                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 03-19
DUSTIN JOHN HIGGS,
              Defendant-Appellant.
                                       
           Appeal from the United States District Court
            for the District of Maryland, at Greenbelt.
                 Peter J. Messitte, District Judge.
                         (CR-98-520-PJM)

                      Argued: January 20, 2004

                      Decided: April 20, 2004

        Before WILKINS, Chief Judge, and LUTTIG and
                 TRAXLER, Circuit Judges.



Affirmed by unpublished opinion. Judge Traxler wrote the opinion,
in which Chief Judge Wilkins and Judge Luttig joined.


                            COUNSEL

ARGUED: Timothy Joseph Sullivan, SULLIVAN & SULLIVAN,
College Park, Maryland, for Appellant. Deborah A. Johnston, Assis-
tant United States Attorney, Greenbelt, Maryland, for Appellee. ON
BRIEF: Barbara L. Hartung, Richmond, Virginia, for Appellant.
Thomas M. DiBiagio, United States Attorney, Greenbelt, Maryland,
for Appellee.
2                       UNITED STATES v. HIGGS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

TRAXLER, Circuit Judge:

   Appellant Dustin John Higgs ("Higgs") was convicted of three
counts of first-degree premeditated murder, see 18 U.S.C.A.
§ 1111(a) (West 2000), three counts of first-degree murder committed
in the perpetration or attempted perpetration of a kidnapping, see id.,
and three counts of kidnapping resulting in death, see 18 U.S.C.A.
§ 1201(a)(2) (West 2000), arising out of the January 27, 1996, mur-
ders of three young women in the Patuxent National Wildlife Refuge.
He ultimately received nine death sentences. We affirmed. See United
States v. Higgs, 353 F.3d 281 (4th Cir. 2003). In this appeal, Higgs
challenges the district court’s denial of his motion for a new trial and
new sentencing hearing based upon the government’s failure to dis-
close favorable evidence in contravention of the rule announced in
Brady v. Maryland, 373 U.S. 83, 87 (1963). For the following rea-
sons, we affirm.

                                   I.

   The facts and evidence pertaining to the triple murders in this case
are fully set forth in our prior opinion. Thus, we summarize only
those facts most pertinent to Higgs’s Brady claim.

   On the evening of January 26, 1996, Dustin John Higgs, Willis
Mark Haynes, and Victor Gloria traveled to Washington, D.C., and
picked up Tanji Jackson, Tamika Black, and Mishann Chinn. Higgs
knew Jackson, and they had arranged dates for Haynes and Gloria
with Black and Chinn. The six returned to Higgs’s apartment in Lau-
rel, Maryland, to drink alcohol and listen to music. In the early morn-
ing hours of January 27, Higgs and Jackson began to argue violently,
culminating in Jackson retrieving a knife from Higgs’s kitchen. Gloria
and Chinn were in the living room with Higgs and Jackson at the
time. Haynes and Black were in the bedroom. Upon hearing the com-
motion, Haynes came out from the bedroom and broke up the fight.
                       UNITED STATES v. HIGGS                      3
   Despite the early morning hour, the three women abruptly left
Higgs’s apartment on foot. As they were leaving, Jackson "stopped at
the door and said something like I am going to get you all f--ked up
or robbed" or made "some kind of threat." J.A. 473. Higgs com-
mented to Haynes and Gloria that Jackson "do know a lot of n-----s."
J.A. 474. Higgs, who was watching from inside the apartment, saw
Jackson stop and appear to write down the license plate number of his
Mazda van, and Higgs commented to Haynes and Gloria that Jackson
was "writing down [his] sh--." J.A. 474. Higgs then "said f--k that,
and grabbed his coat and said come on." J.A. 474. As he was leaving,
Higgs retrieved his .38 caliber firearm from the end table drawer and
put it in his pocket.

