UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 98-4342

CALVIN A. LONG,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
Glen M. Williams, Senior District Judge.
(CR-97-16)

Argued: January 29, 1999

Decided: March 19, 1999

Before WIDENER, MURNAGHAN, and HAMILTON,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Charles Randall Lowe, TATE, LOWE & ROWLETT,
Abingdon, Virginia, for Appellant. Rick A. Mountcastle, Assistant
United States Attorney, Abingdon, Virginia, for Appellee. ON
BRIEF: Robert P. Crouch, Jr., United States Attorney, Abingdon,
Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Defendant, Calvin A. Long, Jr., was convicted of knowingly and
willfully destroying or attempting to damage and destroy an interstate
pipeline facility pursuant to 49 U.S.C. § 60123(b). Long challenges
his conviction and sentence on five grounds. We are of opinion there
is no error, and we affirm.

I.

East Tennessee Natural Gas Company (East Tennessee) operates a
natural gas pipeline that runs from Nora, Virginia to customers in Vir-
ginia, Tennessee, and Georgia. A section of this pipeline, which is
under the jurisdiction of the Federal Energy Regulatory Commission,
is laid underground through a 50-foot right of way on a piece of prop-
erty in which Long owns a life estate. On April 14, 1997, Long con-
tacted an entity named Miss Utility, which is the organization that
marks underground utility systems prior to any digging near them, to
report that he intended to excavate a gas pipeline on his property.
After receiving no response from East Tennessee to his first call,
Long placed a second call to Miss Utility on May 1, 1997. Long
stated in that second call that East Tennessee had not responded to his
first call and that he already had excavated part of his land that cov-
ered the pipeline.

Following Long's second call to Miss Utility, East Tennessee's
employee Wesley Elswick telephoned Long on May 2, 1997, and
Long restated his intention to remove the pipeline from his property.
Long requested that Elswick close the main valve that controls the
flow of gas through the pipeline on his property in order to avoid an
explosion if Long ruptured the pipeline while digging. Long again
asserted that he was in the process of excavating the pipeline. Later
that same day, Elswick's supervisor, Jody Mitchell, met Long at

                    2
Long's residence. During this meeting, Long repeated that he already
had started to excavate on the right of way above the pipeline and
again requested that East Tennessee close the main valve. He further
demanded that East Tennessee pay $1,000 (perhaps per month) to a
charity in return for his postponement of the excavation for one
month. Long also refused to allow East Tennessee's employees to
inspect the right of way to assess any damage. On May 5, 1997,
Mitchell flew over Long's property in a helicopter and confirmed that
Long actually had been digging in the pipeline right of way.

On May 7, 1997, two Federal Bureau of Investigation (FBI) agents
posed as East Tennessee's employees and went to Long's residence
to speak with him. During a monitored conversation, Long stated that
he intended to excavate the pipeline and that he had already started
digging. Long also reiterated his demand for a $1,000 payment to
postpone the digging. Some time after this conversation, FBI Special
Agent Douglas Fender and Virginia State Police Officer Don Moser
arrested Long and transported him to the U.S. Attorney's office in
Abingdon, Virginia. After Long's arrest, Mitchell examined the exca-
vation, which was directly over the pipeline, and measured it to be
approximately eight feet wide, eleven feet long, and three feet deep.

Long was indicted on May 14, 1997 on two counts. Count One
charged that Long knowingly and willfully damaged or attempted to
damage or destroy an interstate gas pipeline facility in violation of 49
U.S.C. § 60123(b), and Count Two charged that he knowingly and
willfully attempted to obstruct, delay, and affect commerce by extor-
tion in violation of 18 U.S.C. § 1951(a). The case was tried on Janu-
ary 8, 9, 10, 1998, and the jury convicted Long on Count One only.
The district court then sentenced Long to serve six months in jail.

II.

Long first contends that his conviction must be reversed and the
indictment dismissed because his trial was not in compliance with the
Speedy Trial Act (the "Act"). See 18 U.S.C.§ 3161. The Act states
that a defendant's trial must begin within 70 days of either the day the
indictment was filed or made public, or the day the defendant made
his or her first appearance before a judicial officer of the court in
which the charge is pending, whichever is later. 18 U.S.C.

