United States v. Cowan

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 95-5508

JAMES COWAN, a/k/a Wop,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 95-5509

ALPHONSO WHITE, a/k/a Poochie,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Chief District Judge.
(CR-94-468)

Argued: May 8, 1996

Decided: September 16, 1996

Before WIDENER and MOTZ, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: Joseph N. Bowman, Alexandria, Virginia, for Appellant
Cowan; Suzanne Little, Alexandria, Virginia, for Appellant White.
Timothy Joseph Shea, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Helen F. Fahey, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

These appeals concern the stabbing death of Michael Martin, an
inmate at the maximum security facility of the Lorton Correctional
Complex. A jury convicted appellants, James Cowan and Alphonso
White, also inmates at the facility, of: (1) conspiracy to commit mur-
der in violation of 18 U.S.C. § 1117, (2) murder and aiding and abet-
ting in the commission of murder in violation of 18 U.S.C. §§ 1111
and 1112, and (3) possession of contraband in violation of 18 U.S.C.
§ 13, assimilating Virginia Code § 53.1-203(4). On appeal, Cowan
and White assert numerous challenges to their convictions. Finding no
reversible error, we affirm.

I.

On March 13, 1993, Michael Martin was fatally stabbed in the
back during his allotted recreation period. That evening, Corrections
Officer Bertram Long released Martin, along with two other inmates,
Alphonso Williams and Cowan, from their cells onto the tier, for a
brief recreation period. Officer Long and Corrections Officer James
W. Wise sat at the front desk directly outside the tier gate where they

2
could observe the three inmates. A few minutes into the recreation
period, Martin staggered toward the officers at the front desk, stated
that he had been stabbed, and fell to the floor. Officers Long and
Wise called for assistance and entered the tier to help Martin. In
accordance with procedures, Officer Long searched Martin and found
a twelve-inch shank concealed on his left thigh. Long also noticed
blood and stab wounds on Martin's back.

Officers Long and Wise removed Martin's body from the tier while
they waited for assistance. After other officers arrived, Long
instructed them to search and handcuff inmates Williams and Cowan,
and to begin a comprehensive search of the tier for the murder
weapon. The officers uncovered several shanks but did not find the
murder weapon.

Agent Daniel Sparks of the FBI investigated Martin's death. Dur-
ing investigatory interviews, Cowan and White made incriminating
statements to Sparks. For example, on one occasion, Cowan told
Sparks that "if the prosecutors could promise that his sentence would
be limited to ten years, he would cop to the whole thing." On another
occasion, White admitted to the agent that if blood was found on the
knife recovered from his cell, then it was his "beef," meaning that he
was responsible for the crime.

Nathaniel Curtis, an inmate in the cell adjacent to White's, had sev-
eral conversations with White pertaining to Martin's murder. Before
the murder, White told Curtis that Cowan was going to avenge the
death of his relatives by "taking care" of Martin and that White him-
self had befriended Martin to "bait him in" so that Martin would not
seek protective custody. Following the murder, White confided to
Curtis that he had supplied the knife Cowan used to stab Martin and
that Cowan had returned the knife to White immediately after the
murder so that White could clean and hide it. Curtis explained that it
was common knowledge that Martin was incarcerated at Lorton for
murdering three members of Cowan's family.

Another inmate, Alphonso Williams, explained that prior to the
murder, White warned him to stay away from Martin because Martin
was "going to get his." Williams, who was released for recreation
with Martin and Cowan at the time of the murder, saw Cowan

3
approach Martin from behind and stab Martin twice in the back.
Cowan ran past Williams with a bloody butter knife and handed the
knife to White, who was in his cell. Cowan then warned Williams to
"keep [his] mouth shut" and gave the knife to White who hid it in his
mattress. Tipped by Williams, authorities later found the sharpened
butter knife in White's mattress.

Albert Colbert, also an inmate on the block, corroborated the
accounts of the corrections officers and other inmates. Colbert saw
Cowan stab Martin twice in the back without provocation and then
saw Martin head toward the correction officers stationed at the gate.
Martin asked them for help and then fell to the floor of the tier.

