UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 95-5580

GARY WILLIAMS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-94-541-A)

Argued: March 5, 1996

Decided: May 24, 1996

Before HALL, WILKINS, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: James Clyde Clark, LAND, CLARK, CARROLL &
MENDELSOHN, P.C., Alexandria, Virginia, for Appellant. Diana
Lynn Preston, Special Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Helen F. Fahey, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Gary Williams appeals the convictions stemming from his involve-
ment in a prison disturbance. We find no error, and we affirm.

I

A

Williams is an inmate at Lorton Reformatory, a District of Colum-
bia prison located in Virginia. On June 16, 1994, inmates John
Edwards, Joseph Leaks, and Williams were involved in a fight in
which Edwards was stabbed repeatedly with a plexiglass shank. Leaks
and Williams were indicted and tried together for assault with intent
to murder, possession of the shank, and other crimes.

The first witness at the trial was Sergeant William Moseley, a cor-
rectional officer who was on duty on the tier where the fight occurred.
When first asked to identify the defendants, he reversed their names.
Although this mistake was pointed out by the Assistant United States
Attorney, Moseley's confusion continued. He testified that a fist fight
began between Edwards and Leaks and that Williams became
involved later. At one point, he named Leaks as the assailant with the
shank, and the prosecutor's next two questions concerned the manner
in which Leaks used the shank. Moseley, who had worked on the tier
on only a "sporadic" basis, did not know either of the defendants by
name prior to the incident.

On cross-examination by Leaks' counsel, Moseley again named
Leaks as the shank user, but he pointed to Williams when asked to
identify the defendant responsible for the stabbing. Attempting to
somehow capitalize on Moseley's confusion, Williams' counsel ques-
tioned Moseley about the same misidentification of the defendants in

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the incident report the officer filled out the day after the attack. After
extended questioning, however, Moseley's testimony took on an
increasingly certain tone--it was Leaks and Edwards who were in a
fist fight, and it was Williams who joined the fray and stabbed
Edwards.

The next witness was not confused. Corporal Daryll Godlock, in
responding to Sergeant Moseley's call for assistance, came upon a fist
fight involving Leaks and Edwards when he saw Williams "jump out
of his cell with a long sharp-pointed object and stab inmate Edwards
three times in the chest area." Godlock's identification of the defen-
dants and the role each played in the altercation remained consistent
throughout cross-examination. Leaks was acquitted of all charges, and
Williams was acquitted of all charges except possession of the shank.

B

The presentence report referred to an FBI report that Williams'
counsel asserts had not been made available to him during pretrial
discovery. This FBI report, which had been prepared from an inter-
view with Moseley one month after the assault, has Williams getting
into the initial verbal confrontation with Edwards and Leaks doing the
stabbing.

Prior to the sentencing hearing, Williams moved for a new trial
based on the government's failure to provide the FBI report before
trial and the use of Moseley's "false" testimony. The government
countered with a variety of arguments, including that, in accordance
with the open file policy of the United States Attorney's office, the
FBI report was in the file when it was made available for inspection.
During oral argument on the motion, Williams' lawyer reiterated his
claim that the FBI report was not in the file when he examined it prior
to trial. Before the government could respond, the court denied the
motion on the grounds that "the defendant was aware of it at trial and
I can't believe that that would have affected the outcome of the case."

On June 23, 1995, Williams was sentenced to 2 years' imprison-
ment, to be served consecutively to the lengthy sentence he is cur-
rently serving. Williams appeals the judgment of conviction and the
order denying a new trial.

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II

Williams contends that he is entitled to a new trial because (1) the
government knowingly presented false testimony at the trial; (2) the
FBI report contained material evidence favorable to him and, there-
fore, under Brady v. Maryland, 373 U.S. 83 (1963), it should have
been disclosed to him prior to trial; and (3) the report constitutes
newly discovered evidence under Fed. R. Crim. P. 33. These argu-
ments are related, yet each entails a slightly different analysis and
standard of review. We turn first to the contention that the govern-
ment knowingly presented false testimony.