                    3
§ 3161(c)(1). In calculating this 70-day period, the clock begins to run
following the day that triggers the Act's clock; the day of the filing
or opening of the indictment or the initial appearance is excluded
from the calculation. See United States v. Stoudenmire, 

,
63 (4th Cir. 1996). The Act also enumerates periods of delay that are
to be excluded in calculating the 70-day period. See 

. These excludable periods of delay include the delay result-
ing from pre-trial motions, a period that encompasses the time "from
the filing of the motion through the conclusion of the hearing on, or
other prompt disposition of, such motion." 18 U.S.C. § 3161(h)(1)(F).
Therefore, the day a motion is filed through the day the district court
holds a hearing on the motion is excluded when calculating the 70-
day period under the Act. See Henderson v. United States, 

, 332 (1986); 

.

In applying these principles to Long's contention, we first note that
this court conducts a de novo review of the district court's legal con-
clusions related to its interpretation of the Act, and we review factual
findings related to the Act for clear error. See 

. Here, the facts are undisputed, and from such facts we calculate
the number of days to be included in Long's 70-day period under the
Act.

On September 15, 1997, the district court scheduled Long's trial
for October 27, 1997, after Long signed a waiver of his rights under
the Act until October 27 and 28, 1997. The district court, however,
because of eye surgery, was unable to begin the trial on the assigned
date, and Long's trial was continued and rescheduled for January 8,
1998. Long contends that a total of 73 days elapsed from the last day
waived by him of October 28, 1997 and the day his trial began on
January 8, 1998. The 73-day period, however, included days which
should not have been counted.

Long signed a waiver of his rights under the Act that extended until
October 28, 1997.1 Therefore, October 28, 1997 is the date that trig-
gers the Act's clock, but the clock did not begin to run until the next
day, October 29, 1997. See 

. The clock for
_________________________________________________________________
1 Long does not challenge the validity of his waiver under the Act until
October 28, 1997.

                    4
Long's 70-day period continued to run until December 24, 1997, on
which date the government filed a motion in limine to exclude certain
evidence that Long was expected to introduce at trial. Pursuant to 18
U.S.C. § 3161(h)(1)(F), the time from the filing of the motion to the
hearing or other disposition of the motion is excluded from calcula-
tions in arriving at the 70-day total. See 

;
United States v. George, 

, 1436 (9th Cir. 1996). There-
fore, the time from December 24, 1997 until the start of the trial on
January 8, 1998, at which time the court ruled on the government's
motion, is excluded from calculating Long's 70-day period. Thus,
only 57 counted days elapsed between October 29, 1997 and Decem-
ber 24, 1997, and there is no violation of the Act. 2

III.

Long next argues that his conviction should be reversed because
the district court failed to suppress his statements to officer Moser fol-
lowing his arrest. Specifically, Long contends that he invoked his
Sixth Amendment right to counsel and that no further communication
should have taken place between himself and the arresting officers.
We review the district court's findings of fact on a motion to suppress
under a clearly erroneous standard and review legal conclusions de
novo. See United States v. Rusher, 

, 873 (4th Cir.), cert.
denied, 

(1992).

Long argues that his statements regarding the excavation of the
pipeline were obtained in violation of the Sixth Amendment. Long,
however, cannot avail himself of the protections of the Sixth Amend-
ment because it only applies after the government has initiated judi-
cial proceedings against a defendant "by way of formal charge,
preliminary hearing, indictment, information or arraignment." See
Brewer v. Williams, 

, 398 (1977). Here, the government
had not initiated any such adversarial proceeding, rather Long had
only been arrested and was awaiting the processing of his arrest when
he made his statements.
_________________________________________________________________
2 We need not consider the continuance granted on account of the
judge's illness, the consideration of which would also have led to the
same result obtained in the body of the opinion.

                     5
We hold that Long's statements were not obtained in violation of
his Sixth Amendment right to counsel.3
_________________________________________________________________
3 Even considering the suppression motion pursuant to the Fifth
Amendment's right to counsel, there was no Constitutional violation.
Following a defendant's invocation of the right to counsel under the Fifth
Amendment, an officer must cease interrogating the defendant and the
individual must have the opportunity to confer with an attorney at that
point. See Miranda v. Arizona, 

, 473-74 (1966). A defen-
dant's statements following his invocation of his right to counsel, how-
ever, are not necessarily suppressed under the Fifth Amendment. If the
defendant, while in custody of the police, volunteers voluntary state-
ments that are not made in response "to either express questioning or its
functional equivalent" by the police, then the statements are not obtained
in violation of the Fifth Amendment because no interrogation has tran-
spired. See Rhode Island v. Innis, 

, 300-01 (1979). Only if
the police officers interrogate the defendant by words or actions "that the
police should know are reasonably likely to elicit an incriminating
response from the suspect" will the statements be obtained in violation
of Miranda. See 

.

