US v. Tarvis Leviticus Dunham

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:12-cr-00011-IMK-JSK-1 Copies to all parties and the district court/agency. [999363718].. [13-4699]

Appeal: 13-4699

Doc: 51

Filed: 05/28/2014

Pg: 1 of 6

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

Appeal: 13-4699

Doc: 51

Filed: 05/28/2014

Pg: 2 of 6

PER CURIAM:
Tarvis
jury

trial,

witness,

in

Leviticus

of

Dunham

obstructing

violation

of

was

justice

18

convicted,

by

U.S.C.

following

retaliating

§ 1513(b)(1)

against

(2012);

a
a

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

U.S.C. § 111(a)(1).
inmate

in

the

and

employees,

in

violation

of

18

Dunham, who at all relevant times was an

United

States

Penitentiary

at

Hazelton

(“USP-

Hazelton”), was sentenced to 240 months’ imprisonment, to be
served

consecutive

serving.

to

the

federal

sentences

he

was

already

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,
next

for

claims

smuggling
the

court

contraband
abused

its

into

USP-Hazelton.

discretion

by

Dunham

restricting

defense counsel’s cross-examination of Shawn Burchett, Special
Investigative

Agent

at

USP-Hazelton,

investigation into the charged offenses.

2

regarding

the

prison’s

Appeal: 13-4699

Doc: 51

Filed: 05/28/2014

Pg: 3 of 6

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

Appeal: 13-4699

Doc: 51

Filed: 05/28/2014

Pg: 4 of 6

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.”
was

cumulative

and

(J.A. 707-08). 3
corroborative

in

Indeed, Fitch’s testimony
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

Appeal: 13-4699

Doc: 51

examination
prison’s

of

Filed: 05/28/2014

Shawn

internal

Pg: 5 of 6

Burchett

regarding
into

investigation

Dunham’s prosecution.

the

incident

the

scope

of

the

underlying

We disagree.

Pursuant to Federal Rule of Evidence 611(b), “[c]rossexamination
direct

should

not

examination

credibility.

go

and

The

beyond

the

matters

court

may

subject

matter

of

the

affecting

the

witness’s

inquiry

into

additional

allow

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.

States v. Zayyad, 741 F.3d 452, 458 (4th Cir. 2014).

United
In this

context, the district court “possesses wide latitude to impose
reasonable
concerns

limits

as

on

prejudice,

cross-examination,
confusion,

premised

repetition,

and

on

such

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

properly
Burchett.

in

this

restricted

case.
defense

We

thus

conclude

counsel’s

that

the

court

cross-examination

of

See Zayyad, 741 F.3d at 459-60 (noting propriety of
5

Appeal: 13-4699

Doc: 51

Filed: 05/28/2014

Pg: 6 of 6

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

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

AFFIRMED

6