                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4288


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

YAYAH TALIB,

                  Defendant – Appellant.



                               No. 08-4353


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

JOSE SANTIAGO,

                  Defendant – Appellant.



Appeals from the United States District Court for the Western
District of Virginia, at Big Stone Gap.   James P. Jones, Chief
District Judge. (2:07-cr-00003-jpj-1; 2:07-cr-00003-jpj-4)


Submitted:    September 28, 2009             Decided:   October 16, 2009


Before MOTZ and      SHEDD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.


Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia; Gregory M. Kallen, Big Stone Gap,
Virginia, for Appellants.      Julia C. Dudley, United States
Attorney,   Jennifer  R. Bockhorst,    Assistant United States
Attorney, Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            This appeal arises out of a multi-member conspiracy to

possess and distribute heroin in the United States Penitentiary

in Lee County, Virginia (“USP-Lee”).                   Defendants Yayah Talib and

Jose   Santiago    were    convicted     after         a   joint    jury      trial   for

conspiracy    to   distribute      heroin,        in    violation        of   21   U.S.C.

§§ 841(b)(1)(C),     846    (2006),      and      conspiracy        to    provide     and

possess contraband in prison, in violation of 18 U.S.C. § 371

(2006).     The court sentenced both Defendants to 262 months in

prison.     Defendants filed a consolidated appeal in which they

assert, either collectively or individually, that the district

court: (i) erred when it denied their motions for a new trial

and for judgments of acquittal; (ii) made erroneous evidentiary

holdings;    and   (iii)   erred    when     it    classified        them     as   career

offenders.    Finding no error, we affirm.



I.     Denial of    Motions   for    a   New      Trial     or     for    Judgments    of
       Acquittal

            This court reviews de novo the denial of a Fed. R.

Crim. P. 29 motion for judgment of acquittal, and reviews the

denial of a Fed. R. Crim. P. 33 motion for abuse of discretion.

United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005) (Rule

29 motion); United States v. Perry, 335 F.3d 316, 320 (4th Cir.

2003) (Rule 33 motion).             A district court may only grant a


                                         3
defendant’s motion for a new trial “if the interest of justice

so requires.”        Fed. R. Crim. P. 33(a).                       A district court is

required    to     “exercise      its    discretion           to   grant    a    new    trial

sparingly, and . . . should do so only when the evidence weighs

heavily against the verdict.”                 Perry, 335 F.3d at 320 (internal

quotation marks omitted).

            Talib asserts that the district court erred in denying

his Rule 33 motion based on the Government’s Giglio 1 violation.

Specifically, Talib asserts that he was unable to discredit a

co-conspirator’s       testimony        against         him   because      the   Government

failed to disclose the co-conspirator’s criminal history to him

prior to trial.           Santiago submits a similar claim.                        Although

Santiago acknowledges that the co-conspirator did not testify

regarding    Santiago’s          role   in        the    conspiracy, 2      he   summarily

asserts     on     appeal       that    the       Government’s       Giglio      violation

deprived     him     of     a    fair    trial          because     knowledge      of    the

co-conspirator’s criminal history “may have raised a doubt in




     1
       Giglio v. United States, 405 U.S. 150,                              153-55 (1972)
(requiring the Government to disclose evidence                             affecting the
credibility of prosecution witnesses).
     2
        Although the co-conspirator testified that he knew
Santiago, he offered no testimony regarding Santiago’s role in
the conspiracy.




                                              4
the   mind    of       the    jury    had    they       known          the    extent     of    [the

co-conspirator’s] criminal record.”

             It    is     well-established            that    the       Due    Process        Clause

requires     the       government     to    disclose         to    the       defense     prior     to

trial any exculpatory or impeaching evidence in its possession.

See Giglio, 405 U.S. at 153-55; Brady v. Maryland, 373 U.S. 83,

86-88 (1963) (requiring the disclosure of exculpatory evidence).

