UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                              No. 98-4062

ROBERT LEWIS GRIFFITH,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                              No. 98-4063

MICHAEL GARY PESACOV,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                              No. 98-4404

WILLIAM DAVID BROUWER,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CR-96-362-CCB)

Submitted: March 16, 1999

Decided: June 11, 1999

Before NIEMEYER, HAMILTON, and WILLIAMS,
Circuit Judges.
Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Roger Norman Powell, Pikesville, Maryland; David Richard Solo-
mon, Baltimore, Maryland; David Paul Henninger, GEORGE
PSORAS, JR., CHARTERED, Towson, Maryland, for Appellants.
Frank W. Hunger, Assistant Attorney General, Lynne A. Battaglia,
United States Attorney, Susan L. Strawn, Trial Attorney, Office of
Consumer Litigation, Civil Division, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellants, Robert L. Griffith, Michael G. Pesacov, and William
D. Brouwer, were indicted in 1996 along with nine co-defendants on
charges relating to a substantial and long running interstate conspir-
acy to trade in automobiles with altered odometers. The conspiracy
was led by Theodore Schecter who organized both the odometer "roll-
backs" and the related title and paperwork alterations as well as the
massive financial accounting scheme that disguised the illegitimate
transactions. At trial, the government presented the testimony of sev-
eral cooperating co-conspirators and documentary evidence regarding
twenty-seven of the illegal transactions. Summary exhibits detailed
the inflow and outflow of capital to and from the conspiracy. Follow-
ing deliberations, the jury returned verdicts convicting Appellants on
all counts.1 In January 1998, Appellants Pesacov and Brouwer were
_________________________________________________________________
1 Each Appellant was convicted of: (1) conspiracy to alter odometers
on used cars and to transport in interstate commerce falsely made and

                    2
sentenced to fifty-one months imprisonment, and Appellant Griffith
was sentenced to forty-six months imprisonment. Appellants filed
timely notices of appeal and now raise several claims of error relating
to both the trial and sentencing. Having conducted a thorough review
of the record, we find no error. Therefore, we affirm the convictions
and sentences for the reasons set forth below.

Appellant Pesacov assigns error to the decision of the district court
to admit a tape recording of a telephone conversation between Pesa-
cov and a cooperating government witness. Pesacov supports his
argument with MD. CODE A NN., Courts and Judicial Proceedings
§§ 10-402, 405 (1998), which excludes from evidence any recording
obtained without the consent of all parties. See id. However, it is well
settled that "`[i]n a federal criminal prosecution, federal standards
govern the admissibility of evidence.'" United States v. Glasco, 917
F.2d 797, 798 (4th Cir. 1990) (quoting United States v. Mealy, 851
F.2d 890, 907 (7th Cir. 1988)). Therefore, Maryland law is inapplica-
ble. It is equally settled that recorded conversations made in confi-
dence to another are not protected by the Fourth Amendment if the
listener is a cooperating government agent. See, e.g., United States v.
White, 401 U.S. 745, 749, 751 (1971). Because the government wit-
ness consented to the recording of his conversation with Pesacov,
there is no violation of Pesacov's constitutional or federal statutory
rights. Thus, the district court did not err by admitting the tape record-
ing of the conversation.

Pesacov next objects to a series of government exhibits that dem-
onstrated his financial involvement in the conspiracy by summarizing
_________________________________________________________________

altered vehicle titles, in violation of 18 U.S.C.A.§ 371 (West 1966 &
Supp. 1998); and (2) conspiracy to launder money and aiding and abet-
ting the same in violation of 18 U.S.C.A. § 1956(g) (West 1993) (recodi-
fied at 18 U.S.C.A. § 1956(h) (West Supp. 1999)) and 18 U.S.C.A. § 2
(West 1969). Appellants were also convicted of (1) specific counts of
altering odometers and aiding and abetting the same in violation of 15
U.S.C. §§ 1984, 1990c (West 1993) (reworded and recodified at 49
U.S.C.A. §§ 32703(2), 32709(b) (West 1997)), and 18 U.S.C.A. § 2
(West 1969); and (2) transporting falsely made titles in interstate com-
merce and aiding and abetting the same in violation of 18 U.S.C.A. §§ 2,
2314 (West 1969 & Supp. 1998).

                     3
the capital exchanges between Pesacov and Schecter. These exhibits
demonstrated that Pesacov transferred $739,823 to Schecter from
1988 - 1994 and that he received $709,095 from Schecter during the
same time period.2 The Federal Rules of Evidence provide that "[t]he
contents of voluminous writings, recordings, or photographs which
cannot conveniently be examined in court may be presented in the
form of a chart, summary, or calculation." FED. R. EVID. 1006. Fur-
thermore it is not a prerequisite that the underlying evidence in sup-
port of the summaries be admitted into evidence so long as the
supporting documents were admissible and available to the defen-
dants to facilitate cross examination. See United States v. Strissel, 920
F.2d 1162, 1163-64 (4th Cir. 1990). Although Pesacov claims that the
underlying evidence was "probably . . . inadmissible," (Appellant's
Brief at 17), he fails to provide a single example of objectionable evi-
dence. Moreover, banking records are readily considered admissible
under FED. R. EVID. 803(6). Finally, Pesacov was given access to the
material supporting the summary exhibits. Because the evidence in
question was admissible, and because the evidence was made avail-
able to Pesacov, his claim of error is meritless.

