Filed:   July 26, 2000

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                            Nos. 99-6644(L)
                               (CR-97-94)



United States of America,

                                                  Plaintiff - Appellee,

          versus


Pablo Gonzalez Arias, et al.,

                                               Defendants - Appellants.



                               O R D E R



     The court amends its opinion filed July 10, 2000, as follows:

     On page 11, second full paragraph, line 9 -- the comma after

the word “witnesses” is changed to a colon.

                                           For the Court - By Direction



                                           /s/ Patricia S. Connor
                                                    Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-6644

PABLO GONZALEZ ARIAS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-6645

ANGEL D. BELASQUEZ,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Huntington.
Joseph Robert Goodwin, District Judge.
(CR-97-94)

Argued: May 4, 2000

Decided: July 10, 2000

Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Edward Henry Weis, First Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant Belasquez; Debra
C. Price, Charleston, West Virginia, for Appellant Arias. Michael Lee
Keller, Assistant United States Attorney, Charleston, West Virginia,
for Appellee. ON BRIEF: Rebecca A. Betts, United States Attorney,
Charleston, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

On October 1, 1997, a jury convicted Appellants Pablo Arias and
Angel Belasquez of conspiracy to distribute and to possess with the
intent to distribute cocaine, in violation of 21 U.S.C.A. § 846 (West
1999), and related violations of 21 U.S.C.A. § 841 (West 1999). In an
opinion dated April 9, 1999, this Court affirmed the convictions and
sentences. See United States v. Arias, 

, 

(4th Cir. Apr. 9, 1999) (unpublished). While their initial appeal was
pending in this Court, Appellants filed motions for a new trial in
which they contended that the Government knowingly used perjurious
testimony at Appellants' trial and failed to disclose material evidence
favorable to Appellants. After we issued our April 9 decision, the
United States District Court for the Southern District of West Virginia
denied Appellants' motions for a new trial in an order filed April 21,
1999. Appellants now appeal from the district court's denial of their
motions. Because we conclude that the district court did not err in
denying the motions for a new trial, we affirm.

I.

On June 22, 1997, police arrested Appellants at a motel near Hun-
tington, West Virginia following a controlled drug buy carried out
with the help of a cooperating individual, Paul Michael Moore. Fol-

                    2
lowing their arrest, Appellants were charged with three counts of vio-
lating 21 U.S.C.A. §§ 841(a)(1), 846 (West 1999).1

Prior to trial, Appellants filed a motion to suppress the evidence,
including six ounces of cocaine, recovered during the warrantless
search of the motel room in the June 22 sting. The district court
granted the suppression motion. The district court also heard an oral
motion in limine in which Appellants sought assurance that if they
impeached Moore and Lieutenant Wendell Adkins at trial with incon-
sistent statements these men made concerning the warrantless June 22
search during the suppression hearing and before the grand jury, such
impeachment efforts would not thereby open the door to allow the
introduction of the suppressed evidence. The district court withheld
ruling on the motion, but indicated that it might allow admission of
the suppressed evidence if Appellants pursued this strategy. Appel-
lants did not want to risk the admission of this evidence and opted not
to pursue this strategy.2

At Appellants' trial, Moore testified to previous drug dealings with
Appellants in Florida, as well as to the events of June 22. Moore testi-
fied that he was wearing a recording device during the controlled drug
buy from Appellants on June 22, and the tape from the recording
device supporting Moore's account was played for the jury. While
cross-examining Moore, defense counsel were able to impeach him
by noting that he had been involved in using and selling drugs, that
he had pleaded guilty to drug charges, that he was testifying in an
effort to help himself in relation to a DUI charge he received while
on probation, and that he had lied to his friend Arias on at least one
occasion. The Government also presented the testimony of two of
Appellants' co-defendants, Woody Adkins and Dale Lyons, who, as
part of their plea agreements with the Government, testified about
their 1997 cocaine purchases from Appellants and Appellants' addi-
tional efforts to purchase cocaine for them. In our previous opinion
affirming Appellants' convictions and sentences, we indicated that at
_________________________________________________________________

1 Appellants were named in three counts of an eight-count indictment.
The indictment covered five defendants in total. The other three co-
defendants pleaded guilty and entered plea agreements with the Govern-
ment.