Finally, government forensics experts found that: DNA tests traced
blood stains from the butter knife to Martin, a weapon consistent with
the butter knife inflicted Martin's wounds, and Martin had no defen-
sive wounds on his body to suggest a struggle or knife fight.

Although neither Cowan nor White testified, their witnesses and
attorneys presented a different view of the facts. Cowan admitted to
stabbing Martin but claimed that he did so in self-defense. Cowan
offered evidence that Martin murdered three of his relatives, that he
knew of Martin's violent character, and that he feared Martin. Two
inmate-witnesses testified that, during recreation period, Cowan and
Martin had engaged in a ferocious fight culminating in Martin's
death. A District of Columbia police officer, Robert L. Milhouse, tes-
tified that Martin had a violent reputation on the street.

As for White, although he conceded possession of the sharpened
butter knife, he maintained that he did not participate in the plan to
murder Martin. White also argued that it would have been impossible
for him to communicate with Curtis from his cell because Curtis' cell
was too distant from his.

After a three day joint trial, the jury found Cowan and White guilty
of all charges against them. The district court sentenced them to life
imprisonment.

II.

Cowan makes several arguments relating only to his conviction.
We consider his strongest argument first.

4
A.

Cowan contends that the district court erred in allowing Curtis to
testify about his conversations with White about Martin's murder.
Curtis testified that White told him that Cowan killed Martin because
Martin had killed members of Cowan's family. Curtis further testified
that White admitted giving Cowan the knife, and that after Cowan
stabbed Martin in the back, Cowan threw the knife back into White's
cell. Cowan contends that Curtis' testimony should not have been
admitted against him because it constitutes inadmissible hearsay.

In response, the government argues that White's statements were
relevant and properly admitted as admissions by a party opponent
under Federal Rule of Evidence 801(d)(2)(A). White's defense cen-
tered on his claim that he had no prior knowledge that Cowan would
attack Martin. White maintained that although Cowan threw the mur-
der weapon into White's cell after the murder, White did not partici-
pate in the murder. White's statements to Curtis directly contradicted
this defense, and thus were properly admitted against White. How-
ever, this does not render them admissible against Cowan.

The government does not assert that any recognized hearsay excep-
tion made White's statements admissible as to Cowan.1 Instead, the
government insists that the statements were not offered against
Cowan but only against White. However, Cowan points out that the
district court gave no limiting instruction requiring the jury to disre-
gard Curtis' testimony in determining Cowan's guilt. Absent such an
instruction, nothing prevented the jury from considering the evidence
against both appellants.

As part of his hearsay argument, Cowan asserts that Curtis' testi-
mony was prejudicial to Cowan's case because it"provided a vivid
image of Cowan stabbing Martin and then attempting to conceal the
_________________________________________________________________
1 Although the government argued before the district court that Curtis'
testimony was admissible against both Cowan and White as a statement
against interest under Federal Rule of Criminal Procedure 804(b)(3), the
government has now abandoned this argument. On appeal, the govern-
ment claims instead that the Curtis testimony was not offered against
Cowan at all.

5
evidence by throwing the murder weapon in White's cell. The testi-
mony also contradicted Cowan's defense of self-defense by offering
revenge as the motive for the killing." Cowan complains that, because
White did not testify, Cowan could not cross-examine him regarding
his statements to Curtis. Although Cowan does not cite United States
v. Bruton, 391 U.S. 123 (1968), this argument is essentially a Bruton
challenge to the admission of a co-defendant's statements.

In Bruton, the Supreme Court held that the admission of the
incriminating statements of a non-testifying co-defendant violates a
defendant's Sixth Amendment confrontation rights when the state-
ments, while properly admissible against the co-defendant, constitute
inadmissible hearsay against the defendant. The government argues
that Bruton does not apply here because the co-defendant made
incriminating statements to a fellow inmate. According to the govern-
ment, Bruton only applies to statements or confessions of a co-
defendant made to law enforcement authorities.

