UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4069

CARLOS BROWN,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of West Virginia, at Wheeling.

Frederick P. Stamp, Jr., Chief District Judge.

(CR-95-15)

Submitted: December 23, 1997

Decided: January 21, 1998

Before MURNAGHAN and ERVIN, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Gail W. Kahle, DICKIE, MCCAMEY & CHILCOTE, Wheeling,

West Virginia, for Appellant. William D. Wilmoth, United States

Attorney, Thomas O. Mucklow, Assistant United States Attorney,

Wheeling, West 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Unpublished opinions are not binding precedent in this circuit.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:

Carlos Brown appeals his conviction and sentence for distribution

of a controlled substance within 1000 feet of a school, in violation of

21 U.S.C.A. §§ 841, 860 (West 1981 & Supp. 1997). Finding no

error, we affirm.

I.

At Brown's trial, Veronica "Sissy" Jones testified that on May 15,

1995, she bought $50 worth of crack cocaine from Brown, while

working as a paid informant for the Mon Valley Drug Task Force.

The transaction was audiotaped. Jones, a heavy drug user, did not call

the dealer by name on the tape. At trial, Jones alternately referred to

the person who sold her drugs as "Cocoa" (a nickname of Brown's)

or "Colyn" (a third person, who also apparently dealt drugs). However, she positively identified Brown in court as the person from

whom she bought crack cocaine on May 15. Investigator Kelly D.

Moran testified that, after escorting Jones back to the police station,

he returned to the area of the drug transaction where he saw Brown,

but not Colyn.

After the jury had retired to consider its verdict, Assistant United

States Attorney ("AUSA") Thomas D. Mucklow asked Appellant's

counsel why he had not struck a juror who had indicated that she had

an out-of-town wedding commitment. AUSA Mucklow then commented that perhaps the juror was planning to attend the wedding of

AUSA Sam Nazzaro, which was being held out of town that same

weekend.1 Brown then moved for a new trial based on juror and pro-

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1 AUSA Mucklow asserts that this comment was made in jest. Appellant contends that this information was purposely suppressed. The district

court did not resolve this factual dispute.

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secutorial misconduct. The motion papers on this issue show that the

juror was invited to AUSA Nazzaro's wedding but was not a relative.

The court denied the motion, finding that the juror did not have the

type of relationship with an Assistant United States Attorney that

would have excluded her from jury service and that the juror had not

improperly concealed this relationship.

In an unrelated trial, Jones testified that she had bought crack

cocaine from the defendants, who were family members. She then

recanted her testimony in certain out-of-court statements. The district

court, in that case, conducted extensive hearings on the recantation

and concluded that Jones had not testified falsely during the trial. The

district court (presided over by a different judge than herein) denied

the defendants' motion for a new trial, and that decision was affirmed

by this court. See United States v. Jones, Nos. 96-4430/96-4434/96-

4437 (4th Cir. Mar. 21, 1997) (unpublished).

When Brown became aware of this information, he filed a second

motion for a new trial based on the newly discovered evidence of

recantation. The district court denied the motion without a hearing,

relying on the findings of the district court judge in Jones.

The Presentence Investigation Report suggested that 6.48 grams of

crack cocaine was attributable to Brown for purposes of guidelines

sentencing determination. Brown objected to the determination of relevant conduct, because only .24 grams of the amount was determined

by reference to weights established at trial. The remaining 6.24 grams

was supported by reference to grand jury transcripts, primarily the

testimony of Kimberley Satterfield (4.8 grams). Prior to sentencing,

Brown unsuccessfully attempted to locate Satterfield in order to have

her testify. Brown also subpoenaed two other grand jury witnesses,

who did not appear at the sentencing hearing.

At the conclusion of the sentencing hearing, the district court found

that the grand jury testimony of all three witnesses was reliable and

attributed 6.48 grams of crack cocaine to Brown, resulting in an

offense level of 27. This base offense level, combined with Brown's

Criminal History Category of I, resulted in a guideline range of seventy to eighty-seven months. The district court sentenced Brown to

seventy-four months.

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II.

Brown first maintains that he was denied a fair and impartial jury

by a juror's and AUSA Mucklow's failure to disclose during voir dire

the juror's relationship with AUSA Nazzaro. During voir dire, the district court asked the panel the following question:

Are any of you related by blood or connected by marriage

with either of the lawyers who will be representing the parties in this criminal action or any employees of the United

States Attorney for the Northern District of West Virginia

in this case, who is Mr. William D. Wilmoth?

No juror responded.

