                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 03-4808



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DENNIS CARL FISHER, JR.,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. James P. Jones, District
Judge. (CR-02-30093)


Submitted:   June 21, 2004             Decided:   September 20, 2004


Before WILLIAMS and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Gary L. Smith, GARY LANCE SMITH, P.C., Winchester, Virginia, for
Appellant. John L. Brownlee, United States Attorney, William F.
Gould, Assistant United States Attorney, Charlottesville, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Dennis Carl Fisher, Jr., appeals his conviction and

sentence for possession with intent to distribute fifty grams or

more   of    cocaine   and   cocaine     base   in   violation    of   21    U.S.C.

§ 841(a)(1) (2000).         We affirm.

              Fisher argues the district court erred when it prohibited

him from cross-examining a police investigator about his alcohol

use.     The investigator testified he did not drink on the day of

Fisher’s arrest and that he does not drink on duty.                The district

court found that further evidence of the witness’s drinking habits

was not probative, and to the extent that it might be probative, it

should be excluded under Fed. R. Evid. 403 because its value was

substantially      outweighed     by   its     danger   of   unfair    prejudice,

confusion of the issues, and misleading the jury.

              We review a district court’s evidentiary rulings for

abuse of discretion. United States v. Leftenant, 341 F.3d 338, 342

(4th Cir. 2003), cert. denied, 124 S. Ct. 1183 (2004).                      We will

defer to the balancing engaged in by the district court under Rule

403    “unless    it   is    an   arbitrary     or   irrational    exercise      of

discretion.”      United States v. Heater, 63 F.3d 311, 321 (4th Cir.

1995).      Accordingly, because we conclude that the district court’s

finding that the probative value of the witness’s drinking habits

was substantially outweighed by its danger of unfair prejudice,

confusing the issues, and misleading the jury was not arbitrary or


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irrational, we hold the district court did not abuse its discretion

by precluding further questioning.

              Fisher also argues it was reversible error for the

Government not to provide him a copy or transcript of a tape

recording of a conversation of a confidential informant setting up

a drug transaction with Fisher, and a copy of a witness’s criminal

record.      Fisher contends the Government’s failure to disclose this

evidence violated Brady v. Maryland, 373 U.S. 83, 87 (1963), and

the Jencks Act, 18 U.S.C. § 3500 (2000).

              To prove a Brady violation, Fisher must show he requested

the undisclosed evidence and it was (1) favorable; (2) material;

and (3) that the prosecution had it and failed to disclose it.           See

Moore v. Illinois, 408 U.S. 786, 794-95 (1972); United States v.

Stokes, 261 F.3d 496, 502 (4th Cir. 2001). Evidence is “favorable”

not only when it would tend to exculpate the accused, but also when

it can be used to impeach government witnesses.                 See United

States v. Bagley, 473 U.S. 667, 676 (1985); United States v.

Trevino, 89 F.3d 187, 189 (4th Cir. 1996).         Evidence is material if

there   is    a   reasonable   probability   its   disclosure   would   have

produced a different outcome.       See Bagley, 473 U.S. at 682; United

States v. Kelly, 35 F.3d 929, 936 (4th Cir. 1994).          A “reasonable

probability” of a different result is shown when the government’s

failure to disclose evidence “undermines confidence in the outcome

of the trial.”      Bagley, 473 U.S. at 678.


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            Under the Jencks Act, a defendant has a right to inspect,

for impeachment purposes, prior statements made to government

agents by government witnesses, which are in the government’s

possession.      18 U.S.C. § 3500(b) (2000).             A statement by a

government witness must be produced after the witness’s direct

examination at trial, if the statement relates to the witness’s

testimony.     A “statement” is defined as the witness’s written

statement or an oral statement that was transcribed “substantially

verbatim.”     See 18 U.S.C. § 3500(e) (2000).           Violations of the

Jencks Act constitute harmless error when no prejudice results to

the defense.    United States v. Schell, 775 F.2d 559, 567 (4th Cir.

1985).

             Because   Fisher   has   not     demonstrated   the   undisclosed

information was material, we conclude the Government did not

violate Brady. Furthermore, we conclude no violation of the Jencks

Act occurred.      Accordingly, we affirm Fisher’s conviction and

sentence.     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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