The government misreads Bruton. Although the Supreme Court did
recognize that a defendant's motivation to shift the blame to a co-
defendant may make the defendant's statements "inherently suspect,"
id. at 135-36, the government overstates this as the animating princi-
ple of Bruton. Also underlying Bruton are the importance of the
defendant's right to confront the witnesses against him and the "sub-
stantial risk" that the jury, despite limiting instructions, will consider
the incriminating statements against the wrong defendant. Id. at 126.
Because these concerns weigh heavily in this case--e.g., Cowan
could not cross-examine White and the jury received no limiting
instructions to disregard the evidence in determining Cowan's guilt--
this case falls squarely within the prohibition of Bruton.

In United States v. Truslow, 530 F.2d 257 (1975), we considered
a similar argument by the government to limit the scope of Bruton to
statements by co-defendants to law enforcement officers. There, Trus-
low's co-defendant, Davidson, made incriminating statements to an
acquaintance about participating in a "murder for hire" ordered by
Truslow. Id. at 259. The acquaintance later testified against Davidson,
but his testimony was inadmissible as to Truslow. Accordingly, Trus-
low raised a Bruton objection. In response, the government argued,
inter alia, that Bruton "should not apply to this case because Bruton

6
was the case of a confession to law enforcement officers." Id. at 263.
Finding that this did not sufficiently distinguish this case from
Bruton, we expressly rejected this argument. We reject it again here.
Following our reasoning in Truslow, we conclude that Bruton applies
to Curtis' testimony regarding his conversation with White.

Having found Bruton implicated here, we turn to the government's
alternative argument that any error committed in admitting Curtis'
testimony was harmless. We find this argument persuasive. With
respect to Cowan, Curtis testified to the following facts: (1) Cowan
stabbed Martin in the back; (2) Cowan killed Martin because Martin
had killed Cowan's relatives; (3) Cowan threw the knife into White's
cell after the murder. Other evidence independently established each
of these facts.

Throughout the trial, Cowan admitted that he had killed Martin, but
claimed that he acted in self-defense. Moreover, it was undisputed
that Cowan killed Martin by stabbing him in the back. Indeed, two
eyewitnesses, Albert Colbert and Alphonso Williams, testified to see-
ing Cowan kill Martin by stabbing him in the back.

As to the fact that Cowan killed Martin because Martin had mur-
dered members of Cowan's family, Cowan himself repeatedly intro-
duced evidence that Martin had murdered his relatives. Presumably to
strengthen his self-defense claim, Cowan wanted to convince the jury
that he knew of Martin's violent nature. While this evidence may
have indicated that Cowan had reason to fear Martin, it also provided
the jury with a motive for Cowan's crime.2 Significantly, in discuss-
ing the motive for the murder, Agent Sparks asked Cowan whether
he was "avenging the deaths of [his] relatives that had been killed by
Michael Martin." Cowan responded, "That's for sure." Given this
admission to Sparks, Cowan cannot now argue that the jury would not
have had evidence of his motive absent Curtis' statements.
_________________________________________________________________
2 Ironically, Cowan's self-defense argument was undermined by the
same evidence he believed would bolster it. Even absent this evidence by
Cowan, his claim of self-defense was independently discredited by the
fact that Martin was stabbed in the back, and by the testimony of inmate
Colbert that Martin was surprised by the attack, looked "like he couldn't
believe it," and did not strike or provoke Cowan in any way.

7
Finally, Alphonso Williams' testimony also established the fact
that Cowan threw the bloody murder weapon into White's cell. Wil-
liams testified that he saw Cowan give White the weapon following
the murder and that he directed the authorities to search for the
weapon in White's mattress. The fact that the weapon was later dis-
covered hidden in White's mattress corroborated this testimony.

In light of these independent sources of evidence, the admission of
Curtis' testimony as to his conversation with White was harmless.3
See, e.g., Morrison v. Duckworth, 929 F.2d 1180, 1181 (7th Cir.
1991) (harmless error when non-testifying co-defendant's statement
implicated defendant because defendant admitted involvement in the
charged crime); United States v. Ruff, 717 F.2d 855, 858 (3d Cir.
1983) (harmless error when non-testifying co-defendant's statements
implicated defendant because independent evidence of guilt over-
whelming), cert. denied, 464 U.S. 1051 (1984); Tamilio v. Fogg, 713
F.2d 18, 21 (2d Cir. 1983) (overwhelming evidence of defendant's
participation in murders and robbery made any error in admitting co-
defendant's confessions harmless), cert. denied , 464 U.S. 1041
(1984).

