UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4302
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROCCI WADE,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. John Preston Bailey,
Chief District Judge. (5:13-cr-00030-JPB-JES-5)
Submitted: October 15, 2014 Decided: November 4, 2014
Before WILKINSON, MOTZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Patricia Valentino Kutsch, KUTSCH LAW OFFICES, Wheeling, West
Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, Randolph J. Bernard, John C. Parr, Assistant
United States Attorneys, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM
Rocci Wade appeals his convictions after a jury trial
of conspiracy to possess with the intent to distribute and to
distribute oxycodone, in violation of 21 U.S.C. §§ 846,
841(b)(1)(C), and distribution of oxycodone, in violation of 21
U.S.C. § 841(a)(1), 841(b)(1)(C). We affirm.
On appeal, Wade first asserts prosecutorial misconduct
based on two comments during closing argument: (1) “that this
case has basically everything an investigation would have,
except what you often don’t have. And that’s a confession,” and
(2) that Wade’s co-defendants were not promised anything in
exchange for their testimony, were not obligated to testify, and
were only asked to cooperate fully and truthfully, in exchange
for which the Government would agree to recommend a one-level
downward departure at sentencing.
“To prevail on a claim of prosecutorial misconduct, a
defendant must show (1) that the prosecutor’s remarks and
conduct were, in fact, improper and (2) that such remarks or
conduct prejudiced the defendant to such an extent as to deprive
the defendant of a fair trial.” United States v. Allen, 491
F.3d 178, 191 (4th Cir. 2007). This court generally reviews a
district court’s ruling on comments made during closing argument
for an abuse of discretion. See United States v. Runyon, 707
F.3d 475, 491 (4th Cir. 2013).
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The Constitution does not permit the government to
comment on the accused’s silence. Bates v. Lee, 308 F.3d 411,
420 (4th Cir. 2002). The test is whether the “language used
[was] manifestly intended to be, or was [] of such character
that the jury would naturally and necessarily take it to be a
comment on the failure of the accused to testify[.]” United
States v. Anderson, 481 F.2d 685, 701 (4th Cir. 1973), aff’d,
417 U.S. 211 (1974).
We have reviewed the record and conclude that the
prosecutor’s remark on the lack of a confession neither was
intended nor would naturally be taken as a comment on Wade’s
failure to testify. We thus conclude that the district court
did not abuse its discretion in denying Wade’s motion for a
mistrial based on these remarks.
Wade did not raise his claim arising from the
prosecutor’s comments on his co-defendants’ plea agreements in
the district court. Thus, this court reviews that claim for
plain error only. United States v. Alerre, 430 F.3d 681, 689
(4th Cir. 2005).
We have reviewed the record and conclude that the
prosecutor’s comments on Wade’s co-defendants’ plea agreements
accurately described the substance of the agreements. We thus
conclude that the prosecutor did not engage in any misconduct.
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Wade next asserts error in the admission of witness
testimony, which allegedly violated Brady v. Maryland, 373 U.S.
83 (1963). The prosecution disclosed, before trial, that the
witness in question stated in 2013 that he had bought drugs from
Wade “for at least two years,” prior to the interview. At
trial, the witness testified that he began purchasing drugs from
Wade in “late 2007-early 2008.”
To establish a due process violation under Brady, Wade
must prove that: (1) the prosecution withheld or suppressed
evidence; (2) the evidence is favorable; and (3) the evidence is
material to the defense. See Moore v. Illinois, 408 U.S. 786,
794-95 (1972). Evidence is material when there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome. See United States v.
Bagley, 473 U.S. 667, 682 (1985).
We have reviewed the record and conclude that the
prosecution neither withheld nor suppressed favorable evidence.
We thus conclude that the district court did not err in
admitting such testimony. Accordingly, we affirm the district
court’s judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before this court and argument would not aid the
decisional process.
AFFIRMED
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