2 As it turned out, Lieutenant Adkins did not testify at Appellants' trial.

                     3
trial the Government "rel[ied] chiefly upon the testimony of Moore
and of Woody Adkins and Dale Lyons." United States v. Arias, 

, 

, at *1 (4th Cir. Apr. 9, 1999) (unpub-
lished).

In addition to the testimony of these three individuals, the Govern-
ment also presented testimony from a fourth individual, Delbert Rob-
ert Jobe. Jobe worked as a paid cooperating individual with the
Huntington Drug Task Force (the Drug Task Force), purchasing drugs
and then turning them over to the Drug Task Force. Jobe testified to
having purchased cocaine from Lyons and Woody Adkins in con-
trolled buys. Jobe also testified that Lyons told him that the drugs
came from a "Cuban connection" in Florida. Jobe's testimony primar-
ily served to establish the chain of custody of drugs introduced at trial.3
Jobe further testified that he had seen Arias with Lyons and Woody
Adkins in a West Virginia bar, but stated that he did not have any
direct dealings with Appellants. Because of Jobe's limited importance
at trial, we did not mention his role in our prior ruling affirming
Appellants' convictions and sentences.

During the cross-examination of Jobe, defense counsel were able
to impeach him by showing that he had been involved in the drug
underworld and that he had a criminal background. In addition, the
following exchanges also took place:

          Q. Mr. Jobe, when you first became an informant, you
          became an informant first because you were someone who
          knew where to get drugs; isn't that right?

          A. Yes, sir.

          Q. You'd been using them?

          A. Yes, sir.

(J.A. at 376.)
_________________________________________________________________

3 The Government's theory was that Jobe purchased drugs from Woody
Adkins and Lyons that they had in turn purchased from Appellants.

                     4
          Q. There's competition for customers. And you would fre-
          quently buy eight-balls; is that correct?

          A. Yes, sir, for the biggest part.

          Q. And your understanding of an eight-ball is that that's an
          eighth of an ounce of cocaine, right?

          A. Yes, sir, I think. I'm not -- I had a drug problem before,
          but it was not a cocaine problem.

          Q. Right.

          A. So cocaine was not my thing that I dealt with. So, yes,
          I guess that's the exact weight or -- do you understand what
          I'm saying?

          Q. I understand what you're saying. You understood that
          you were buying an eighth of an ounce of cocaine, right?

          A. Yes, sir.

(J.A. at 379-80.)

After Appellants were convicted on the three counts with which
they were charged and sentenced, and while their appeal was pending
in this Court, some disturbing facts began to come to light. On Febru-
ary 13, 1998, Jobe was found dead at his residence, the apparent vic-
tim of a cocaine overdose. A subsequent FBI investigation into Jobe's
death revealed troubling evidence of an unseemly relationship
between Jobe and members of the Drug Task Force. Specifically, it
appeared that drug evidence had been improperly stored in an
unlocked filing cabinet within the task force office and that Jobe had
been allowed access to the office on several occasions. There was also
evidence that Jobe had been left alone in the room where the drug evi-
dence was improperly stored. Some drug evidence from the task force
office was found in Jobe's home at the time of his death, although
none of the drug evidence particular to Appellants' case was discov-
ered or otherwise believed to have ever been tainted. In addition, a

                      5
previously undisclosed memorandum of an interview with Jobe con-
ducted by Lieutenant Adkins on January 14, 1997, indicated that
Jobe's involvement with cocaine was more extensive than that sug-
gested by his testimony at Appellants' trial and that he was a known
cocaine abuser. An FBI interview with Lieutenant Adkins also
revealed that on one particular occasion Jobe immediately reported to
members of the Drug Task Force that "he and the individuals he had
purchased drugs from had used some of the crack after the purchase
had been completed." (J.A. at 510-11.)

