                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 06-4844



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JUNE RACHEL GARCIA,

                Defendant - Appellant.



                             No. 06-4845



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

TRAVIS HOWARD VIAR,

                Defendant - Appellant.



Appeals from the United States District Court for the Western
District of Virginia, at Lynchburg.  Norman K. Moon, District
Judge. (6:05-cr-00006-NKM)


Argued:   January 30, 2008                 Decided:   March 26, 2008


Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.


ARGUED: Deborah S. Caldwell-Bono, Roanoke, Virginia; Marc Seguinot,
SEGUINOT & ASSOCIATES, P.C., McLean, Virginia, for Appellants.
Jean Barrett Hudson, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for
Appellee.   ON BRIEF: John L. Brownlee, United States Attorney,
Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

              A jury convicted June Garcia (Garcia) and Travis Viar

(Viar)   of    conspiracy     to     distribute   more   than   500   grams   of

methamphetamine (meth).            Both appeal their convictions, and, in

addition, Viar appeals his sentence.          Garcia contends that her due

process rights were violated by (1) the FBI’s failure to record her

post-arrest interview that, she alleges, contained exculpatory

evidence and (2) the government’s failure to disclose impeachment

material involving one of its witnesses.           Because Garcia failed to

present evidence of bad faith on the part of the FBI or its agents

with respect to the agency’s general policy of not recording

interviews, and because the impeachment evidence became available

in time for effective use at trial, we affirm her conviction.              Viar

contends that (1) the evidence was insufficient to convict him, (2)

the district court erred in admitting two in-court identifications

of him by government witnesses, and (3) the district court erred in

sentencing by applying a two-level enhancement after finding that

he had committed perjury at trial.                Because we conclude that

substantial evidence supported the jury’s guilty verdict against

Viar, and there was no reversible error in the district court’s

admission     of    his   in-court    identifications,    we    affirm   Viar’s

conviction.        We also affirm Viar’s sentence because the court did

not err in applying the enhancement for perjury.




                                         3
                                     I.

          In the fall of 2004 the FBI and the Central Virginia Drug

Task Force determined that Ciro “Cito” Garcia (Cito) served as the

common link in a loosely woven meth distribution operation in

central Virginia.       Jerry Harper contacted the task force and

offered to serve as a confidential informant with respect to Cito’s

activities, purportedly because Cito had refused Harper’s request

that Cito stop supplying Harper’s parents with meth.                As Harper

organized a series of controlled buys from Cito, investigators

developed evidence that Cito and Viar were drug dealers, that

Garcia (Cito’s wife) drove Cito to drug deals and was present

during several, that Mark Guill facilitated drug deals for Cito and

Viar, and that Randy Ellington, Michael Cerillo, George Barbour,

Paul Jano, and Charles Ragland (Jerry Harper’s father) were some of

Cito’s customers.

          On    June   2,   2005,    a    federal   grand   jury   returned   a

superceding indictment charging offenses relating to this drug

trafficking    operation.     Count       1   charged   Cito,   Garcia,   Viar,

Barbour, Ellington, Cerillo, Anthony Jamerson, and Guill with

conspiring to distribute more than 500 grams of meth.                 Count 2

charged Viar with knowingly using and carrying a firearm during and

in relation to, and possessing a firearm in furtherance of, the

crime described in count 1.         Count 6 charged Cito and Garcia with

distribution of at least 50 grams of meth on a particular date.


                                         4
Garcia and Viar proceeded to trial, and other charged conspirators

entered plea agreements.

             Trial began on March 20, 2006.   The government offered

the following evidence against Viar.   Scott Gillespie, James Cash,

Jano, and Cerillo all testified that they repeatedly bought meth

from Viar.    Jano, Cash, Cerillo, Guill, and Ellington testified as

follows with further particulars about Viar’s drug trafficking.

