UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4099
NATHANIEL JOHN LITTLE, a/k/a Nate,
a/k/a Red,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4100
WILLIAM LAMONT SLATE, a/k/a
Chicago,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Newport News.
Rebecca B. Smith, District Judge.
(CR-97-41)
Argued: December 3, 1998
Decided: March 23, 1999
Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Charles E. Haden, Hampton, Virginia, for Appellant Lit-
tle; James Spaulding Powell, Gloucester, Virginia, for Appellant
Slate. Michael R. Smythers, Assistant United States Attorney, Nor-
folk, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United
States Attorney, Norfolk, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Nathaniel John Little ("Little") and William Lamont Slate ("Slate")
were named, along with three other individuals, in a thirty-five count
indictment. After a joint trial, Little and Slate were convicted of mul-
tiple offenses and sentenced. They appeal their convictions and sen-
tences on numerous grounds. We affirm.
I.
The record provides the following background. The charges against
Little and Slate stem from a crack cocaine and marijuana distribution
ring that began in January 1990. This narcotics ring operated in Vir-
ginia, in New Kent and Gloucester counties and near the town of
West Point. Initially, Brian Washington ran the operation. In January
1996, however, Little, who was also known as "Red," began directing
the operation which by this time was centered at the Washington Bur-
gess Inn in New Kent County and on 15th Street in West Point.
Indeed, Little labeled 15th Street -- an area where Washington and
other drug pushers in Little's group plied their trade -- "Reds Block."
J.A. 393. Several months later, in October or November 1996, Slate
became involved in Little's ring, purchasing cocaine from Little and
2
distributing it to customers in Gloucester County. At its zenith, this
enterprise produced $1000 - $2000 per night in drug sales.
Evidence at trial demonstrated that Little did not shrink from vio-
lence in connection with his drug trade. In November 1996, Little and
Roderick Williams, a member of Little's group, attempted to kill a
rival drug dealer and his wife but the victims survived the attack.
Later that month, Little served as the triggerman in a drive-by shoot-
ing of drug competitors who were making sales in Little's territory on
15th Street in West Point.
Cleveland "Petey" Christian was involved in Little's narcotics ring,
selling drugs for Little and also receiving cocaine from him for per-
sonal consumption. On January 4, 1997, Petey accompanied Little to
the Washington Burgess Inn. Little was apparently under the impres-
sion, created by Slate, that Petey was a "snitch" and might potentially
inform the authorities about Little's activities. Little summoned Slate
to the motel, ostensibly to have Slate and Petey clarify whether, in
fact, Petey posed any such threat. After Slate arrived at Little's motel
room, however, Little shot Petey in the head with a .45 caliber semi-
automatic handgun. Little's girlfriend, Angela Edwards, was in the
room and witnessed Little murdering Petey. Little also told various
people that he killed Petey. Slate, who brought plastic with him to the
motel, wrapped up the body and dumped it at a nearby river landing
with the help of his wife.
Shortly after the murder, Little was arrested. While in custody, he
told law enforcement officers that he was not at the Washington Bur-
gess Inn on the night of the murder. At trial, however, Little decided
to testify and reversed himself, admitting that he was in the room
when Petey was killed. In fact, Little did not deny that his handgun
fired the bullet that killed Petey, nor did he deny that he was holding
the handgun immediately before and after it discharged. Rather, Little
claimed that Slate was somehow able to snatch the gun, shoot Petey
and throw it back into Little's hand, essentially in one fluid motion
and before Little could react.
Little was indicted on the following charges: conspiracy to possess
with intent to distribute crack cocaine, marijuana, and heroin, see 21
U.S.C.A. § 846 (West Supp. 1998); conducting a continuing criminal
3
enterprise, see 21 U.S.C.A. § 848(a), (c) (West Supp. 1998); murder
in furtherance of a continuing criminal enterprise, see 21 U.S.C.A.
§ 848(e)(1)(A) (West Supp. 1998); seven counts of possession with
intent to distribute crack cocaine, see 21 U.S.C.A. § 841(a)(1) (West
1981); four counts of distribution of crack cocaine or heroin, see 21
U.S.C.A. § 841(a)(1); employment and use of a person under 18 years
of age to distribute cocaine base, see U.S.C.A. § 861(a)(1) (West
Supp. 1998); engaging in a drive-by shooting, see 18 U.S.C.A.
§ 36(a)(1)-(2), (b)(1) (West Supp. 1998); and four counts of using and
carrying a firearm in relation to a drug trafficking crime, see 18
U.S.C.A. § 924(c)(1).
