UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4339

ZINA MOORE,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Chief District Judge.

(CR-95-465)

Submitted: March 13, 1997

Decided: March 24, 1997

Before HALL, ERVIN, and WILKINS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas K. Berger, Reston, Virginia, for Appellant. Helen F. Fahey,

United States Attorney, Gerald J. Smagala, 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Unpublished opinions are not binding precedent in this circuit.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).

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OPINION

PER CURIAM:

Zina Moore appeals her conviction by jury on the charge of assault

on a correctional officer. The charge arose out of an incident occurring at the Occoquan Facility of Lorton Reformatory during which

Gloria Pringle, a correctional officer, was slapped by a person she

later identified as Moore. Moore alleges on appeal that the district

court abused its discretion in denying her motion for a mistrial. The

basis for her motion was the prosecution's disclosure at trial, for the

first time, of a report written by a Federal Bureau of Investigation

agent (the FBI-302 report) based on his interview of Pringle regarding

the incident. Moore claims that the FBI-302 report constituted material which was not timely disclosed under the Jencks Act,1 United

States v. Agurs,2 Giglio v. United States,3 and Brady v. Maryland,4 and

that the Government's failure to timely disclose the report violated

her due process rights. She also claims error on the ground of prosecutorial misconduct based on the prosecutor's allegedly allowing

Pringle to present perjured testimony at trial. For the reasons stated

below, we find Moore's claims to be without merit.

This Court will reverse the denial of a motion for a mistrial only

upon a showing of clear abuse of discretion. United States v. Dorsey,

45 F.3d 809, 817 (4th Cir.), cert. denied, 63 U.S.L.W. 3907 (U.S.

June 26, 1995) (No. 94-9433). A defendant must show prejudice in

order for the court's ruling to constitute an abuse of discretion. Id.;

United States v. West, 877 F.2d 281, 288 (4th Cir. 1989).

The prosecutor presented the FBI-302 report to the defense at trial

in an attempt to rehabilitate Pringle with prior consistent statements

after the defense brought out certain inconsistencies between

Pringle's trial testimony and an incident report she prepared regarding

the occurrence. After hearing the arguments of counsel, the district

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1 18 U.S.C. § 3500 (1994).

2 427 U.S. 97 (1976).

3 405 U.S. 150 (1972).

4 373 U.S. 83 (1963).

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judge denied Moore's mistrial motion, but refused to allow the Government to call the FBI agent to whom the FBI-302 report was made,

or otherwise to use the report. Moore's attorney did not request a continuance based on the information contained in the FBI-302 report,

nor did he otherwise use the FBI-302 report once it was in his possession.

We find that the district court did not abuse its discretion in denying Moore's motion for mistrial. First, the information contained in

the FBI-302 report was either cumulative of information already in

Moore's possession, or not material to Pringle's ultimate identification of Moore as her assailant. In addition, once Moore had the FBI302 report, she could have, but did not, use it for impeachment purposes. Finally, the district court's refusal to allow the Government to

call the FBI agent to testify, or otherwise to use the FBI-302 report

to rehabilitate Pringle, cured any defect caused by the failure to timely

provide the document to Moore.

Moore also claims that the prosecution improperly allowed Pringle

to perjure herself when she failed to disclose the fact that she had

made a third report about the incident to the FBI. It does not appear

on the record before this court that Moore lodged any objection or

otherwise raised this issue at the district court level, thereby requiring

this court to review the claim under the plain error standard. See e.g.,

United States v. Mitchell, 1 F.3d 235, 239 (4th Cir. 1993). We find

that while Pringle's testimony that she had made two reports was in

error, it did not constitute perjury. Moreover, even assuming that the

failure of the prosecutor to disclose the inaccuracy was improper,

such conduct did not violate Moore's right to a fair trial. See Greer

v. Miller, 483 U.S. 756, 765 (1987); United States v. Brockington, 849

F.2d 872, 875 (4th Cir. 1988).

Accordingly, we affirm both the district court's denial of Moore's

motion for mistrial and Moore's 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

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