B.

In an argument related to his Bruton challenge, Cowan alleges that
the district court erred in denying his motion to sever his trial from
White's. As Cowan acknowledges, the grant or denial of a motion to
sever will not be overturned absent a clear abuse of discretion. United
States v. Hayden, 85 F.3d 153, 160 (4th Cir. 1996). In order for the
denial of severance to constitute an abuse of discretion, a defendant
must show that a joint trial "would have prevent[ed] the jury from
_________________________________________________________________
3 Perhaps, recognizing this, Cowan contends that in addition to the facts
Curtis related, his statement is fatally prejudicial because it provided the
jury with a "vivid image" of Cowan stabbing Martin in the back. Curtis'
testimony that White told him that Cowan "stabbed the dude" by "hit-
[ting] him in the back one time," while graphic, was certainly less vivid
than other evidence the government introduced. For example, Alphonso
Williams testified that he saw Cowan "yoke [Martin] around the neck"
and stab him twice in the back with "a tremendous force," making Mar-
tin's body "jerk[ ]."

8
making a reliable judgment about guilt or innocence." Zafiro v.
United States, 506 U.S. 534, 539 (1993). Because we have already
determined that no prejudice resulted to Cowan from the admission
of Curtis' testimony, we conclude that the trial court acted within its
discretion in denying the motion for severance.

C.

Cowan asserts that the district court erred in denying his motion to
suppress statements made to FBI agents on March 29, April 1, and
April 12, 1993. He contends that these statements were made in the
course of plea negotiations and thus their admission violated Federal
Rule of Criminal Procedure 11 and Federal Rule of Evidence 410.
Both rules bar admission of "any statement made in the course of plea
discussions with an attorney for the government." Fed. R. Crim. P.
11(e)(6)(D). See Fed. R. Evid. 410(3) (incorporating by reference
Fed. R. Crim. P. 11).

The district court denied Cowan's motion to suppress because the
court found that "none of [his] statements were taken in the process
of any plea negotiations." We review a district court's evidentiary rul-
ings for abuse of discretion. See United States v. Heater, 63 F.3d 311,
320 (4th Cir. 1994).

"[P]lea negotiations, in order to be inadmissible, must be made in
negotiations with a government attorney or with that attorney's
express authority." United States v. Porter , 821 F.2d 968, 977 (4th
Cir. 1987), cert. denied, 485 U.S. 934 (1988). "In addition, conversa-
tions with government agents do not constitute plea discussions
unless the defendant exhibits a subjective belief that he is negotiating
a plea, and that belief is reasonable under the circumstances." United
States v. Sitton, 968 F.2d 947, 957 (9th Cir.), cert. denied, 506 U.S.
979 (1992), and cert. denied, 507 U.S. 929 (1993). Cowan can dem-
onstrate neither that he negotiated with a government attorney (or
with one who had an attorney's express authority), nor that he reason-
ably believed that he was negotiating a plea.

With regard to the first requirement, Cowan made the statements
at issue during the course of three interviews with FBI agents. No
government attorney was present during those interviews. Moreover,

9
the agents repeatedly told Cowan that they did not have authority
from any government attorney to engage in plea negotiations with
him. Thus, Cowan presented no evidence that he negotiated with a
government attorney or his designee.

As to Cowan's allegedly subjective, reasonable belief that he was
negotiating a plea, the circumstances surrounding the interviews belie
that claim. All three of Cowan's contacts with law enforcement offi-
cers took place before he had been charged with any crime. The
agents were merely investigating the Martin murder when Cowan
made his inculpatory statements. Thus, like the defendant in Porter,
Cowan well may have made his statements not as part of a plea dis-
cussion, but rather "as an informant, hopeful of getting a break."
Porter, 821 F.2d at 977.