A

Interwoven with Williams' Rule 33 and Brady arguments is the
claim that the government suppressed the FBI report and knowingly
permitted Moseley to perjure himself. The knowing use of perjured
testimony would force the government to demonstrate that the use of
such testimony was "harmless beyond a reasonable doubt." United
States v. Bagley, 473 U.S. 667, 679 n.9 (1985). From Williams' stand-
point, this is a vastly more favorable standard of review than Brady's
"reasonable probability" of a different result. However, Williams fails
to make any creditable showing that Moseley was anything other than
confused about which face belonged to what name. After extended
cross-examination, his rendition of events matched Godlock's in
every important respect. Inconsistent testimony from a government
witness does not amount to the knowing use of false testimony.
United States v. Griley, 814 F.2d 967, 971 (4th Cir. 1987). Absent a
threshold showing of falsity, we need not consider this argument any
further.1
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1 Attached to the motion was the transcript of a post-trial telephone
conversation between Moseley and an investigator retained by Williams
in which Moseley said he had never observed Williams with a shank. In
a footnote to a memorandum of law in support of his motion, Williams'
lawyer notes that a juror approached him after trial and told him that "the
apparently inconsistent verdicts were a result of the testimony of Mose-
ley regarding Defendant's action in handing him a shank." We are unable
to find where Moseley ever testified that Williams handed him the shank.

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B

Under Brady, the government is under an obligation to provide to
a defendant any material exculpatory evidence in its possession.2
"The evidence is material only if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the pro-
ceeding would have been different." Bagley , 473 U.S. at 682.
Impeachment evidence is included under Brady. Giglio v. United
States, 405 U.S. 150, 154 (1972). Even if it is assumed that the FBI
report was not disclosed to the defense and, further, that the report
would have been used in an attempt to impeach Moseley's testimony,
Williams' Brady argument falls short because it is unlikely that a dif-
ferent verdict on the shank possession would have been obtained.

As we have noted, Moseley did not know the defendants by name
at the time of the altercation. He initially reversed their names at trial,
and this reversal echoed his incident report and his statement to the
FBI agent. Defense counsel, however, were unrestricted in their
attempts to use Moseley's confusion to throw the blame onto each
other. By the end, however, Moseley was telling a consistent story
that was supported by Corporal Godlock. There is simply no "reason-
able probability" that access to the FBI report would have changed the
result at trial.

C

Fed. R. Crim. P. 33 provides that "the court on motion of a defen-
dant may grant a new trial to that defendant if required in the interest
of justice." We review the denial of a new trial for abuse of discretion.
United States v. Bales, 813 F.2d 1289, 1295 (4th Cir. 1987). We find
no abuse of that discretion here.
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2 By order dated February 15, 1995, the district court ordered the gov-
ernment to make available for inspection to the defense lawyers "the por-
tion of any written record containing the substance of any relevant oral
statement made by the defendants . . . in response to interrogation by any
person then known to the defendants to be a government agent. . . ." The
FBI report clearly falls within the ambit of this order.

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Even if we again assume that the FBI report was not disclosed to
defense counsel prior to trial and, further, that it was not otherwise
discoverable by the defendant even through due diligence, the report
is not the type of newly discovered evidence that would merit a new
trial under Rule 33. First, the report is cumulative. Sergeant Mose-
ley's incident report, which apparently was made available to the
defendants, contained the same misidentification found in the FBI
report. Second, the FBI report could only have been used for
impeachment purposes. Id. (newly discovered evidence that is cumu-
lative or merely impeaching is not grounds for a new trial under Rule
33).

Finally, newly discovered evidence must also be such that it
"would probably produce an acquittal." Id. We agree with the district
court bench ruling that access to the report "would not have affected
the verdict." Moseley's confusion was evident from the outset, and
Williams had ample opportunity to explore the matter at trial. That he
was just as mistaken a month after the incident (when the FBI inter-
view took place) as he was the day after the incident (when the inci-
dent report was prepared) is not the type of evidence that "probably"
would have tipped the balance in Williams' favor here. Therefore, we
affirm the order denying the motion for a new trial on the grounds of
newly discovered evidence.

AFFIRMED

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