UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4848

ANDRE MAURICE JACOBS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CR-97-39-MJG)

Submitted: July 21, 1998

Decided: August 3, 1998

Before MICHAEL and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William Alden McDaniel, Jr., Laura Maroldy, MCDANIEL &
MARSH, Baltimore, Maryland, for Appellant. Lynne A. Battaglia,
United States Attorney, Thomas M. Dibiagio, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Andre Jacobs appeals his conviction for bank robbery in violation
of 18 U.S.C. § 2113(a), (f) (1994). His attorney filed a brief in accor-
dance with Anders v. California, 386 U.S. 738 (1967), addressing
whether the district court erred in denying Jacobs' motions for a mis-
trial and a new trial on the basis of prosecutorial misconduct, newly
discovered evidence, and the insufficiency of the evidence presented
in support of his conviction. Counsel asserts that there are no merito-
rious grounds for appeal. Jacobs was informed of his right to file a
pro se supplemental brief, which he failed to file. Because our review
of the entire record reveals no reversible error, we affirm.

Jacobs first asserts that the district court erred in denying his
motion for a mistrial based on prosecutorial misconduct. To prevail
on a claim of prosecutorial misconduct, an appellant must show that
improper remarks "prejudicially affected the defendant's substantial
rights so as to deprive the defendant of a fair trial." United States v.
Mitchell, 1 F.3d 235, 240 (4th Cir. 1993). In determining whether
there was prejudice, the court considers:

          (1) the degree to which the prosecutor's remarks have a ten-
          dency to mislead the jury and to prejudice the accused; (2)
          whether the remarks were isolated or extensive; (3) absent
          the remarks, the strength of competent proof introduced to
          establish the guilt of the accused; and (4) whether the com-
          ments were deliberately placed before the jury to divert
          attention to extraneous matters.

United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995).

Under this standard, Jacobs' claim fails. Initially, it is unclear that
the government's questioning of Jacobs on cross-examination about

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bank robberies for which he was not on trial was improper. At trial
Jacobs admitted that he was with codefendant Christopher Davis on
December 23, 1996, but denied any knowledge that Davis intended
to commit a bank robbery. He knew, however, that he and Davis had
been indicted for committing a bank robbery on December 17, 1996.
Hence, on this record the question appears to have been properly
asked for the purpose of impeaching Jacobs' testimony. See Fed. R.
Evid. 609(b) (specific instances of conduct, if probative of truthful-
ness, may be inquired into on cross examination). Even if the question
was improper, Jacobs responded that he was not involved in any bank
robberies prior to December 23, 1996. In addition, the government
made no further mention of the robberies for which Jacobs was not
on trial, and the court gave the jury a curative instruction immediately
after the question was asked. Accordingly, we find no abuse of discre-
tion in the district court's denial of Jacobs' motion for a mistrial based
on prosecutorial misconduct. See United States v. West, 877 F.2d 281,
287-88 (4th Cir. 1989).

Jacobs' attorney next asserts as a potential claim that the district
court should have granted Jacobs' motion for a new trial based on
newly discovered evidence. This Court reviews the decision to deny
a new trial for an abuse of discretion. See United States v. Singh, 54
F.3d 1182, 1190 (4th Cir. 1995). A new trial may be granted on the
basis of newly discovered evidence if new evidence has come to light
which was not previously known to the defendant despite due dili-
gence on his part. See United States v. Custis , 988 F.2d 1355, 1359
(4th Cir. 1993). The evidence must be material, not merely cumula-
tive or impeaching, and of such a quality that a new trial would proba-
bly result in an acquittal. Id. This court has articulated a different test
for when a new trial should be granted based on post-trial allegations
that a material witness committed perjury. Under that test, the court
must be reasonably satisfied that the testimony given was false, that
without the testimony the jury might have reached a different conclu-
sion, and the party seeking the new trial must have been surprised and
unable to meet the alleged perjured testimony. See United States v.
Wallace, 528 F.2d 863, 866 (4th Cir. 1976). A district court's refusal
to grant a new trial based upon perjured testimony is also reviewed
for an abuse of discretion. United States v. Dorlouis, 107 F.3d 248,
254, 257 (4th Cir. 1997), cert. denied, ___ U.S. ___, 65 U.S.L.W.
3861 (U.S. June 27, 1997) (No. 96-9613).

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Jacobs fails to demonstrate that the district court abused its discre-
tion in denying his motion for a new trial under either of the above
tests. We agree with the district court that codefendant Dennis Pestis'
post-trial statement did not contradict his trial testimony. The discrep-
ancies between Pettis' statements were de minimis and even had Pet-
tis testified in accordance with his post-trial statement such testimony
would not have affected the trial outcome. Therefore the court did not
err in denying Jacobs' motion for a new trial on the basis of newly
discovered evidence. Finally, we find no error in the district court's
denial of Jacobs' motion for a new trial alleging that there was insuf-
ficient evidence to support his conviction.

In accordance with Anders, we have examined the entire record in
these cases and find no reversible error. We therefore affirm Jacobs'
conviction. This court requires that counsel inform his client in writ-
ing of his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed, but coun-
sel believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. See
Local Rule 46(d). Counsel's motion must state that a copy thereof
was served on the client. See id. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court, and oral argument would not aid the deci-
sional process.

AFFIRMED

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