United States v. Ward ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4133
SHAWNTA LAMONT WARD,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CR-99-22)
Submitted: November 30, 2000
Decided: December 29, 2000
Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
B. Thomas Reed, Norfolk, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Darryl J. Mitchell, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. WARD
OPINION
PER CURIAM:
Shawnta Lamont Ward appeals his convictions for conspiracy to
commit bank robbery and armed bank robbery by force or intimida-
tion. We affirm.
The robbery occurred in Chesapeake, Virginia, on December 21,
1998. Demetrius Neely and Dedric Sherrod committed the robbery.
Ward was intimately involved in planning the crime, and he drove the
getaway car. The men were arrested within hours of the robbery, and
Sherrod was interviewed by law enforcement agents that day. The
prosecution disclosed this interview to defense counsel before trial.
Both Sherrod and Neely entered guilty pleas and testified at Ward’s
trial. Counsel did not use Sherrod’s December 21 statement, which
was somewhat inconsistent with his trial testimony, to impeach Sher-
rod.
At sentencing, defense counsel learned for the first time that FBI
Special Agent Harley had compiled a report based on notes he had
taken during an April 15, 1999 interview with Sherrod. The report
was consistent with Sherrod’s trial testimony but not entirely consis-
tent with the December 21 interview. Counsel moved for a mistrial,
claiming that his cross-examination of Sherrod might have been dif-
ferent had he known of the existence of the second report. The district
court denied the motion, finding that it was not exculpatory, impeach-
ing, or material.
We conclude that the district court did not abuse its discretion in
denying the motion for mistrial. United States v. Russell, 221 F.3d
615, 619 (4th Cir. 2000) (standard of review). Due process requires
that the government disclose to the defense prior to trial any exculpa-
tory or impeaching evidence in its possession. Giglio v. United States,
405 U.S. 150, 153-55 (1972) (impeaching evidence); Brady v. Mary-
land, 373 U.S. 83, 86-88 (1963) (exculpatory evidence). Under this
line of cases, due process is violated if the evidence in question: (1)
is favorable to the defendant, either because it is exculpatory or
impeaching; (2) was suppressed by the government; and (3) is mate-
rial. Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
UNITED STATES v. WARD 3
Here, the statement, which was consistent with Sherrod’s incrimi-
nating testimony, clearly was not exculpatory. Nor, because of its
very consistency with his trial testimony, could it be considered to
have impeaching value. The first Strickler criterion not being satis-
fied, we find that the district court did not abuse its discretion in deny-
ing the motion for mistrial.
Sherrod’s convictions are affirmed. We dispense with oral argu-
ment because the facts and legal contentions are fully presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED