UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4808
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DENNIS CARL FISHER, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. James P. Jones, District
Judge. (CR-02-30093)
Submitted: June 21, 2004 Decided: September 20, 2004
Before WILLIAMS and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Gary L. Smith, GARY LANCE SMITH, P.C., Winchester, Virginia, for
Appellant. John L. Brownlee, United States Attorney, William F.
Gould, Assistant United States Attorney, Charlottesville, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Dennis Carl Fisher, Jr., appeals his conviction and
sentence for possession with intent to distribute fifty grams or
more of cocaine and cocaine base in violation of 21 U.S.C.
§ 841(a)(1) (2000). We affirm.
Fisher argues the district court erred when it prohibited
him from cross-examining a police investigator about his alcohol
use. The investigator testified he did not drink on the day of
Fisher’s arrest and that he does not drink on duty. The district
court found that further evidence of the witness’s drinking habits
was not probative, and to the extent that it might be probative, it
should be excluded under Fed. R. Evid. 403 because its value was
substantially outweighed by its danger of unfair prejudice,
confusion of the issues, and misleading the jury.
We review a district court’s evidentiary rulings for
abuse of discretion. United States v. Leftenant, 341 F.3d 338, 342
(4th Cir. 2003), cert. denied, 124 S. Ct. 1183 (2004). We will
defer to the balancing engaged in by the district court under Rule
403 “unless it is an arbitrary or irrational exercise of
discretion.” United States v. Heater, 63 F.3d 311, 321 (4th Cir.
1995). Accordingly, because we conclude that the district court’s
finding that the probative value of the witness’s drinking habits
was substantially outweighed by its danger of unfair prejudice,
confusing the issues, and misleading the jury was not arbitrary or
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irrational, we hold the district court did not abuse its discretion
by precluding further questioning.
Fisher also argues it was reversible error for the
Government not to provide him a copy or transcript of a tape
recording of a conversation of a confidential informant setting up
a drug transaction with Fisher, and a copy of a witness’s criminal
record. Fisher contends the Government’s failure to disclose this
evidence violated Brady v. Maryland, 373 U.S. 83, 87 (1963), and
the Jencks Act, 18 U.S.C. § 3500 (2000).
To prove a Brady violation, Fisher must show he requested
the undisclosed evidence and it was (1) favorable; (2) material;
and (3) that the prosecution had it and failed to disclose it. See
Moore v. Illinois, 408 U.S. 786, 794-95 (1972); United States v.
Stokes, 261 F.3d 496, 502 (4th Cir. 2001). Evidence is “favorable”
not only when it would tend to exculpate the accused, but also when
it can be used to impeach government witnesses. See United
States v. Bagley, 473 U.S. 667, 676 (1985); United States v.
Trevino, 89 F.3d 187, 189 (4th Cir. 1996). Evidence is material if
there is a reasonable probability its disclosure would have
produced a different outcome. See Bagley, 473 U.S. at 682; United
States v. Kelly, 35 F.3d 929, 936 (4th Cir. 1994). A “reasonable
probability” of a different result is shown when the government’s
failure to disclose evidence “undermines confidence in the outcome
of the trial.” Bagley, 473 U.S. at 678.
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Under the Jencks Act, a defendant has a right to inspect,
for impeachment purposes, prior statements made to government
agents by government witnesses, which are in the government’s
possession. 18 U.S.C. § 3500(b) (2000). A statement by a
government witness must be produced after the witness’s direct
examination at trial, if the statement relates to the witness’s
testimony. A “statement” is defined as the witness’s written
statement or an oral statement that was transcribed “substantially
verbatim.” See 18 U.S.C. § 3500(e) (2000). Violations of the
Jencks Act constitute harmless error when no prejudice results to
the defense. United States v. Schell, 775 F.2d 559, 567 (4th Cir.
1985).
Because Fisher has not demonstrated the undisclosed
information was material, we conclude the Government did not
violate Brady. Furthermore, we conclude no violation of the Jencks
Act occurred. Accordingly, we affirm Fisher’s conviction and
sentence. 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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