Based upon this newly discovered evidence, Appellants each
moved for new a trial4 on the grounds that: (1) the Government know-
ingly provided perjurious testimony in the form of Jobe's testimony
that he did not have a cocaine problem and that he was relatively
unfamiliar with the weight of an "eight-ball" quantity of cocaine
because cocaine was not what he "dealt with"; and (2) the Govern-
ment failed to disclose evidence, favorable to Appellants, that the
members of the Drug Task Force improperly allowed Jobe, a known
cocaine user, access to the task force office where drug evidence was
stored in an unlocked cabinet. The district court denied the motions,
concluding that there was not a reasonable likelihood that Jobe's pur-
portedly perjurious testimony affected the jury's verdict and that the
undisclosed evidence was not material to Appellants' case.

On appeal, Appellants argue that the jury's verdict could have been
affected by Jobe's purportedly false testimony, or at least by the
cumulative effect of this testimony and the evidence of the question-
able relationship between Jobe and the Drug Task Force. Appellants
also claim that had they known of this improper relationship, they
would have adopted an "attack" strategy. According to Appellants,
they would have sought to undermine the integrity of the Drug Task
Force if they had been armed with this new information; they also
_________________________________________________________________

4 Each Appellant styled his motion as a "Motion for a New Trial and
Attacking Sentence," brought pursuant to Fed. R. Crim. P. 33 and 28
U.S.C.A. § 2255 (West Supp. 2000). (J.A. at 431, 494.) The district
court, however, considered the motions only as motions for a new trial
under Fed. R. Crim. P. 33. Because of the district court's treatment of the
motions, we, too, consider the motions as Rule 33 motions for a new
trial.

                    6
would have sought to impeach Moore with his inconsistent statements
before the grand jury and at the suppression hearing; and they would
have called Lieutenant Adkins to show that he, too, provided incon-
sistent statements at these two hearings. For the reasons that follow,
we agree with the district court that a new trial was not warranted in
this case.

II.

Under Brady v. Maryland, 

(1963), and its progeny, a
prosecutor's failure to disclose "evidence favorable to an accused
. . . violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of the
prosecution." 

also Kyles v. Whitley, 

, 433
(1995) (noting that there is no distinction between situations in which
an accused requests disclosure and situations in which an accused
fails to make such a request). Evidence is favorable if it is exculpatory
or if it could be used to impeach Government witnesses. See United
States v. Ellis, 

, 914 (4th Cir. 1997). Evidence is material
"if there is a reasonable probability that, had the evidence been dis-
closed to the defense, the result of the proceeding would have been
different." 

(internal quotation marks omitted).
"A reasonable probability of a different result is accordingly shown
when the government's suppression undermines confidence in the
outcome of the trial." 

quotation marks omitted).
In addition to the prosecutor's obligation to disclose favorable evi-
dence that meets this materiality standard, the prosecutor also may not
knowingly introduce perjured testimony. See United States v. Kelly,

, 933 (4th Cir. 1994). If the Government allows such per-
jured testimony to pass uncorrected, a new trial will be warranted
when "there is any reasonable likelihood that the false testimony
could have affected the judgment of the jury." United States v. Agurs,

, 103 (1976). Furthermore, prosecutors are responsible for
disclosing so-called "Brady evidence" and for preventing their wit-
nesses from providing perjurious testimony whenever one who is
working on the Government's case knows of such evidence or testi-
mony, even if the prosecutor does not herself have firsthand knowl-
edge. See Strickler v. Greene, 

, 280-81 (1999); 

.

