UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5567

ROBERT ANTHONY KELLY, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Big Stone Gap.

Samuel G. Wilson, District Judge.

(CR-94-43)

Submitted: December 30, 1996

Decided: January 30, 1997

Before WIDENER and WILKINS, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Dennis E. Jones, DENNIS E. JONES & ASSOCIATES, Lebanon,

Virginia, for Appellant. Robert P. Crouch, Jr., United States Attorney,

Julie C. Dudley, Assistant United States Attorney, Roanoke, Virginia,

for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Robert Anthony Kelly appeals his convictions arising out of his

arrest while in possession of numerous small baggies of cocaine and

a firearm. The jury found Kelly guilty of being a felon in possession

of a firearm, 18 U.S.C. § 922(g) (1994), possession with intent to distribute cocaine, 21 U.S.C. § 941(a)(1) (1994), and use of a firearm

during a drug trafficking offense. 18 U.S.C. § 924(c) (1994). Kelly

raises three assignments of error on appeal. Finding no merit to

Kelly's contentions, we affirm his conviction.

Kelly first suggests that the district court abused its discretion when

it denied his motion for a mistrial. United States v. Dorsey, 45 F.3d

809, 817 (4th Cir.), cert. denied, #6D6D 6D# U.S. ___, 63 U.S.L.W. 3907

(U.S. June 26, 1995) (No. 94-9433). Kelly sought a mistrial after one

of the prosecution witnesses testified that he told Kelly during the

investigation that he knew Kelly dealt in drugs. In light of the judge's

immediate curative instruction, which the jury is presumed to have

followed, Greer v. Miller, 483 U.S. 756, 766 n.8 (1987), the isolated

nature of the statement, and the significant evidence of guilt, the witness' misstatement did not prejudice Kelly to the extent that it

deprived him of a fair trial. See United States v. Bennett, 984 F.2d

597, 608 (4th Cir. 1993) (per curiam). As a result, Kelly has failed to

show prejudice, Dorsey, 45 F.3d at 817, and cannot demonstrate an

abuse of discretion on the part of the district court in denying the

motion for a mistrial.

Kelly next contends that the evidence of record was insufficient to

support his conviction for possession with intent to distribute as

opposed to mere possession of the cocaine. Because there was substantial evidence that would warrant a jury finding of guilt beyond a

reasonable doubt, the district court did not err in denying Kelly's

motions for acquittal. United States v. MacCloskey, 682 F.2d 468, 473

 2
(4th Cir. 1982); see also United States v. Stockton, 788 F.2d 210, 218

(4th Cir. 1986); United States v. Tresvant, 677 F.2d 1018 (4th Cir.

1982). In his statements to the police, Kelly admitted to at least one

incidence of distribution when he traded one baggie of cocaine for the

handgun in his possession. In addition, there was ample testimony

that the manner in which the cocaine was packaged was typical of

cocaine intended for distribution. Finally, Kelly stated that he was

travelling to Middleboro, Kentucky, to "get rid" of the cocaine. If he

were merely intending to destroy it or consume it, there would be no

purpose for the long trip. Consequently, without re-weighing the testimony, United States v. Arrington, 719 F.2d 701, 704 (4th Cir. 1983),

there was substantial evidence in support of Kelly's conviction. Kelly

suggests that the absence of large sums of cash in his possession precludes a jury finding he possessed the requisite intent. This bit of

absent evidence does not alter the conclusion that the district court did

not err in denying the motions for acquittal.

Finally, Kelly encourages this court to find that the evidence was

insufficient to support his conviction for use of a firearm in light of

the Supreme Court's recent opinion in Bailey v. United States, ___

U.S. ___, 64 U.S.L.W. 4039 (U.S. Dec. 6, 1995) (Nos. 94-7448, 94-

7492). However, we note that the opinion in Bailey specifically holds

that "bartering" satisfies Congress's intent to proscribe "active

employment" of firearms in the commission of a drug trafficking

offense. Id. at 4042. Consequently, Kelly's statement to police that he

had traded some of his cocaine to obtain the firearm in his possession

was sufficient to constitute "use" even in the wake of the Bailey decision. See also Smith v. United States, 508 U.S. 223, 237 (1993) (holding that an exchange of weapon for drugs constitutes"use"). Kelly's

conviction for use of a firearm was supported by sufficient evidence.

Finding no merit to any of Kelly's assignments of error by the trial

court, we affirm his conviction. 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

 3