UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-6519

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

REGINALD LAMONT REAMS, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Middle 

District of North Carolina, at Durham. N. Carlton Tilley, Jr., 

Senior District Judge. (1:99-cr-00013-NCT-1) 

Argued: October 27, 2009 Decided: December 30, 2009 

Before TRAXLER, Chief Judge, and NIEMEYER and AGEE, Circuit 

Judges. 

Affirmed by unpublished per curiam opinion. 

ARGUED: Mark Everette Edwards, EDWARDS & TRENKLE, PLLC, Durham, 

North Carolina, for Appellant. Sandra Jane Hairston, OFFICE OF 

THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for 

Appellee. ON BRIEF: Anna Mills Wagoner, United States Attorney, 

Greensboro, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Reginald Lamont Reams was convicted by a jury of possession 

with intent to distribute cocaine base (crack), in violation of 

21 U.S.C. § 841(a)(1), and sentenced to 327 months 

imprisonment. Reams now challenges the district court’s denial 

of his motion for a new trial on the basis of newly discovered 

evidence. See Fed. R. Crim. P. 33. We affirm. 

I. 

 Reams’s conviction arises out of a crack cocaine sale that 

occurred on October 3, 1998, in Durham, North Carolina. On that 

day, John Mosely, a paid informant for the Durham police, 

notified his contact officer that he had arranged to purchase 

crack cocaine from Reams at a carwash. The officers searched 

Mosely and his vehicle and followed him to the carwash, which 

they then placed under surveillance. When Mosely arrived at the 

carwash, he lifted the hood of his car to feign car trouble and 

stayed in the carwash bay. Reams, accompanied by his uncle, 

arrived at the carwash after Mosely, got out of his vehicle, and 

got into Mosely’s vehicle. Shortly thereafter, Mosely got out 

of the vehicle and walked to the trunk under the pretense of 

getting a scale to weigh the drugs. Once there, he lifted his 

hat in accordance with the prearranged signal to the police that 

the drugs were present and the arrest could be made. Mosely 

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testified that he was paid approximately $900 for his 

participation in the controlled buy. 

 In addition to Mosely’s testimony, the government presented 

the testimony of three Durham police officers. The officers 

confirmed that they conducted a pat-down search of Mosely for 

contraband and searched Mosely’s vehicle, including under the 

hood, in the trunk, and in the passenger compartment, prior to 

Mosely leaving the police station to meet Reams. They then 

followed Mosely to the carwash, keeping him within their sight 

at all times, and set up surveillance to observe the transaction 

at the carwash. After Mosely gave the prearranged signal, the 

officers moved in and handcuffed all three men. A plastic bag 

containing 54.5 grams of crack cocaine was found on the front 

seat of Mosely’s car, in between where the men were observed to 

have been sitting. An additional 6.7 grams of crack cocaine 

were found in Reams’s pocket. The drugs were worth 

approximately $2,000. The officers also seized from Reams a 

total of $324.34 in cash, a pager, and a cellular telephone. 

Immediately after his arrest, Reams told the officers that they 

“may as well let [Mosely] go now, I know he set me up.” J.A. 

43. After arriving at the police station, Reams told the 

officers that his uncle had nothing to do with the transaction. 

Reams also asked how much jail time he would face for drug 

trafficking. He told one of the officers that “he had an 

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alcohol problem and ever since then he had sold drugs to pay his 

way through technical school.” J.A. 49. At no point during 

this time frame did Reams deny that he was at the carwash to 

traffic in crack cocaine, or claim that the crack cocaine found 

on the seat belonged to Mosely. 

 At trial, however, Reams testified that he was a potential 

buyer in the transaction, and that the 54.5 gram bag of crack 

cocaine belonged to Mosely. Reams testified that he was a crack 

cocaine user and that the 6.7 grams of crack cocaine seized from 

his pocket was for his personal use. He testified that he had 

met Mosely at a crack house in Durham and Mosely told him that 

he had a better grade of crack for sale than what Reams was 

using. Reams claimed that he arranged to meet Mosely at the 

carwash so that he could sample the “better” crack. Once they 

were together in Mosely’s vehicle, Mosely produced the larger 

bag of crack cocaine and then went to the trunk under the 

pretense of getting a pipe to use to sample the drug. Reams 

denied telling the officers that he had been selling drugs to 

pay his way through school. 