                    7
Ordinarily, a motion for a new trial based upon newly discovered
evidence brought pursuant to Fed. R. Crim. P. 33 requires a defendant
to show that: (1) the evidence has been discovered since the trial; (2)
the moving party acted with the appropriate amount of diligence; (3)
the evidence is not "merely cumulative or impeaching;" (4) the evi-
dence is "material to the issues involved;" and (5) the evidence dem-
onstrates "that, on a new trial, . . . [it] would probably produce an
acquittal." United States v. Custis, 

, 1359 (4th Cir.
1993), aff'd, 

(1994). As indicated above, however,
when a motion for new trial is based upon the theory that the newly
discovered evidence is Brady material, a standard slightly more favor-
able to the defendant exists. First, evidence that is merely impeaching
may support a new trial. See United States v. Bagley, 

,
676 (1985); 

. Second, rather than showing that
the new evidence "would probably produce an acquittal," 

, a defendant must show only that "there is a reasonable
probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different," that is, "the gov-
ernment's evidentiary suppression undermines confidence in the out-
come of the trial," 

-34 (internal quotations
marks omitted). When the alleged Brady violation is based upon the
Government's knowing use of perjured testimony, an even more
relaxed standard is applicable: a conviction "must be set aside if there
is any reasonable likelihood that the false testimony could have
affected the judgment of the jury." 

(emphases
added). With these familiar principles in mind, we turn to the merits
of Appellants' arguments.

III.

Appellants claim that the cumulative effect of the purportedly per-
jurious testimony of Jobe and the prosecution's nondisclosure of the
questionable relationship between members of the Drug Task Force
and Jobe leads to the conclusion that there is a reasonable likelihood
that the jury's verdict could have been affected. Before considering
the cumulative impact of this new evidence, we first will review each
alleged violation.

A.

Appellants argue that Jobe, a known cocaine abuser, provided per-
jurious testimony when he testified that he was unsure how much an

                    8
"eight-ball" of cocaine weighed because he had not had a "cocaine
problem" and that cocaine was not what he "dealt with." (J.A. at 379-
80.) They further contend that Lieutenant Adkins knew that this testi-
mony was false based upon his interview with Jobe, as commemo-
rated in the January 14, 1997 memorandum, and that this knowledge
is thereby imputed to the prosecution. If the Government knowingly
used perjurious testimony -- by virtue of this small portion of testi-
mony that Jobe spontaneously offered while being cross-examined --
Appellants would be entitled to a new trial if there is a reasonable
likelihood that this testimony could have affected the jury's judgment.
See United States v. Agurs, 

, 103 (1976).

We conclude that Appellants are not entitled to a new trial based
upon this testimony. Even if we assume, without deciding, that Jobe's
unsolicited remarks about the extent of his past involvement with
cocaine constituted perjury, it is clear to us that there is no reasonable
likelihood that it could have affected the jury's verdict. Jobe was a
minor witness used primarily to establish the chain of custody of
drugs introduced at trial. Jobe did not testify to any direct dealings
with Appellants; the extent of his testimony implicating Appellants
was that he had seen Arias with Lyons and Woody Adkins at bars and
that Lyons had once told him that his source of drugs was a "Cuban
connection." (J.A. at 367.) The Government's case was in no way
dependent upon Jobe's testimony. Appellants were convicted upon
the strength of the testimony of Moore, Lyons, and Woody Adkins,
all of whom testified to direct dealings with Appellants in drug trans-
actions. Indeed, as we indicated in our opinion affirming Appellants'
convictions and sentences, the Government "rel[ied] chiefly upon the
testimony" of these three witnesses. United States v. Arias, 

, 

, at *1 (4th Cir. Apr. 9, 1999) (unpublished).
In light of this other, more direct, evidence implicating Appellants, it
is not reasonably likely that the jury could have been affected by
Jobe's purportedly false testimony concerning his familiarity with
cocaine and cocaine quantities. This information, whether true or
untrue, simply had nothing to do with the jury's finding of guilt.5
_________________________________________________________________

5 Appellants also argue that because of Jobe's testimony indicating that
he was unfamiliar with how much an "eight-ball" quantity was, they
were unable to develop further through his testimony why records indi-

                    9
In addition, Appellants' counsel impeached Jobe on cross-
examination by establishing his drug use and prior involvement in
criminal activity. To the extent, therefore, that Appellants argue that
they could have impeached Jobe based upon his purportedly false tes-
timony, we note that it would have been somewhat cumulative of
their other impeachment attempts.6 In any event, we do not find any
reasonable likelihood that further attacks on Jobe's credibility, given
his exceptionally minor role at trial, could have altered the jury's ver-
dict. See United States v. Kelly, 

, 933 (4th Cir. 1994)
(explaining that "[e]ven if the false testimony relates only to the credi-
bility of a Government witness and other evidence has called that wit-
ness' credibility into question, a conviction must be reversed when
`there is any reasonable likelihood that the false testimony could have
affected the judgment of the jury'" (quoting 

)).

