United States v. McGee

                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 03-7294



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


RAYMOND MCGEE, a/k/a Raymond Washington,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Columbia.    Joseph F. Anderson, Jr., Chief
District Judge. (CR-00-668)


Submitted:   April 28, 2004                   Decided:   June 4, 2004


Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


James P. Rogers, Columbia, South Carolina, for Appellant. J. Strom
Thurmond, Jr., United States Attorney, Stacey D. Haynes, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Raymond McGee appeals the district court’s denial of his

motion for a new trial based on alleged juror bias.      McGee was

convicted of unarmed bank robbery and conspiracy to commit bank

robbery and armed bank robbery in violation of 18 U.S.C. §§ 371,

2113(a), (d) (2000).   Fourteen months after being sentenced and

five months after we affirmed his convictions, see United States v.

Smith, 2002 WL 482561 (4th Cir. Apr. 1, 2002) (Nos. 00-4809, 01-

4089) (per curiam), McGee filed a motion for a new trial.   McGee’s

motion alleged that one juror was biased against him at trial

because of a previous disagreement between the two of them.     The

juror did not disclose this disagreement during jury selection.

After conducting an evidentiary hearing at which McGee and two

witnesses testified on his behalf, the district court denied

McGee’s motion for a new trial.

          We review a district court’s denial of a motion for new

trial based on a juror’s failure to fully disclose information

during voir dire for an abuse of discretion, or a clear error of

law in the exercise of that discretion.   See City of Richmond v.

Madison Mgmt. Group, Inc., 918 F.2d 438, 459 (4th Cir. 1990).    In

order to obtain a new trial “‘a party must first demonstrate that

a juror failed to answer honestly a material question on voir dire,

and then further show that a correct response would have provided

a valid basis for a challenge for cause.’”   Fitzgerald v. Greene,


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150 F.3d 357, 362 (4th Cir. 1998) (quoting McDonough Power Equip.,

Inc. v. Greenwood, 464 U.S. 548, 556 (1984)).              In the absence of

dishonesty, a criminal defendant may nevertheless establish a Sixth

Amendment violation warranting a new trial by showing that a juror

was actually biased against the defense.           Fitzgerald, 150 F.3d at

362-63.

          We    conclude       the   district   court    did    not    abuse   its

discretion     in    finding    McGee’s   and   his     witnesses’     testimony

implausible    and    in   denying    McGee’s   motion    for    a    new   trial.

Accordingly, we affirm the district court’s judgment.                 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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