UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 district 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; however, Finch took him to the control room for another search, and, once

there, began "taking down his pants." Finch threatened to plant marijuana 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 discretion 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, Grillo'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 contributed to his conviction on the charge of possession of marijuana. However, Grillo's testimony did not state that visitors are the primary

source of introduction of drugs into Lorton. He testified that both visitors 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 material, 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 discretion. United States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995).

Evidence of Finch's arrest--but not conviction--on charges of taking 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 sufficiently 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 possession, not possession with intent to distribute or distribution of

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drugs. The proffered evidence fails to support David's asserted inference 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 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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