Case Information
*2 Before DUNCAN, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sсott 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 Stаtes Attorney, Peter S. Duffey, Richard D. Cooke, Assistant United States Attorneys, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. *3
PER CURIAM:
Terrence Peters appeals his conviction and life sentence for оne 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 сount of conspiracy to possess firearms in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(o) (2006). Spenсer 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 firеarms in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(o). Clifford Noel appeals his conviction and 360 month sеntence 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 reliеf. 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 *4 the conviction was later set aside) and the parties had agreed that no еvidence or mention of the murder conviction would be admissible. Appellants claim that they were further prejudicеd by the prosecutor’s use of the phrase “autopsy of a drug conspiracy” in opening statements and by a Govеrnment witness’s statement on cross-examination that he had previously testified against Noel.
We reject the Appеllants’ joint claims. This court reviews a trial court’s decisions at voir dire for abuse of discretion. Rosales-Lopez v. Unitеd 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 thе 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 hе had previously testified against Noel was not reversible error.
Noel’s first individual complaint is that the district
court erred in dеnying his motion for a new trial based on
*5
alleged violations of Brady v. Maryland,
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 procеss, however, only if the evidence in question: (1) is favorable to the defendant, because it is either exculpatory оr impeaching; (2) was suppressed by the government; and (3) is material in that its suppression prejudiced the defendant. Stricklеr 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 *6 those reports to impeach the witnesses. The аddition 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 оn 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 clаimed 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 thе 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). Aftеr *7 reviewing the record, we find that the Government adduced sufficient evidence to sustain Noel’s convictions.
We therеfore 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 sе 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