UNPUBLISHED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             Decided:   November 17, 2008


Before NIEMEYER and      TRAXLER,   Circuit    Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.

§ 841 (West 1999 & Supp. 2008).                  We affirm.

              Brunson        contends     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, 

, 431 (4th Cir. 2006).

              The Due Process clause requires that the Government

disclose      to     the     defense     prior       to     trial      any     impeaching     or

exculpatory evidence in its possession.                           See Giglio v. United

States, 

, 153-55 (1972) (requiring disclosure of

evidence      affecting       the    credibility          of    prosecution       witnesses);

Brady    v.    Maryland,           

,     86-88       (1963)       (requiring

disclosure of exculpatory evidence).                       Due process is violated by

a   failure        to     disclose,      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.                 See Strickler v. Greene, 

263, 281-82 (1999).            Undisclosed evidence is material when its

cumulative       effect       is        such     that         “there    is     a     reasonable

probability      that,       had        the    evidence         been    disclosed         to    the

defense,       the    result        of        the       proceeding      would       have        been

different.”          Kyles    v.    Whitley,            

,   433-34       (1995)

(internal quotation marks omitted).                        A reasonable probability is

one sufficient to “undermine[] confidence” in the outcome.                                       

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.                           

the

evidence       may     have        had        limited         impeachment          value,        its

nondisclosure does not undermine confidence in the result of his

trial.     See 

the district court did not

abuse    its    discretion         in    denying         Brunson’s      motion      for     a   new

trial.     We therefore affirm Brunson’s conviction.                                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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