United States of America v.  Donald Wayne Sites

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4639 
DONALD WAYNE SITES,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-02-387)
Submitted: February 4, 2004
Decided: April 9, 2004
Before LUTTIG, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Reginald M. Barley, Richmond, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Michael J. Elston, G. Wingate
Grant, II, Assistant United States Attorneys, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

-- 1 of 2 --

OPINION
PER CURIAM:
Donald W. Sites appeals the district court’s denial of his motion for
new trial under Fed. R. Crim. P. 33. We affirm.
We review a district court’s order denying a motion for new trial
under Rule 33 for abuse of discretion. United States v. Russell, 221
F.3d 615, 619 (4th Cir. 2000). To prevail on a claim of prosecutorial
misconduct, a defendant must show: (1) the Government’s remarks
and conduct were improper; and (2) the remarks or conduct prejudi-
cially affected his substantial rights so as to deprive him of a fair trial.
United States v. Golding, 168 F.3d 700, 702 (4th Cir. 1999). Review
of a district court’s factual findings on a prosecutorial misconduct
claim is for clear error. See United States v. Ellis, 121 F.3d 908, 927
(4th Cir. 1997).
We find that the district court’s factual findings are fully supported
by the record and that the district court did not clearly err when it con-
cluded the prosecutor did not threaten Appellant’s wife, Denise Sites.
Because we conclude the prosecutor’s statements to Denise Sites
were not improper, we hold the district court did not abuse its discre-
tion in denying Sites’s motion for new trial. Furthermore, Sites does
not contest the district court’s conclusion that he waived his right to
a new trial by choosing not to bring the alleged misconduct to the
court’s attention and choosing not to call Denise Sites as a witness.
Accordingly, we affirm the decision of the district court. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
2 UNITED STATES v. SITES

-- 2 of 2 --