Due   process      is     violated,        however,         only       if    the     evidence      in

question:         (i)    is   favorable       to      the    defendant         because        it   is

either exculpatory or impeaching; (ii) was suppressed by the

Government; and (iii) is material.                           See Strickler v. Greene,

527 U.S. 263, 281-82 (1999).

             Undisclosed evidence is material when its cumulative

effect is such that “there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the

proceeding      would        have    been    different.”                Kyles      v.    Whitley,

514 U.S. 419, 433 (1995) (internal citations and quotation marks

omitted).          A     reasonable        probability            is    one     sufficient         to

“undermine      confidence”          in    the       outcome.           Id.     at      435   (“The

question is not whether the defendant would more likely than not

have received a different verdict with the evidence, but whether

in its absence he received a fair trial, understood as a trial

resulting in a verdict worthy of confidence.”                               Id. at 434.).



                                                 5
               Although       it   is    undisputed          that    the     Government          was

obligated       to     turn   over      the    co-conspirator’s            criminal        history

prior to trial, we find that the district court did not abuse

its discretion when it denied Defendants’ motions because the

criminal history was not material to their defenses.                                  The jury

was well aware that the co-conspirator was a convicted felon at

time     of    Defendants’         trial;       both    the        Government        and    Talib

questioned       the     co-conspirator         about        his    felon    status        at    the

trial;     the    jury    was      aware      that     the    co-conspirator          was       also

charged for conspiring to bring heroin into USP-Lee; and upon

cross-examination by Talib, the co-conspirator testified that he

had a prior felony conviction for aiding and abetting a bank

robbery.

               Moreover,        because         the     co-conspirator’s              testimony

merely confirmed another witness’s testimony about Talib’s role

in   the      conspiracy,       and     since    there       was    ample       evidence        that

Santiago and Talib engaged in a conspiracy to distribute heroin

inside USP-Lee regardless of the co-conspirator’s testimony, we

find   that      the    jury’s     guilty       verdict       is    worthy      of   confidence

despite the Government’s Giglio violation.

               Talib also asserts that he was denied a fair trial

when the district court denied his Rule 29 motion.                               Talib argues

that because the drug evidence against him was destroyed prior

to   trial,      and    because       the     Government      failed       to    disclose        the

                                                6
destruction until just prior to trial, the Government prevented

Talib from opposing the physical evidence against him.                           We find

that the district court did not err when it denied Talib’s Rule

29 motion.

                To establish that the Government violated its Brady

obligations when it failed to inform Talib about the evidence

destruction, Talib was required to establish that the Government

was aware that the evidence was destroyed.                        See United States v.

Stokes, 261 F.3d 496, 502 (4th Cir. 2001) (noting that to prove

a Brady violation, the defendant must show that “the prosecution

had    the      materials      and    failed       to    disclose    them”)     (internal

quotation mark omitted).                The evidence at trial established,

however,        that   the     local    police          department    that     maintained

physical        custody   of    the    heroin      mistakenly       believed    that   the

federal cases had concluded, and that the police did not inform

federal authorities that the evidence had been destroyed until

just before Defendants’ trial.                 It was also established that as

soon       as    the   Government       confirmed          that     the   evidence     was

destroyed, the Government faxed a letter to Santiago’s counsel

and Talib’s stand-by counsel 3 and, because Talib was housed in

       3
       Although Talib was initially represented by counsel, the
district court granted Talib’s pro se motion for removal of
counsel and allowed Talib to proceed pro se. The district court
nonetheless ordered stand-by counsel to assist Talib in his
defense.


                                               7
the special housing unit at USP-Lee, the Government requested

that counsel inform Talib of the situation when they met with

him at the prison later that day.                   Talib does not assert that he

was not informed as to the destruction of the heroin promptly

after   the       Government      provided         such   notice      to    his     stand-by

counsel.