Here, Agent Fender arrested Long and advised him of his Miranda
rights by reading from FBI form FD395, which is also known as an
advice of rights form. After listening to his rights, Long stated that he
understood his rights, agreed to answer questions, and admitted his
attempted excavation of the pipeline and his intention to continue exca-
vating. Soon thereafter, Long began to make vague references to his
attorney, which agent Fender and officer Moser interpreted as Long's
request to have counsel present during questioning. Long, however, did
not make an explicit request for counsel. Nevertheless, the arresting offi-
cers ceased all questioning of Long at this point. Despite invoking his
right to counsel and the officer's cessation of questioning, Long contin-
ued to make incriminating statements during his transportation from his
residence to the U.S. Attorney's office in Abingdon. Once the agents
arrived at the office and proceeded to process the paperwork for Long's
arrest, Long continued to admit his conduct and intentions regarding his
excavation even though Officer Moser did not ask him a single question.

Long voluntarily initiated these communications with the agents and
willingly spoke of his conduct. The record does not contain nor does
Long contend that the officers engaged in any conduct that was designed
to elicit an incriminating response. Rather, Long simply started talking
to the police about his illegal acts and intentions after he invoked his
right to counsel. As the Supreme Court noted in Miranda: "Confessions

                    6
IV.

Long also argues that the district court erred in denying his motion
for judgment of acquittal because there was insufficient evidence to
support the jury's conviction of him on Count One of the indictment.
In reviewing a sufficiency of the evidence claim, we sustain the ver-
dict if, taking the view most favorable to the government, there is sub-
stantial evidence to support it. Glasser v. United States, 

,
80 (1942).

In order to prove a violation of 49 U.S.C. § 60123(b), the govern-
ment must prove that (1) the defendant damaged or destroyed or
attempted to damage or destroy, (2) an interstate gas pipeline facility,
and (3) he did so knowingly and willfully. 49 U.S.C.§ 60123(b).
Long does not challenge the sufficiency of the evidence as it relates
to the first two elements of the offense. Rather, he primarily argues
that the government presented insufficient evidence for the jury to
find that he attempted to damage the pipeline in a knowing or willful
manner. Long contends that his motivation for excavating was not to
damage the pipeline, but instead to alert East Tennessee to his claim
that the pipeline was illegally placed on his property.

The district court instructed the jury on the definitions of know-
ingly and willfully as they are used in the statute:

            The term knowingly as used in these instructions to describe
            the alleged state of mind of the defendant means that he was
            conscious and aware of this action, realized what he was
            doing, or what he was happening around him, and did not
_________________________________________________________________
remain a proper element in law enforcement. Any statement given freely
and voluntarily without any compelling influences is, of course, admissi-
ble evidence." 

. Long's statements made while
in transit to the U.S. Attorney's office and while at the office were not
the result of interrogation by the officers. The statements were not
obtained in violation of Long's Fifth Amendment right to counsel, and
we affirm the district court's ruling. The district court found as a fact that
Long was not being interrogated after he mentioned an attorney, and the
record supports that finding.

                     7
          do so [out] of ignorance, mistake, or accident or some inno-
          cent reason. The term willfully as used in these instructions
          to describe the alleged state of mind of the defendant means
          that the act was committed voluntarily and purposely with
          the specific intent to do, to do something that the law for-
          bids.

Long did not object to the court's definition of the terms as they are
employed by 49 U.S.C. § 60123(b).

The record contains ample evidence to support the jury's finding
that Long acted with the requisite intent while excavating on the right
of way. On April 14, and May 1, 1997, Long reported to Miss Utility
that he intended to excavate the pipeline on his property and that he
had already begun the process. Then, in conversations with East Ten-
nessee's employees Elswick and Mitchell, Long reiterated his inten-
tion and conduct in excavating the pipeline. Long also demanded that
East Tennessee close the main valve that controls the gas flow
through the section of pipeline on his land and requested a $1,000, or
greater, donation to a charity in exchange for his postponing the exca-
vation. Further, Long made similar statements regarding his excava-
tion of the pipeline to FBI agents who recorded the conversation
moments before Long was arrested. Taking this evidence in the light
most favorable to the government, we affirm the verdict in the district
court that there was sufficient evidence to support the conclusion that
Long was aware of his conduct in excavating the pipeline and that he
purposely intended to excavate it in violation of 49 U.S.C.
§ 60123(b).