B.

Appellants also contend that the Government's failure to disclose
the improper relationship that appears to have existed between Jobe
and members of the Drug Task Force constituted a Brady violation
and warrants a new trial. As explained above, the Government has a
responsibility to disclose evidence favorable to an accused only if it
_________________________________________________________________

cated that he had not received the full amount of cocaine that he was sup-
posed to have purchased from Lyons and Woody Adkins. Contrary to
Appellants' position, however, after Jobe hesitated about his knowledge
of the weight of an "eight-ball," the following exchange took place: Q:
"You understood that you were buying an eighth of an ounce of cocaine,
right?"; A: "Yes, sir." (J.A. at 380). Jobe thus testified that he knew the
weight of drugs he was supposed to be buying. Moreover, Appellants'
counsel questioned Jobe about the amount of cocaine he received from
Lyons and Woody Adkins, and Jobe confirmed that he consistently sur-
rendered to the Drug Task Force less than the full amount of cocaine that
Lyons and Woody Adkins represented they were selling to him.

6 We noted in United States v. Hoyte, 

(4th Cir. 1995), that
undisclosed evidence suggesting that a prosecution witness made incon-
sistent statements "would not, within reasonable probability, have caused
a different result" given that the witness was impeached in many other
ways. 

is material in that it undermines confidence in the trial's outcome. See
Kyles v. Whitley, 

, 434 (1995).

Appellants' central argument on this score is that had they known
that members of the Drug Task Force allowed Jobe access to the task
force office, at times without supervision, where quantities of drug
evidence were kept in unlocked filing cabinets, they would have pur-
sued a trial strategy attacking the integrity of the Drug Task Force.
They also would have sought to impeach Moore with the inconsisten-
cies in his statements before the grand jury and at the suppression hear-
ing7 and they would have called Lieutenant Adkins in an effort to
show his similarly inconsistent statements. In other words, Appellants
claim that with the benefit of this new information they would have
opted for the very trial strategy that they originally chose not to pur-
sue for fear of opening the door to the admission of the drug evidence
improperly seized during the June 22 sting.

Even if we accept Appellants' somewhat dubious contention that
this is the trial strategy that they would have employed, we neverthe-
less conclude that Appellants have failed to show that the nondisclo-
sure of this evidence violates Brady. There is no suggestion that this
evidence in any way exculpates Appellants because there is no clear
indication that evidence related to Appellants' case was at all tainted.
Furthermore, the fact that Jobe may have been allowed access to the
task force office and the drug evidence contained therein does not
undermine the testimony of the Government's main witnesses:
Moore, Lyons, and Woody Adkins. No matter how much Appellants
argue about using different trial strategies, the fact remains that the
new evidence discovered in this case has nothing to do with the prin-
cipal players or issues in their case. Considering this reality, we can-
not escape the conclusion that the undisclosed evidence at issue was
simply not material to Appellants' trial because its discovery does not
_________________________________________________________________

7 Because Appellants' counsel impeached Moore on other grounds,
including his prior criminal activity, drug use, and his dishonesty toward
Arias on at least one occasion, use of his inconsistent statements for
impeachment purposes would have been merely cumulative. See United
States v. Hoyte, 

, 1243 (4th Cir. 1995) (concluding that
undisclosed evidence that could have been used only to further impeach
an already-impeached Government witness did not require a new trial).

                    11
undermine our confidence in the trial's outcome. See 

.

C.