Prior to trial, Little moved to suppress the statement he made to the
police shortly after his arrest on the ground that the statement was
involuntary because he was experiencing heroin withdrawal symp-
toms at the time. He also moved that his trial be severed from Slate's
trial on multiple grounds. The district court denied these motions.
Subsequently, the jury found Little guilty on each and every count of
the indictment. The district court then imposed a sentence that
included a life term of imprisonment.
Slate was initially charged with capital murder by the Common-
wealth of Virginia. During the course of the Commonwealth's investi-
gation, Slate gave an oral and a written statement to Lieutenant
Maxwell Strigle of the Gloucester County Sheriff's Department in
which he explained the events surrounding the murder and admitted
that he and his wife disposed of the body after Little shot Petey. After
Slate retained counsel, he gave oral and written statements to Corpo-
ral James Anthony of the New Kent County Sheriff's Department
which were consistent with his previous statements that he and his
wife dumped the body at the river after Little committed the murder.
Eventually, the Commonwealth dropped its charge against Slate, and
Slate's federal prosecution went forward.
Slate was indicted on five counts: conspiracy to possess with intent
to distribute crack cocaine, marijuana, and heroin, see 21 U.S.C.A.
§ 846; accessory after the fact to murder, see 18 U.S.C.A. § 3 (West
Supp. 1998); and three counts of possession of crack cocaine with
intent to distribute, see 21 U.S.C.A. § 841(a)(1). Prior to trial, Slate
also moved for a severance from Little, but the district court denied
4
this motion. Like Little, Slate was convicted on every count of the
indictment and received a sentence that included a life term of impris-
onment.
II. Little's Appeal
A.
Little appeals on several grounds, but he concentrates his efforts on
the district court's refusal to grant a severance, which we will not dis-
turb without a clear abuse of discretion. See United States v. Reavis,
48 F.3d 763, 767 (4th Cir. 1995). In asserting that the district court
should have allowed him a separate trial, Little advances essentially
the same arguments he made below, urging us to depart from the stan-
dard rule "that defendants who are charged in the same criminal con-
spiracy should be tried together." Id.; see Zafiro v. United States, 506
U.S. 534, 537 (1993).
First, Little claims that he was denied access to exculpatory testi-
mony that Slate, who exercised his Fifth Amendment right not to tes-
tify, could have provided had Slate not been on trial with him. Little
contends that Slate's exculpatory testimony would consist of a state-
ment that Slate made to his wife that he, not Little, killed Petey. We
reject this argument, which is generally not a winning one. See
Reavis, 48 F.3d at 767 ("A defendant's attempt to have her trial sev-
ered from that of a co-defendant is far less likely to succeed when the
request is based on the asserted need for a co-defendant's testi-
mony."). In order to demonstrate that he is entitled to a severance
based on the need for a co-defendant's testimony, Little must estab-
lish:
(1) a bona fide need for the testimony of his co-defendant;
(2) the likelihood that the co-defendant would testify at a
second trial and waive his Fifth Amendment privilege;
(3) the substance of his co-defendant's testimony; and
(4) the exculpatory nature and effect of such testimony.
5
Id. (quoting United States v. Parodi, 703 F.2d 768, 779 (4th Cir.
1983)). Clearly, Little fails to satisfy, at the very least, the second and
fourth elements of the Parodi test. Little does no more than speculate
about whether Slate would have testified, suggesting that he could
have forced Slate to testify in a separate trial by requesting that he be
granted immunity. We see nothing in the record demonstrating a "rea-
sonable probability," Parodi, 703 F.2d at 779 (internal quotation
marks omitted), that Slate would have offered exculpatory testimony
on Little's behalf in a separate trial. Moreover, Little has failed to
show that testimony from Slate would be exculpatory in any way.
Indeed, Slate told law enforcement officers that Little killed Petey;
thus, Slate's testimony quite likely would have implicated Little in the
murder, not exonerated him.1 Little's alleged need for Slate's testi-
mony, then, is not an appropriate basis to deviate from the standard
rule that co-conspirators should be tried together. The district court
did not abuse its discretion in refusing to do so.