The record developed after trial reflects that, although the juror in

question was invited to AUSA Nazzaro's wedding, she was not

related to Nazzaro.2 Instead, the record shows that the juror was

friends with Nazzaro's parents. In addition, Brown never requested

voir dire regarding social relationships with members of the United

States Attorney's office, and Brown did not ask any follow-up questions when the juror indicated during voir dire that she had an out-oftown wedding to attend.3 Based on these findings and the fact that the

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2 AUSA Nazarro presented certain witnesses to the grand jury in this

case. However, he was not involved in the case past the grand jury phase,

and his name was never mentioned to the jury.

3 During voir dire, the district court indicated its willingness to excuse

the juror due to this prior commitment. Brown contends that this willingness proves that the district court would have stricken the juror for cause

had the details of the wedding been known. Brown asserts that the

court's willingness to excuse the juror from service showed that the court

was concerned about her being partial. Brown's logic is faulty, however,

because an attempt to accommodate a juror's schedule cannot be translated into evidence that the district court would have found possible bias

and dismissed the juror for cause had the identity of the groom been disclosed. Furthermore, after the court expressed its inclination to excuse

the juror from service, Brown's attorney stated that he would likely strike

her. However, at the conclusion of jury selection, she had not been struck

by either side and was a member of the jury panel.

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juror did not affirmatively respond to any of the voir dire questions

concerning potential prejudice, the district court found that the juror

was an "impartial" member of the jury.

Nonetheless, Brown suggests that the juror's non-response to the

question above breached the juror's legal duty to be completely honest and forthright in answering the questions posed. However, the

juror's non-response to the question above was entirely honest and

appropriate. Absent a juror's failure to honestly answer a material

question, Brown cannot show his entitlement to a new trial. See

McDonough Power Equip. v. Greenwood, 464 U.S. 548, 555-56

(1984).

In addition, a claim of prosecutorial misconduct requires a showing

of prejudice. See Darden v. Wainwright, 477 U.S. 168, 181 (1986)

(due process rights are only violated when prosecutor's misconduct

renders a trial fundamentally unfair). Because Brown has failed to

make any showing of juror misconduct, he cannot show prosecutorial

misconduct on this point. Regardless of what AUSA Mucklow knew

of the situation, Brown fails to show that the district court's finding

that the juror was impartial was erroneous. As the record is devoid of

any evidence of juror bias or misconduct, Brown's contention that he

was denied a fair and impartial jury is frivolous.

III.

Next, Brown objects to the following statement by the prosecutor

during rebuttal closing argument:

People like Carlos Brown who are more than happy to stand

out on the street corner and sell crack to people like Sissy,

people who now can't even walk. He is more than happy to

stand up there and give her a 5-0, and she says he was surprised because she only usually buys 20's. Must have been

a real great day for Carlos.

Defense counsel objected, asserting that this line of argument implied

other uncharged drug sales. The objection was overruled.

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Earlier on direct examination, Jones testified without objection as

follows:

And I walked from there to Maple Avenue, and I seen

Colyn, Cocoa, whatever, excuse me, Cocoa, and asked him

for 50. I guess then, you know, it was sort of strange

because I am normally buying 20's, you know.

On cross-examination, she again testified without objection:

Yeah, I'm . . . I am saying that Colyn, you know, when I

walked up to him, I said, "Could I get a 50?" And I think

then it looked pretty strange because I am so used to buying

20's from them.

Prosecutorial misconduct mandating reversal requires a showing of

an improper remark by the prosecutor which prejudicially impacted

the substantial rights of the defendant so as to deprive him of a fair

trial. See United States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993).

A prosecutor's closing argument is not improper if it is reasonably

based on the trial testimony. See United States v. Chastain, 84 F.3d

321, 323 (9th Cir. 1996).

In this case, we find simply that there was no misstatement of the

testimony. The clear implication of Jones' testimony is that she normally purchased $20 pieces of crack cocaine, so that when she dealt

with Brown for a $50 piece, it appeared "strange." Because the prosecutor's remark was a reasonable interpretation of Jones' testimony, it

was entirely proper. Brown's claim to the contrary has no merit.

IV.

Brown next asserts that the district court erred by denying his

motion for a new trial based upon the newly discovered evidence of

Jones' recantation of testimony given in an unrelated trial. A district

court's denial of a motion for a new trial will not be set aside absent

an abuse of discretion. See United States v. Campbell, 977 F.2d 854,

860 (4th Cir. 1992). An abuse of discretion occurs when a judge fails

completely to exercise discretion, fails to use judicially recognized

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factors that apply in the context of the case, or exercises his discretion

based upon erroneous factual or legal premises. See James v.

Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).

The district court may grant a new trial for newly discovered evidence only when the following criteria are met: (i) the evidence must

in fact be newly discovered since the trial; (ii) facts must be alleged

from which the court may infer diligence on the movant's part; (iii)

the evidence on which the court relies must not be merely cumulative

or impeaching; (iv) the evidence must be material to the issues

involved; and (v) the evidence must be such that, on a new trial, it

would probably produce an acquittal. See United States v. Chavis, 880

F.2d 788, 793 (4th Cir. 1989). If all the criteria are not met, the

motion for a new trial must be denied. See id. 

