UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 Custis-
type 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
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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
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