Next, Little argues that he and Slate should have been tried sepa-
rately because they employed mutually antagonistic defenses. The
fact that co-defendants shield themselves with antagonistic or mutu-
ally exclusive defenses, however, does not automatically require a
severance. See Zafiro, 506 U.S. at 538-39. Instead, "a district court
should grant a severance ... only if there is a serious risk that a joint
trial would compromise a specific trial right of one of the defendants,
or prevent the jury from making a reliable judgment about guilt or
innocence." Id. at 539. The district court here concluded that Little
and Slate did not present antagonistic defenses because only Little
_________________________________________________________________
1 For that matter, Little has undoubtedly failed to establish the other
two elements of the Parodi test. First, he has not offered any proof of the
purported substance of Slate's testimony; he is merely guessing. And, we
note parenthetically that the substance of the anticipated testimony took
shape only on appeal. In front of the district court, Little simply made a
"vague and conclusory" allegation that his co-defendants would offer
exculpatory testimony, which is insufficient. Parodi, 703 F.2d at 780
(internal quotation marks omitted). Second, even if it were clear that
Slate would have waived the Fifth Amendment, taken the stand and testi-
fied that he told his wife that he, not Little, killed Petey, Little really has
no genuine need for this testimony since Slate's statement to this effect
came in through the testimony of Officer Strigle. See J.A. 877.
6
was charged with murder. We agree with that conclusion; however,
even if the defenses employed by Little and Slate could be considered
mutually exclusive, Little has simply not demonstrated any prejudice
from the joint trial, and we can find none in the record.
Finally, Little argues that he should have been granted a severance
because the district court admitted into evidence Slate's statement to
police that Little killed Petey. Because Slate chose not to testify at
trial, Little argues that his rights under the confrontation clause of the
Sixth Amendment were violated by the admission of this statement,
see Bruton v. United States, 391 U.S. 123 (1968), and that the
required remedy in this instance was a severance because Slate's
statement could not be satisfactorily redacted. Little did not make this
argument to the district judge; in fact, counsel for Little actually
agreed to the admission of the statement which was not redacted to
omit references to Little. See J.A. 869. Little, therefore, induced the
district court to permit the introduction of the statement and cannot
now complain that he was entitled to a severance when his complaint
is based on evidence that he agreed should come in. See United States
v. Herrera, 23 F.3d 74, 75 (4th Cir. 1994).
We point out further that if Little did not invite the district court
to erroneously admit Slate's statement, he at least failed to object to
it. When a defendant fails to make a contemporaneous objection, we
review for plain error. See United States v. Olano, 507 U.S. 725, 731-
32 (1993). In order to reverse for plain error, we are required to find:
"1) error; 2) that is plain; and 3) that affect[s] substantial rights."
United States v. David, 83 F.3d 638, 641 (4th Cir. 1996) (alteration
in original) (internal quotation marks omitted). Even if these three
prerequisites are fulfilled, we will exercise our discretion to notice the
error only if it "seriously affect[s] the fairness, integrity or public rep-
utation of judicial proceedings." Olano, 507 U.S. at 732 (alteration in
original) (internal quotation marks omitted). We conclude that the dis-
trict court did not plainly err in refusing to grant a severance to Little.2
_________________________________________________________________
2 It is not precisely clear whether Little contends on appeal that the
admission of Slate's statement itself entitles him to a new trial or whether
he contends that it merely gave him additional grounds for a severance.
To the extent Little argues, apart from the severance question, that the
7
The district court acted well within its discretion in denying Little's
motion to sever the trials.3
B.
Little argues that the district court erred in denying his motion to
suppress the statement he made to Officers Oakley and Strigle shortly
after his arrest in which he denied being at the Washington Burgess
Inn on the evening of Petey's murder. Little contends that his confes-
sion was not voluntary because he was suffering the ill effects of her-
oin withdrawal. We must conduct an independent determination of
whether, in view of "the totality of the circumstances," Little's state-
ment was voluntary, United States v. Braxton, 112 F.3d 777, 781 (4th
Cir.) (en banc) (internal quotation marks omitted), cert. denied, 118
S. Ct. 192 (1997); however, we review the district court's findings of
fact on the issue for clear error, see id. After an evidentiary hearing
at which Little and Officer Strigle testified, the district court found
that Little exhibited no behavior that would have notified the officers
that he was unable to comprehend and waive his Miranda warnings,
that Little supplied appropriate responses to the officers' questions,
and that Little, in fact, was not sick. We conclude that these findings
were not clearly erroneous. Further, application of the totality of the
circumstances test leads us to the conclusion that Little's statement
was voluntary and the district court properly refused to suppress it.
C.