             Moreover, Talib cannot establish that the evidence was

material.         Although Talib asserts that the Government’s late

notification        about       the     destruction         deprived        him        of     an

opportunity to conduct his own testing, more than eight months

passed between the time he was indicted and his jury trial and

no request for access to the physical evidence was ever made.

Nor does Talib explain why he believes that the lab analysis

results should be questioned.

             In     any    event,      the   Government’s        failure          to   ensure

preservation       of     the   physical     evidence      in    this      case    does     not

automatically constitute a due process violation.                            Rather, when

law enforcement officers fail “to preserve evidentiary material

of   which    no    more    can   be    said       than   that   it   could       have      been

subjected to tests, the results of which might have exonerated

the defendant,” a defendant must show bad faith on the part of

law enforcement officers to establish a denial of constitutional

due process.       Arizona v. Youngblood, 488 U.S. 51, 57 (1988).



                                               8
                Talib failed to show that the evidence was destroyed

in bad faith.          To the contrary, trial testimony established that

the    state      officer    who    ordered      the    evidence    to     be    destroyed

believed        that   the   case    was   concluded       and    the     officer    never

contacted federal authorities to determine if the evidence was

still needed.          In the absence of bad faith on the part of law

enforcement, the destruction of the physical evidence did not

amount      to    a    violation    of     Talib’s      due     process    rights     and,

accordingly, Talib was not entitled to a judgment of acquittal

because of the destruction. 4

                Defendants both assert that the charges against them

were multiplicitous and, thus, that their convictions on both

counts violated the Double Jeopardy Clause.                        While it is true

that       an    indictment    charging       a    single       offense     in     several

different counts is multiplicitous and subjects a defendant to a

risk of multiple sentences for a single offense in violation of

the    Double      Jeopardy    Clause,       see       United    States    v.     Goodine,

400 F.3d 202, 207 (4th Cir. 2005), a defendant may be convicted


       4
       Although Santiago also asserts on appeal that the evidence
should not have been admitted because “bad faith is implicit in
the destruction of evidence where the police know that there
were charges pending and did not have good cause to destroy the
evidence,” Santiago cites no authority for these propositions.
Moreover, we find his assertion that police were aware of the
pending status of the federal charges to be belied by the
record.



                                             9
of separate offenses arising from a single act if each charge

requires   proof     of   a   fact   that     the    other     does    not.        See

Blockburger   v.     United     States,      284     U.S.    299,     304     (1932);

Manokey v. Waters, 390 F.3d 767, 771-73 (4th Cir. 2004).

           We find that Defendants’ convictions for conspiracy to

distribute heroin, in violation of 21 U.S.C. §§ 841(b)(1)(C),

846, and conspiracy to defraud the United States or commit any

offense against the United States (i.e., provide and possess

contraband in prison), in violation of 18 U.S.C. § 371, although

both stemming from the same events, were not the same offense

for double jeopardy purposes.              See Albernaz v. United States,

450 U.S.   333,    344    n.3    (1981)      (recognizing       that     a    single

conspiracy “can give rise to distinct offenses under separate

statutes   without    violating      the    Double    Jeopardy      Clause”);      see

also United States v. Holloway, 128 F.3d 1254, 1257-58 (8th Cir.

1997)   (holding   that   convictions       under     §§ 846    and    371    do   not

offend the Double Jeopardy Clause).                  Accordingly, we conclude

that the district court did not err in denying Defendants’ Rule

29 and Rule 33 motions based on multiplicity or double jeopardy

grounds.



