January 31, 1997

Decided: March 6, 1997

Before RUSSELL and WILKINS, Circuit Judges, and HERLONG,
United States District Judge for the District of South Carolina,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John Kenneth Zwerling, MOFFITT, ZWERLING &
KEMLER, P.C., Alexandria, Virginia, for appellant. Leslie Bonner
McClendon, Assistant United States Attorney, Alexandria, Virginia,
for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney,
Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Lacy Davis was convicted (after two jury trials) of conspiracy to
possess with the intent to distribute "crack" cocaine in violation of 21
U.S.C. § 846. The district court sentenced Davis to 240 months
imprisonment and 10 years of supervised release. Davis appeals, rais-
ing eight challenges to his conviction. Finding no error, we affirm the
conviction.

I.

Defendant Davis was riding in a car with Cedric Williams in Vir-
ginia. Virginia state troopers pulled the car over because it was weav-
ing. The driver, Williams, was given a field sobriety test, and
eventually, Williams was arrested for driving under the influence.
While Williams was being arrested, one of the troopers, Trooper
Apfel, noticed that Davis was reaching under the driver's seat. Wil-
liams was ordered to step out of the car. The troopers then determined
that Davis was also intoxicated and unable to drive the car home.
After they ordered a tow truck to impound the car, Trooper Herman
searched the car pursuant to an inventory search and found two bags
containing over 500 grams of crack cocaine under the driver's seat.
It was at this point that Trooper Herman arrested Davis.

Davis was transported to the Fauquier County Detention Center.
One of the arresting troopers read Davis his Miranda1 rights against
self-incrimination. The trooper also asked Davis if he understood
those rights. Davis indicated that he did. The trooper then asked Davis
if, understanding his rights, he still wished to talk to the trooper.
Davis responded that he did not want to talk to the trooper without
his lawyer, but that he would be willing to "work with" the trooper.
_________________________________________________________________
1 Miranda v. Arizona, 384 U.S. 436 (1966).

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Davis was searched, and a pager and some cash were found on his
person. A pager was also found on Williams. Agent David Allen
accessed the memories of the two pagers, noting down all of the num-
bers that had called the pagers. At trial, the agent stated that he tran-
scribed the numbers from Davis's pager on one side of a piece of
paper and the numbers for Williams's pager on the other side of the
piece of paper.

Davis was indicted and tried for two counts: (1) conspiracy to pos-
sess with intent to distribute "crack" cocaine, 21 U.S.C. § 846, and (2)
possession with intent to distribute "crack" cocaine, 21 U.S.C. § 841.
The government relied principally on the testimony of Williams. The
trial resulted in a hung jury, and on January 26, 1995, the district
court declared a mistrial.

Prior to the second trial, the district court held a suppression hear-
ing. The district court ruled to allow Davis's statements made before
he received his Miranda warning while he was in the back of the
police car being transported to the detention center. The district court
also found that Davis's arrest was supported by probable cause. At the
hearing, defense counsel was admonished that after having been
granted two continuations already, the court would decline any further
motions for continuance.

Subsequent to the suppression hearing and five days prior to the
trial date, the government informed defense counsel of its plan to
introduce the testimony of two new witnesses. Four days prior to trial,
the government sent defense counsel a letter stating that it would also
be calling three new expert witnesses. The letter did not reach defense
counsel until one day prior to trial. On the morning of the trial,
defense counsel made several motions to limit or exclude testimony
that would extend the scope of the conspiracy beyond that alleged in
the indictment. The district court ruled that witnesses and evidence
would be limited to the time frame alleged in the indictment, but cau-
tioned defense counsel to object to any improper expansion of that
scope. The district court also denied the defense's motion for a con-
tinuance.

At the second trial, the government presented the testimony of
Jamie Christmas, a longtime friend of Davis, who testified that Davis

                     3
was his source of drugs. Christmas described a conspiracy in which
Davis, who lived in Maryland, frequently would transport "crack"
cocaine to Christmas's home in Charlottesville, Virginia for distribu-
tion by Christmas and another individual, Kevin Johnson. Christmas
stated that he received "crack" cocaine from Davis four or five times
during the period alleged in the indictment. The"crack" cocaine was
usually divided into two equal portions, one for Christmas and one for
Johnson. With respect to the night that Davis was arrested, Christmas
testified that he had been in touch with Davis several times and that
Davis told Christmas that he was on the way to Charlottesville. The
government presented evidence that one of the pagers contained
Christmas's telephone number in its memory.