   The three men got into Higgs’s vehicle and Higgs drove to where
the women were walking. At Higgs’s direction, Haynes talked the
women into getting in the van. Higgs then began driving away from
the apartment complex. While en route, Gloria observed Higgs and
Haynes, who were sitting in the front seat, leaning towards one
another and whispering, but he could not hear what the two were say-
ing. Instead of taking the most direct route to Washington, D.C.,
Higgs drove into the Patuxent National Wildlife Refuge and pulled
over at a secluded location. When one of the women asked if they
were trying to "make [them] walk from [t]here," Higgs responded,
"something like that." J.A. 482. The women then got out of the van.
Higgs handed his .38 caliber pistol to Haynes, who put it behind his
back and also exited the vehicle. Within moments, Haynes shot and
killed all three women.

  Shortly after the killings, the bodies of the three women were dis-
covered strewn about the roadway by a passing motorist. Law
enforcement officers found Jackson’s day planner at the scene. In it,
Jackson had recorded Higgs’s nickname ("Bones") and telephone
numbers. The notation "13801 ‘MAZDA’ 769GRY" — Higgs’s
address number and the tag number for his Mazda vehicle — had also
been recorded.

  After the men left the crime scene, they stopped at a nearby river
where they disposed of the gun. They then returned to Higgs’s apart-
ment, which they cleaned of any trace of the women’s presence that
evening, and dropped the trash by a dumpster. Higgs and Haynes then
4                           UNITED STATES v. HIGGS
dropped Gloria off at a fast food restaurant, where he was told by
Higgs to "keep [his] mouth shut." J.A. 489. Ultimately, Gloria did not
abide by Higgs’s order. In the fall of 1998, after he was arrested on
federal drug charges, Gloria cooperated with the government in its
drug distribution and murder investigations of Haynes and Higgs, ulti-
mately providing eyewitness testimony regarding the murders and the
events surrounding the crimes.

   On October 5, 1998, Haynes was arrested on a federal complaint
for distribution of cocaine base. While in custody, Haynes gave sev-
eral oral and written statements which largely corroborated Gloria’s
version of the events that evening. Haynes also admitted that he was
the triggerman, but claimed that he shot the women because he was
afraid of Higgs.1

  In December 1998, Higgs and Haynes were jointly indicted for first
degree murder, kidnapping, and use of a firearm in the commission
    1
   The following summary of Haynes’s confession is set forth in our
opinion affirming the kidnapping, murder, and related convictions of
Haynes:
        In [his] first written statement, Haynes maintained that he was
        partying with the three women at Higgs’ apartment; that Higgs
        had a fight with one of the women; that Higgs offered to take
        them home; that Higgs pulled over on a dark road, got out of the
        vehicle and shot all three women; and that after the shooting
        Higgs drove to a place where the firearm was thrown into the
        Anacostia River. Originally, when describing the murders,
        Haynes wrote, "I ran back to the van." During the question and
        answer period, Lieutenant Rule asked Haynes why he had writ-
        ten "I ran back to the van," to which Haynes responded that it
        was a mistake and changed the "I" to "he."
United States v. Haynes, 26 Fed. Appx. 123, *130, 2001 WL 1459702,
at *5 (4th Cir. 2001) (internal citations omitted), cert. denied, 535 U.S.
979 (2002). Later, Haynes "orally admitted that he had shot the women
because he was afraid that Higgs would kill him if he did not kill the
women." Id. at 131. In a subsequent written statement, he "wrote that he
originally lied about who had been the shooter and that he killed the
women because he was afraid that Higgs would kill him if he did not."
Id. There appears to have been no dispute in either trial that Haynes was,
indeed, the triggerman.
                        UNITED STATES v. HIGGS                          5
of a crime of violence, in connection with the abduction and murders
of the three young women. The cases were severed for trial. Haynes’s
trial began in August 2000. He was convicted of the charges, but the
jury was unable to reach a unanimous verdict as to the imposition of
the sentence of death. Consequently, the court imposed a sentence of
life imprisonment. We affirmed his convictions and sentences on
appeal. See United States v. Haynes, 26 Fed. Appx. 123, 2001 WL
1459702 (4th Cir. 2001), cert. denied, 535 U.S. 979 (2002). Higgs’s
trial began in September 2000. He was also convicted of the charges.
However, at the conclusion of the sentencing phase of his trial, the
jury imposed nine death sentences. His convictions and sentences
were also affirmed on appeal. See Higgs, 353 F.3d at 334.

