Rehearing granted, June 2, 2006
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4010
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KHARY JAMAL ANCRUM,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (CR-02-20-SGW)
Submitted: November 30, 2005 Decided: January 3, 2006
Before WILKINSON and WILLIAMS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Peter R. Roane, Charlottesville, Virginia, for Appellant. John L.
Brownlee, United States Attorney, William F. Gould, Assistant
United States Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Khary Jamal Ancrum appeals his conviction and life
sentence imposed for conspiracy to distribute fifty grams or more
of cocaine base, in violation of 18 U.S.C. §§ 841(a)(1) & 846
(2000). On appeal, he contends that the district court erred in
denying his motion to admit expert testimony on the prosecution of
a drug conspiracy and in applying a sentencing enhancement based
upon his prior convictions. We affirm.
I.
Ancrum contends that the district court abused its
discretion in denying his request to call James R. Bradley, Jr., as
an expert in narcotics investigations. He alleges that Bradley’s
testimony was necessary to provide jurors with additional
information beyond their personal knowledge of the workings of a
drug conspiracy and the prosecution of drug conspiracies, and that
these factors would assist jurors in assessing the credibility of
witnesses, particularly Ancrum’s co-defendants. Ancrum asserts
that by excluding this testimony his Sixth Amendment right to
confront witnesses was violated because the effectiveness of cross-
examination was diminished without the expert testimony to
demonstrate the incentives that may have affected the witnesses’
testimony.
- 2 -
This court reviews the district court’s decision to
exclude expert testimony for abuse of discretion. United States v.
Barsanti, 943 F.2d 428, 432 (4th Cir. 1991). Expert evidence will
be admissible if it “will assist the trier of fact to understand
the evidence or to determine a fact in issue.” Fed. R. Evid. 702.
Ancrum had the opportunity, and admitted that he exercised the
“opportunity of cross-examination” that is the “main and essential
purpose of confrontation.” Davis v. Alaska, 415 U.S. 308, 316
(1974). He also admits that, under United States v. Ambers, 85
F.3d 173 (4th Cir. 1996), vigorous examination of co-defendants who
have provided substantial assistance is permitted.
Ancrum was able to fully cross-examine cooperating
witnesses regarding the benefits they received for their testimony.
This cross-examination was sufficient to demonstrate the
motivations alleged by Ancrum that may lead to false testimony.
Providing unreliable testimony in exchange for a lesser sentence is
a topic which is “within the common knowledge of the jurors.”
United States v. Harris, 995 F.2d 532, 534 (4th Cir. 1993).
Further, as noted by the district court, expert testimony on how
exchanges work in general may not apply to the prosecutions
involved with this conspiracy. Finally, this type of credibility
determination is within the sole province of the jury. United
States v. Smith, 30 F.3d 568, 572 (4th Cir. 1994). We therefore
conclude that Bradley’s expert testimony would not have helped the
- 3 -
jury make the necessary credibility determinations and that the
district court did not abuse its discretion in excluding the
proffered testimony.
II.
For the first time in his reply brief, Ancrum argues that
the district court did not properly inquire whether Ancrum affirmed
or denied the prior convictions relied upon to enhance his sentence
and that the question of enhanced punishment based upon the prior
convictions should have been submitted to the jury.
This court’s prudential doctrines require that claims be
raised in a party’s opening brief; failure to do so waives
consideration of the claims. United States v. Jones, 308 F.3d 425,
427 n.1 (4th Cir. 2002) (finding Apprendi v. New Jersey, 530 U.S.
466 (2000) argument raised for the first time in a Fed. R. App. P.
28(j) filing was waived); see also Yousefi v. INS, 260 F.3d 318,
326 (4th Cir. 2001) (declining to consider claim raised for the
first time in reply brief); Hunt v. Nuth, 57 F.3d 1327, 1338 (4th
Cir. 1995) (same). We therefore find that Ancrum has waived review
of this sentencing issue.
Accordingly, we affirm the judgment. We dispense with
oral argument because the facts and legal contentions are
- 4 -
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
- 5 -