Christmas also testified that Davis owned a Ford Taurus station
wagon that was equipped with a secret compartment in which Davis
stored drugs and cash. To corroborate this testimony, the government
introduced the testimony of Virginia Detective Doug Comfort who
stated that money had been found in a secret compartment of Davis's
Ford Taurus. The money was arranged in a "dealer fold," a manner
of arranging money that made it easy to determine the amount with-
out actual counting, and the secret compartment was lined with dryer
sheets, a practice common in the drug trade that dealers believe will
confuse narcotics-sniffing dogs.

The jury convicted Davis of the conspiracy count but deadlocked
as to the substantive charge.

II.

Davis alleges that the district court erred as follows: in allowing
testimony regarding post-Miranda statements by Davis, in finding
that Davis's arrest was supported by probable cause, in denying his
motion for a continuance, in improperly limiting Davis's cross-
examination of two witnesses, and in improperly allowing hearsay
evidence. Davis further claims that the government committed a Brady2
violation, knowingly used false testimony, and engaged in misconduct
during closing argument.
_________________________________________________________________

2 Brady v. Maryland, 373 U.S. 83 (1963).

                    4
III.

Davis contends that the district court erred in determining that his
arrest was supported by probable cause. The district court's determi-
nation that the totality of the circumstances gave rise to probable
cause is reviewed de novo, but the underlying factual findings are
reviewed for clear error. United States v. Williams, 10 F.3d 1070,
1074 (4th Cir. 1993). Davis was arrested after the trooper discovered
500 grams of "crack" cocaine under the driver's seat. This location
was the same spot in which he had observed Davis rummaging
around. Viewing the facts surrounding his arrest in the light most
favorable to the government, we find that the district court correctly
concluded that Davis's arrest was supported by probable cause.

Davis claims that the district court erred in denying defense coun-
sel's third motion for a continuance. A district court's denial of a
motion for continuance is viewed under the abuse of discretion stan-
dard. United States v. Moore, 27 F.3d 969, 973 (4th Cir.), cert.
denied, 115 S. Ct. 459 (1994). In providing defense counsel with the
names of the new witnesses, the government also related the sub-
stance of their testimony and turned over their arrest records, plea
agreements, and related documents. Defense counsel used this infor-
mation to impeach the witnesses on cross-examination. Nothing in the
record suggests that Davis's defense was hindered in any way by the
district court's denial of the motion for a continuance. Consequently,
we find that the district court did not abuse its discretion in denying
the motion for a continuance.

Davis asserts that the district court improperly allowed a post-
Miranda statement into evidence in violation of Doyle v. Ohio, 426
U.S. 610 (1976). In Williams v. Zahradnick, 632 F.2d 353 (4th Cir.
1980), this court considered the following factors in evaluating a
Doyle violation: (1) how the prosecution used the defendants silence;
(2) who opened the line of questioning; (3) the quantum of other evi-
dence of guilt; (4) the intensity and frequency of the references; and
(5) whether the trial court issued curative instructions. Id. at 361-62.
At trial, there was other substantial evidence of guilt, there was only
one reference to the post-Miranda statement, and the district court
issued curative and limiting instructions when it charged the jury. As

                    5
such, we find that the district court did not commit reversible error in
allowing the post-Miranda statement into evidence.

Davis claims that, at trial, the district court erred in limiting
defense counsel's cross-examination of two government witnesses,
Jamie Christmas and Anthony Smith. The district court refused to
allow defense counsel to question Smith regarding a recent arrest. The
district court also refused to allow defense counsel to question Christ-
mas about his pending drug charge, his drug supplier, and the remarks
discrediting him as a witness in another prosecution. "[T]rial judges
retain wide latitude [under] the Confrontation Clause . . . to impose
reasonable limits on such cross-examination based on concerns about
. . . harassment, prejudice, confusion of the issues, the witness' safety,
or interrogation that is repetitive or only marginally relevant."
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). In this case,
defense counsel was given ample opportunity to impeach both Smith
and Christmas on numerous issues. Exclusion of some impeachment
evidence may amount to harmless error. Id. at 681. We conclude that
the district courts limiting of defense counsel's cross-examination of
Smith and Davis does not rise to the level of reversible error.

