UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                       No. 97-4139
JAMES M. WILLIAMS, JR., a/k/a
Monty,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CR-96-39)

Submitted: August 12, 1997

Decided: August 28, 1997

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

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Claude M. Scialdone, Barry R. Taylor, G. Paul Martin, Third Year
Law Student, SCIALDONE & ASSOCIATES, Virginia Beach, Vir-
ginia, for Appellant. Robert P. Crouch, Jr., United States Attorney,
Anthony P. Giorno, Assistant United States Attorney, Roanoke, Vir-
ginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted James M. Williams, Jr., of conspiring with Steve
Dillon and others from July 1995 until April 1996 to possess with the
intent to distribute cocaine in violation of 21 U.S.C. § 846 (1994), and
of, on April 25, 1996, attempting to possess with the intent to distrib-
ute cocaine in violation of 21 U.S.C. § 841(a)(1) (1994). The court
sentenced him to 240 months of incarceration. He appeals and argues
that insufficient evidence supports his convictions and that the trial
court erred in excluding evidence and instructing the jury. We affirm.

The jury convicted Williams primarily on the testimony of others
engaged in the buying and selling of drugs. Tommy Byers was one
cooperating witness who tried unsuccessfully to sell two kilograms of
cocaine to Williams on February 27, 1996. The government played
audio tapes of Williams and Byers planning the deal. Before the deal
was consummated, Byers met with Williams and Williams introduced
to Byers his associate, Steve Dillon. Williams had told Byers that Dil-
lon would actually pick up the cocaine. Byers and law enforcement
agents waited for the deal to occur at a Days Inn motel but neither
Dillon nor Williams appeared. Williams later told Byers that they did
not show up for the deal because they thought they were being fol-
lowed. Drug agents were following Williams and Dillon. An agent
testified that he was following the vehicle in which Williams was a
passenger the night of the planned deal and that as it was headed
toward the Days Inn, Williams looked toward the officers. The vehi-
cle then reversed course and the agents terminated their surveillance.

Robert Morgan also testified against Williams. He was arrested on
drug charges also and decided to cooperate with authorities. Morgan
had been incarcerated with Dillon from 1988 until 1991. Dillon had
asked Morgan to help him find a cocaine supplier in July or August
1995, but Morgan did not assist him. About three or four months later

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Dillon and Williams traveled to a furniture store in North Carolina out
of which Morgan was working. Dillon pulled Morgan aside, away
from Williams, and again asked Morgan to help him establish a
cocaine connection. This time Dillon said that the connection would
be for Williams and that he was willing to pay $10,000 for the con-
nection. Again, Morgan declined the offer.

Authorities arrested Morgan in February 1996 on other charges and
Morgan began having recorded telephone conversations with Dillon.
Several of these conversations were played for the jury. Dillon and
Morgan arranged a two-kilo cocaine deal for April 25, 1996, at
Tanglewood Mall in Roanoke, Virginia, during which Morgan would
introduce the connection, actually an undercover agent, to Dillon. Dil-
lon arrived at the mall alone in Williams' pickup truck and was
arrested after he showed that he had the money to buy the two kilos
of cocaine.

Dillon, a convicted felon, testified for the government pursuant to
a plea agreement. Williams began supplying Dillon with cocaine on
a consignment basis in October of 1995. On one occasion Williams
and Dillon weighed out a kilo of cocaine, cut it, and packaged it for
sell. The two kept the cocaine in Dillon's apartment. Dillon testified
about meeting Tommy Byers and said that Williams described him as
his potential cocaine source. Dillon also testified that he and Williams
were en route to make the two-kilo cocaine deal with Byers when
Williams changed his mind and they returned to Williams' house.
Dillon testified that he was going to get the cocaine from Morgan for
both himself and Williams. Williams supplied the money for the pur-
chase of cocaine from Morgan. Williams brought the $30,000 to Dil-
lon in the pickup truck that Dillon drove to Tanglewood Mall. Agents
arrested Dillon at the mall and arrested Williams at Dillon's home.
Police recovered cocaine in plastic bags in Dillon's home and recov-
ered the cash carried to the mall, also packaged in a plastic bag, from
the pickup truck.

Williams presented a witness who testified that she saw Dillon buy
cocaine in his apartment. Another witness testified that Dillon had
asked her if he could borrow her vehicle on April 25, the day of the
Tanglewood Mall deal. She declined and testified that Williams had
told her that he let Dillon use his truck.

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Williams first contends that the trial court erred when it excluded
the testimony of his fingerprint expert. The expert would have testi-
fied that if fingerprints were present on the plastic bags containing the
cocaine recovered at Dillon's residence and the cash brought to
Tanglewood Mall, the prints could have been recovered. The expert
did not actually test the bags to confirm that fingerprints were present.
The district court found that this testimony was an attempt to put the
government's investigation on trial and excluded it under Fed. R.
Evid. 403 as a waste of time. We find no abuse of discretion here. The
government did not present a fingerprint expert and it was not notified
of the defense's intent to call its expert until the day he was to testify.
See United States v. Dorsey, 45 F.3d 809, 816 (4th Cir. 1995) (failing
to advise government of expert witnesses until first day of trial formi-
dable reason in itself to exclude testimony). Moreover, the defense
was able to argue to the jury that the government's failure to test the
bags possibly deprived Williams of exculpatory evidence because his
fingerprints might not have been found.

Williams next argues that the trial court's jury instructions
deprived him of a fair trial. After the court's first instruction, the jury
retired to the deliberation room but were recalled to be instructed that
"knowingly" was an element of the conspiracy count and of the effect
on credibility of a prior felony conviction. This recall occurred before
the jury had started deliberating. When the jury returned to the jury
room the defense again objected because the court had inadvertently
stated during the reinstruction that the defendant had the burden of
proof on the elements of the offense. The jury was promptly recalled
to the courtroom and instructed that the defendant had no burden.
Williams does not contend that the instructions in their final form
were wrong, but instead contends that these three attempts to instruct
left the jurors confused. We find that the jury was properly instructed
in unambiguous terms and that Williams' speculation that the jury
may have been confused by the corrections made, merits no relief.
See Opper v. United States, 348 U.S. 84, 95 (1954).

Finally, Williams contends that the government failed to present
sufficient evidence to support his convictions. He argues that he was
convicted solely on Dillon's testimony which was not believable. The
credibility of a witness is a matter for the jury to decide. See United
States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). Moreover, the

                     4
uncorroborated testimony of one accomplice is sufficient to support
a guilty verdict. See United States v. Figurski , 545 F.2d 389, 392 (4th
Cir. 1976). And, as the summary of the government's evidence above
shows, there was evidence against Williams other than Dillon's testi-
mony. We find the evidence to be sufficient for conviction on both
counts.

Accordingly, we affirm Williams' convictions. 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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