V.

Long next challenges his conviction on the ground that the district
court improperly excluded evidence regarding an earlier condemna-
tion proceeding that occurred in the Circuit Court of Russell County,
Virginia and subsequent civil litigation over that court's order. Defen-
dant argues that this evidence was relevant to proving his lack of spe-
cific intent to damage the pipeline under 49 U.S.C.§ 60123(b). We
review the district court's decision as to the relevance of evidence for
an abuse of discretion. See United States v. Lancaster, 

,
744 (4th Cir. 1996), cert. denied, ___ U.S. ___, 

(1997).

                     8
This evidentiary issue arises from Long's attempt to demonstrate
that a condemnation action in which the Circuit Court of Russell
County granted East Tennessee a right of way across Long's property
was illegal because Long was not made a party to the action. There-
fore, Long sought to introduce evidence during his criminal trial that
showed his conduct in excavating the pipeline was justified because
the pipeline was illegally placed on his property.

The district court allowed Long to introduce evidence from the
prior civil litigation concerning the condemnation proceeding which
tended to show Long's state of mind at the time he committed the
conduct resulting in his conviction. The district court, however,
excluded evidence concerning alleged modification of deed books and
court files, and the testimony of judges and lawyers who participated
in Long's prior litigation over the right of way.

Long has the Constitutional right to a "fair opportunity to present
a defense," see Crane v. Kentucky, 

, 687 (1985), but that
right does not include the "right to present any evidence that the
defense wishes, regardless of the its admissibility under the Federal
Rules of Evidence." See 

. The court permit-
ted Long to argue his lack of specific intent by presenting some evi-
dence regarding the prior condemnation proceeding and civil
litigation, but the dispositions of the prior civil matters were not
defenses to the criminal charge against Long, and excessive evidence
belaboring the same point was superfluous and redundant. The court's
ruling did not affect Long's ability to present a defense, and we find
no abuse of discretion by the district court.

VI.

Finally, Long challenges his six-month prison sentence by arguing
that the district court improperly added two points to his total offense
level by finding that the offense conduct involved more than minimal
planning. We apply a clearly erroneous standard to factual determina-
tions such as a finding that the offense conduct involved more than
minimal planning. See United States v. Pearce , 

, 26 (4th
Cir. 1995).

The district court found that Long had a base offense level of four,
U.S.S.G. § 2B1.3(a), with an increase of one level for specific offense

                    9
characteristic of damage to property of more than one hundred dollars
but less than one thousand dollars, U.S.S.G. §§ 2B1.3(b)(1) and
2B1.1(b)(1)(B), and a two point increase for more than minimal plan-
ning, U.S.S.G. §2B1.3(b)(3). The court found that the total offense
level was seven and that defendant had a criminal history category of
one with a guideline range of zero to six months incarceration. The
court then sentenced Long to a six-month sentence.

Pursuant to U.S.S.G. § 2B1.3(b)(3), the district court can increase
the defendant's total offense level by two points if the offense
involved more than minimal planning. The Commentary to U.S.S.G.
§ 1B1.1 defines minimal planning as "more planning than is typical
for commission of the offense in simple form . . .[and] is deemed
present in any case involving repeated acts over a period of time,
unless it is clear that each instance was purely opportune." U.S.S.G.
§ 1B1.1, app. note 1(f).

Here, Long engaged in repeated conduct that suggests more than
minimal planning was involved in his actions to damage the right of
way over the gas pipeline. Long telephoned Miss Utility on two sepa-
rate occasions with respect to removing the pipeline and repeatedly
threatened to excavate the pipeline. He demanded that East Tennes-
see's officials close the main valve directing gas through his pipeline
while he removed the pipeline and refused to allow East Tennessee's
employees to assess any damage. Finally, Long demanded a payment
of $1,000 or more to a charity for his temporary suspension of exca-
vation work and actually did excavate a large section of the right of
way directly above the pipeline.

Based on the above evidence, the district court's addition of two
points for more than minimal planning was not clearly erroneous.

Accordingly, the conviction and sentence is

AFFIRMED.

                    10