Jano saw Viar sell meth to other customers, and Jano met Viar’s

supplier, a man known as Cito.   According to Cash, Viar identified

Cito as his supplier.      Cerillo saw Cito at Viar’s house on two

occasions and understood Cito to be Viar’s supplier.      Guill saw

Viar sell meth, and he introduced potential drug customers to Viar

and Cito.     Ellington bought meth from Cito, but he did not know

Viar.   Viar testified in his defense and denied that he had ever

bought drugs from Cito and denied that he had ever engaged in a

drug transaction with any of the witnesses who testified against

him.

             The government offered the following evidence against

Garcia through the testimony of Guill, Ragland, Harper, and Jano.

On two occasions Garcia sold meth that she had stolen from Cito to

Guill or his girlfriend, purportedly to fund a buying trip to Wal-

Mart.   Ragland was present on multiple occasions when Garcia

participated in conversations about Cito’s drug business.      Once,

when Cito was in jail for a DUI, Garcia, under instructions from


                                  5
Cito, called Ragland and gave him seven or eight ounces of meth

“[t]o get rid of.”   J.A. 224.   Garcia instructed Harper to use code

phrases when he called about a drug purchase.      On some occasions

when Jano bought meth from Cito, the transactions took place in

Cito’s truck in front of Garcia, who had accompanied Cito.

          Three government witnesses gave testimony that minimized

Garcia’s involvement in Cito’s drug trafficking. Cerillo testified

that Garcia was also present the two times he saw Cito at Viar’s

home; on these occasions Viar sold drugs, but Garcia did not

witness the sales.   Ellington disputed Guill’s account that Garcia

was present when Ellington purchased meth from Cito.    According to

Harper, during one of the controlled buys from Cito, Cito conducted

the transaction in the bathroom of Harper’s apartment, outside of

Garcia’s presence; Harper also testified that Cito refused to

discuss future sales within earshot of Garcia.      In testifying in

her own behalf, Garcia said that her relationship with her husband

Cito had often been troubled; that she objected to his drug use;

that she believed she had told investigators that he was a user and

not a dealer; and that she was not present for any of the drug

deals described by the government’s witnesses. One defense witness

testified that Guill was dishonest, and another testified that Jano

was known to be a liar.

          On the last day of the trial, March 22, 2006, the

district court granted Garcia’s motion to dismiss count 6 (the meth


                                   6
distribution charge).        That same day the jury convicted Viar and

Garcia on count 1 (the drug conspiracy charge) and found Viar not

guilty on count 2 (the firearm charge).

            Four months later, on July 28, 2006, Garcia moved to

vacate her conviction, arguing that she was denied a fair trial (1)

because the FBI did not tape her interview after she was arrested

and   (2)    because   the   government    had    violated    its   discovery

obligations in failing to provide impeachment material in its

possession    concerning     its   witness,    Harper.    Harper    had   been

convicted, based on his guilty plea, in Amherst County, Virginia,

of possessing marijuana with intent to distribute and theft of

government    property     worth   $200   or   more.     At   Harper’s    plea

proceeding in state court the following information was revealed:

Harper, while working as an informant with state law enforcement

officers, had lied to the officers about a (potential) controlled

purchase of marijuana and had stolen the purchase money that had

been advanced by the officers.

            Garcia’s counsel discovered the details of Harper’s state

crime on Tuesday, March 21, 2006, a day in the middle of the

Garcia-Viar trial when court was cancelled because of bad weather.

Garcia’s counsel made the discovery when she went to the Amherst

County courthouse and listened to a recording of Harper’s plea

proceeding.     Harper testified for the government the next day,

March 22, 2006, in the Garcia-Viar trial.          The government admitted


                                      7
its failure to disclose, but argued that because defense counsel

had listened to the recording of the plea proceeding before Harper

testified, the information was available to impeach Harper.      In

denying the motion to vacate Garcia’s conviction, the district

court ruled that her case had not been prejudiced by the late

discovery.   The court noted that although defense counsel had the

information prior to Harper’s testimony, counsel had elected not to

use the information in cross-examination and did not ask for a

continuance to assess the information.

