UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4797

SIDNEY LOUIS GROSS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-96-178-A)

Submitted: December 9, 1997

Decided: February 9, 1998

Before WILKINS, LUTTIG, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Raymond D. Kline, Alexandria, Virginia, for Appellant. Michael
Edward Rich, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Sidney Louis Gross appeals his convictions of possession with
intent to distribute crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C) (1994), and introducing crack cocaine into a
penal institution, in violation of D.C. Code Ann.§ 22-2603 (1996).
He also appeals the district court's order denying his motion for judg-
ment of acquittal. The district court sentenced Gross to twenty-seven
months imprisonment followed by a three-year term of supervised
release. We affirm.

Gross's counsel has filed a brief in accordance with Anders v.
California, 

 (1967), stating that, in his view, there are no
meritorious issues for appeal. Gross's counsel provided him with a
copy of the Anders brief and informed him of his right to file a pro
se supplemental brief. In the Anders brief, Gross's counsel discussed
whether the district court abused its discretion by allowing the Gov-
ernment to introduce evidence of Gross's prior marijuana distribution
conviction and whether sufficient evidence supported Gross's convic-
tion. Gross's supplemental brief also challenges the sufficiency of the
evidence supporting his conviction and asserts that he received inef-
fective assistance of counsel during his trial.

Gross entered the visitor's checkpoint area at Lorton Reformatory
Correctional Center to visit inmate Lonnie Parkman. To obtain
entrance into the facility, Gross submitted to a personal search. Lorton
Reformatory Correctional Officer Corporal Richard Price searched
Gross and recovered a black zip-lock baggie containing a single white
rock-like substance from Gross's right front watch pocket. Price
immediately detained Gross and summoned his superior, Lieutenant
Graves, because of the apparent illegal nature of the recovered sub-
stance. Initially, Graves determined that the sample size was too small
to test for controlled substance, and Gross was released. Thereafter,
officers from the Drug Interdiction Unit arrived and stated that the
recovered substance was of sufficient size for testing purposes. Upon
seizure and subsequent chemical testing, the substance tested positive
for the presence of cocaine. Gross was again taken into custody. Dur-
ing his interview with Federal Bureau of Investigation agents, Gross

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became agitated and denied the offense, stating that he did not know
where the cocaine had come from, speculating that someone else
could have worn his pants and left the drugs behind. Gross also stated
that he was familiar with the laws banning the introduction of drugs
into the facility and that if he had intended to smuggle drugs into the
facility, he would have thought of a much better hiding place.

Gross contends on appeal that the district court abused its discre-
tion by allowing the Government to present evidence that Gross was
previously convicted of distribution of marijuana, contrary to Fed. R.
Evid. 403, because "its probative value [was] substantially out-
weighed by the danger of unfair prejudice." We find no merit to this
assertion.

The evidence of a prior conviction of a similar act was admissible
under Fed. R. Evid. 404(b) to prove motive, opportunity, intent, prep-
aration, plan, knowledge, identity, or absence of mistake. On several
occasions, the district court carefully instructed the jury as to the lim-
ited purpose for which this evidence was admitted. The district court
further admonished that such evidence could not be used as evidence
of Gross's character or propensity to commit a crime or that he acted
in conformity with the prior bad act. The scope of permissible Rule
404(b) evidence under Rule 403 is consigned to the sound discretion
of the trial court, and we defer to the district court's balancing under
the rule, unless it is shown to be arbitrary or an irrational exercise of
discretion.1 We find no abuse of discretion on the present facts.

Gross further contends that, but for the introduction of his prior
conviction, he would not have been convicted. Contrary to his asser-
tion, the evidence against Gross was strong. We address this claim in
conjunction with Gross's claim that his conviction was not supported
by substantial evidence. The question here is "whether, viewing the
evidence in the light most favorable to the government, any rational
trier of fact could have found the defendant guilty beyond a reason-
able doubt."2
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1 See Garraghty v. Jordan, 

, 1298 (4th Cir. 1987).

2 United States v. Tresvant, 

, 1021 (4th Cir. 1982).

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The testimony during the jury trial provided substantial evidence
on which a reasonable trier of fact could have found Gross guilty
beyond a reasonable doubt. Price's testimony provided an ample basis
for establishing Gross's possession of the drug. Captain Grillo testi-
fied to the methods used by drug traffickers at Lorton Reformatory,
stating that bringing in small amounts was typical of those who
engage in the practice of distributing controlled substances within the
penal facility. His testimony concerning known distribution practices
at Lorton Reformatory similarly supported a finding of intent to dis-
tribute. The amount of drugs and packaging that are sufficient to show
intent to distribute in the prison setting may be very different from
those applicable in another context. Viewing the facts here in the set-
ting in which they occurred, the jury's verdict was amply supported.

As a further challenge to the sufficiency of the evidence supporting
his conviction, Gross contends that the district court abused its discre-
tion in allowing Captain Grillo to testify as an expert. Grillo's testi-
mony as an expert in the area of narcotics distribution in a prison
setting has repeatedly been accepted by this court and we see no rea-
son now to question his ability to testify in that capacity. Further,
because Grillo did not opine as to Gross's intent to distribute, but
rather, noted that even a small amount of a controlled substance is
consistent with distribution in a prison setting, his testimony did not
run afoul of Fed. R. Evid. 704(b). We therefore find that the district
court did not abuse its discretion in admitting testimony.3

In his pro se supplemental brief, Gross challenges several of his
counsel's trial decisions in support of his claim that he received inef-
fective assistance of counsel. Claims of ineffective assistance of coun-
sel are generally not appropriate on direct appeal and should be raised
in a motion pursuant to 28 U.S.C.A. § 2255 (West 1994 & Supp.
1997), unless the record conclusively shows that counsel did not pro-
vide effective assistance.4 Here, the record does not conclusively
show that counsel's representation fell below an objective standard of
reasonableness:5 Because there is no error on the face of the record,
_________________________________________________________________
3 See United States v. Gastiaburo , 

, 589 (4th Cir. 1994).
4 See United States v. DeFusco, 

, 120-21 (4th Cir. 1991).

5 See generally Strickland v. Washington, 

, 688 (1984).

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Gross's claim of ineffective assistance of counsel is not properly
before this court and must be dismissed.

We affirm Gross's convictions. This court requires that counsel
inform his client, in writing, of his right to petition the Supreme Court
of the United States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to withdraw
from representation. Counsel's motion must state that a copy thereof
was served on the client. 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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