UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                      No. 95-5852
RAYMOND CHERISSON, a/k/a Haitian
James,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(CR-94-97-BO)

Argued: July 19, 1996

Decided: September 10, 1996

Before ERVIN, Circuit Judge, and BUTZNER and PHILLIPS,
Senior Circuit Judges.

_________________________________________________________________

Affirmed by unpublished opinion. Senior Judge Phillips wrote the
opinion in which Judge Ervin and Senior Judge Butzner joined.

_________________________________________________________________

COUNSEL

ARGUED: J. Lee Carlton, Jr., Raleigh, North Carolina, for Appel-
lant. William Arthur Webb, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole, United
States Attorney, Christine Blaise Hamilton, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PHILLIPS, Senior Circuit Judge:

Raymond Cherisson was convicted on one count of conspiracy to
distribute cocaine base in violation of 21 U.S.C.§ 846 and three
counts of distribution of cocaine base in violation of 21 U.S.C.
§ 841(a)(1). He now challenges those convictions on several grounds.
We find no reversible error and affirm his convictions.

I.

Cherisson came to Florida from Haiti in 1979 and has spent most
of the intervening years working at various hotels and other busi-
nesses, mostly in the Orlando area where he has lived in recent years
with his girlfriend, Valinda Justice, and their children. Following his
arrest in Miami as he got off a plane from Haiti, he was charged in
the Eastern District of North Carolina with participating in an exten-
sive cocaine conspiracy centered in Smithfield, North Carolina. The
indictment charged numerous conspirators with various kinds and
degrees of participation in the Smithfield conspiracy between 1988
and 1994. As to Cherisson, the indictment charged that he participated
in the conspiracy from June, 1993 to June, 1994 and additionally with
several specific acts of distribution of cocaine base during that year.

The government's evidence against Cherisson at trial included a
small but significant amount of documentary evidence and extensive
co-conspirator testimony. It tended to show that Cherisson brought
large quantities of cocaine from Florida to North Carolina on a regu-
lar basis in 1993 and 1994 and perhaps earlier as well, and that he
then distributed the cocaine, generally in the form of cocaine base, to
several local dealers in Smithfield. Cherisson's defense was that he
simply had had nothing to do with cocaine anywhere or anytime and
that, with very minor exceptions, he had been in Florida and Haiti
throughout the period during which he was supposed to have been

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distributing drugs in North Carolina. Testifying in his own defense,
he claimed that he had come to North Carolina exactly three times in
his life before his 1995 arrest and that these three visits were very
brief and entirely innocent. First, in April of 1993, he had come on
vacation to see the area at the suggestion of a Smithfield resident
whom he had met when she stayed at the Orlando Hyatt Regency
where he worked. While on vacation, however, he was arrested on a
charge of gun possession and, although he returned to Florida as soon
as he was released, he was compelled to travel to North Carolina
twice more to make court appearances before the gun charge was dis-
missed. Both times, he testified, he came solely to make those appear-
ances and promptly returned to Florida. His name became mixed up
in the drug case only because he had had the misfortune of consorting
with people in Smithfield who turned out to be drug dealers and who
used his identity as a convenient, false identity for one of their own.
Those same dealers were now fabricating their testimony against him
in order to get their own sentences reduced.

At trial, Cherisson's testimony, the testimony of his girlfriend, and
the extremely brief and skeletal testimony of a co-worker were the
only evidence brought to counter the government's rather strong evi-
dence of Cherisson's guilt. Just before and then repeatedly during
trial, Cherisson's lawyer insisted that crucial documentary evidence
from Florida would corroborate Cherisson's alibi. The district court,
however, ruled that the lawyer had had ample time to produce such
evidence, if it existed, and denied all of Cherisson's requests for con-
tinuances. When some of these documents finally arrived at the very
close of the trial, the district court heard Cherisson's proffers but
excluded the evidence and sent the case to the jury.

