UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4592

EMMANUEL BANKS,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Elizabeth City.

W. Earl Britt, Senior District Judge.

(CR-96-7-BR)

Submitted: October 20, 1998

Decided: November 3, 1998

Before HAMILTON and MOTZ, Circuit Judges, and

HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

J. Douglas McCullough, STUBBS & PERDUE, P.A., Raleigh, North

Carolina, for Appellant. Janice McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Jane J. Jackson, Assistant United States Attorney, Raleigh, North Carolina, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Emmanuel Banks appeals his conviction for conspiracy to possess

with the intent to distribute and distribution of cocaine and crack

cocaine, in violation of 21 U.S.C. §§ 841, 846 (1994). We affirm.

In 1990, James Robert Miller began sending drug runners from

North Carolina to New York to purchase cocaine for distribution in

North Carolina. In 1991, Thomas Riddick put Miller in touch with

Banks, who sold Miller cocaine at a lower price. Miller testified that

he made several telephone calls to Banks to arrange for the delivery

of the cocaine and sent various members of the conspiracy to New

York to purchase cocaine from Banks. Miller also testified that he

actually met with Banks in North Carolina when Banks was there

with his friend Tashiem, who also transported cocaine for Banks to

North Carolina.

Reginald White testified that he made between eight and eleven

trips to New York to pick up cocaine from Banks and once met with

Banks and Riddick in New York and paid $24,000 for a bag of

cocaine. Frankie Winslow testified that he made six trips to New

York to pick up cocaine from Banks. Lloyd Harrell also testified that

he made seven trips to New York and that on the first trip, Riddick

introduced Harrell to Banks.

Banks testified that he knew Miller and some of Miller's associates

and had spoken with them on several occasions but had never been

to North Carolina. Banks further testified that he did not sell cocaine

to Miller or his associates, but rather sold them videotapes purchased

from street vendors in New York.

On appeal, Banks asserts that the district court erroneously denied

his motion for new trial based on newly discovered evidence that

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Government witnesses violated Fed. R. Evid. 615. 1 We review the

district court's denial of a motion for new trial for an abuse of discretion. See United States v. Campbell, 977 F.2d 854, 860 (4th Cir.

1992). The standard for granting a new trial is:

(a) the evidence must be, in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which

the court may infer diligence on the part of the movant; (c)

the evidence relied on must not be merely cumulative or

impeaching; (d) it must be material to the issues involved;

and (e) it must be such, and of such nature, as that, on a new

trial, the newly discovered evidence would probably produce an acquittal.

United States v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1993) (citation

omitted).

Banks fails to present sufficient evidence of a violation of the

sequestration order that is material to the issues and that would have

resulted in an acquittal. Banks claims that because Miller did not state

that he saw Banks in North Carolina until the date of trial and that

several witnesses claimed to have met with Banks on the "fifth or

sixth" floor of an apartment building that did not have a fifth floor,

the witnesses must have collaborated on their testimony. At the hearing on the motion for new trial, Banks only presented the testimony

of James Riddick,2 who claimed to have overheard government witnesses discussing their testimony while in the lock-up cell during the

trial. At the hearing, the Government introduced a letter from James

Riddick to his son stating that he would try to get Banks a new trial.

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1 Rule 615 provides that "[a]t the request of a party the court shall order

witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not

authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as

its representative by its attorney, or (3) a person whose presence is

known by a party to be essential to the presentation of the party's cause."

2 James Riddick is Thomas Riddick's father. The Government brought

James Riddick to Banks' trial because it was thought he had relevant

information based upon Thomas Riddick's connection to Banks.

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James Riddick then testified that his son was worried about Banks,

that the Government witnesses were implicating his son, that the Government would not be able to prosecute his son if Banks received a

new trial, and that he first told the investigator that five of the witnesses had talked about their testimony but later stated that he only

heard two witnesses discussing the name of the street on which Banks

allegedly lived. The district court found that James Riddick lacked

credibility and denied the motion. Thus, the only evidence of a violation of the sequestration order proffered by Banks is that the witnesses spoke about the name of the street on which Banks lived. This

discussion was not material to the case, nor would it have resulted in

an acquittal. We therefore find that the district court did not abuse its

discretion by denying the motion.

Banks next asserts that the district court erred by denying his

motion to compel the Government to grant immunity to Thomas Riddick. Banks claims that the Government withheld immunity to withhold exculpatory evidence from the jury. Without misconduct or

overreaching on the part of the Government, the district court cannot

compel the prosecution to provide defense witnesses with immunity

for their testimony. See United States v. Abbas , 74 F.3d 506, 512 (4th

Cir. 1996). The evidence of overreaching must be decisive, material

and exculpatory. See United States v. Mitchell , 886 F.2d 667, 669 (4th

Cir. 1989).

Banks concedes that there was no prosecutorial misconduct or

overreaching. However, Banks claims that the prosecution withheld

immunity in order to withhold exculpatory evidence because Thomas

Riddick was prepared to testify that he introduced Miller to Banks to

purchase videotapes and that he was not involved in any wrongdoing.

Banks fails to establish the evidence was clearly material or exculpatory in light of other testimony that Thomas Riddick introduced Miller to Banks for the purpose of obtaining cocaine.

Accordingly, we affirm Banks' convictions. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid

the decisional process.

AFFIRMED

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