Finally, Appellants primarily claim that a new trial is warranted
based upon the cumulative effect of Jobe's purportedly perjurious tes-
timony and the Government's failure to disclose the nature of the
Drug Task Force's relationship with Jobe. As we indicated in United
States v. Ellis, 

(4th Cir. 1997), after examining the
undisclosed evidence item-by-item, we must evaluate the cumulative
effect of all of the suppressed evidence to determine whether the evi-
dence as a whole is material within the meaning of Brady. See 

. Having first considered the pur-
portedly perjurious testimony and the undisclosed evidence each in
isolation, and having concluded that neither was sufficiently material
to constitute a Brady violation on its own, we now consider whether
there is any reason to alter our materiality determinations based upon
the combined effect of these allegations.8

We can find no such reason. Appellants first argue that the proper
materiality standard to apply when considering these two aspects
together is the lesser of the two standards, i.e., whether there is a rea-
sonable likelihood that the testimony "could have affected the judg-
ment of the jury," which is the standard used when analyzing a claim
of the Government's knowing use of perjurious testimony. See 

. Appellants rely upon United States v. Vozzella, 

(2d Cir. 1997), for their theory that this lower materiality
threshold applies whenever the Government knowingly presents per-
jurious testimony and also fails to disclose evidence related to the per-
jurious testimony. In Vozzella, however, the undisclosed evidence
was not only related to the false testimony, but it actually demon-
strated the falsity of the testimony. See 

n.10 (noting that although the parties in that case did not raise
the issue, the Supreme Court has indicated that this lesser materiality
standard applies when the undisclosed "evidence demonstrates that a
Government witness presented false testimony"). Although we believe
_________________________________________________________________

8 We, accordingly, do not foreclose the possibility that two non-Brady
violations may equal a Brady violation when viewed together.

                    12
that Appellants' reliance on Vozzella in this case is misplaced because
the undisclosed nature of Jobe's relationship with the Drug Task
Force does not demonstrate the falsity of Jobe's testimony concerning
the extent of his past involvement with cocaine,9 we remain confident
in the trial's outcome even if we employ this lower materiality stan-
dard.

Appellants contend that, had Jobe told the truth about his cocaine
abuse (or had they known of it so that they could have impeached him
with his purportedly false testimony) and had they known that Drug
Task Force members allowed Jobe access to improperly stored drug
evidence, they would have adopted a new trial strategy attacking the
integrity of the Drug Task Force and opting to impeach Moore and
Lieutenant Adkins with inconsistencies in their prior statements. We
are struck by the attenuated nature of this strategy to the actual facts
at issue in Appellants' case. No matter how innovatively Appellants
attempt to use the discovery of the Drug Task Force's and Jobe's
questionable conduct to cloud the actual issues in this case, the fact
remains that this conduct was at best only tangentially related to
Appellants' trial. As we have noted, there is no evidence that there
was any wrongdoing in connection with Appellants' case. Nor is there
any indication that the Government's three key witnesses -- Moore,
Lyons, and Woody Adkins -- were involved in any wrongful conduct
with respect to their association with the Drug Task Force. In light of
these facts, there is no reasonable likelihood that all of the new evi-
dence, viewed cumulatively, could have affected the judgment of the
jury, and we remain confident in the outcome of Appellants' trial.
_________________________________________________________________

9 We also note that to the extent Appellants' argument could be under-
stood as complaining about the Government's failure to disclose the Jan-
uary 14, 1997 memorandum of Lieutenant Adkins's interview with Jobe,
which would create a better analogy to the Vozzella case, the combina-
tion of this memorandum and Jobe's purportedly perjurious testimony
would still not be material under this lesser standard for the same reasons
that Jobe's purportedly perjurious testimony itself failed to meet this
standard. Whether Jobe lied about not having a cocaine problem or the
extent of his familiarity with cocaine simply could not have any impact
on the jury's verdict in this case.

                    13
IV.

For the foregoing reasons, we affirm the district court's denial of
Appellants' motions for a new trial.

AFFIRMED

                     14