The jury acquitted Cherisson on one distribution count and failed
to reach a verdict on several others. The jury convicted him, however,
on three other distribution counts--one each for August, September,
and October of 1993--as well as the conspiracy count. Cherisson now
appeals those convictions.

II.

Cherisson's most serious claim is that the district court erred in
refusing to give the jury the alibi instruction that Cherisson requested.

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Cherisson is, of course, correct that he was entitled to an alibi instruc-
tion if there was a foundation for that particular theory of defense in
the evidence. United States v. Hicks, 748 F.2d 854, 857 (4th Cir.
1984). Thus, given the particulars of this case, he would have been
entitled to the instruction if the evidence could have shown or raised
a reasonable doubt as to whether he was in Florida or Haiti at least
during August, September, and October 1993, the months specified in
the three distribution counts of which he was convicted. Further, since
the government had little or no evidence of conspiracy other than its
evidence of actual distributions and since the evidence of his distribu-
tions was ample to sustain the conspiracy conviction as well, any
effective alibi evidence for the distribution counts would have been
essentially indistinguishable from alibi evidence for the conspiracy
count.* We conclude, however, that Cherisson's evidence, considered
as a whole, cannot constitute competent evidence of alibi with respect
to the distribution counts and thus, a fortiori , with respect to the con-
spiracy count. Therefore, he was not entitled to an alibi instruction,
and the district court did not err.

First, Cherisson's co-worker at the Orlando Hyatt Regency, Marc
Charles, testified that Cherisson worked with him there from 1990 to
1993 and that he saw Cherisson at work "every day." Given that
Cherisson's charged role in the conspiracy did not begin until June,
1993 and that Charles's testimony said nothing about when in 1993
Cherisson ceased working with him, that testimony did not actually
support Cherisson's claim that he was in Florida or Haiti during the
charged period.

Second, Cherisson's girlfriend, Valinda Justice, testified that
Cherisson had lived with her in Florida from 1990 until the time of
his arrest and had worked for various named Florida employers. She
also testified that he had traveled to Haiti for months at a time at vari-
_________________________________________________________________
*The government makes the untenable argument that there can be no
alibi here because a drug conspiracy conviction does not require proof of
the defendant's presence at the scene of the distributions. Of course, such
presence is not a required element of a drug conspiracy, but where, as
here, evidence of such presence is the government's only evidence of
conspiracy an alibi defense is obviously available. See United States v.
Burse, 531 F.2d 1151, 1153 (2d Cir. 1976).

                     4
ous unspecified times between 1993 and 1995, although she admitted
that she had never accompanied him. Like Charles's testimony, Jus-
tice's testimony was far too diffuse to support a specific finding that
Cherisson was so continuously in Florida or Haiti as to rule out his
being in North Carolina at the crucial times.

Cherisson himself, finally, testified with somewhat greater preci-
sion, if not consistency, as to his whereabouts. But, in the end, his tes-
timony too was inadequate to require an alibi instruction. Testifying
in an exceedingly confused way, Cherisson at first said that his full-
time employment at the Hyatt ended in early 1993, which was before
the beginning of his charged participation in the conspiracy. Without
suggesting that he meant to change his testimony, however, he later
testified that he worked at the Hyatt until early 1994 and, at one other
point, that he was still working at the Hyatt at the time of his arrest
on the gun charge in April of 1993. He further testified that in 1993
and 1994 he also worked part-time at another Orlando hotel called the
Dolphin while still working at the Hyatt. However, Cherisson then
also proffered documents that arrived from the Hyatt at the very close
of the trial, documents that the district court excluded from evidence
but that confirmed that his Hyatt employment did, in fact, end early
in 1993, as he originally testified, and not in 1994, as he later testi-
fied.

