UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4867

ROSEMARY ANN MAYO,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T.S. Ellis, III, District Judge.
(CR-96-202-A)

Submitted: July 1, 1997

Decided: October 22, 1997

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

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Affirmed by unpublished per curiam opinion.

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COUNSEL

George P. Doss, Jr., Alexandria, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Justin W. Williams, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Appellant Rosemary Ann Mayo was convicted by a jury of one
count each of making false statements,1 conspiracy to commit false
statements and witness tampering,2 and deprivation of civil rights
under the color of law, resulting in bodily injury. 3 On appeal, she
challenges whether the district court improperly instructed the jury on
materiality, whether her false statements were merely exculpatory
denials, and whether there was sufficient evidence to support her con-
victions for conspiracy to tamper with a witness and for deprivation
of civil rights. Finding no reversible error, we affirm.

Mayo was a correctional officer at the Lorton Reformatory Maxi-
mum Security Facility. One evening, a prisoner ("West") did not
receive his special diet tray, despite his requests to Appellant and
other officers. Taking matters into his own hands, West stopped up
his toilet and flooded his cell and the tier. Appellant, who was the
officer in charge of the tier, and two other officers ("Green" and "Har-
ris") went to West's cell, where they beat him for five to ten minutes
in retaliation for flooding his cell and to "teach him a lesson." A
supervisor eventually learned of the assault and ordered Mayo, Green,
and Harris to submit statements concerning the evening's events and
to be prepared to speak to FBI agents. The officers agreed to deny the
assault and devised an elaborate story to tell investigators. Mayo and
Green also devised a plan to get one of the prisoners who witnessed
the beating ("Smith") to talk to West and get him to change his story.
In return, the officers would overlook Smith's drug activity in the
prison.

The district court instructed the jury members that to convict Mayo
of making false statements, they must find that the statements made
by Mayo, Green, and Harris to FBI agents and prison officials were
false and that the false statements were material. Mayo did not object
_________________________________________________________________
1 18 U.S.C. § 1001 (1994).
2 18 U.S.C. § 371 (1994).
3 18 U.S.C. §§ 242, 2 (1994).

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to these instructions at trial, but now asserts that the court improperly
instructed the jury by not defining the term "material."4

Since Mayo failed to raise this issue at trial, it is waived absent
plain error,5 and we find no such error here.6 Contrary to Mayo's
assertions, we find nothing in United States v. Gaudin, 515 U.S. 506
(1995), requiring the court to define "materiality." See United States
v. Daughtry, 91 F.3d 675 (4th Cir. 1996) (" Gaudin held only that in
prosecutions for violations of § 1001, the element of materiality must
be submitted to the jury."). Moreover, we note that the evidence
against Mayo on this count was overwhelming. Green and Harris both
testified against her at trial, describing the attempt to cover-up the
assault in detail.

We also reject Mayo's claim that her statements were covered by
the "exculpatory no" doctrine. Since Mayo also failed to raise this
issue at trial, we analyze it for plain error and find none. This court
has historically applied the doctrine only in cases where the defendant
merely denied his/her guilt. See United States v. Cogdell, 844 F.2d
179 (4th Cir. 1988). However, we have declined to apply it in cases,
such as the one here, where the defendant devised an elaborate excul-
patory story designed to mislead investigators. See United States v.
Moore, 27 F.3d 969, 978-79 (4th Cir. 1994).

Finally, on direct appeal of a criminal conviction, a "verdict of a
jury must be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it." Glasser v. United
States, 315 U.S. 60, 80 (1942). In the present case, we find that there
was substantial evidence to support Mayo's convictions for conspir-
acy to tamper with a witness and to deprive West of his civil rights.
Green testified that he and Mayo devised a scheme to convince West
_________________________________________________________________
4 Mayo does not assert that the district court failed to submit the issue
of materiality to the jury.
5 See United States v. Olano, 507 U.S. 725 (1993).
6 We reject Mayo's assertion that the alleged error was structural, thus
preventing the use of a harmless error analysis. See Johnson v. United
States, ___ U.S. ___, 65 U.S.L.W. 4305 (U.S. May 12, 1997) (No. 96-
203) (failure to submit materiality element to jury subject to harmless
error analysis).

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not to testify against them. In return for Smith's help in convincing
West, the officers agreed to overlook Smith's drug activities at the
facility. We find that this evidence was sufficient for the jury to find
that Mayo conspired to tamper with West's testimony.

We also find that the testimony of Green and Harris amply sup-
ported the jury's finding that Mayo willfully deprived West of his
rights against cruel and unusual punishment. Both officers testified
that all three entered West's cell with the intent to punish him for
complaining about not receiving his evening meal and flooding his
cell and to "teach him a lesson." Prison officials testified that there
were procedures in place for handling unruly inmates; none of which
including beating the inmate.

We therefore affirm Mayo's convictions and sentences. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the material before the court and argument
would not aid the decisional process.

AFFIRMED

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