 The jury initially experienced some difficulty reaching a 

verdict, prompting an Allen charge by the judge,* but ultimately 

convicted Reams of the charge. The conviction and sentence were 

 * Allen v. United States, 164 U.S. 492 (1896). 

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affirmed by this court. See United States v. Reams, No. 00-

4183, 2000 WL 1294265 (4th Cir. Sept. 14, 2000) (unpublished). 

 On February 25, 2002, Reams moved for a new trial based 

upon an affidavit of Lyndale Justice, who claimed to have been 

present at the crack house in Durham where Reams met Mosely and 

first discussed the drug deal. Justice claims as follows: 

I overheard a conversation between [Mosley] and 

another man. I heard [Mosley] talking about moving 

some “weight.” When I heard that statement, I knew 

that [Mosely] was referring to selling a large amount 

of cocaine. [Mosley] made a statement that he needed 

to figure some way to make the [Durham Police] pay 

him. He also stated that he needed to “get the man 

off his back.” I also recall him saying that he was 

going to “pot a plant” which in street terms means he 

was going to plant something such as drugs on someone. 

Later I heard him say something to the effect that “I 

think I have found my sacrificial lamb.” As he made 

that statement he gestured over his shoulder with his 

thumb toward [Reams]. 

J.A. 147. Justice states that she moved away from Durham two 

weeks later and was unaware that Reams had been arrested and 

convicted until early 2001. The district court denied Reams’s 

motion for a new trial, and this appeal followed. 

II. 

 A district court may grant a defendant’s motion for a new 

trial “if the interest of justice so requires.” Fed. R. Crim. 

P. 33(a). However, a district court “‘should exercise its 

discretion to grant a new trial sparingly,’ and . . . should do 

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so ‘only when the evidence weighs heavily against the verdict.’” 

United States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003) 

(quoting United States v. Wilson, 118 F.3d 228, 237 (4th Cir. 

1997)). We review the district court’s denial of a motion for a 

new trial for abuse of discretion. See Perry, 335 F.3d at 320. 

 To warrant a new trial based on newly discovered evidence, 

a defendant must show that: (1) the evidence is newly 

discovered; (2) the defendant used due diligence; (3) the 

evidence is not merely cumulative or impeaching; (4) the 

evidence is material to the issues involved; and (5) the 

evidence would probably result in an acquittal at a new trial. 

See United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989). 

Unless the defendant demonstrates all five of these factors, the 

motion should be denied. See id.

 “[N]ew 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). However, 

we have recognized that there may be “an exceptional ‘rare 

case’” where a new trial might be granted “solely on the basis 

of newly discovered impeachment evidence,” if “‘the government’s 

case rested entirely on the uncorroborated testimony of a single 

witness who was discovered after trial to be utterly unworthy of 

being believed because he had lied consistently in a string of 

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previous cases.’” Id. (quoting United States v. Taglia, 922 

F.2d 413, 415-16 (7th Cir. 1991)). 

 Here, the district court found that Justice’s affidavit did 

not entitle Reams to a new trial because it was merely 

impeachment evidence. The court also found that the evidence 

did not meet the Custis “rare exception” because Mosely’s 

testimony was corroborated by the officers’ testimony and 

Reams’s statements after he was arrested, and because there was 

no evidence that Mosely had ever lied in other cases or court 

proceedings. Alternatively, the district court found that the 

affidavit probably would not produce an acquittal at a new 

trial, primarily because a reasonable jury would not believe 

that Mosley sacrificed crack cocaine worth $2,000 to earn a $900 

fee as an informant. 