   In the course of preparing his appeal to this court, Higgs’s counsel
reviewed the district court record from Haynes’s trial and discovered
that the government had identified two witnesses who had been incar-
cerated with Haynes at the Charles County Detention Center. Both
witnesses professed to have had conversations with Haynes about the
triple murders.

   The first inmate, Gerald Vaughn, was called to testify at Haynes’s
trial. Vaughn testified that, shortly after Haynes’s arrest in the fall of
1998, Haynes told Vaughn that he and his "cousin" were partners in
drug dealing and that the women were murdered because one of them
was holding "a quarter of a million dollars" of their drug money.2
S.J.A 144. Haynes also told Vaughn that he tricked the women into
getting into Higgs’s van that evening and that Haynes used a .38 cali-
ber weapon to kill them. See Haynes, 26 Fed. Appx. at 128.

   The second inmate was Kevin Anderson. Although the government
attorneys submitted under seal a copy of notes taken by them during
an interview with Anderson in May 2000, as well as an outline pre-
  2
   Although Haynes never named the specific identity of his "cousin,"
Haynes told Vaughn that his cousin was with him when the women were
murdered, that his cousin told Haynes they he "should have killed Vic
because Vic was weak," but that Haynes "didn’t want to do it because
Vic was his friend." Supp.J.A.II. 175. After Haynes "learned that Vic
was cooperating in his coke charge, as well as the murder charges, he
was . . . saying that he should have killed him." Supp.J.A.II. 175.
6                       UNITED STATES v. HIGGS
pared by the prosecutors in anticipation of questioning Anderson at
Haynes’s trial, Anderson was never called to testify during Haynes’s
trial and it appears that no further effort was made by Haynes’s coun-
sel to obtain copies of those notes or a Brady ruling regarding them.
According to the notes, Anderson told the prosecutors that, while he
and Haynes were incarcerated together, he witnessed a confrontation
between Haynes and another inmate over the use of a telephone. In
response to the inmate’s comment that "you think [you’re] big stuff
because you killed [three] women," Haynes replied that "I’ll kill who-
ever the f--- I want to kill." Supp.J.A.I. 124. Anderson also said that
Haynes later told him that "one of the girls may have set him up" and
he "had to kill her." Supp.J.A.I. 125.

   Upon learning of these statements, Higgs moved for a new trial and
new sentencing hearing pursuant to Brady v. Maryland, 373 U.S. 83
(1963), and Rule 33 of the Federal Rules of Criminal Procedure.
Higgs asserted that the government’s failure to identify Anderson as
a potential witness and to provide Higgs with a copy of the Anderson
interview notes violated his due process rights because Anderson’s
testimony would have been persuasive evidence that Haynes had his
own motive for killing the women and was "equally culpable" with
Higgs for the murders.

   The district court denied the motion, finding that Anderson’s state-
ments would have been neither exculpatory nor of impeachment value
in the guilt phase of Higgs’s trial. With regard to the sentencing phase
of Higgs’s trial, the district court found no reasonable probability that
a juror would have found that Haynes was "equally culpable" with
Higgs and that this mitigating factor, combined with the others, out-
weighed the aggravating factors so as to result in the imposition of a
sentence of life imprisonment instead of death. We review the district
court’s denial of a motion for a new trial for an abuse of discretion.
See United States v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001), cert.
denied, 535 U.S. 990 (2002).

                                   II.

