UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5852

RAYMOND CHERISSON, a/k/a Haitian

James,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, District Judge.

(CR-94-97-BO)

Argued: July 19, 1996

Decided: September 10, 1996

Before ERVIN, Circuit Judge, and BUTZNER and PHILLIPS,

Senior Circuit Judges.

_________________________________________________________________

Affirmed by unpublished opinion. Senior Judge Phillips wrote the

opinion in which Judge Ervin and Senior Judge Butzner joined.

_________________________________________________________________

COUNSEL

ARGUED: J. Lee Carlton, Jr., Raleigh, North Carolina, for Appellant. William Arthur Webb, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North

Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole, United

States Attorney, Christine Blaise Hamilton, Assistant United States

Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PHILLIPS, Senior Circuit Judge:

Raymond Cherisson was convicted on one count of conspiracy to

distribute cocaine base in violation of 21 U.S.C.§ 846 and three

counts of distribution of cocaine base in violation of 21 U.S.C.

§ 841(a)(1). He now challenges those convictions on several grounds.

We find no reversible error and affirm his convictions.

I.

Cherisson came to Florida from Haiti in 1979 and has spent most

of the intervening years working at various hotels and other businesses, mostly in the Orlando area where he has lived in recent years

with his girlfriend, Valinda Justice, and their children. Following his

arrest in Miami as he got off a plane from Haiti, he was charged in

the Eastern District of North Carolina with participating in an extensive cocaine conspiracy centered in Smithfield, North Carolina. The

indictment charged numerous conspirators with various kinds and

degrees of participation in the Smithfield conspiracy between 1988

and 1994. As to Cherisson, the indictment charged that he participated

in the conspiracy from June, 1993 to June, 1994 and additionally with

several specific acts of distribution of cocaine base during that year.

The government's evidence against Cherisson at trial included a

small but significant amount of documentary evidence and extensive

co-conspirator testimony. It tended to show that Cherisson brought

large quantities of cocaine from Florida to North Carolina on a regular basis in 1993 and 1994 and perhaps earlier as well, and that he

then distributed the cocaine, generally in the form of cocaine base, to

several local dealers in Smithfield. Cherisson's defense was that he

simply had had nothing to do with cocaine anywhere or anytime and

that, with very minor exceptions, he had been in Florida and Haiti

throughout the period during which he was supposed to have been

 2
distributing drugs in North Carolina. Testifying in his own defense,

he claimed that he had come to North Carolina exactly three times in

his life before his 1995 arrest and that these three visits were very

brief and entirely innocent. First, in April of 1993, he had come on

vacation to see the area at the suggestion of a Smithfield resident

whom he had met when she stayed at the Orlando Hyatt Regency

where he worked. While on vacation, however, he was arrested on a

charge of gun possession and, although he returned to Florida as soon

as he was released, he was compelled to travel to North Carolina

twice more to make court appearances before the gun charge was dismissed. Both times, he testified, he came solely to make those appearances and promptly returned to Florida. His name became mixed up

in the drug case only because he had had the misfortune of consorting

with people in Smithfield who turned out to be drug dealers and who

used his identity as a convenient, false identity for one of their own.

Those same dealers were now fabricating their testimony against him

in order to get their own sentences reduced.

At trial, Cherisson's testimony, the testimony of his girlfriend, and

the extremely brief and skeletal testimony of a co-worker were the

only evidence brought to counter the government's rather strong evidence of Cherisson's guilt. Just before and then repeatedly during

trial, Cherisson's lawyer insisted that crucial documentary evidence

from Florida would corroborate Cherisson's alibi. The district court,

however, ruled that the lawyer had had ample time to produce such

evidence, if it existed, and denied all of Cherisson's requests for continuances. When some of these documents finally arrived at the very

close of the trial, the district court heard Cherisson's proffers but

excluded the evidence and sent the case to the jury.

