                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4230


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

DEMETRIUS TYRONE GARDNER,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.      James P. Jones, Chief
District Judge. (1:07-cr-00028-jpj-pms-1)


Submitted:    January 23, 2009              Decided:   February 27, 2009


Before WILKINSON, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Daniel R. Bieger, COPELAND & BIEGER, P.C., Abingdon, Virginia,
for Appellant. Julie C. Dudley, Acting United States Attorney,
Zachary T. Lee, Assistant United States Attorney, Abingdon,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Demetrius Tyrone Gardner appeals his jury conviction

and   sentence    on    charges     of    conspiracy      to   distribute        cocaine

base, in violation of 21 U.S.C. §§ 841(a)(1) (2006) (Count One);

and knowingly making a material false declaration under oath, in

violation of 18 U.S.C. § 1623 (2006) (Counts Three and Four).

The district court sentenced Gardner to a total of 360 months’

imprisonment     and    ten    years’      total    supervised           release.       On

appeal,   Gardner      challenges        the   district     court’s       admission     of

evidence of prior bad acts, and the sufficiency of the evidence

used to convict him.       We affirm.

           Gardner’s first claim of error is that the district

court erred in denying his motion in limine seeking to prevent

the    Government       from      introducing        evidence            of    Gardner’s

convictions for drug-related offenses in 1999 and 2000, under

Fed. R. Evid. 404(b) and 403.                  Gardner claims the evidence was

not   relevant     to    whether     he        engaged    in       the    charged      drug

conspiracy     between     August        and    October     2006,        and   that    the

prejudicial effect of the evidence far outweighed its probative

value.

           We give great deference to the trial court’s rulings

on the relevancy and admissibility of evidence, and will not

disturb   such     rulings     on    appeal        absent      a    clear      abuse    of

discretion.      United States v. Whittington, 26 F.3d 456, 465 (4th

                                           2
Cir. 1994).       We will not find an abuse of the district court’s

discretion in the admission of Fed. R. Evid. 404(b) evidence

absent    a   showing     of   arbitrariness      or    irrationality.       United

States v. Haney, 914 F.2d 602, 607 (4th Cir. 1990).                    Evidence is

admissible pursuant to Rule 404(b) if it is “(1) relevant to an

issue other than character, (2) necessary, and (3) reliable.”

United States v. Sanchez, 118 F.3d 192, 195 (4th Cir. 1997)

(quoting United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir.

1988)).

              We find no abuse of the district court’s discretion in

the   admission      of   Gardner’s    prior     crimes.     A   not-guilty     plea

places a defendant’s intent at issue, and evidence of similar

prior crimes can therefore be relevant to prove intent to commit

the   crime    charged.        See    Sanchez,    118    F.3d    at   196.     Prior

convictions for narcotics offenses and evidence of prior arrests

for   narcotics      offenses    is   an   accepted      means   of   establishing

intent, knowledge of the drug trade, and intent to distribute.

Id. at 196-97.        See also United States v. Hodge, 354 F.3d 305,

311-12 (4th Cir. 2004); United States v. Mark, 943 F.2d 444, 448

(4th Cir. 1991).          Here, the challenged evidence was probative of

Gardner’s knowledge and intent as it related to the charge of

conspiracy      to    possess    with      the   intent    to     distribute     and

distribute cocaine base.              In addition, his prior convictions

were probative of his knowledge of the drug trade and refute any

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contention that he was an innocent bystander with regard to the

October 23, 2006, transaction, or in his numerous dealings with

Norman, or that he committed the acts charged by accident or

mistake.

            Nor was the probative value of the evidence of prior

bad acts outweighed by the potential prejudice.                          See Fed. R.

Evid. 403.       The challenged evidence was not lurid, inflammatory,

nor would it tend to cause the jury to decide the case in an

irrational manner.            Moreover, the limiting instruction given to

the jury in this case was adequate such that the jury would not

rely improperly on the prior bad act evidence.                          See generally

Mark, 943 F.2d at 449; United States v. Masters, 622 F.2d 83, 87

(4th Cir. 1980).

            Gardner’s final claim of error is that the evidence

was     insufficient     to     convict    him     of    the     drug    distribution

conspiracy charged in Count One of the indictment, or of making

false    statements      as    charged    in   Counts     Three    and    Four.     In

evaluating the sufficiency of the evidence supporting a criminal

conviction on direct review, “[t]he verdict of the 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).          Substantial      evidence   is

evidence    “that    a   reasonable       finder    of    fact    could    accept   as

adequate and sufficient to support a conclusion of a defendant’s

                                          4
guilt beyond a reasonable doubt.”                     United States v. Burgos, 94

F.3d       849,   862    (4th    Cir.   1996)         (en     banc).      We    consider

circumstantial and direct evidence, and allow the Government the

benefit of all reasonable inferences from the facts proven to

those sought to be established.                  Id. at 858; United States v.

Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).                          In evaluating

the sufficiency of the evidence, this Court does not review “the

credibility         of   the    witnesses       and    assume[s]       that    the   jury

resolved all contradictions in the testimony in favor of the

government.”         United States v. Foster, 507 F.3d 233, 245 (4th

Cir. 2007), cert. denied, 128 S. Ct. 1690 (2008); United States

v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002).                       Our review of the

record      discloses     sufficient     evidence           presented    at    Gardner’s

trial to support the jury’s findings. *

              The    record     reflects    that        the    Government      presented

evidence that Gardner was involved in a drug transaction with a

confidential informant of the Bristol Virginia Police Department

on October 23, 2006.             The confidential informant, fitted with

audio and video recording capabilities, arranged a transaction


       *
       As Gardner did not move for judgment of acquittal pursuant
to Fed. R. Crim. P. 29, we review for plain error his claim of
insufficiency of the evidence, to determine whether or not
“manifest injustice” occurred.    United States v. Wallace, 515
F.3d 327, 332 n.5 (4th Cir. 2008)(citing Lockhart v. United
States, 183 F.2d 265 (4th Cir. 1950)).