   In Brady v. Maryland, the Supreme Court held that the prosecu-
tion’s failure to disclose favorable evidence to an accused "violates
due process where the evidence is material either to guilt or to punish-
                        UNITED STATES v. HIGGS                        7
ment, irrespective of the good faith or bad faith of the prosecution."
373 U.S. at 87. In order to establish that the government’s failure to
turn over evidence constitutes a Brady violation, the defendant must
demonstrate (1) that the undisclosed evidence was favorable, either
because it was exculpatory or impeaching; (2) that the prosecution
had the materials and failed to disclose them, either willfully or inad-
vertently; and (3) that the evidence was material to the defense. See
Strickler v. Greene, 527 U.S. 263, 280-81 (1999); Moore v. Illinois,
408 U.S. 786, 794-95 (1972). Evidence is "material" for purposes of
the Brady inquiry "only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceed-
ing would have been different." United States v. Bagley, 473 U.S.
667, 682 (1985). A "‘reasonable probability’ is a probability sufficient
to undermine confidence in the outcome." Id. Thus, although "the
term ‘Brady violation’ is sometimes used to refer to any breach of the
broad obligation to disclose exculpatory [or impeachment] evidence
— that is, to any suppression of so-called ‘Brady material’ — . . .
strictly speaking, there is never a real ‘Brady violation’ unless the
nondisclosure was so serious that there is a reasonable probability that
the suppressed evidence would have produced a different verdict."
Strickler, 527 U.S. at 281.

                                  A.

   We begin with Higgs’s claim that he is entitled to a new trial as to
his guilt on the kidnapping, murder, and related charges. Like the dis-
trict court, we have little difficulty rejecting this claim.

   First, Haynes’s statement that "I’ll kill whoever the f--- I want to
kill," made in the heat of a confrontation with another inmate, pro-
vides no information as to any specific motive on the part of Haynes
in the murders and no information at all regarding Higgs’s involve-
ment in the murders. Haynes’s later statement that "one of the girls
may have set him up" and he "had to kill her" also does not serve to
exculpate Higgs from involvement in the crime. The statements to
Anderson do not indicate that Haynes acted alone or that Higgs was
not involved. At most, it might be viewed as evidence that Haynes
and Higgs had a joint motive to kill the women, but even that premise
is not inconsistent with the theory that Higgs was involved in decid-
ing to kill the women and carrying out that decision, perhaps to retali-
8                       UNITED STATES v. HIGGS
ate against Jackson for an earlier action or the threat she made "to get
you all f--ked up or robbed." J.A. 473 (emphasis added).

   Despite Higgs’s claims to the contrary, Haynes’s statement also
had no impeachment value during the testimony of Victor Gloria or
Ednisia Darby. With regard to Gloria, Haynes’s statement to Ander-
son cannot be characterized as impeachment evidence because it does
not contradict Gloria’s account of the events that evening. Indeed,
Higgs does not contend that it has direct impeachment value, assert-
ing instead that it would only have allowed him to cast a "different
light" upon Gloria’s testimony by arguing that the whispered conver-
sation between Haynes and Higgs in the front seat of the van was
Haynes telling Higgs that Haynes intended to kill the women instead
of Higgs directing Haynes to kill them. With regard to Darby, the
statement also carried no impeachment value. Darby testified that
Higgs admitted to her that he was involved in the murders and that
Jackson was "snitching" on someone. Supp.J.A.I. 293. Again, Higgs’s
statement to Darby is not contradicted by Haynes’s statement to
Anderson.

  Finally, even if we were to assume that Higgs could have intro-
duced Haynes’s statements to Anderson and used them in some favor-
able way during the guilt phase of his trial, Higgs has not established
a due process violation because he cannot establish the materiality
component of the Brady inquiry.

