Filed: May 28, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4699 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TARVIS LEVITICUS DUNHAM, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (1:12-cr-00011-IMK-JSK-1) Submitted: May 13, 2014 Decided: May 28, 2014 Before KING, DUNCAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Barry P. Beck, POWER, B
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4699 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TARVIS LEVITICUS DUNHAM, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (1:12-cr-00011-IMK-JSK-1) Submitted: May 13, 2014 Decided: May 28, 2014 Before KING, DUNCAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Barry P. Beck, POWER, BE..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4699
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TARVIS LEVITICUS DUNHAM,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:12-cr-00011-IMK-JSK-1)
Submitted: May 13, 2014 Decided: May 28, 2014
Before KING, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Barry P. Beck, POWER, BECK & MATZUREFF, Martinsburg, West
Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, Brandon S. Flower, Assistant United States
Attorney, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tarvis Leviticus Dunham was convicted, following a
jury trial, of obstructing justice by retaliating against a
witness, in violation of 18 U.S.C. § 1513(b)(1) (2012); two
counts of assaulting, resisting, and impeding certain officers
or employees, and causing physical injury, in violation of 18
U.S.C. § 111(a)(1), (b) (2012); and two counts of resisting and
impeding certain officers and employees, in violation of 18
U.S.C. § 111(a)(1). Dunham, who at all relevant times was an
inmate in the United States Penitentiary at Hazelton (“USP-
Hazelton”), was sentenced to 240 months’ imprisonment, to be
served consecutive to the federal sentences he was already
serving. This appeal timely followed.
Dunham raises two issue on appeal. He first asserts
that the district court abused its discretion in denying his
motion for a new trial based on the Government’s failure to
disclose that the Office of the Inspector General (“OIG”) was
investigating John Fitch, a corrections officer and Government
witness, for smuggling contraband into USP-Hazelton. Dunham
next claims the court abused its discretion by restricting
defense counsel’s cross-examination of Shawn Burchett, Special
Investigative Agent at USP-Hazelton, regarding the prison’s
investigation into the charged offenses.
2
Our review of the transcript confirms that, in ruling
on these issues, the district court applied the proper legal
standards and did not clearly err in its evaluation of the
evidence, see United States v. Delfino, 510 F.3d 468, 470 (4th
Cir. 2007), and thus did not abuse its discretion. Accordingly,
we affirm the judgment.
As to the first appellate issue, this court reviews
the district court’s denial of a Federal Rule of Criminal
Procedure 33 motion for a new trial for abuse of discretion.
United States v. Moore, 709 F.3d 287, 292 (4th Cir. 2013). To
receive a new trial based on a Brady 1 violation, a defendant must
“show that the undisclosed evidence was (1) favorable to him
either because it is exculpatory, or because it is impeaching;
(2) material to the defense, i.e., prejudice must have ensued;
and (3) that the prosecution had [the] materials and failed to
disclose them.” United States v. Wilson,
624 F.3d 640, 661 (4th
Cir. 2010) (internal quotation marks omitted). To establish
that such favorable evidence is material, the defendant must
show that, had the evidence been disclosed, there is a
reasonable probability that the outcome of the proceeding would
have been different. United States v. Caro,
597 F.3d 608, 619
(4th Cir. 2010).
1
Brady v. Maryland, 373 U.S. 83 (1963).
3
The Government has conceded, both in this court and in
the district court, that the evidence of OIG’s investigation
into Fitch’s conduct satisfies the first prong of the inquiry,
and that it failed to disclose this evidence. The real sticking
point for Dunham is the materiality prong, and it was on this
basis that the district court denied the motion as to all but
one count of conviction. 2
Having thoroughly reviewed the trial transcript, we
agree with the district court that, “in light of the volume and
nature of the evidence presented by the Government at trial,
there is no appreciable possibility that the earlier disclosure
of the Brady material would have had an effect on the ultimate
outcome of the case.” (J.A. 707-08). 3 Indeed, Fitch’s testimony
was cumulative and corroborative in every aspect. We thus
affirm the denial of Dunham’s motion for a new trial for the
reasons set forth in the district court’s order.
Dunham next maintains that the district court abused
its discretion in restricting defense counsel’s cross-
2
The district court did conclude that impeachment of
Fitch’s testimony reasonably could have resulted in a different
outcome on the one count of conviction that was predicated on
Dunham’s physical contact with Fitch. The court opted to vacate
the jury’s verdict and dismiss this count of conviction instead
of conducting a new trial.
3
Citations to the “J.A.” refer to the joint appendix filed
by the parties.
4
examination of Shawn Burchett regarding the scope of the
prison’s internal investigation into the incident underlying
Dunham’s prosecution. We disagree.
Pursuant to Federal Rule of Evidence 611(b), “[c]ross-
examination should not go beyond the subject matter of the
direct examination and matters affecting the witness’s
credibility. The court may allow inquiry into additional
matters as if on direct examination.” We review a district
court’s limitation on the scope of the cross-examination of a
Government witness only for an abuse of discretion. United
States v. Zayyad, 741 F.3d 452, 458 (4th Cir. 2014). In this
context, the district court “possesses wide latitude to impose
reasonable limits on cross-examination, premised on such
concerns as prejudice, confusion, repetition, and relevance.”
United States v. Smith,
451 F.3d 209, 221 (4th Cir. 2006).
Our review of the record convinces us that there is no
such abuse of discretion in this case. First, the court
accurately characterized the line of questioning defense counsel
wished to pursue as being “very far afield” from the scope of
Burchett’s testimony on direct examination. (J.A. 512).
Furthermore, the proffered line of questioning was irrelevant to
the issues in this case. We thus conclude that the court
properly restricted defense counsel’s cross-examination of
Burchett. See Zayyad, 741 F.3d at 459-60 (noting propriety of
5
trial court limiting cross-examination to areas of relevance to
the case and explaining this court’s deference to district
court’s rulings on relevancy).
For these reasons, we affirm the criminal judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
6