The jury acquitted Cherisson on one distribution count and failed

to reach a verdict on several others. The jury convicted him, however,

on three other distribution counts--one each for August, September,

and October of 1993--as well as the conspiracy count. Cherisson now

appeals those convictions.

II.

Cherisson's most serious claim is that the district court erred in

refusing to give the jury the alibi instruction that Cherisson requested.

 3
Cherisson is, of course, correct that he was entitled to an alibi instruction if there was a foundation for that particular theory of defense in

the evidence. United States v. Hicks, 748 F.2d 854, 857 (4th Cir.

1984). Thus, given the particulars of this case, he would have been

entitled to the instruction if the evidence could have shown or raised

a reasonable doubt as to whether he was in Florida or Haiti at least

during August, September, and October 1993, the months specified in

the three distribution counts of which he was convicted. Further, since

the government had little or no evidence of conspiracy other than its

evidence of actual distributions and since the evidence of his distributions was ample to sustain the conspiracy conviction as well, any

effective alibi evidence for the distribution counts would have been

essentially indistinguishable from alibi evidence for the conspiracy

count.* We conclude, however, that Cherisson's evidence, considered

as a whole, cannot constitute competent evidence of alibi with respect

to the distribution counts and thus, a fortiori , with respect to the conspiracy count. Therefore, he was not entitled to an alibi instruction,

and the district court did not err.

First, Cherisson's co-worker at the Orlando Hyatt Regency, Marc

Charles, testified that Cherisson worked with him there from 1990 to

1993 and that he saw Cherisson at work "every day." Given that

Cherisson's charged role in the conspiracy did not begin until June,

1993 and that Charles's testimony said nothing about when in 1993

Cherisson ceased working with him, that testimony did not actually

support Cherisson's claim that he was in Florida or Haiti during the

charged period.

Second, Cherisson's girlfriend, Valinda Justice, testified that

Cherisson had lived with her in Florida from 1990 until the time of

his arrest and had worked for various named Florida employers. She

also testified that he had traveled to Haiti for months at a time at vari-

_________________________________________________________________

*The government makes the untenable argument that there can be no

alibi here because a drug conspiracy conviction does not require proof of

the defendant's presence at the scene of the distributions. Of course, such

presence is not a required element of a drug conspiracy, but where, as

here, evidence of such presence is the government's only evidence of

conspiracy an alibi defense is obviously available. See United States v.

Burse, 531 F.2d 1151, 1153 (2d Cir. 1976).

 4
ous unspecified times between 1993 and 1995, although she admitted

that she had never accompanied him. Like Charles's testimony, Justice's testimony was far too diffuse to support a specific finding that

Cherisson was so continuously in Florida or Haiti as to rule out his

being in North Carolina at the crucial times.

Cherisson himself, finally, testified with somewhat greater precision, if not consistency, as to his whereabouts. But, in the end, his testimony too was inadequate to require an alibi instruction. Testifying

in an exceedingly confused way, Cherisson at first said that his fulltime employment at the Hyatt ended in early 1993, which was before

the beginning of his charged participation in the conspiracy. Without

suggesting that he meant to change his testimony, however, he later

testified that he worked at the Hyatt until early 1994 and, at one other

point, that he was still working at the Hyatt at the time of his arrest

on the gun charge in April of 1993. He further testified that in 1993

and 1994 he also worked part-time at another Orlando hotel called the

Dolphin while still working at the Hyatt. However, Cherisson then

also proffered documents that arrived from the Hyatt at the very close

of the trial, documents that the district court excluded from evidence

but that confirmed that his Hyatt employment did, in fact, end early

in 1993, as he originally testified, and not in 1994, as he later testified.