   According to the uncontroverted evidence, Higgs and Jackson got
into a heated argument that evening, which Haynes broke up. As he
watched the women leave, Higgs believed Jackson was writing down
his vehicle information. He retrieved the murder weapon, and told the
other two men to come with him. After the men enticed the women
to enter Higgs’s van (most likely under the pretense of taking them
home), Higgs drove the group into the deserted Patuxent National
Wildlife Refuge where he gave the murder weapon to Haynes.
Although primarily related by Gloria’s eyewitness testimony, the
events that evening and Higgs’s involvement in them are corroborated
in a number of ways. Jackson’s day planner, which was found at the
murder scene, contained Higgs’s name and telephone numbers, as
well as a notation of his address and vehicle license tag number. The
next evening, before the names of the victims were released, Higgs
                        UNITED STATES v. HIGGS                         9
commented in response to a television account of the murders that he
knew "that Tanji girl." J.A. 672. Darby testified that Higgs confessed
his involvement in the murders to her, told her that the women were
killed because Jackson was "snitching" on one of them, and told her
that the other two were "just for his friends." Supp.J.A.I. 293.3

   In sum, the evidence of Higgs’s guilt in the kidnappings and mur-
ders was overwhelming, and the evidence is not contradicted by
Haynes’s statement to Anderson. We are satisfied that there is no rea-
sonable probability that the jury would not have convicted Higgs of
the kidnappings and murders had they been aware of the undisclosed
statements made by Haynes to Anderson. Therefore, we conclude that
the district court properly denied Higgs’s motion for a new trial on
the issue of his guilt.

                                   B.

   Higgs next asserts that he is entitled to a new sentencing hearing
because Haynes’s statement to Anderson would have given him an
additional basis upon which to argue that Haynes was "equally culpa-
ble" with Higgs in the kidnappings and murders, but only received a
sentence of life imprisonment. See 18 U.S.C.A. § 3592(a)(4) (West
2000) (providing, as a statutory mitigating factor, that "[a]nother
defendant or defendants, equally culpable in the crime, will not be
punished by death").

   During the sentencing phase of Higgs’s trial, the jury found that the
government had proven a total of six aggravating factors: (1) that the
deaths occurred during the commission of another crime (kidnap-
ping); (2) that Higgs had a previous conviction of a violent felony
involving a firearm; (3) that Higgs had a previous conviction for a
serious federal drug offense; (4) that the crimes for which he was on
trial involved multiple killings in a single criminal episode; (5) victim
impact; and (6) obstruction of justice. Some members of the jury also
found the existence of three mitigating factors: (1) that Higgs was not
  3
   We also note that, had Haynes’s confessions concerning the murders
that night been admitted in addition to his statements to Anderson, the
jury would have learned that Haynes’s version of the events also corrob-
orated Gloria’s version of the events and Higgs’s involvement in them.
10                      UNITED STATES v. HIGGS
the sole proximate cause of the victims’ deaths (12 jurors); (2) that
Higgs was impaired by alcohol and marijuana at the time of the mur-
ders (2 jurors); and (3) that a sentence of death would have an adverse
impact on Higgs’s minor son (4 jurors). Although submitted as an
additional mitigating factor for consideration, no juror found the exis-
tence of the "equally culpable" mitigator. After weighing the aggra-
vating factors against any mitigating factors individually found to
exist, the jury unanimously found that the aggravating factors out-
weighed the mitigating factors and imposed a sentence of death.

   Higgs contends that Haynes’s statements to Anderson that "one of
the girls may have set him up" and that he "had to kill her" were of
exculpatory value for purposes of the mitigation case and that, had the
jurors known about them, it is reasonably probable that at least one
juror would have voted against imposition of the penalty of death. We
disagree. Even if we assume that the statements were favorable to
Higgs for purposes of the mitigation case, Higgs has not demonstrated
the requisite materiality to establish a Brady violation.