Davis maintains that the district court erred in allowing hearsay
statements by a co-conspirator into evidence. During trial, the govern-
ment presented Paula Washington who was a "crack" cocaine user
from Charlottesville, Virginia. In essence, she testified that her dealer,
Chuck Johnson, told her there was no "crack" cocaine available
because Davis and Williams had been arrested. Federal Rule of Evi-
dence 801(d)(2)(E) allows into evidence hearsay statements made in
furtherance of a conspiracy by a co-conspirator. At the time of Wash-
ington's testimony there was ample evidence that Johnson was a co-
conspirator, and the statement that there was no"crack" cocaine today
implied that there might be some available in the future. Thus, this
statement furthered the conspiracy and was properly admitted.

IV.

Davis also asserts certain misconduct on behalf of the government.
First, Davis claims that the government committed a Brady violation
when it failed to inform defense counsel that Christmas had been
withdrawn as a witness in another case because an Assistant United

                     6
States Attorney perceived him to have credibility problems. Under
Brady v. Maryland, 373 U.S. 83 (1963), the prosecution must reveal
or turn over to the defense exculpatory evidence and evidence that
could be used to impeach a witness. There is no duty, however, to dis-
close exculpatory evidence that could have been discovered through
the exercise of due diligence by the defendant. United States v.
Wilson, 901 F.2d 378, 380 (4th Cir. 1990). Prior to trial, the govern-
ment turned over to defense counsel Christmas's plea agreement, let-
ter of immunity, and criminal history and informed defense counsel
that Christmas had been arrested again while his sentencing was
pending. The plea agreement listed the criminal number and the dis-
trict where Christmas's most recent case was pending. Through the
exercise of due diligence, defense counsel could have discovered the
sentencing transcript that contained the alleged Brady comments.

Even if the government should have disclosed this information,
suppression of evidence favorable to an accused violates due process
only where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution. Brady,
373 U.S. at 87. Evidence is material "if there is a reasonable probabil-
ity that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different." United States v. Bagley,
473 U.S. 667, 682 (1985). A "reasonable probability" of a different
result exists "when the Government's evidentiary suppression `under-
mines confidence in the outcome of the trial.'" Kyles v. Whitley, 115
S. Ct. 1555, 1566 (1995) (quoting Bagley, 473 U.S. at 678). In this
legal context, we find that it is clear that the government did not com-
mit a Brady violation.

Davis next contends that the government knowingly allowed Inves-
tigator David Allen to testify that certain phone numbers, including
Christmas's, were recorded from a pager belonging to Davis, when in
fact Allen did not know which pager belonged to Davis or even from
which pager the numbers had come. This argument is without merit.
First, Allen only testified that he recorded the numbers from the two
pagers; he did not assert that he knew which pager belonged to Davis.
Second, Allen acknowledged on cross-examination that he did not
know which pager was which and that he did not know who owned
each pager. In any event, defense counsel never raised this issue at
trial, and as such, the issue is forfeited on appeal unless it constitutes

                     7
plain error. United States v. Wilkerson, 84 F.3d 692, 694 (4th Cir.
1996). We find that this issue does not constitute plain error and is,
therefore, waived.

Finally, Davis challenges several of the government's comments in
closing arguments. He attacks six different arguments of the govern-
ment, charging that the arguments (1) bolstered and vouched for vari-
ous witnesses' testimony and credibility; (2) appealed to community
interests and prevention of future crimes; and (3) incorrectly defined
reasonable doubt. The government argues that it was simply respond-
ing to defense counsel's own argument.

The "invited response" doctrine states that a court of appeals must
consider whether "prosecutors have responded reasonably in closing
argument to defense counsel's attacks." Young v. United States, 470
U.S. 1, 12 (1985). We find that each of the challenged comments was
a direct response to arguments made by defense counsel. As for the
government's characterization of reasonable doubt, any error in the
government's statements was cured by the jury instructions given by
the district court.

V.

For the foregoing reasons, Davis's conviction is affirmed.

AFFIRMED

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