US v. Rocci Wade

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:13-cr-00030-JPB-JES-5 Copies to all parties and the district court/agency. [999468577].. [14-4302]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4302

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROCCI WADE,
Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.
John Preston Bailey,
Chief District Judge. (5:13-cr-00030-JPB-JES-5)

Submitted:

October 15, 2014

Decided:

November 4, 2014

Before WILKINSON, MOTZ, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Patricia Valentino Kutsch, KUTSCH LAW OFFICES, Wheeling, West
Virginia, for Appellant.
William J. Ihlenfeld, II, United
States Attorney, Randolph J. Bernard, John C. Parr, Assistant
United States Attorneys, Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM
Rocci Wade appeals his convictions after a jury trial
of conspiracy to possess with the intent to distribute and to
distribute

oxycodone,

in

violation

of

21

U.S.C.

§§

846,

841(b)(1)(C), and distribution of oxycodone, in violation of 21
U.S.C. § 841(a)(1), 841(b)(1)(C).

We affirm.

On appeal, Wade first asserts prosecutorial misconduct
based on two comments during closing argument: (1) “that this
case

has

basically

everything

an

except what you often don’t have.
(2) that

Wade’s

co-defendants

investigation

would

have,

And that’s a confession,” and

were

not

promised

anything

in

exchange for their testimony, were not obligated to testify, and
were only asked to cooperate fully and truthfully, in exchange
for which the Government would agree to recommend a one-level
downward departure at sentencing.
“To prevail on a claim of prosecutorial misconduct, a
defendant

must

show

(1)

that

the

prosecutor’s

remarks

and

conduct were, in fact, improper and (2) that such remarks or
conduct prejudiced the defendant to such an extent as to deprive
the defendant of a fair trial.”
F.3d 178, 191 (4th Cir. 2007).

United States v. Allen, 491
This court generally reviews a

district court’s ruling on comments made during closing argument
for an abuse of discretion.

See United States v. Runyon, 707

F.3d 475, 491 (4th Cir. 2013).
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The

Constitution

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does

not

comment on the accused’s silence.
420 (4th Cir. 2002).

permit

the

government

to

Bates v. Lee, 308 F.3d 411,

The test is whether the “language used

[was] manifestly intended to be, or was [] of such character
that the jury would naturally and necessarily take it to be a
comment on the failure of the accused to testify[.]”

United

States v. Anderson, 481 F.2d 685, 701 (4th Cir. 1973), aff’d,
417 U.S. 211 (1974).
We
prosecutor’s

have

reviewed

remark

on

the

the
lack

record
of

a

and

conclude

confession

that

the

neither

was

intended nor would naturally be taken as a comment on Wade’s
failure to testify.

We thus conclude that the district court

did not abuse its discretion in denying Wade’s motion for a
mistrial based on these remarks.
Wade

did

not

raise

his

claim

arising

from

the

prosecutor’s comments on his co-defendants’ plea agreements in
the district court.
plain error only.

Thus, this court reviews that claim for
United States v. Alerre, 430 F.3d 681, 689

(4th Cir. 2005).
We

have

reviewed

the

record

and

conclude

that

the

prosecutor’s comments on Wade’s co-defendants’ plea agreements
accurately described the substance of the agreements.

We thus

conclude that the prosecutor did not engage in any misconduct.

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Wade next asserts error in the admission of witness
testimony, which allegedly violated Brady v. Maryland, 373 U.S.
83 (1963).

The prosecution disclosed, before trial, that the

witness in question stated in 2013 that he had bought drugs from
Wade “for at least two years,” prior to the interview.

At

trial, the witness testified that he began purchasing drugs from
Wade in “late 2007-early 2008.”
To establish a due process violation under Brady, Wade
must

prove

that:

(1)

the

prosecution

withheld

or

suppressed

evidence; (2) the evidence is favorable; and (3) the evidence is
material to the defense.
794-95 (1972).
probability

See Moore v. Illinois, 408 U.S. 786,

Evidence is material when there is a reasonable

that,

had

the

evidence

been

disclosed

to

the

defense, the result of the proceeding would have been different.
A

reasonable

undermine

probability

confidence

in

is

the

a

probability

outcome.

See

sufficient

United

States

conclude

that

to
v.

Bagley, 473 U.S. 667, 682 (1985).
We

have

reviewed

the

record

and

the

prosecution neither withheld nor suppressed favorable evidence.
We

thus

conclude

that

admitting such testimony.
court’s judgment.
facts

and

legal

the

district

court

did

not

err

in

Accordingly, we affirm the district

We dispense with oral argument because the
contentions

are

4

adequately

presented

in

the

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materials

before

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this

court

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and

argument

would

not

aid

the

decisional process.
AFFIRMED

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