UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5165
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DAVID ELLERBY, a/k/a Chicken,
Defendant – Appellant.
No. 08-5177
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JERMALL LILLY,
Defendant – Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:07-cr-00064-CCB-1; 1:07-cr-00064-CCB-2)
Submitted: December 9, 2010 Decided: January 26, 2011
Before WILKINSON, GREGORY, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Francis A. Pommett, III, NATHANSON & POMMETT, P.C., Baltimore,
Maryland; Jonathan P. Van Hoven, LAW OFFICES OF JONATHAN VAN
HOVEN, Baltimore, Maryland, for Appellants. Rod J. Rosenstein,
United States Attorney, Sandra Wilkinson, Tonya Kelly Kowitz,
Assistant United States Attorneys, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
David Ellerby and Jermall Lilly appeal their
convictions following a jury trial. Ellerby was sentenced to
life imprisonment after being convicted of conspiring to
distribute and possess with intent to distribute cocaine and 50
grams or more of cocaine base (“crack”), in violation of 21
U.S.C. § 846 (2006) (“Count One”); distribution of 50 grams or
more of crack, in violation of 21 U.S.C.A. § 841(a)(1) and
(b)(1)(A) (West 1999 & Supp. 2010) (“Count Two”); distribution
of 50 grams or more of crack, in violation of 21 U.S.C.A.
§ 841(a)(1) and (b)(1)(A) (“Count Three”); distribution of
cocaine, in violation of 21 U.S.C.A. § 841(a)(1) and (b)(1)(C)
(West Supp. 2010) (“Count Four”); and possession with intent to
distribute cocaine and 100 grams or more of heroin, in violation
of 21 U.S.C.A. § 841(a)(1), (b)(1)(B) and (b)(1)(C) (West 1999
& Supp. 2010) (“Count Five”). Lilly was sentenced to 144
months’ imprisonment upon his conviction of Counts One and Four.
We affirm.
Defendants contend that the district court erred in
denying their motion for mistrial and motion for continuance,
which were based on the Government’s late disclosure of
impeachment evidence. We review the district court’s ruling on
a motion for mistrial and motion for continuance for abuse of
discretion. See United States v. Wallace, 515 F.3d 327, 330
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(4th Cir. 2008); United States v. Williams, 445 F.3d 724, 738-39
(4th Cir. 2006). Defendants also contend that the district
court erred in denying their post-trial motion for a new trial,
which was based on the expert testimony of a former police
officer regarding the integrity of the investigation of
Defendants. We likewise review the district court’s ruling on a
motion for a new trial for abuse of discretion. See United
States v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001).
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). A failure to disclose
violates due process, 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. 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,
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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 435.
After reviewing the record, we conclude that
Defendants fail to demonstrate “a reasonable probability” that
the outcome of the proceeding would have been different had the
impeachment evidence been disclosed to the defense earlier, or
had Defendants been permitted to introduce the testimony of a
former police officer in a new trial. Id. at 433-34. The late
disclosure of impeachment evidence and the denial of Defendants’
motion for a new trial do not undermine confidence in the result
of their trial. See id. at 434. Accordingly, the district
court did not abuse its discretion in denying Defendants’ motion
for mistrial, motion for continuance, and motion for a new
trial.
We therefore affirm Defendants’ convictions. We deny
Ellerby’s motion seeking leave to file a pro se supplemental
brief. 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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