                                            5
involving crack cocaine with an individual she knew as “Ty,” who

was identified as Gardner.          A recorded telephone call was placed

to Gardner, the meeting was set up, and the informant approached

a vehicle in which Gardner was a passenger.                    The confidential

informant gave the female driver $150, and Gardner then handed a

piece of crack cocaine to the driver, who then handed the crack

cocaine to the informant.

              Following his arrest, Gardner was interviewed by Drug

Enforcement Administration Agent Brian Snedeker.                       During that

interview, Gardner confessed to Agent Snedeker that he had been

assisting Alonzo Norman in the distribution of crack cocaine for

a    period    of     approximately      three    months.       Agent        Snedeker

testified      that    Gardner   told     him     that     Gardener    would     find

customers for Norman that were willing to purchase an ounce of

crack cocaine.         After completion of the deal, Norman would give

Gardner $200.          Gardner further stated that Norman was selling

one ounce of crack cocaine for $1000, and that the transactions

occurred approximately five to six times a week and at different

locations      in     Bristol,   Virginia       and   in    Bristol,       Tennessee.

Gardner identified five to six one ounce transactions occurring

at   a   barbershop      in   Bristol,    Virginia.         Based     on    Gardner’s

statements to him, Agent Snedeker calculated that Gardner had

assisted in the distribution of 1275 grams of crack cocaine.



                                          6
              Following         his    statements       to    Agent       Snedeker,     Gardner

agreed to attempt to set up a drug deal with Alonzo Norman, and

placed   a    number       of     recorded      phone    calls       to    Norman    for    that

purpose.       However,         no     deal   was     accomplished.             Phone   records

introduced         at    trial       corroborated        Gardner’s         confession,       and

revealed that numerous phone calls had been made from Gardner’s

cellular telephone to the cellular telephone of Norman prior to

October 27, 2006, and included the recorded phone calls placed

at Snedeker’s direction.

              Gardner      challenges         this     evidence,         claiming    that   the

Government failed to prove that he entered into an agreement

with   anyone,          because      neither        Alonzo    Norman      nor    anyone     else

testified to an agreement to distribute more than fifty grams of

crack,   nor       was    there       any   evidence     of     a   specific       transaction

between Gardner and Norman.                   He also notes that the videotape of

the transaction with the confidential informant did not capture

Gardner’s person.            Gardner finally challenges as unreliable the

testimony of the confidential informant, of Jeremy Taylor, who

testified against Gardner, and of Agent Snedeker, to the extent

that     he    failed           to     tape     record        Gardner’s         incriminating

statements.

              As    evidenced          by     the     finding       of    guilt,    the     jury

resolved any conflicts in testimony in favor of the prosecution,

determined         the     Government’s             witnesses       to     be    sufficiently

                                                7
credible to support their verdict of guilty, and otherwise found

sufficient      circumstantial             and       direct        evidence       of     guilt.

Gardner’s claims on appeal that the witnesses’ testimony was

inconsistent     or    not     credible,            or    that     the    witnesses’      self-

interest      outweighed      their        credibility,            are     insufficient     to

support reversal of the jury’s verdicts, because in resolving

issues   of     substantial        evidence,             this     court    does   not    weigh

evidence or review witness credibility.                          Lomax, 293 F.3d at 705;

Burgos, 94 F.3d at 863.              We find that this evidence is adequate

and   sufficient       to    support        the          jury’s    conclusion      beyond    a

reasonable doubt that Gardner had an agreement with at least one

other individual to engage in conduct that violated a federal

drug law, and that he knowingly and voluntarily participated in

the conspiracy.        See Wilson, 135 F.3d at 306.

             To prove perjury, the Government must establish that

Gardner gave false testimony under oath “concerning a material

matter   with    the       willful    intent         to     provide       false   testimony,

rather   than     as    a    result        of    confusion,          mistake,     or     faulty

memory.”      See United States v. Dunnigan, 507 U.S. 87, 94 (1993);

United States v. Smith, 62 F.3d 641, 646 (4th Cir. 1995).                                 Here,

the Government introduced evidence in the form of a transcript

of a supervised release revocation hearing held on November 20,

2006, in which Gardner denied, under oath, setting up five or

six   drug    deals    a    week     for    Alonzo         Norman,        and   denied   being

                                                8
involved     in       any    crack    cocaine        transactions             on    either     the

Virginia or Tennessee side of State Street on October 23, 2006.

            The sole basis for Gardner’s claim of insufficiency of

the evidence relating to the perjury conviction is his claim

that “[b]ecause the Government failed to prove that Gardner in

fact     made     incriminating           admissions        to     Agent       Snedeker,      the

Government failed to prove that Gardner made materially false

statements       at    the   revocation         hearing.”          As     discussed         above,

however,        in     convicting         Gardner      of        conspiracy,          the     jury

apparently           believed      that     Gardner         made        the        incriminating

statements       to    Agent    Snedeker.           Just    as     this       court    will    not

second-guess the credibility findings of the jury relative to

the    conspiracy       conviction,        it   will    not       set    aside       the    jury’s

credibility findings relative to the perjury conviction.                                       See

Foster, 507 F.3d at 245.

            There is no merit to Gardner’s claims of insufficiency

of the evidence.            The jury’s verdict on each of the three counts

was amply supported by the evidence.

            Accordingly,             we    affirm      Gardner’s              conviction       and

sentence.       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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