US v. Derrell Brunson, No. 08-4306 (4th Cir. 2008)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4306 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DERRELL BRUNSON, Defendant - Appellant.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 Before NIEMEYER and Senior Circuit Judge. TRAXLER, Decided: Circuit November 17, 2008 Judges, and HAMILTON, Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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. ยง 841 (West 1999 & Supp. 2008). Brunson contends We affirm. 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 See Giglio v. United exculpatory evidence in its possession. States, 405 U.S. 150, 153-55 (1972) (requiring disclosure of evidence Brady affecting v. the Maryland, credibility 373 U.S. 83, disclosure of exculpatory evidence). a failure question: either to (1) disclose, is exculpatory Government; and however, favorable or (3) to the impeaching; is prejudiced the defendant. of material prosecution 86-88 (1963) witnesses); (requiring Due process is violated by only if the defendant, (2) in was that evidence because suppressed its it by in is the suppression See Strickler v. Greene, 527 U.S. 2 263, 281-82 (1999). Undisclosed evidence is material when its cumulative effect is probability that, had defense, the different. such the result Kyles of v. that there evidence the is been 515 (internal quotation marks omitted). U.S. reasonable disclosed proceeding Whitley, a would 419, to have 433-34 the been (1995) 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. evidence may have had Id. at 433-34. limited impeachment Though the value, its nondisclosure does not undermine confidence in the result of his trial. abuse trial. See id. at 434. its discretion in Accordingly, the district court did not denying Brunson s motion We therefore affirm Brunson s conviction. for a new 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 3
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