Thus, some of his testimony, taken in isolation, might have supported an alibi instruction. But that part of his testimony conflicted

with his initial testimony and with his own proffered documentary

evidence, which, although never admitted, made crystal clear that that

initial testimony was the only reliable testimony. We think, therefore,

that the district court could legitimately have deemed Cherisson's

confused testimony inadequate to support an alibi instruction. Certainly, even if the district court's ruling had been technically in error,

we would remain convinced beyond a reasonable doubt by Cherisson's own proffered evidence that that error could not have affected

any "substantial right" belonging to Cherisson and so was harmless.

See Chapman v. California, 386 U.S. 18, 23-24 (1967); Hicks, 748

F.2d 858 (Chapman constitutional harmless-error rule applicable to

erroneous refusals to give alibi instructions).

 5
III.

In addition to his claim that he was entitled to an alibi instruction,

Cherisson contended at trial and contends now that there exists further, ample documentary evidence --records of his employment in

Florida, his passport, and miscellaneous other documents--to sustain

his claim that he was continuously in Florida and Haiti during the relevant periods of time. From that premise, he argues that his trial was

rendered unfair by the district court's refusal to grant a continuance

to afford his lawyer adequate time to gather these documents and its

refusal to admit into evidence those few documents that did arrive

before the end of the trial or, in the alternative, by his lawyer's inexcusable failure to gather all the evidence in time. In short, he claims

error in denying a requested continuance, in refusing to admit proffered evidence, and in the provision of ineffective assistance by his

attorney.

We cannot address on this direct appeal this particular claim of

ineffective assistance of counsel. The record before us is not adequate

for the purpose. Specifically, it contains none of the items of evidence

whose absence is asserted to have resulted from counsel's ineffective

performance. Hence, it is inadequate to permit inquiry into any prejudice caused by their absence. See United States v. Tatum, 943 F.2d

370, 379 (4th Cir. 1991) (inadequacy of record precluded review);

United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994) (prejudice

required to establish ineffective assistance of counsel).

For essentially the same reason, we must reject any claim of error

in denying any continuances that were requested to allow counsel to

obtain exculpatory evidence. Not having the suggested documents

before us--or any sufficient evidence of their existence and content--

defendant cannot show any prejudice resulting from the court's

refusal to continue the trial to allow their pursuit. See United States

v. Speed, 53 F.3d 643, 644-45 (4th Cir. 1995) (defendant required to

show prejudice from denial of continuance in order to secure reversal).

Looking to the claim of error in the district court's refusal to admit

certain documentary evidence that was proffered late in the trial, we

find no reversible error. The evidence was of such low probative

 6
value that any error in its exclusion was harmless. See United States

v. Morison, 844 F.2d 1057, 1078 (4th Cir. 1988) (exclusion of evidence subject to harmless error analysis). A brief review of the evidence excluded demonstrates this. As earlier noted, the documentary

records of Cherisson's employment at the Hyatt Hotel in Orlando

actually contradict his exculpatory testimony. They show that his

employment ended in early 1993, before the beginning date of his

participation in the conspiracy, and thus rule out his Hyatt employment as any part of an alibi for the crimes of which he has been convicted. Other employment records proffered by Cherisson excluded

covered periods even earlier than the Hyatt records and so are wholly

irrelevant.

Other excluded evidence consisted of miscellaneous documents

that Cherisson argued would corroborate his claim of alibi. These

included such irrelevancies as his girlfriend's lease from 1991, furniture bills from a Florida furniture store from 1991 and 1992, his Florida truck title, and a letter from his girlfriend's mother suggesting that

Cherisson was very kind to her and called her on a regular basis.

While the excluded evidence did include some items suggesting his

presence in Florida at some times during the conspiracy year, they

were of minimal if any probative value because of their intermittent

quality. They included such items as chiropractor bills that place him

in Florida for about a week in October of 1993, a car repair bill that

might place at least his truck if not necessarily himself in Florida on

one day in March of 1994. The exclusion of this proffered evidence,

if error at all, was harmless in context of the total trial.

Because we find no reversible error, we affirm the convictions

from which appeal is taken.

AFFIRMED

 7