United States v. David ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5585
PATRICK DAVID,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Chief District Judge.
(CR-95-7)
Submitted: February 13, 1996
Decided: February 28, 1996
Before HALL, MURNAGHAN, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Gregory B. English, ENGLISH & SMITH, Alexandria, Virginia, for
Appellant. Helen F. Fahey, United States Attorney, John P. Elwood,
Special Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Patrick David, a prisoner of the District of Columbia Department
of Corrections at the Lorton Reformatory, appeals from his conviction
of being a prisoner in possession of marijuana, 18 U.S.C.A. § 13(West Supp. 1995) assimilating Va. Code Ann. § 53.1-203(6) (Michie
1994), and impeding a correction officer. He argues that the district
court abused its discretion in qualifying a witness to testify as an
expert on drug trafficking in the Lorton Reformatory and that the dis-
trict court erred in denying his motion for a new trial. We affirm.
During a post-contact-visit strip search of David, Corporal Percy
Finch and Officer Reynolds saw an object protruding from David's
buttocks. Finch instructed David to remove the object. David refused.
Finch then ordered David to put on his clothes, and he escorted David
to the control room where David was again subjected to a strip search.
Lieutenant Smith saw the object and ordered David to remove it.
David refused. When Smith attempted to remove it, David slapped his
hand away. David was sprayed with mace and the object--which later
proved to be marijuana wrapped in plastic--was removed from his
buttocks.
In his defense, David testified that on the day in question and on
prior occasions, Finch offered him drugs for sale or in exchange for
sex. On that day, David's initial search was without incident; how-
ever, Finch took him to the control room for another search, and, once
there, began "taking down his pants." Finch threatened to plant mari-
juana on David if he refused to have sex with Finch. David resisted
Finch's advances and called for help. Lieutenant Smith entered the
room and sprayed David with mace.
After the jury returned a guilty verdict on the charges of possession
of marijuana and impeding a correctional officer and not guilty of the
possession with intent to distribute, David moved for a new trial on
the basis of newly discovered evidence. The alleged new evidence
was that (1) Finch had been arrested in North Carolina in 1988 for
taking indecent liberties with a minor; (2) Finch had lied in another
case, stating that he found drugs in the possession of inmate Jason
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Jones; (3) the charges against Jones had been dismissed and Jones
was now able to testify; (4) Officer Garner, who worked with Finch
in searching inmates after visits, pled guilty to possession of illegal
drugs. After a hearing, the district court denied David's motion for a
new trial.
On appeal, David contends that the district court abused its discre-
tion in allowing Captain Grillo, the chief of the Drug Interdiction Unit
of the District of Columbia Department of Corrections, to testify as
an expert on drug trafficking in the Lorton Reformatory. He asserts
that the testimony was not admissible under Fed. R. Evid. 702 and
704(b). Because David failed to raise these objections in the district
court, we review only for plain error. United States v. Olano, 507 U.S.
725, 113 S. Ct. 1770, 1777 (1993).
Because the jury acquitted David of the distribution charge, Gril-
lo's testimony concerning quantity, packaging, and dosage units in
Lorton Reformatory* did not affect David's "substantial rights" and
therefore could not constitute plain errors. See United States v.
Moore, 11 F.3d 475, 481 (4th Cir. 1993) (quoting Olano, 113 S. Ct.
at 1777).
David also challenges Grillo's testimony that visitors are a primary
source of contraband at Lorton as an improper attempt "to place an
official blessing upon its theory of the case," which directly contrib-
uted to his conviction on the charge of possession of marijuana. How-
ever, Grillo's testimony did not state that visitors are the primary
source of introduction of drugs into Lorton. He testified that both visi-
tors and corrupt correctional officers were predominant sources of
drugs. This testimony as to the modus operandi of drug traffickers
within Lorton was permissible. See United States v. Gastiaburo, 16
F.3d 582, 589 (4th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 102(1994).
David also challenges the denial of his motion for a new trial. To
have newly discovered evidence considered, the defendant must show
that the evidence is newly discovered, he used due diligence, the evi-
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*We express no opinion as to whether admission of this evidence was
erroneous.
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dence is not merely cumulative or impeaching, the evidence is mate-
rial, and the evidence would probably result in an acquittal at a new
trial. United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989). The
denial of a motion for a new trial is reviewed for an abuse of discre-
tion. United States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995).
Evidence of Finch's arrest--but not conviction--on charges of tak-
ing indecent liberties with a minor female is not material to David's
defense that Finch attempted to have sex with him, an adult male, and
it was not admissible. This "prior bad acts" evidence is not suffi-
ciently related to the charged offense, and therefore would not be
admissible. Fed. R. Evid. 404(b); United States v. Rawle, 845 F.2d
1244, 1247 & n.3 (4th Cir. 1988). Further, because the arrest did not
result in a conviction, the proffered evidence would not be admissible
under Fed. R. Evid. 609. Nor would it be admissible under Rule
608(b), because the conduct does not concern Finch's truthfulness.
We find no abuse of discretion in the district court's determination
that the evidence of Finch's 1988 arrest was not material to the issues
and thus did not warrant a new trial. See Chavis , 888 F.2d at 793.
David also asserts that the district court should have granted a new
trial based upon Jason Jones' recent availability and willingness to
testify that Finch kept drugs at Lorton and that Finch lied during
Jones' trial. The only purpose for admitting this evidence would be
to impeach Finch's testimony. Because "new evidence going only to
the credibility of a witness does not generally warrant the granting of
a new trial," United States v. Custis, 988 F.2d 1355, 1359 (4th Cir.
1993), aff'd, ___ U.S. ___, 114 S. Ct. 286 (1994), we find no abuse
of discretion in the denial of the new trial motion on this basis.
David also requested a new trial so that he could present evidence
that Officer Garner, Finch's associate at Lorton Reformatory, pled
guilty to possession of illegal drugs. David argues that this evidence
supports his defense and raises an inference that Garner supplied
drugs to Finch. However, Garner was not involved in David's arrest,
conviction, or trial, and Garner's name was never mentioned during
the trial. Evidence of Garner's drug conviction was not material to
David's trial. Further, the proffered evidence concerns Garner's pos-
session, not possession with intent to distribute or distribution of
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drugs. The proffered evidence fails to support David's asserted infer-
ence that Garner supplied drugs to Finch.
In conclusion, we affirm David's conviction and the district court's
order denying his motion for a new trial. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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