Little argues that there was insufficient evidence to support a guilty
_________________________________________________________________
introduction of the statement entitled him to a new trial under Bruton, we
disagree. In light of Little's agreement that the prosecution could intro-
duce Slate's statement regardless of Bruton, and considering the over-
whelming evidence of Little's guilt, we believe that any error here would
not undermine the integrity of our judicial system. See Olano, 507 U.S.
at 732.
3 We also reject as completely meritless Little's argument that he
should have been granted a severance because of the risk that he would
be convicted based on his association with Slate. The record contains
overwhelming evidence of Little's guilt.
8
verdict on any of the charges against him and that the district court
erred in denying his motion for acquittal. Viewing the evidence in the
light most favorable to the Government, we must affirm Little's con-
viction if the evidence is such that "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) (emphasis in
original). Our review is de novo. See United States v. United Med. &
Surgical Supply Co., 989 F.2d 1390, 1401 (4th Cir. 1993). Having
closely considered the record, we conclude that the evidence is more
than sufficient to sustain Little's convictions on each count.
D.
Little attacks his sentence on four grounds. First, he objects to the
four-level enhancement applied by the district court for Little's lead-
ership role in the narcotics enterprise. A four-level enhancement for
the assumption of an "aggravating role" is appropriate "[i]f the defen-
dant was an organizer or leader of a criminal activity that involved
five or more participants or was otherwise extensive." U.S. Sentenc-
ing Guidelines Manual § 3B1.1(a) (1997). Little suggests that the
record does not support the district court's conclusion that he was a
leader or organizer of the drug ring in which he was involved. Essen-
tially, then, his contention turns on the district court's findings of fact,
which we review for clear error. See United States v. Castner, 50 F.3d
1267, 1279 (4th Cir. 1995). In light of the substantial evidence that
Little assumed control of the conspiracy when he joined it, we con-
clude the district court's factual determinations reveal no error, let
alone a clear one.
Next, Little objects to the two-level enhancement he received for
victim restraint. This adjustment applies "[i]f the victim was physi-
cally restrained in the course of the offense." U.S.S.G. § 3A1.3. He
bases his argument on the testimony of Angela Edwards, who was in
the hotel room on the night of the murder and testified that Petey was
not bound by Little. The district court, however, relied on testimony
from Gerald Garner who testified that, on the evening of the murder,
he saw Little order Petey into a car in West Point. When Petey
refused, Little struck him on the head with a gun. After Petey still
resisted, Little struck him in the head again, forcing Petey into the car.
Furthermore, there was testimony that once Petey got into the car, Lit-
9
tle "put the pistol behind his head." J.A. 547. The district court con-
cluded that, based on these facts, the restraint of victim enhancement
was appropriate. We agree. The Guidelines instruct that "`[p]hysically
restrained' means the forcible restraint of the victim such as by being
tied, bound, or locked up." U.S.S.G. § 1B1.1, comment. (n.1(i)).
However, these examples do not comprise an exclusive list of ways
to physically restrain a victim within the meaning of the Guidelines.
See United States v. Stokley, 881 F.2d 114, 116 (4th Cir. 1989). The
concept is broader: "`Restrain' is defined as`1. To control: check. 2.
To take away freedom or liberty of. 3. To restrict or limit.'" Id. (quot-
ing Webster's Second New Riverside University Dictionary (1984)).
We think it is clear that Little's use of force to control and direct
Petey's movement against his will amounts to physical restraint, as
does his use of the gun inside of the car. See United States v. Jones,
32 F.3d 1512, 1519 (11th Cir. 1994) (concluding that"physical
restraint" occurs when "the obvious presence of handguns ensure[s]
the victims' compliance"). The district court properly applied the two-
level enhancement for restraining the victim.
Little also objects to his two-level enhancement for obstruction of
justice, see U.S.S.G. § 3C1.1, although he fails to identify specifically
the district court's mistake. The district court concluded that Little
committed perjury in denying his involvement in the murder and in
the drug operation despite the overwhelming evidence to the contrary.
The court reviewed the evidence and made the independent factual
determination that Little perjured himself at trial with respect to the
murder charge and the drug enterprise, matters which were obviously
material at trial. See United States v. Dunnigan , 507 U.S. 87, 95
(1993) (explaining that it is sufficient for the sentencing court to
apply an obstruction enhancement if it "makes a finding of an
obstruction of ... justice that encompasses all of the factual predicates
for a finding of perjury"). The district court committed no error.
Finally, Little contends that his conviction for murder in further-
ance of a continuing criminal enterprise was connected to most of the
other counts by a common criminal objective or as part of a common
scheme and, therefore, should have been grouped with those counts
for purposes of sentencing. See U.S.S.G.§ 3D1.2(b). Under subsec-
tion (b), however, grouping is appropriate only if the counts to be
grouped involve the same victim, which is clearly not the case here.