            The presentence reports for Garcia and Viar recommended

adding a two-level enhancement to each defendant’s offense level

for obstruction of justice, based upon the perjurious testimony

given by each at trial.   See U.S.S.G. § 3C1.1.   The district court

found that both Garcia and Viar committed perjury and applied the

enhancement for both.   The court sentenced Garcia to 120 months in

prison and five years of supervised release, and Viar to 262 months

in prison and five years of supervised release.        Both appeal.

Garcia challenges her conviction on the grounds that her due

process rights were violated by (1) the FBI’s failure to tape her

post-arrest interview, and (2) the government’s failure to disclose

impeachment evidence about Harper.     Garcia does not appeal her

sentence.    Viar challenges his conviction on the grounds that (1)

the evidence was insufficient to support his conviction on the drug

conspiracy charge, and (2) the district court erred in admitting


                                  8
his in-court identification by government witnesses Gillespie and

Jano. Viar also appeals his sentence, contending that the district

court erred in applying the perjury enhancement.



                                 II.

                                  A.

          Garcia contends that the FBI’s decision not to tape her

post-arrest   interview   constituted    a   bad   faith   destruction   of

exculpatory evidence, the value of which was apparent before the

destruction. She argues that without an audio recording preserving

“the questions posed, the answers given, the tones of voice[] used,

[and her] demeanor,” she was denied due process and a meaningful

opportunity to present a complete defense.         Appellants’ Br. at 26.

According to the two FBI agents who interviewed Garcia, it is FBI

policy not to record interviews.

          The decision not to record an interview amounts to the

failure to preserve evidence that might have been useful, rather

than the destruction of evidence.       “[U]nless a criminal defendant

can show bad faith on the part of the police, failure to preserve

potentially useful evidence does not constitute a denial of due

process” or the opportunity to present a complete defense. Arizona

v. Youngblood, 488 U.S. 51, 58 (1988).              Garcia presented no

evidence of bad faith on the part of the FBI in adopting the non-




                                   9
recording policy or on the part of its two agents in following it.

This claim is without merit.

                                           B.

            Garcia also argues that although her counsel discovered,

the day before Harper’s testimony, his plea recording with the

information about his theft of government “buy” money and his lies

to investigators, there was insufficient time to make effective use

of the information at trial. According to Garcia, the government’s

failure to disclose this critical impeachment evidence violated her

due process rights.          The government admits its error, but argues

that because Garcia’s counsel had the information before Harper

testified, the failure to disclose does not undermine confidence in

the outcome of the trial.

            The suppression by the prosecution of evidence material

to the credibility of a prosecution witness violates due process.

See Brady v. Maryland, 373 U.S. 83, 87 (1963).                   To establish a

Brady   violation,     a     defendant     must   show   that   the    undisclosed

information was material and favorable to the defense.                      Moore v.

Illinois, 408 U.S. 786, 794-95 (1972).               Evidence is material if

there is a reasonable probability that its disclosure would have

produced a different result, that is, “a probability sufficient to

undermine confidence in the outcome” of the trial.                United States

v.   Bagley,    473   U.S.    667,   682    (1985)   (quotation       and   citation

omitted).      We have held that there is no constitutional violation


                                           10
in the government’s failure to disclose impeachment evidence when

defense counsel is aware of the evidence in time to make effective

use of it at trial.       United States v. Smith Grading & Paving, Inc.,

760 F.2d 527, 532 & n.6 (4th Cir. 1985).

            As Garcia points out, the government presented Harper as

a concerned son who became a confidential informant because of the

harm that Cito was causing to his parents by supplying them with

meth.      Garcia     argues   that   had     the   impeachment     material    been

