                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                             3
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).



                                      4
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


                                    5
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



                                                6
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

                                                7
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

                                                 8
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

                                            9
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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