Moreover, the substance of the discussions also undermines
Cowan's claim to a reasonable subjective belief that he was negotiat-
ing a plea. During the course of the April 1 interview, Cowan told the
agents that if the prosecutor could guarantee him a sentence between
one and ten years, he would "cop to the whole thing" -- that is, he
would accept responsibility for the murder and implicate the others
involved. This indicates that, even subjectively, he understood that
only the prosecutor could agree to a plea bargain. In fact, Agent
Sparks responded to Cowan's statement by explaining that he did not
have the power to agree to any particular sentence, and that "those
types of arrangements are handled by the prosecutor and the defense
attorney." Agent Sparks testified that he did not, in any way, hold
himself out as having any authority to enter plea negotiations with
Cowan. Nonetheless, Cowan invited the agents back for further inter-
views. During the April 12 interview, when Cowan reiterated his
statement that he would only accept responsibility for the murder if
he was guaranteed a sentence between one and ten years, Agent
Sparks again told him that he did not have the authority to make any
guarantee. Given Agent Sparks' responses each time Cowan tried to
discuss a possible "deal," any subjective belief Cowan held that the
agents had authority to negotiate a plea bargain was unreasonable.

Presumably aware that Federal Rule of Criminal Procedure
11(e)(6)(D) and Federal Rule of Evidence 410(3) apply only to plea
negotiations with a prosecutor, or with someone with his express

10
authority, Cowan urges that we extend Porter"to include situations
where law enforcement officers initiate plea negotiations with a sus-
pect for the sole purpose of eliciting incriminating statements from
the suspect." Because the agents in this case did not "initiate plea
negotiations" at all, we need not address this argument.

The district court did not abuse its discretion in denying Cowan's
motion to suppress.

D.

Cowan also contends that the district court erred in prohibiting
Officer Milhouse from testifying about specific acts of violence by
the victim, Michael Martin. Cowan argues that his claim of self-
defense made this testimony relevant.

The district court ruled that, in attempting to establish Martin's vio-
lent character, the defense could introduce opinion and reputation evi-
dence but could not introduce evidence of specific violent acts. Again,
we review the district court's evidentiary ruling for abuse of discre-
tion. Heater, 63 F.3d at 320.

The federal rules of evidence permit "[e]vidence of a pertinent trait
of character of the victim of the crime [to be] offered by an accused."
Fed. R. Evid. 404(a)(2). Generally, "proof [of character] may be made
by testimony as to reputation or by testimony in the form of an opin-
ion." Fed. R. Evid. 405(a). However, when the"character or a trait of
character of a person is an essential element of a charge, claim, or
defense," proof may also be made "by specific instances of that per-
son's conduct." Fed. R. Evid. 405(b).

Cowan asserts that his victim's violent character constitutes an "es-
sential element" of Cowan's self-defense claim. See Virginia Islands
v. Carino, 631 F.2d 226, 229 (3d Cir. 1980); United States v. Burks,
470 F.2d 432, 435 (D.C. Cir. 1972). Even assuming it does, a ques-
tion we need not decide here, the district court's exclusion of this evi-
dence does not require reversal for two reasons.

First, the district court expressly found that the prejudicial impact
of the specific acts evidence substantially outweighed its probative

11
value. When a court concludes the danger of unfair prejudice substan-
tially outweighs the probative value of evidence, the court may, pur-
suant to Federal Rule of Evidence 403, exercise its discretion to
exclude otherwise admissible evidence. See United States v. Waloke,
962 F.2d 824, 830 (8th Cir. 1992).

Second, in any event, the exclusion of the specific acts evidence
was harmless beyond a reasonable doubt, because the defense pres-
ented much of this evidence to the jury via other avenues. Officer
Milhouse, when testifying as to Martin's reputation, stated that Martin
"was a beast while he was on the street," and that "[h]e was a bad
boy." Moreover, because the prosecutor asked Officer Milhouse if he
knew "that the crimes for which [Martin] was convicted are what put
him in Lorton," the district court found that the government had
"opened the door" to the crimes for which Martin had been incarcer-
ated at Lorton, and admitted evidence of Martin's criminal record.
Thus, the reputation testimony Officer Milhouse presented, in addi-
tion to the evidence of Martin's criminal record, provided the jury
with significant evidence of Martin's violent character.