disclosed at the appropriate time, her counsel could have painted

Harper as a thoroughly deceitful person who had every motivation to

lie because his unindicted father (Ragland), a major mover of meth,

owed a substantial debt to Cito, his supplier.                  Harper, in other

words, was trying to head off federal prosecution of his father and

was     trying   to    bring   about     Cito’s       conviction,     which    would

effectively prevent Cito from attempting to collect the substantial

drug debt owed to him by Harper’s father.                  Harper, however, was

not the only witness who testified that Garcia was actively engaged

in the drug trade:       Jano testified that Garcia accompanied Cito to

drug sales and was present during sales; Guill testified that

Garcia    sold   him    meth   that    she    stole    from   Cito;   and     Ragland

(Harper’s father) testified that Garcia been involved in                        many

conversations about Cito’s drug business and had asked Ragland to

dispose of a quantity of meth when Cito was in jail.                        Further,

Ragland’s own testimony revealed his addiction and debt, and the


                                         11
defense knew that he had not been charged with participation in the

conspiracy.       Thus, an argument about a father-son plot to evade

federal prosecution and a drug debt was readily available to the

defense     without      the   information    revealed    at     Harper’s    plea

proceeding.

            Ironically, Harper’s testimony was favorable to Garcia in

some respects.      Harper testified that Cito took him to a different

room, away from Garcia, to conduct a drug sale and that Cito

refused to discuss future sales within earshot of Garcia.                    This

testimony supported Garcia’s contention that she was not involved

in Cito’s drug business.

            Furthermore, Garcia’s counsel uncovered the details of

Harper’s plea proceedings the day before Harper testified.                        The

plea proceedings were neither protracted nor complicated and could

have been used to impeach Harper when he testified.              If one evening

provided insufficient time for Garcia’s counsel to determine how

best   to   use    the    information,      she   could   have    moved     for    a

continuance.      No such motion was made.        In these circumstances, it

appears that the information was available in time for it to be

used effectively.

            In sum, Garcia has failed to demonstrate a reasonable

probability that the outcome of her trial would have been different

if the government had made timely disclosure of Harper’s plea

proceedings.      Garcia’s counsel uncovered the information just in


                                       12
time to save the government from what would have been a material

failure to disclose impeachment material.



                                    III.

                                     A.

            Viar contends that the evidence was insufficient for the

jury to convict him of conspiracy to possess meth with intent to

distribute as charged in count 1.         The jury’s guilty verdict “must

be sustained if there is substantial evidence, taking the view most

favorable to the Government, to support it.”            Glasser v. United

States, 315 U.S. 60, 80 (1942).           To prove the conspiracy charge

against Viar, the government was required to establish that (1) an

agreement existed between two or more persons to possess meth with

intent to distribute, (2) Viar knew of the conspiracy, and (3) he

knowingly and voluntarily became a part of the conspiracy.           United

States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc).

            Viar contends that the only evidence of his involvement

with the charged conspiracy “rested largely” upon the testimony of

cooperating government witnesses, some of whom were co-conspirators

and   all   of   whom   either   benefitted    or   hoped   to   benefit   by

cooperating.     The jury was made aware that these witnesses had

committed drug offenses themselves and that they stood to gain by

cooperating with the government.          The bearing of these factors on

the credibility of the witnesses was for the jury to determine,


                                     13
Burgos, 94 F.3d at 862, and the jury found them to be sufficiently

credible to return a guilty verdict against Viar on the conspiracy

count.    As a result, there was substantial evidence that Viar was

a distributor of meth and that Cito was his supplier; that Viar

sold substantial quantities of meth to certain customers; and that

these customers, in turn, sold the meth to others.                  The evidence

thus established that Viar knowingly participated in a conspiracy

to possess meth with the intent to distribute.

                                         B.