With regard to part (iii) of the Chavis test, we have emphasized

that new evidence going only to the credibility of the witness does not

generally warrant granting a new trial. See United States v. Custis,

988 F.2d 1355, 1359 (4th Cir. 1993), aff'd, 511 U.S. 485 (1994). A

rare exception to this rule may be found under narrow circumstances:

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 previous cases, the district

judge would have the power to grant a new trial in order to

prevent an innocent person from being convicted.

Id. (citations omitted).

Brown presents no proof that Jones testified untruthfully at his

trial, other than her somewhat shaky identification of him, which was

fully explored during cross-examination. The newly-discovered evidence shows that, while Jones testified truthfully at the Jones trial,

she made untrue statements out-of-court to her church, to members of

her family, and to an investigator. Even if Jones lied during certain

unrelated out-of-court statements, it cannot be assumed that she lied

at Brown's trial. Without more, this impeaching evidence is insufficient to warrant a new trial, especially considering the newly-

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discovered evidence demonstrated that Jones testified truthfully in

court.

Furthermore, the Custis exception does not apply, because Jones'

testimony was corroborated by the audiotape and by Kelly's testimony. In fact, Brown does not, and in light of the audiotape cannot,

dispute that Jones bought crack cocaine on the date in question. He

asserts only that she lied concerning her identification of the seller.

While family pressure provided the basis for the recantation of Jones'

testimony in Jones, Brown offers no motive for Jones to have lied at

his trial, and she has never recanted that testimony. Therefore,

because Brown cannot satisfy part (iii) of the Chavis test, we decline

to address the remaining factors and hold that the district court did not

abuse its discretion in denying Brown's motion for a new trial.

V.

Next, Brown contends that the district court erred in attributing relevant conduct to him, when he was denied any meaningful opportunity to challenge the conduct. See U.S. Sentencing Guidelines Manual

§ 6A1.3(a) (Nov. 1996), p.s. (providing that"[w]hen a reasonable dispute exists about any factor important to the sentencing determination, the court must ensure that the parties have an adequate

opportunity to present relevant information"). We review the decision

of the district court to consider the grand jury testimony, without

delaying in order to afford Brown an opportunity to locate and examine the grand jury witnesses, for an abuse of discretion. See United

States v. Brinkworth, 68 F.3d 633, 640 (2d Cir. 1995).

We conclude that, under the circumstances presented here, the district court did not abuse its discretion. First, Brown gives no indication of what information, if any, examination of these witnesses

would have revealed. In addition, Brown's attorney did not proffer the

proper quantity of drugs to be attributed to his client, presented no

witnesses or other evidence on this issue, and made no attempt to

interview and record statements by the disputed witnesses.4 See

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4 It is also notable that Brown had a full year to prepare to meet the evidence as to relevant conduct. He received the presentence report in January 1996 and was not sentenced until January 1997.

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United States v. Zuleta-Alvarez, 922 F.2d 33, 36 (1st Cir. 1990)

(affirming denial of request for presentation of testimony at sentencing based in part on defendant's failure to establish the need for such

testimony). Thus, no hearing was necessary here because Brown

received an adequate opportunity to present information to the court

concerning drug quantity. Accordingly, we conclude that the district

court did not abuse its discretion in refusing to delay the sentencing.

VI.

Finally, Brown contends that the district court had insufficient evidence to find that he should be accountable for 6.48 grams of crack

cocaine. Brown asserts that this amount should be reduced by 4.8

grams, representing the amount attributed to Brown based on Satterfield's grand jury testimony:

Q: You purchased from [Appellant] how many times?

A: See, I don't know. Maybe, 20, 30 times because he

would be there with it, and I would stay all night and

then I would owe him money, too, the next morning

because its all family and they would be there with it.

You end up owing more money than you got because

they got it right there.

The Probation Officer calculated the 4.8 grams by multiplying the

amount Satterfield generally purchased (.24 grams) by 20, the more

conservative number mentioned by Satterfield.

The prosecution is required to establish the amount of drugs by a

preponderance of the evidence, and the district court's factual determination of the amount of drugs is reviewed for clear error. See

United States v. Williams, 986 F.2d 86, 90 (4th Cir. 1993). The district court was provided with a transcript of Satterfield's grand jury

testimony and made the determination that the testimony was sufficiently credible to permit reliance for sentencing purposes. In addition, even if Brown sold Satterfied crack cocaine on as few as

fourteen occasions, the resulting offense level would be identical.

Based on our review of the record, we are unable to conclude that the

district court's factual determination was clearly erroneous.

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VII.

For the foregoing reasons, we affirm Brown's conviction and sentence. 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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