III.

White advances two claims, pertaining only to his own convictions.

A.

First, he asserts that his interrogation violated his Fifth Amendment
right against self-incrimination, as articulated in Miranda v. Arizona,
384 U.S. 436 (1966), and his Sixth Amendment right to counsel. Spe-
cifically, White claims that his statement to FBI agents on March 29,
1993 ("if you find blood on the knife, then it's my beef"), should have
been suppressed because the officers did not provide him with an
attorney despite his request for one and because he did not waive his
right to remain silent by talking to the agents. The district court found
that White never asked for an attorney and that he knowingly and
intelligently waived his right to remain silent. We reverse such a find-
ing only if clearly erroneous. United States v. Gordon, 895 F.2d 932,
939 (4th Cir.), cert. denied, 498 U.S. 846 (1990).

12
At the pretrial suppression hearing, White admitted that he had no
problem understanding the rights read to him by the FBI agents, that
he read the advice of rights form, and that he understood his rights.
He also acknowledged that he had been arrested several times, and
that on each occasion officers read him his rights and he understood
those rights. White conceded that, on this occasion, although he
understood that he had a right to remain silent and a right to have an
attorney present, he nonetheless made a statement to the agents.
Given these uncontested facts, White cannot now argue that his deci-
sion to speak to the officers was not made "voluntarily, knowingly,
and intelligently". Miranda, 384 U.S. 444.

The test for whether a defendant intelligently waives his Miranda
rights is not whether it was wise to do so, but"whether his decision
was made with the full understanding that he need say nothing and
that he might then consult with a lawyer if he so desired." Adams v.
Aiken, 965 F.2d 1306, 1316 (4th Cir. 1992) (citation omitted), cert.
denied, 508 U.S. 974 (1993). Because White has met these require-
ments, the district court's conclusion that he effectively waived his
Fifth Amendment right against self-incrimination was not clearly
erroneous.

White also argues that his statements should be suppressed because
the FBI agents violated his Sixth Amendment rights by ignoring his
request for an attorney. If a defendant asks to speak to an attorney
during interrogation, the "interrogation must cease, and officials may
not re-initiate interrogation without counsel present." Minnick v.
Mississippi, 498 U.S. 146, 153 (1990). See also Savino v. Murray, 82
F.3d 593, 599 (4th Cir.), cert. denied, ___ U.S. ___, 1996 WL 400267
(1996). In this case, both agents present at the interview testified that
at no time during the interview did White request the assistance of
counsel. Thus, in finding that White did not ask for an attorney, the
district court essentially credited the testimony of the two FBI agents
over White's testimony. The district court did not clearly err in doing
so.

B.

Second, White asserts the government failed to introduce sufficient
evidence to sustain his conviction. In reviewing a conviction for suffi-

13
ciency of evidence, in a direct appeal, we apply a well recognized
standard of review, examining whether "there is substantial evidence,
taking the view most favorable to the Government," Glasser v. United
States, 315 U.S. 60, 80 (1942), to "establish proof of each element"
of the crime beyond a reasonable doubt. United States v. Burgos, ___
F.3d ___, ___, 1996 WL 478498 (4th Cir. 1996) (en banc).

The government's case against White included the testimony of
two fellow inmates, Nathaniel Curtis and Alphonso Williams. They
provided evidence that White knew about Martin's murder in
advance, and even assisted in positioning the victim. Williams testi-
fied that before Cowan was transferred to the tier, White warned him
several times to stay away from Martin, because"Martin [was] going
to get his for what he was locked up for." Curtis stated that White had
told them he could not wait until Cowan "arrived on the tier because
[Cowan] was going to "get his man," Martin. He further testified that
White acted friendly to Martin to "bait him in" so that Martin
remained on the block and would not check himself into protective
custody.