10
Rather, the district court considered § 3D1.2(d), the only subsection
which could possibly apply. But, under subsection (d), all offenses
that are covered by Chapter Two, Part A of the Guidelines are specifi-
cally excluded from grouping. Because the guideline covering murder
falls under Chapter Two, Part A, see U.S.S.G. § 2A1.1, the district
court correctly concluded that Little's murder conviction could not be
grouped.
III. Slate's Appeal
A.
Slate, like Little, argues that the district court erroneously denied
his motion to sever. On appeal, he advances the same assertion he
made to the district court: the evidence of wrongdoing was so over-
whelming against Little, and so slight against Slate, that he suffered
a prejudicial spillover effect. As the court has recognized before,
"[t]he fact that the evidence against one defendant is stronger than the
evidence against other defendants does not in itself justify severance"
since, were it otherwise, such motions in a conspiracy case would
"have to be granted almost as a matter of course." United States v.
Brooks, 957 F.2d 1138, 1145 (4th Cir. 1992). Rather, Slate "must
establish that prejudice would result from a joint trial ... not merely
that separate trials would result in a better chance of acquittal." Id.
There was plenty of evidence to support Slate's convictions; indeed,
on four of the five counts, Slate does not argue on appeal that the dis-
trict court erred in refusing to grant a motion for acquittal based on
the insufficiency of the evidence. We do not perceive any prejudice
to Slate merely because the quantity of evidence against Little was
greater than that against Slate, nor do we see any other source of prej-
udice requiring separate trials. Accordingly, we conclude that the dis-
trict correctly denied Slate's motion for a severance.
B.
Slate asserts that he was prejudiced by the conduct at trial of both
the prosecutor and counsel for Little. First, Slate argues that he was
a victim of prosecutorial misconduct because the Government's attor-
ney referred to him as the "parolee from Chicago." Slate points us to
four instances over the course of the seven day trial where Slate's sta-
11
tus as a parolee was mentioned. Slate, however, did not object to the
use of this term at trial, nor did he move in limine to exclude evidence
of his parole status. Thus, Slate can prevail on this issue only if the
district court committed plain error. See Olano , 507 U.S. at 731-32.
We have reviewed the portions of the record highlighted by Slate and
conclude that the district court did not plainly err. In fact, Slate's con-
tention that the prosecutor incessantly referred to him as a "parolee"
mischaracterizes the record. For example, in one portion of the record
cited by Slate in support of his argument, the prosecutor simply asked
Slate's wife, who was with Slate when he disposed of the body, to
explain why they did not later report the murder to the police. Her
response was that "well, you are on parole now, and I'm scared, and
I don't know if we should or not." J.A. 1063-64. Slate's argument is
meritless.
Next, Slate argues that he was entitled to a mistrial when counsel
for Little called him to the witness stand in the presence of the jury,
knowing full well that Slate did not intend to testify. Following Lit-
tle's testimony, Little's trial counsel called Slate to the stand, which
prompted Slate's counsel to request a bench conference. Outside of
the jury's presence, Slate's counsel indicated that Slate intended to
exercise his Fifth Amendment right not to testify and that trial counsel
for Little had been told of Slate's intention to remain silent prior to
calling Slate as a witness. Counsel for Slate, however, did not move
for a mistrial. The district court concluded that Slate could not be cal-
led to the stand by Little since Slate intended to invoke his right under
the Fifth Amendment not to testify. Moreover, the district court found
that counsel for Little failed to give sufficient notice that he planned
to call Slate and acted improperly in raising the issue in front of the
jury. When the jury returned, the court immediately issued a standard
instruction regarding Slate's right not to testify. Slate did not object
to this instruction or request that the court amplify it in any way.
