                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-5189



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ANTHONY AUGUSTUS THOMAS,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(CR-05-568)


Submitted:   May 31, 2006                     Decided:   July 5, 2006


Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. Reginald I. Lloyd, United
States Attorney, Alfred W. Bethea, Jr., Assistant United States
Attorney, Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Following a jury trial, Anthony Augustus Thomas was

convicted of Hobbs Act robbery, in violation of 18 U.S.C. § 1951

(2000), and possession of a firearm in furtherance of a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A) (2000). Thomas’

sole contention on appeal is that the district court erred in

denying his motion for a new trial on the ground that the jury

considered evidence not admitted at trial.         Finding no abuse of

discretion, we affirm.

           The criminal charges underlying Thomas’ conviction arose

from his armed robbery of a convenience store in September 2004.

During deliberations, the jury’s foreperson discovered a four-inch

pocketknife while examining a piece of evidence — a pair of pants.*

After    returning   the   verdict,   the   foreperson   informed   court

personnel that he discovered the pocketknife, which had not been

admitted into evidence.       The district court then apprised the

attorneys of the situation, and briefly questioned the foreperson

on the record about this discovery.           The foreperson made two

statements pertinent to this appeal: he described the circumstances

surrounding the jury’s discovery of the knife (the foreperson found



     *
      Thomas does not contend, nor does the record demonstrate,
that the pocketknife was intentionally planted in the pants, which
were properly admitted and before the jury as part of the body of
evidence. It is clear that the parties’ failure to discover the
pocketknife prior to tendering the pants to the jury was purely
accidental.

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the knife, showed it to the jury, then put it away; the jury did

not discuss it further), and he attested that the knife did not

affect the jury’s verdict.       Thomas filed a post-verdict motion for

a new trial, pursuant to Federal Rule of Criminal Procedure 33,

arguing that he was prejudiced by the jury’s discovery of the

unadmitted pocketknife and by the district court’s questioning of

the foreperson.      After the parties briefed the issue, the district

court    denied    Thomas’   motion,   finding    that   discovery   of   the

pocketknife had no impact on the jury’s verdict.

            Pursuant to Rule 33(a), a trial court may grant a motion

for a new trial “if the interest of justice so requires.”            Whether

to grant a Rule 33 motion is squarely within the trial court’s

discretion.       United States v. Greene, 834 F.2d 86, 88 (4th Cir.

1987).   This court reviews the denial of a motion for new trial for

abuse of discretion.         United States v. Lentz, 383 F.3d 191, 219

(4th Cir. 2004).

            Circuit precedent establishes that, when a jury considers

“prejudicial evidence that was not introduced at trial . . . the

defendant is entitled to a new trial.”           United States v. Barnes,

747 F.2d 246, 250 (4th Cir. 1984).          Although determining prejudice

requires assessing “whether there is a reasonable possibility that

the jury’s verdict was influenced by the material that improperly

came before it,” a presumption of prejudice arises when the jury

considers evidence not admitted at trial.          Id. at 250-51 (internal


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quotations    and    citation   information   omitted).    When   such   a

presumption arises, the government must rebut it by showing that

consideration of the improper material was harmless.         Id. at 251.

           Our review of the record convinces us that the strength

of the Government’s evidence against Thomas rebuts the presumption

of prejudice.       At trial, the cashier present during the robbery

gave a very specific description of the robber; she testified that

the robber was a black man, approximately 5’6” tall, who was

wearing a wig, a white bandana, and a blue jumpsuit.         She further

testified that the robber was carrying a bag and riding a blue

bicycle.     A number of law enforcement officials testified to the

actions taken to apprehend the robber.           Officer August of the

Darlington Police Department testified to pursuing a man fitting

this description, who was riding a blue bicycle.          Officer August

nudged the suspect from his bicycle because he failed to comply

with the officer’s order to stop; a team of bloodhounds picked up

the suspect’s scent from the wig, and soon thereafter located the

suspect, later determined to be Thomas, hiding in a nearby carport.

The next day, law enforcement recovered a .357 Magnum near Thomas’

hiding spot. At trial, the cashier testified that this firearm was

similar to the one the robber used in that it was older and

partially rusted and that the recovered wig was the same wig the

robber had worn.




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            Because the evidence against Thomas was compelling and

the pocketknife was not relevant to any of the charged offenses, we

conclude the district court did not abuse its discretion in denying

Thomas’ motion for a new trial.            The district court’s questioning

of the foreperson does not affect our conclusion.                   The district

court’s inquiry into the factual circumstances of the jury’s

discovery    of    the    knife    was    “was   not   only   permissible     but

necessary.”       United States v. Cheek, 94 F.3d 136, 143 (4th Cir.

1996).      Although     we   agree   with   Thomas    that   the   foreperson’s

testimony about the knife’s effect on the jury’s verdict was

inadmissible as evidence concerning a jury’s “mental processes,”

id., we think that in light of the evidence against Thomas and the

foreperson’s description of the knife’s discovery, any error was

harmless.

            Accordingly, we affirm Thomas’ conviction. Additionally,

we deny Thomas’ motion to file a pro se supplemental brief because

he is represented by counsel, and further deny the pending motion

to have his attorney dismissed because he is allegedly ineffective.

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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