                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4424


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RODNEY ALEXANDER MITCHELL,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:11-cr-00286-JRS-2)


Submitted:   November 29, 2012             Decided:   December 7, 2012


Before MOTZ, DUNCAN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Patrick R. Hanes, WILLIAMS MULLEN, Richmond, Virginia, for
Appellant.   Neil H. MacBride, United States Attorney, Erik S.
Siebert, Assistant United States Attorney, Richmond, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Rodney Mitchell was convicted by a jury of conspiracy

to tamper with a witness, 18 U.S.C. § 1512 (2006), and sentenced

to    97   months’   imprisonment.       He   appeals,   claiming:     (1)   the

district court erred in denying his motion for a continuance,

and (2) the district court erred in denying his motion for a new

trial.     We affirm.

             Mitchell was one of six people arrested after a raid

on an apartment in Richmond, Virginia, revealed a large quantity

of heroin and firearms.           One of those arrested, William Dugger

(a convicted felon), was the individual whose name appeared on

the lease.      However, Dugger was able to convince the arresting

agents that he was innocent of the activity taking place in his

apartment; the charges against him were dismissed and he was

released from custody.          The charges against Mitchell were also

dropped.

             Shortly after his release, Dugger encountered Mitchell

and   Darrell   Harris     outside   a   local   nightclub.     According     to

Dugger, Mitchell and Harris accused him (Dugger) of being an

informant and threatened his life.             Dugger assured them that he

was not going to show up to testify in any future proceedings.

             Upon    learning     from   a    confidential    informant      that

Dugger’s     life    had   been    threatened,     law   enforcement      agents

contacted Dugger’s former attorney and arranged a meeting with

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Dugger.     After    Dugger     told    them   of       the   nightclub     encounter,

investigators      obtained     recordings     of       telephone     calls      made    to

Mitchell    in   which    he    discussed      intimidating           Dugger     not     to

testify.    Mitchell and Harris were both charged with conspiracy

to commit witness tampering.

            Approximately       one    month   before         Mitchell’s     trial      was

scheduled to begin on January 30, 2012, his attorney learned

that there were recordings of Dugger’s phone calls made during

the month he spent in the Richmond city jail and that these

recordings could be obtained via subpoena.                        Included in these

calls were ones made by Dugger in which he attempted to bribe

another individual to claim ownership of the weapons found by

police the night of the raid at his apartment.                      Counsel obtained

the   recordings     approximately       ten   business        days    before      trial,

and, after listening to many of the calls, estimated that the

total recordings amounted to as much as 120 hours.                               Counsel

filed a motion for a continuance three days prior to trial,

requesting more time to review the recordings because they might

impeach Dugger’s credibility.                The district court denied the

motion,    finding    that     counsel   had     had      ample    time     to   compile

evidence in preparation for trial.

            At   trial,   the    jury    heard      a    recording     of    two   phone

calls made by Mitchell to his brother the morning after the

encounter with Dugger outside the nightclub, in which Mitchell

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told his brother that Dugger would be a “no show” and that he

had “scared the shit out of [Dugger] last night.”                        The jury also

heard   recorded      conversations           between    Mitchell       and       his     co-

defendant’s    brother       Christopher           Harris,   in       which       Mitchell,

referring to Dugger, said, “He said he ain’t gonna show.”

            The jury found Mitchell guilty.                     Approximately three

weeks later, Mitchell filed, pro se, a motion for a new trial,

asserting     that    counsel      had    failed        to   obtain         and     present

exculpatory evidence — namely, Dugger’s recorded calls from the

Richmond    city     jail.   After       an       evidentiary     hearing         at    which

Mitchell’s trial counsel testified, the district court denied

the motion.        The court imposed a 97-month sentence.                          Mitchell

noted a timely appeal.

                (1)    Denial of motion for continuance.

            We review for abuse of discretion the district court’s

denial of a continuance.            United States v. Williams, 445 F.3d

724, 739 (4th Cir. 2006).            “[B]road discretion must be granted

trial courts on matters of continuances; only an unreasoning and

arbitrary   insistence       upon    expeditiousness            in    the     face      of   a

justifiable     request      for    delay         violates      the    right       to    the

assistance of counsel.”             Morris v. Slappy, 461 U.S. 1, 11-12

(1983) (internal quotation marks omitted).                        “The later that a

motion for a continuance is made, the more likely it is made for

dilatory tactics; hence, it is less likely that the district

                                              4
court arbitrarily denied the continuance.”                     United States v.

LaRouche,    896    F.2d    815,   824    (4th    Cir.   1990).      Even    if   the

defendant can demonstrate an abuse of discretion, he also “must

show that the denial specifically prejudiced [his] case.”                         Id.

at 823 (internal quotation marks omitted).

            We find no abuse of discretion.                 First, counsel was

appointed to represent Mitchell on November 22, 2011, and was

informed    by     Mitchell     about    the   recordings      one   month   later.

Still, counsel waited two weeks to subpoena the recordings and,

after   five     days      of   attempting       to   review    them,   sought      a

continuance only three days prior to trial. Further, for reasons

discussed below, Mitchell cannot show that he suffered prejudice

as a result of the denial of his motion.

                   (2)     Denial of motion for new trial.

            This court reviews a district court’s denial of a Rule

33 motion for a new trial for abuse of discretion.                           United

States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006).                     To receive

a new trial based on newly discovered evidence, a defendant must

show that:       (1) the evidence is newly discovered; (2) he has

been diligent in uncovering it; (3) the evidence is not merely

cumulative or impeaching; (4) the evidence is material to the

issues involved; and (5) the evidence would probably produce an

acquittal.       United States v. Fulcher, 250 F.3d 244, 249 (4th

Cir. 2001).      The trial court “should exercise its discretion to

                                          5
award a new trial sparingly, and a jury verdict is not to be

overturned except in the rare circumstance when the evidence

weighs     heavily    against        it.”         Smith,         451    F.3d    at    216-17.

(internal quotation marks omitted).

            Here,      the    evidence            relied         upon    by     Mitchell     —

recordings      of   Dugger’s      phone     calls      from      jail    almost     a   month

before    the    nightclub    encounter           —   was    not       “newly   discovered”

because     Mitchell     knew       of      the       recordings         (and    they    were

available) before his trial began.                     And, as the district court

properly    concluded,       the     evidence         “is    impeachment,        plain     and

simple.”        Further, we agree with the district court’s finding

that the jury would have reached the same result even had they

heard the recordings at issue.

            Accordingly,        we       affirm.            We     dispense      with    oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.

                                                                                     AFFIRMED




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