UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4797

SIDNEY LOUIS GROSS,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, District Judge.

(CR-96-178-A)

Submitted: December 9, 1997

Decided: February 9, 1998

Before WILKINS, LUTTIG, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Raymond D. Kline, Alexandria, Virginia, for Appellant. Michael

Edward Rich, OFFICE OF THE 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Unpublished opinions are not binding precedent in this circuit.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).

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OPINION

PER CURIAM:

Sidney Louis Gross appeals his convictions of possession with

intent to distribute crack cocaine, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(C) (1994), and introducing crack cocaine into a

penal institution, in violation of D.C. Code Ann.§ 22-2603 (1996).

He also appeals the district court's order denying his motion for judgment of acquittal. The district court sentenced Gross to twenty-seven

months imprisonment followed by a three-year term of supervised

release. We affirm.

Gross's counsel has filed a brief in accordance with Anders v.

California, 386 U.S. 738 (1967), stating that, in his view, there are no

meritorious issues for appeal. Gross's counsel provided him with a

copy of the Anders brief and informed him of his right to file a pro

se supplemental brief. In the Anders brief, Gross's counsel discussed

whether the district court abused its discretion by allowing the Government to introduce evidence of Gross's prior marijuana distribution

conviction and whether sufficient evidence supported Gross's conviction. Gross's supplemental brief also challenges the sufficiency of the

evidence supporting his conviction and asserts that he received ineffective assistance of counsel during his trial.

Gross entered the visitor's checkpoint area at Lorton Reformatory

Correctional Center to visit inmate Lonnie Parkman. To obtain

entrance into the facility, Gross submitted to a personal search. Lorton

Reformatory Correctional Officer Corporal Richard Price searched

Gross and recovered a black zip-lock baggie containing a single white

rock-like substance from Gross's right front watch pocket. Price

immediately detained Gross and summoned his superior, Lieutenant

Graves, because of the apparent illegal nature of the recovered substance. Initially, Graves determined that the sample size was too small

to test for controlled substance, and Gross was released. Thereafter,

officers from the Drug Interdiction Unit arrived and stated that the

recovered substance was of sufficient size for testing purposes. Upon

seizure and subsequent chemical testing, the substance tested positive

for the presence of cocaine. Gross was again taken into custody. During his interview with Federal Bureau of Investigation agents, Gross

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became agitated and denied the offense, stating that he did not know

where the cocaine had come from, speculating that someone else

could have worn his pants and left the drugs behind. Gross also stated

that he was familiar with the laws banning the introduction of drugs

into the facility and that if he had intended to smuggle drugs into the

facility, he would have thought of a much better hiding place.

Gross contends on appeal that the district court abused its discretion by allowing the Government to present evidence that Gross was

previously convicted of distribution of marijuana, contrary to Fed. R.

Evid. 403, because "its probative value [was] substantially outweighed by the danger of unfair prejudice." We find no merit to this

assertion.

The evidence of a prior conviction of a similar act was admissible

under Fed. R. Evid. 404(b) to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. On several

occasions, the district court carefully instructed the jury as to the limited purpose for which this evidence was admitted. The district court

further admonished that such evidence could not be used as evidence

of Gross's character or propensity to commit a crime or that he acted

in conformity with the prior bad act. The scope of permissible Rule

404(b) evidence under Rule 403 is consigned to the sound discretion

of the trial court, and we defer to the district court's balancing under

the rule, unless it is shown to be arbitrary or an irrational exercise of

discretion.1 We find no abuse of discretion on the present facts.

Gross further contends that, but for the introduction of his prior

conviction, he would not have been convicted. Contrary to his assertion, the evidence against Gross was strong. We address this claim in

conjunction with Gross's claim that his conviction was not supported

by substantial evidence. The question here is "whether, viewing the

evidence in the light most favorable to the government, any rational

trier of fact could have found the defendant guilty beyond a reasonable doubt."2

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1 See Garraghty v. Jordan, 830 F.2d 1295, 1298 (4th Cir. 1987).

2 United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).

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The testimony during the jury trial provided substantial evidence

on which a reasonable trier of fact could have found Gross guilty

beyond a reasonable doubt. Price's testimony provided an ample basis

for establishing Gross's possession of the drug. Captain Grillo testified to the methods used by drug traffickers at Lorton Reformatory,

stating that bringing in small amounts was typical of those who

engage in the practice of distributing controlled substances within the

penal facility. His testimony concerning known distribution practices

at Lorton Reformatory similarly supported a finding of intent to distribute. The amount of drugs and packaging that are sufficient to show

intent to distribute in the prison setting may be very different from

those applicable in another context. Viewing the facts here in the setting in which they occurred, the jury's verdict was amply supported.

As a further challenge to the sufficiency of the evidence supporting

his conviction, Gross contends that the district court abused its discretion in allowing Captain Grillo to testify as an expert. Grillo's testimony as an expert in the area of narcotics distribution in a prison

setting has repeatedly been accepted by this court and we see no reason now to question his ability to testify in that capacity. Further,

because Grillo did not opine as to Gross's intent to distribute, but

rather, noted that even a small amount of a controlled substance is

consistent with distribution in a prison setting, his testimony did not

run afoul of Fed. R. Evid. 704(b). We therefore find that the district

court did not abuse its discretion in admitting testimony.3

In his pro se supplemental brief, Gross challenges several of his

counsel's trial decisions in support of his claim that he received ineffective assistance of counsel. Claims of ineffective assistance of counsel are generally not appropriate on direct appeal and should be raised

in a motion pursuant to 28 U.S.C.A. § 2255 (West 1994 & Supp.

1997), unless the record conclusively shows that counsel did not provide effective assistance.4 Here, the record does not conclusively

show that counsel's representation fell below an objective standard of

reasonableness:5 Because there is no error on the face of the record,

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3 See United States v. Gastiaburo , 16 F.3d 582, 589 (4th Cir. 1994).

4 See United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991).

5 See generally Strickland v. Washington, 466 U.S. 668, 688 (1984).

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Gross's claim of ineffective assistance of counsel is not properly

before this court and must be dismissed.

We affirm Gross's convictions. This court requires that counsel

inform his client, in writing, of his right to petition the Supreme Court

of the United States for further review. If the client requests that a

petition be filed, but counsel believes that such a petition would be

frivolous, then counsel may move in this court for leave to withdraw

from representation. Counsel's motion must state that a copy thereof

was served on the client. 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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