These inmates also testified that White provided the murder
weapon and hid it after the fact. Curtis explained that White told him
that White had given Cowan the knife used to kill Martin, that Cowan
gave the knife back to White after the stabbing, and that White
cleaned the blood off the knife and "put it up." Williams corroborated
Curtis' statements by testifying that he saw Cowan give the bloody
knife to White, who did not seem surprised to get it. Williams later
saw White take the knife to the back of his cell, where a sink was
located.

In addition, FBI Agent Sparks testified that White told him that if
they found blood on the knife retrieved from his cell, then it was his
"beef," which Agent Sparks interpreted to mean that he was responsi-
ble for the crime. The government also presented other testimony that
the murder weapon was White's distinctive weapon. Curtis testified
that he observed White at least seven times with a sharpened butter
knife. He stated that he saw a lot of shanks in prison, but none like
White's sharpened butter knife, which he identified in court. Correc-
tional Officer Paolo Rodriguez also identified the sharpened butter

14
knife as the knife he found in the mattress in White's cell, in response
to a tip from Williams.

The DNA unit of the FBI laboratory subsequently analyzed a dried
blood stain found on the handle of the knife that Officer Rodriguez
recovered. Analysis revealed that the blood was consistent with the
blood of the murder victim, Martin. Dr. Germaniuk, an expert witness
and Deputy Chief Medical Examiner for the District of Columbia, tes-
tified that, based on the autopsy report, a weapon consistent with the
knife recovered from White's cell caused Martin's wounds.

This evidence was sufficient to prove beyond a reasonable doubt
that White participated in the murder.

IV.

Both Cowan and White argue that the district court denied them the
right to meaningful voir dire and the proper number of peremptory
challenges.

A.

They assert that the district court erred in refusing to send their
proffered questionnaire to the jury venire prior to the trial, and in fail-
ing to ask many of the questions contained in the questionnaire during
voir dire.

A trial court has broad discretion in conducting voir dire, and we
may reverse based on an asserted error in voir dire only if we find that
the trial court abused that discretion. See Ham v. South Carolina, 409
U.S. 524, 528 (1973). "A voir dire that has the effect of impairing a
defendant's ability to exercise intelligently his challenges, whether for
cause or peremptory, is a ground for reversal, irrespective of preju-
dice." United States v. Evans, 917 F.2d 800, 807 (4th Cir. 1990). See
also Sasaki v. Class, ___ F.3d ___, ___, 1996 WL 45095, at *5 (4th
Cir. 1996).

In this case, Cowan and White each submitted to the district court
a list of proposed questions for the jury venire. The district court

15
asked some of their questions precisely as submitted, and asked a
number of other questions covering the same topics as questions they
had submitted. At a bench conference at the conclusion of the court's
voir dire, Cowan's counsel stated "I think Your Honor has covered
the other questions, thank you." The district court then asked, "Any-
thing else?" and received no response from either defense attorney.
Accordingly, appellants have failed to preserve for appellate review
any complaint about the voir dire.

Even if they had preserved their argument, it is meritless. Appel-
lants' claim focuses on the precise form of the questions the district
court asked rather than the court's failure to question the venire about
a particular subject of significance to the case. A trial court is not
required to ask questions in any particular form or to ask any particu-
lar number of questions on a subject simply because a defendant asks
for them. See Ham, 409 U.S. at 527; United States v. Jones, 608 F.2d
1004, 1007 (4th Cir. 1979) (trial court has broad discretion in con-
ducting voir dire, particularly in phrasing the questions to be asked),
cert. denied, 444 U.S. 1086 (1980). The questions the district court
asked the jury adequately covered the topics suggested by appellants'
proposed questionnaire, and elicited enough information to allow
appellants to exercise their challenges intelligently. The court acted
within its discretion in conducting voir dire as it did.

B.

Finally, appellants argue that the district court erred in failing to
provide each of them with twenty peremptory challenges. Federal
Rule of Criminal Procedure 24(b) provides:

If the offense charged is punishable by death, each side is
entitled to 20 peremptory challenges. If the offense charged
is punishable by imprisonment for more than one year, the
government is entitled to 6 peremptory challenges and the
defendant or defendants jointly to 10 peremptory challenges.
If the offense charged is punishable by imprisonment for not
more than one year or by fine or both, each side is entitled
to 3 peremptory challenges. If there is more than one defen-
dant, the court may allow the defendants additional peremp-

16
 tory challenges and permit them to be exercised separately
or jointly.