Slate believes that the conduct of Little's attorney amounted to an
impermissible comment on Slate's right not to testify under the Fifth
Amendment. Indeed, the Fifth Amendment "forbids either comment
by the prosecution on the accused's silence or instructions by the
court that such silence is evidence of guilt." Griffin v. California, 380
U.S. 609, 615 (1965). Here, however, it was Little's attorney, not the
prosecutor, who commented on Little's failure to testify. As an initial
12
observation, we are not fully convinced that Slate's"right to remain
silent was ... impaired [because] the comment on his silence was
made by a codefendant's counsel, not by the prosecutor." United
States v. Griffith, 756 F.2d 1244, 1253 (6th Cir. 1985). Even if we
were to apply the same standard that we use to examine conduct com-
ing from the prosecutor, we reject Slate's position. The question in
determining whether the prosecution improperly commented on a
defendant's failure to testify is whether "the language used [was]
manifestly intended to be, or was it of such character that the jury
would naturally and necessarily take it to be a comment on the failure
of the accused to testify." United States v. Francis, 82 F.3d 77, 78
(4th Cir. 1996). In this instance, no comment was made expressly
referring to Slate's failure to take the stand, and we do not believe that
a reasonable jury would necessarily conclude that Little's counsel was
making a veiled suggestion that Slate's "silence[was] evidence of
guilt." Griffin, 380 U.S. at 615.
Finally, even if Little's calling Slate to the stand amounted to an
error under Griffin, we conclude "that it was harmless beyond a rea-
sonable doubt." Chapman v. California, 386 U.S. 18, 24 (1967). We
rest this conclusion on the compelling nature of the evidence of
Slate's guilt, see United States v. Hasting, 461 U.S. 499, 510-12
(1983), and the fact that the conduct occurred on a single, isolated
occasion, coupled with the court's instruction given immediately to
the jury regarding Slate's constitutional right not to testify.
C.
Next, Slate asserts that his Fifth Amendment rights were violated
by the admission of Slate's written account of the murder which Slate
prepared for his attorney Damien Horne on a state capital murder
charge arising from Petey's slaying. During the course of the Com-
monwealth's investigation of the murder, Slate, with Horne present,
made an oral statement to Corporal Anthony, identifying Little as the
killer and explaining the events that occurred on the night of the mur-
der. Subsequently, Slate prepared a written statement for Horne that
mirrored in all material respects the oral statement he gave to the police.4
_________________________________________________________________
4 Slate also made two statements, one oral and one written, for Lieuten-
ant Strigle before Horne's involvement as Slate's attorney. These state-
ments were consistent with the ones Slate made under Horne's
observation.
13
Horne then forwarded the written statement to an attorney for the
Commonwealth. The Commonwealth later dropped the capital murder
charge against Slate.
At Slate's trial on his federal charges, Corporal Anthony recounted
Slate's oral statement for the jury; however, when the government
sought to introduce Slate's written statement, Slate objected on the
basis of the attorney-client privilege, claiming that he never autho-
rized Horne to forward his statement to the attorneys for the Com-
monwealth. After the statement was admitted into evidence, Horne
testified outside of the presence of the jury that the written statement
was provided to the authorities in order to clarify the details of Slate's
prior oral statement to Corporal Anthony. Horne explained that his
intention was to encourage the Commonwealth to reduce the charges
against Slate and that this idea was thoroughly discussed with Slate,
who agreed. Relying on this testimony, the district court determined
that there had been no breach of the attorney-client privilege.
We do not perceive any error. And, even if the district court erred
in admitting the written statement, the error was harmless since the
contents of the written statement are virtually the same as that of his
oral statement to Corporal Anthony and his statements to Officer
Strigle. Furthermore, we agree with the district judge that the issue
should have been anticipated prior to trial and presented to the district
court by way of a pretrial motion. Because Slate did not do so, he
waived his grounds for suppressing the statement. See United States
v. Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997). Accordingly, Slate is
not entitled to relief on this basis.
D.
Finally, Slate challenges his sentence. He believes that the district
court should have classified him as a minimal participant in the drug
conspiracy under U.S.S.G. § 3B1.2 because the evidence showed that
he was involved in a very small number of drug transactions when
compared to Little and other members of Little's drug ring. At Slate's
sentencing hearing, the district judge rejected this argument, finding
that Slate admitted to purchasing drugs to pass along to other custom-
ers, spent time at the Washington Burgess Inn, understood "the activi-
ties and the scope of this conspiracy," J.A. 1462, and was not the least
14
culpable member of the entire organization when compared with
those who were not charged. Additionally, the district court noted that
Slate disposed of the body following a murder that was committed in
furtherance of the drug conspiracy. In view of the record, the district
court's factual determination was not clearly erroneous. See Castner,
50 F.3d at 1279.5
IV.
For the reasons set forth above, we affirm the convictions and sen-
tences of Little and Slate on all counts.
AFFIRMED
_________________________________________________________________
5 We have carefully reviewed Slate's remaining contention that the dis-
trict court erred in denying his motion for acquittal on his conspiracy
charge and conclude that it is without merit.
15