Pesacov's final claim of error is that the government violated the
tenets of 18 U.S.C.A. § 201(c)(2) (West Supp. 1998), by offering
leniency to cooperating witnesses in exchange for their truthful testi-
mony. Although a widely discussed panel decision of the Tenth Cir-
cuit supported this proposition, see United States v. Singleton, 144
F.3d 1343 (10th Cir. 1998), that opinion has since been vacated and
reversed. See United States v. Singleton, 165 F.3d 1297 (10th Cir.
1999). We reject Pesacov's claim.

Appellant Brouwer asserts two claims of error. Brouwer first
argues that the district court erred by enhancing his sentence for
obstruction of justice pursuant to U.S. Sentencing Guidelines Manual
§ 3C1.1 (1997). At sentencing, the United States moved for a two
level enhancement based on Brouwer's intimidating behavior toward
witnesses at trial. In support of this claim, the United States presented
_________________________________________________________________
2 The exhibits were based on the banking records and canceled checks
from six accounts and were compiled with the assistance of a special
agent of the Criminal Investigation Division of the Internal Revenue Ser-
vice.

                    4
affidavits from three witnesses each of whom testified at trial. The
witnesses indicated that Brouwer had approached them and made
threatening gestures and comments.3 The sentencing guidelines pro-
vide a two level enhancement "[i]f the defendant willfully obstructed
or impeded, or attempted to obstruct or impede, the administration of
justice." USSG § 3C1.1. The application notes to the guidelines fur-
ther provide a non-exhaustive list of examples that warrant an
enhancement, including: "threatening, intimidating, or otherwise
unlawfully influencing a co-defendant, witness, or juror, directly or
indirectly, or attempting to do so." USSG § 3C1.1, comment. (n.3(a)).
Because Brouwer challenges the district court's application of the
facts to USSG § 3C1.1, we review the court's action for clear error.
See United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).

Our review of the record reveals no error. Based on the affidavits
and statements made at trial, it was clear that Brouwer approached
three separate witnesses and made remarks reasonably interpreted as
threatening. Indeed, on one occasion Brouwer went so far as to raise
his closed fist toward a witness. It is also clear that Brouwer contin-
ued to engage in this inappropriate behavior even after being admon-
ished by the court to refrain from doing so. In consideration of this
evidence, we cannot conclude that the district court erred in determin-
ing by a preponderance of the evidence that Brouwer engaged in
obstruction of justice. See United States v. Puckett, 61 F.3d 1092,
1095 (4th Cir. 1995).

Brouwer next claims that the district court abused its discretion by
denying his request for a mistrial following the improper remarks of
a testifying witness. At trial, the government called Special Agent
Michelle Gruzs to testify regarding documentary evidence. On cross
examination by counsel for one of Brouwer's co-defendants, Gruzs
was asked about an alleged threat on Theodore Schecter's life. Gruzs
began to answer with information implicating Brouwer; however,
counsel immediately objected and ultimately moved for a mistrial on
the ground that inappropriate and prejudicial material had been placed
_________________________________________________________________
3 The substantive claims in the affidavits were bolstered by objections
to Brouwer's conduct that had been brought to the court's attention dur-
ing the trial.

                    5
before the jury. The district court denied the motion but gave a strong
curative instruction.

We review the district court's decision denying a motion for mis-
trial under an abuse of discretion standard. See United States v.
Dorsey, 45 F.3d 809, 817 (4th Cir. 1995). As our past decisions have
noted, not all error in the admission of evidence will result in the
grant of a new trial. See generally id. at 816-18; United States v.
Johnson, 610 F.2d 194, 196-97 (4th Cir. 1979). A proper analysis will
include a review of the error "in the context of the entire trial," focus-
ing on the weight of the otherwise untainted evidence and the pres-
ence or absence of a strong curative instruction. Johnson, 610 F.2d at
196. A reviewing court should also consider whether the government
or the defense counsel elicited the inappropriate information. See id.
at 197. In the instant matter, the untainted evidence against Brouwer
was overwhelming. At the time of the inadmissible statement, six wit-
nesses and co-conspirators had already testified as to Brouwer's role
in the odometer rollback scheme. Numerous documents had been
introduced to corroborate this testimony, and tapes of Brouwer dis-
cussing his illicit activities had been played for the jury. In addition,
the objectionable response was not elicited at the behest of the Gov-
ernment; rather, it was brought forward upon questioning by counsel
for one of Brouwer's co-defendants. Thus, the specter of wrongful
government action is absent in this case. Lastly, the record makes
clear that the court provided an immediate and thorough curative
instruction admonishing the jury to disregard the statement. In consid-
eration of all these factors, the district court did not abuse its discre-
tion by denying Brouwer's motion for a mistrial.

Finally, Appellant Griffith claims that the district court erred by
denying his motions for acquittal under FED. R. CRIM. P. 29. However,
the basis of Griffith's Rule 29 motions was that the district court
should not have considered any evidence that would have been barred
by the now-vacated panel decision in United States v. Singleton, 144
F.3d 1343 (10th Cir. 1998). Because that decision has since been
reversed, and in any event is not binding upon this court, this claim
too, must fail.

Accordingly, we affirm the convictions and sentences of the Appel-
lants. We dispense with oral argument because the facts and legal

                     6
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.

AFFIRMED

                    7