   In order to establish the materiality of Haynes’s statements to
Anderson, Higgs was required to demonstrate a reasonable probabil-
ity that the disclosure of the statements would have produced a differ-
ent outcome in Higgs’s sentencing hearing. In this case, the six
aggravating factors found by the jury were largely undisputed as a
factual matter and wholly unaffected by Haynes’s alleged statements
to Anderson. The statements also have no bearing upon any mitigat-
ing factor submitted to the jury, with the single exception of the
"equally culpable" factor. Thus, to establish materiality, Higgs was
required to demonstrate a reasonable probability that the evidence
would have persuaded a juror to reach the conclusion that Haynes was
"equally culpable" to Higgs in the murders, and that this mitigating
factor, combined with the others, would have tipped the balance and
led the juror to also conclude that the mitigating factors outweighed
the aggravating factors so as to foreclose the sentence of death. "The
mere possibility that an item of undisclosed information might have
helped the defense, or might have affected the outcome of the trial,
does not establish ‘materiality’ in the constitutional sense." United
States v. Agurs, 427 U.S. 97, 109-10 (1976). "Rather, the question is
whether the favorable evidence could reasonably be taken to put the
                        UNITED STATES v. HIGGS                       11
whole case in such a different light as to undermine confidence in the
verdict." Strickler, 523 U.S. at 290 (internal quotation marks omitted).

   As discussed above, the evidence of Higgs’s involvement in the
pursuit, kidnapping, and murders of the three women is overwhelm-
ing, as is the evidence of his predominant role in the events that took
place that evening and early morning. Gloria’s testimony, corrobo-
rated by Darby’s testimony, evidence found at the scene, and other
physical evidence, confirms that it was Higgs who set up the "dates"
with the girls, Higgs who got into the violent argument with Jackson,
Higgs who observed Jackson writing down his license plate number,
Higgs who retrieved the .38 caliber murder weapon (which he owned)
and told the other two men to come along, Higgs who told Haynes
to "trick" the women into getting into the van, Higgs who drove the
van past the route back to their homes and into the Patuxent National
Wildlife Refuge, Higgs who handed the murder weapon to Haynes
moments before Haynes shot and killed the women, and Higgs who
orchestrated the destruction of the physical evidence at his apartment
after the murders.

   Haynes’s confession, given in the hours immediately after his
arrest, corroborates the evidence presented at Higgs’s trial, although
his "reasons" for actually shooting the women varied when he later
talked to his co-inmates. In his confession, Haynes said that the
women were killed because he thought Higgs would kill him if he did
not do as he was told. He told co-inmate Vaughn that he killed the
women because one of them owed him and his cousin "a quarter of
a million dollars." And, he told Anderson that he had to kill the girls
because one of them "may have set him up." In this light, we can dis-
cern no reasonable probability that any juror would have viewed the
single statement Haynes made to Anderson as sufficient to overcome
the overwhelming evidence of Higgs’s predominant role in the crimes
and concluded that Haynes was "equally culpable" with Higgs in the
kidnappings and murders.

   In any event, we think Haynes’s statement to Anderson might have
been viewed (at most) as evidence that Haynes may have thought (or
been told by Higgs) that Jackson intended to retaliate against "all" of
the men and, therefore, that he shared a motive to kill the women with
Higgs. However, there is nothing in Haynes’s statements to Anderson
12                      UNITED STATES v. HIGGS
that contradicts the overwhelming evidence of Higgs’s predominant
role in the kidnappings and murders or the government’s argument
that Higgs was more culpable than Haynes.

   Because we are satisfied that the evidence set forth at Higgs’s trial
provides "strong support for the conclusion that [Higgs] would have
been convicted of capital murder and sentenced to death, even if"
Haynes’s statement to Anderson had been introduced into evidence,
Strickler, 527 U.S. at 294, we affirm the district court’s denial of
Higgs’s motion for a new sentencing hearing.

                                  III.

  For the foregoing reasons, we affirm the district court’s denial of
Higgs’s motion for a new trial and new sentencing hearing.

                                                           AFFIRMED