               Viar also contends that the district court erred in

admitting the in-court identifications of him by Gillespie and

Jano.     According to Viar, the prosecutor impermissibly coached

these    two    witnesses   in   their   efforts     to   locate    Viar   in   the

courtroom. Because Viar failed to make a contemporaneous objection

to the admission of this identification testimony, our review is

for plain error.         We may correct an error not brought to the

attention of the trial court if (1) there is an error (2) that is

plain and (3) that affects substantial rights.               “If all three [of

these] conditions are met, [we] may then exercise [our] discretion

to notice a forfeited error, but only if (4) the error seriously

affect[s] the fairness, integrity or public reputation of judicial

proceedings.”       Johnson v. United States, 520 U.S. 461, 467 (1997)

(quoting       United   States   v.   Olano,   507    U.S.   725,    732   (1993)

(quotations omitted; last alteration in original)).


                                         14
               When Gillespie and Jano were testifying, the prosecutor

asked each of them to identify Viar.                Viar claims that in response

both witnesses pointed at someone other than Viar.                        The prosecutor

then asked each witness if he was pointing at the person (Viar)

sitting next to Mr. Howard (Viar’s lawyer), and each responded in

the affirmative.             To begin with, the jury would have observed

whether Gillespie and Jano had any difficulty in identifying Viar

at trial.           Thus, the circumstances of the identification were

available to the jury for its consideration in assessing the

credibility of these two witnesses and in weighing the evidence.

Even   if      we   assume    plain     error    (that   is,   the    identifications

resulted from impermissible suggestions by the prosecutor), the

error did not affect Viar’s substantial rights.                           At least four

other government witnesses identified Viar, and Viar does not

challenge their in-court identification of him. As a result, there

is   no    ground     for     us   to   correct    any    error      in    the   in-court

identification of Viar by Gillespie and Jano.

                                            C.

               Finally, Viar contends that the district court erred

when      it   enhanced      his   sentence       for    obstruction       of    justice,

specifically for perjury in his trial testimony.                           According to

Viar, the court applied the enhancement without finding each

element of perjury.            Section 3C1.1 of the sentencing guidelines

provides for a two-step increase in offense level “[i]f . . . the


                                            15
defendant willfully obstructed or impeded, or attempted to obstruct

or impede, the administration of justice with respect to the

investigation, prosecution, or sentencing of the instant offense.”

Perjury counts as obstruction of justice.    U.S.S.G. § 3C1.1 cmt.

n.4(b) (2008).   A defendant commits perjury “if [he] gives false

testimony concerning a material matter with the willful intent to

provide false testimony, rather than as a result of confusion,

mistake, or faulty memory.”   United States v. Dunnigan, 507 U.S.

87, 94 (1993).    A perjury enhancement must be upheld if the

district court “makes a finding of an obstruction of, or impediment

to, justice that encompasses all of the factual predicates for a

finding of perjury.”   Id. at 95.

          Viar’s presentence report recommended that he be given a

perjury enhancement based on his testimony that he had never dealt

in meth or bought it from Cito.      Viar’s testimony went to the

ultimate issue before the jury, this is, whether he conspired to

posses meth with intent to distribute.      In considering Viar’s

objection to the recommended enhancement, the district court noted

that it was required to find the elements of perjury in order to

impose the enhancement.   In conducting its evaluation, the court

determined that “the jury could not have reached the result it did

if [it] did not decide that the other[] [witnesses] were telling

the truth and he [Viar] was testifying falsely,” J.A. 462.     The

court thus found that “the evidence is pretty overwhelming that


                                16
[Viar]   testified   falsely   to   a   material   fact,   with   intent   to

deceive.”    J.A. 463.   Viar, of course, did not contend that his

testimony was affected by confusion, mistake, or faulty memory.

The district court’s findings, read in context, incorporated each

of the elements of perjury as required by Dunnigan.           There was no

error in the application of the perjury enhancement.

                                    * * *

            Garcia’s conviction is affirmed, and Viar’s conviction

and sentence are affirmed.

                                                                   AFFIRMED




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