United States v. Peters ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4504
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRENCE PETERS, a/k/a The Dred, a/k/a Dred,
Defendant - Appellant.
No. 09-4531
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SPENCER PETERS, a/k/a Smoke,
Defendant - Appellant.
No. 09-4917
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLIFFORD NOEL, a/k/a Spliff,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:08-cr-00186-REP-1; 3:08-cr-00186-REP-2;
3:08-cr-00186-REP-3)
Submitted: August 4, 2010 Decided: August 20, 2010
Before DUNCAN, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Scott C. Brown, SCOTT C. BROWN LAW OFFICE, Wheeling, West
Virginia; Peter D. Eliades, ELIADES & ELIADES, P.C., Hopewell,
Virginia; Angela D. Whitley, THE WHITLEY LAW FIRM, Richmond,
Virginia, for Appellants. Neil H. MacBride, United States
Attorney, Peter S. Duffey, Richard D. Cooke, Assistant United
States Attorneys, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Terrence Peters appeals his conviction and life
sentence for one count of conspiracy to distribute 50 grams or
more of cocaine base in violation of 21 U.S.C. §§ 846,
841(a)(1), 841(b)(1)(A)(iii) (2006) and one count of conspiracy
to possess firearms in furtherance of a drug trafficking offense
in violation of 18 U.S.C. § 924(o) (2006). Spencer Peters
appeals his conviction and 480 month sentence for one count of
conspiracy to distribute 50 grams or more of cocaine base in
violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A)(iii) and
one count of conspiracy to possess firearms in furtherance of a
drug trafficking offense in violation of 18 U.S.C. § 924(o).
Clifford Noel appeals his conviction and 360 month sentence for
one count of conspiracy to distribute 50 grams or more of
cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1),
841(b)(1)(A)(iii) and one count of conspiracy to possess
firearms in furtherance of a drug trafficking offense in
violation of 18 U.S.C. § 924(o). We affirm.
The Appellants jointly raise several issues and Noel
individually asserts several additional grounds for relief.
Appellants first claim that they were denied due process when a
potential juror made a statement regarding murder in response to
whether she had read anything about any of the Appellants. Noel
had previously been convicted of murder in state court (though
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the conviction was later set aside) and the parties had agreed
that no evidence or mention of the murder conviction would be
admissible. Appellants claim that they were further prejudiced
by the prosecutor’s use of the phrase “autopsy of a drug
conspiracy” in opening statements and by a Government witness’s
statement on cross-examination that he had previously testified
against Noel.
We reject the Appellants’ joint claims. This court
reviews a trial court’s decisions at voir dire for abuse of
discretion. Rosales-Lopez v. United States, 451 U.S. 182, 188-
89 (1981). When prospective jurors have been exposed to
pretrial publicity, “the relevant question is not whether the
community remembered the case, but whether the jurors . . . had
such fixed opinions that they could not judge impartially the
guilt of the defendant.” Mu’Min v. Virginia, 500 U.S. 415, 430
(1991). Here, the district court examined the venire and was
satisfied that they could continue to be impartial. We decline
to disturb that finding. Moreover, when viewed in context, we
conclude that the prosecutor did not engage in misconduct by
referencing an “autopsy” in opening remarks. Finally we
conclude that the witness’s statement that he had previously
testified against Noel was not reversible error.
Noel’s first individual complaint is that the district
court erred in denying his motion for a new trial based on
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alleged violations of Brady v. Maryland, 373 U.S. 83 (1963), and
Giglio v. United States, 405 U.S. 150 (1972).
This court reviews 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) (motion for
new trial due to Brady violation reviewed for abuse of
discretion). The Due Process Clause requires that the
government disclose to the defense prior to trial any
exculpatory or impeaching evidence in its possession. See
Giglio, 405 U.S. at 153-55 (requiring disclosure of evidence
affecting the credibility of prosecution witnesses); Brady, 373
U.S. at 86-88 (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. Strickler v. Greene, 527
U.S. 263, 281-82 (1999); see Vinson v. True, 436 F.3d 412, 420
(4th Cir. 2006).
Assuming that the district court was correct in
concluding that the statements in question were favorable in the
Brady context, we agree with the court’s conclusion that they
were not material. When two Government witnesses testified in a
manner inconsistent with their debriefing reports, Noel used
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those reports to impeach the witnesses. The addition of
undisclosed trial preparation reports that demonstrated the same
inconsistencies would not have materially contributed to Noel’s
defense. See United States v. Hoyte, 51 F.3d 1239 (4th Cir.
1995).
Noel next argues that he was denied his right to
testify on his own behalf because he chose not to testify for
fear that his state conviction, which was later invalidated,
would be used to impeach him. As Noel essentially raises an
improper impeachment claim, we find that because he did not
testify, the claim is not cognizable on appeal. See Luce v.
United States, 469 U.S. 38, 43 (1984) (holding that defendant
who claimed to be deterred from testifying by a court ruling
regarding impeachment evidence could not challenge ruling unless
he testified and was prejudiced by it).
Finally, Noel challenges the sufficiency of the
evidence against him. “A defendant challenging the sufficiency
of the evidence faces a heavy burden.” United States v. Foster,
507 F.3d 233, 245 (4th Cir. 2007). This court reviews a
sufficiency of the evidence challenge by determining whether,
viewing the evidence in the light most favorable to the
government, any rational trier of fact could find the essential
elements of the crime beyond a reasonable doubt. United
States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005). After
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reviewing the record, we find that the Government adduced
sufficient evidence to sustain Noel’s convictions.
We therefore affirm the judgment of the district court
as to each Appellant. We construe Terrence Peters’s letter
attacking the accuracy of a laboratory report introduced at
trial as a motion to file a pro se supplemental brief and deny
the motion. 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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