Thus, some of his testimony, taken in isolation, might have sup-
ported an alibi instruction. But that part of his testimony conflicted
with his initial testimony and with his own proffered documentary
evidence, which, although never admitted, made crystal clear that that
initial testimony was the only reliable testimony. We think, therefore,
that the district court could legitimately have deemed Cherisson's
confused testimony inadequate to support an alibi instruction. Cer-
tainly, even if the district court's ruling had been technically in error,
we would remain convinced beyond a reasonable doubt by Cheris-
son's own proffered evidence that that error could not have affected
any "substantial right" belonging to Cherisson and so was harmless.
See Chapman v. California, 386 U.S. 18, 23-24 (1967); Hicks, 748
F.2d 858 (Chapman constitutional harmless-error rule applicable to
erroneous refusals to give alibi instructions).

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III.

In addition to his claim that he was entitled to an alibi instruction,
Cherisson contended at trial and contends now that there exists fur-
ther, ample documentary evidence --records of his employment in
Florida, his passport, and miscellaneous other documents--to sustain
his claim that he was continuously in Florida and Haiti during the rel-
evant periods of time. From that premise, he argues that his trial was
rendered unfair by the district court's refusal to grant a continuance
to afford his lawyer adequate time to gather these documents and its
refusal to admit into evidence those few documents that did arrive
before the end of the trial or, in the alternative, by his lawyer's inex-
cusable failure to gather all the evidence in time. In short, he claims
error in denying a requested continuance, in refusing to admit prof-
fered evidence, and in the provision of ineffective assistance by his
attorney.

We cannot address on this direct appeal this particular claim of
ineffective assistance of counsel. The record before us is not adequate
for the purpose. Specifically, it contains none of the items of evidence
whose absence is asserted to have resulted from counsel's ineffective
performance. Hence, it is inadequate to permit inquiry into any preju-
dice caused by their absence. See United States v. Tatum, 943 F.2d
370, 379 (4th Cir. 1991) (inadequacy of record precluded review);
United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994) (prejudice
required to establish ineffective assistance of counsel).

For essentially the same reason, we must reject any claim of error
in denying any continuances that were requested to allow counsel to
obtain exculpatory evidence. Not having the suggested documents
before us--or any sufficient evidence of their existence and content--
defendant cannot show any prejudice resulting from the court's
refusal to continue the trial to allow their pursuit. See United States
v. Speed, 53 F.3d 643, 644-45 (4th Cir. 1995) (defendant required to
show prejudice from denial of continuance in order to secure rever-
sal).

Looking to the claim of error in the district court's refusal to admit
certain documentary evidence that was proffered late in the trial, we
find no reversible error. The evidence was of such low probative

                     6
value that any error in its exclusion was harmless. See United States
v. Morison, 844 F.2d 1057, 1078 (4th Cir. 1988) (exclusion of evi-
dence subject to harmless error analysis). A brief review of the evi-
dence excluded demonstrates this. As earlier noted, the documentary
records of Cherisson's employment at the Hyatt Hotel in Orlando
actually contradict his exculpatory testimony. They show that his
employment ended in early 1993, before the beginning date of his
participation in the conspiracy, and thus rule out his Hyatt employ-
ment as any part of an alibi for the crimes of which he has been con-
victed. Other employment records proffered by Cherisson excluded
covered periods even earlier than the Hyatt records and so are wholly
irrelevant.

Other excluded evidence consisted of miscellaneous documents
that Cherisson argued would corroborate his claim of alibi. These
included such irrelevancies as his girlfriend's lease from 1991, furni-
ture bills from a Florida furniture store from 1991 and 1992, his Flor-
ida truck title, and a letter from his girlfriend's mother suggesting that
Cherisson was very kind to her and called her on a regular basis.
While the excluded evidence did include some items suggesting his
presence in Florida at some times during the conspiracy year, they
were of minimal if any probative value because of their intermittent
quality. They included such items as chiropractor bills that place him
in Florida for about a week in October of 1993, a car repair bill that
might place at least his truck if not necessarily himself in Florida on
one day in March of 1994. The exclusion of this proffered evidence,
if error at all, was harmless in context of the total trial.

Because we find no reversible error, we affirm the convictions
from which appeal is taken.

AFFIRMED

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