UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4306
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRELL BRUNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:07-cr-00372-REP-1)
Submitted: October 20, 2008 Decided: November 17, 2008
Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Paul G. Gill,
Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Stephen W.
Miller, Assistant United States Attorney, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrell Brunson appeals his conviction after a jury
trial of one count of possession with the intent to distribute
fifty grams or more of cocaine base, in violation of 21 U.S.C.A.
§ 841 (West 1999 & Supp. 2008). We affirm.
Brunson contends that the district court erred in
denying his motion for a new trial, which was based on the
Government’s failure to turn over the inconclusive results of a
field test performed on the substance taken off his person when
he was arrested. We review the district court’s ruling on a
motion for a new trial for abuse of discretion. See United
States v. Fulks, 454 F.3d 410, 431 (4th Cir. 2006).
The Due Process clause requires that the Government
disclose to the defense prior to trial any impeaching or
exculpatory evidence in its possession. See Giglio v. United
States, 405 U.S. 150, 153-55 (1972) (requiring disclosure of
evidence affecting the credibility of prosecution witnesses);
Brady v. Maryland, 373 U.S. 83, 86-88 (1963) (requiring
disclosure of exculpatory evidence). Due process is violated by
a failure to disclose, however, only if the evidence in
question: (1) is favorable to the defendant, because it is
either exculpatory or impeaching; (2) was suppressed by the
Government; and (3) is material in that its suppression
prejudiced the defendant. See Strickler v. Greene, 527 U.S.
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263, 281-82 (1999). Undisclosed evidence is material when its
cumulative effect is such that “there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.” Kyles v. Whitley, 515 U.S. 419, 433-34 (1995)
(internal quotation marks omitted). A reasonable probability is
one sufficient to “undermine[] confidence” in the outcome. Id.
at 434.
After reviewing the record, we conclude that Brunson
fails to demonstrate “a reasonable probability” that the outcome
of the proceeding would have been different had the evidence
been disclosed to the defense. Id. at 433-34. Though the
evidence may have had limited impeachment value, its
nondisclosure does not undermine confidence in the result of his
trial. See id. at 434. Accordingly, the district court did not
abuse its discretion in denying Brunson’s motion for a new
trial. We therefore affirm Brunson’s conviction. 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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