Fed. R. Crim. P. 24(b) (emphasis added). Cowan and White assert
that because they were tried together, the trial involved three "sides,"
and that the rule entitled each of these three sides to twenty peremp-
tory challenges. Appellants' argument is without merit.

First, we have found no cases interpreting Rule 24(b) as appellants
suggest. Indeed, the Advisory Committee Notes on Rule 24(b) make
plain that courts should treat joint defendants as one party for pur-
poses of allocating peremptory challenges. The Advisory Committee
Notes state:

In capital cases the number of challenges is equalized as
between the defendant and the United States so that both
sides have 20 challenges, which only the defendant has at
present. While continuing the existing rule that multiple
defendants are deemed a single party [e.g. "side"] for pur-
poses of challenges, the rule vests in the court discretion to
allow additional peremptory challenges and to permit such
changes to be exercised separately or jointly.

Fed. R. Crim. P. 24 advisory committee's note. Because the Advisory
Committee Notes are instructive on the drafters' intent in promulgat-
ing the federal rules, see Williams v. United States, ___ U.S. ___, 114
S. Ct. 2431, 2442 (1994) (Kennedy, J., concurring) (listing cases tak-
ing Advisory Committee Notes as authoritative evidence of intent),
we conclude that multiple defendants in capital cases must exercise
their peremptory challenges jointly, as a single party.

Moreover, the discretion given to the trial court to allow additional
peremptory challenges to multiple defendants in capital, felony, and
misdemeanor cases further implies that multiple defendants have no
right to additional challenges. See, e.g., United States v. Cochran, 955
F.2d 1116, 1121 (7th Cir.) (no abuse of discretion in refusing to grant
more than ten joint peremptory challenges to defendants in five-
defendant drug case), cert. denied, 506 U.S. 972 (1992); United States
v. Meredith, 824 F.2d 1418, 1423 (4th Cir.) (no abuse of discretion
in refusing to grant more than total of ten statutorily required peremp-

17
tory challenges in trial of seven defendants, even though trial court
originally agreed to grant extra challenges), cert. denied, 484 U.S.
969 (1987), and cert. denied, 485 U.S. 991 (1988); United States v.
Vallez, 653 F.2d 403, 405 (9th Cir.) (since government did not seek
death penalty, three defendants tried jointly in murder case were not
entitled to total of twenty challenges), cert. denied, 454 U.S. 904
(1981). Accordingly, appellants were not deprived of any statutorily
required peremptory challenges.4

V.

For all of the above stated reasons, appellants' convictions are

AFFIRMED.
_________________________________________________________________

4 Even if appellants' reading of Rule 24(b) was correct, which it is not,
appellants would not be entitled to the benefits of the rule because it
applies to capital cases and appellants were not subject to the death pen-
alty. Although the government does not raise this argument in its brief,
the Federal Death Penalty Act of 1994, 18 U.S.C.§ 3591 (1994), which
established constitutional procedures for implementing the death penalty
for federal murders, was not effective when Cowan and White murdered
Martin in 1993. Consequently, Cowan and White were not subject to the
death penalty. Defendants not subject to the death penalty are not entitled
to twenty peremptory challenges under Rule 24(b). See, e.g., United
States v. Goseyun, 789 F.2d 1386, 1387 (9th Cir. 1986) (defendant not
entitled to twenty challenges in § 1111 case after judicial invalidation of
death penalty); United States v. Martinez, 536 F.2d 886, 890 (9th Cir.
1976) (where death penalty was not sought in federal murder case, the
case is no longer a capital case requiring twenty peremptory challenges
under Rule 24(b)); United States v. Vallez, 653 F.2d at 406 (even though
defendants were charged with first degree murder, they were not entitled
to twenty peremptory challenges where government agreed not to seek
death penalty). Here, the district court provided defendants with twenty
challenges where the statute entitled them only to ten.

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