 On appeal, Reams argues that the district court abused its 

discretion in finding that the newly discovered evidence is 

“merely impeaching,” because it also corroborates Reams’s 

testimony that Mosely was selling the drugs to him that day. 

Alternatively, he contends that we should recognize a Custistype exception here because Mosely’s testimony was 

uncorroborated and essential to the government’s case, and 

because Justice’s affidavit rendered Mosely’s testimony “utterly 

unworthy of being believed.” Custis, 988 F.2d at 1359 (internal 

quotation marks omitted). Finally, Reams argues that the 

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district court abused its discretion in finding that the 

evidence would not likely have resulted in an acquittal at 

trial. 

 At trial, Reams’s and Mosely’s diametrically opposed 

testimony was nearly singularly focused on the issue of who was 

the buyer and who was the seller at the carwash that day. Thus, 

Reams correctly notes that, to the extent Justice’s affidavit 

can be read to impeach Mosely’s testimony, it would necessarily 

have the corresponding effect of corroborating Reams’s 

testimony. As the district court correctly observed, however, 

the government’s case did not “rest[] entirely on the 

uncorroborated testimony of a single witness who was discovered 

after trial to be utterly unworthy of being believed because he 

had lied consistently in a string of previous cases.” Custis, 

988 F.2d at 1359 (internal quotation marks omitted). Here, as 

we explain below, Mosely’s testimony was in fact corroborated by 

other evidence. Additionally, there is no evidence that Mosely, 

who had acted as an informant numerous times for both the Durham 

police and federal authorities, had ever lied in prior cases, 

and Justice’s affidavit is far from sufficient to render 

Mosely’s testimony “utterly unworthy of being believed.” Id. 

 In the end, however, it unnecessary for us to decide 

whether Justice’s affidavit was sufficient to satisfy the third 

requirement of Custis or, if not, whether it should nevertheless 

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be sufficient to bring into play a “rare exception” to that 

requirement because the district court clearly did not abuse its 

discretion in ruling that the evidence probably would not 

produce an acquittal at a new trial. J.A. 164. 

 Justice’s affidavit, dated January 31, 2002, consists of 

statements allegedly made by Mosely and “overheard” by Justice 

three years before, while the two were admittedly in a crack 

house. But even if the jury found the evidence credible, the 

overheard statements themselves are ambiguous as to whether 

Mosley intended to plant drugs on Reams or merely to inform on 

Reams to the police as a way to earn money and leave himself 

free to conduct his own transaction. 

 The newly discovered evidence also fails to undermine the 

evidence which does corroborate Mosely’s testimony. Prior to 

the transaction, the Durham officers searched Mosely and the 

vehicle, and kept both under surveillance thereafter. They 

found no drugs and observed nothing that would indicate that 

Mosely had retrieved drugs that had been successfully hidden 

during these searches. And, as observed by the district court, 

the cocaine ultimately seized was worth $2,000, whereas Mosley 

was only paid $900 as an informant fee. 

 After the arrest, the officers found crack cocaine in 

Reams’s pocket, as well as a large sum of cash, a cell phone, 

and a pager. For his part, Reams proceeded to incriminate 

9 
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himself by telling the officers that they could let Mosely go 

because he knew he had been set up by him, writing out in a 

statement that his uncle had nothing to do with the transaction, 

asking how much time a drug trafficking offense would carry if 

he were convicted, and admitting that he had an alcohol problem 

and dealt drugs to pay for his college education. Yet, Reams 

never offered a contemporaneous statement that the 54.5 grams of 

crack cocaine found on the seat of the vehicle were not his, or 

were instead brought to the scene by Mosely and planted on him. 

 Given the strength of the evidence against Reams and the 

corresponding weakness and ambiguity of the newly discovered 

evidence, we cannot say that the district court abused its 

discretion in finding that the verdict would not likely have 

been different had Reams had the benefit of Justice’s statement 

during the trial. 

III. 

 For the foregoing reasons, we affirm the district court’s 

order denying Reams’s motion for a new trial on the basis of 

newly discovered evidence. 

AFFIRMED