II.   Limitation of Talib’s Character Witnesses

           Talib also asserts that the district court erred when

it limited his character witnesses at trial to two out of the

                                       10
five witnesses he sought to present, and that the district court

violated his right to a fair trial when it prevented two other

witnesses      from     testifying           by    suggesting        that          they    refuse    to

testify     on      his         behalf.            Although         a     defendant           has     a

constitutional         right      to      present      evidence          in     his       favor,    see

United States v. Moussaoui, 382 F.3d 453, 471 (4th Cir. 2004),

“a    defendant’s       right        to   present         a    defense        is    not    absolute:

criminal defendants do not have a right to present evidence that

the    district       court,      in      its     discretion,           deems       irrelevant       or

immaterial.”          United States v. Prince-Oyibo, 320 F.3d 494, 501

(4th    Cir.    2003).          We    review       a   district         court’s       decision       to

exclude evidence for an abuse of discretion.                                  See United States

v. Fulks, 454 F.3d 410, 434 (4th Cir. 2006).

               We   find    that       the      district       court      did       not    abuse    its

discretion       when      it    limited          Talib       to   only    two       of    the     five

character witnesses he wished to present.                                 When questioned by

the district court, Talib confirmed that all five witnesses --

who were all inmates at USP-Lee -- would similarly testify that

Talib    did    not     engage       in    criminal           activity        in    prison.         The

district court also discovered that one of the inmates Talib

wished to present was unavailable to testify for disciplinary

reasons.       Given the cumulative nature of the proposed witnesses’

testimony, we hold that the district court was well within its

discretion to limit Talib’s character witnesses.

                                                  11
            We also find that the district court did not deprive

Talib of his due process rights by “intimidat[ing] two of [his]

witnesses    into       refusing    to       testify.”        To    the    contrary,        the

record establishes that during an ex parte communication between

the district court, Talib, and Talib’s stand-by counsel, the

district    court       explained       to    Talib    that        since    two     proposed

witnesses were implicated in the conspiracy, the district court

was required to warn both witnesses of their Fifth Amendment

right     against        self-incrimination            before         they        testified.

Although    the       district     court      wanted     to    contact       one     of    the

witnesses       by    telephone    to     inform      her     of    her    rights,        Talib

explained that it was difficult to reach the witness because her

telephone number was disconnected; Talib then decided to forego

calling her as a witness.                    The record does not suggest that

Talib changed his mind about having the witness testify because

he was strong-armed by the district court.

            The       district    court      contacted      Talib’s        other    proposed

witness     by       telephone     and,      after     explaining          that     she    was

implicated in the sale of marijuana and that she had a right not

to incriminate herself or to waive that right and testify on

Talib’s behalf, the witness informed the district court that she

declined to testify.             The district court thus excused her from

testifying.          The district court had discretion to caution this

witness    of    the     possibility         of    incriminating          herself    if    she

                                              12
decided to testify.               See United States v. Arthur, 949 F.2d 211,

215-16       (6th    Cir.       1991)    (holding      that       a    district    court     has

discretion to caution a witness about self-incrimination so long

as the court does not “actively encourage[ the] witness not to

testify or badger[] a witness into remaining silent”).                                 Although

threatening remarks and conduct that effectively drive a witness

off the witness stand amount to a due process deprivation, see

Webb    v.    Texas,       409    U.S.    95,      353-54    (1972),      no    such    conduct

occurred in this case.                  Accordingly, we find that the district

court’s admonition did not amount to a due process violation.



III. Career Offender Classifications

               Both Defendants assert that the district court erred

when     it     overruled          their      respective          objections       to    their

Guidelines range calculations in their presentence investigation

reports       and    adopted       those      calculations.              When   reviewing     a

district court’s application of the Sentencing Guidelines, this

court    reviews      its       findings      of    fact    for       clear   error    and   its

rulings on questions of law de novo.                         United States v. Osborne,

514 F.3d 377, 387 (4th Cir. 2008), cert. denied, 128 S. Ct. 2525

(2008).

               Career offender classification requires, among other

conditions,         that    a    defendant      have    at    least      two    prior    felony

convictions         for     crimes       of   violence       or       controlled      substance

                                                13
offenses.         See   U.S.   Sentencing      Guidelines     Manual    (“USSG”)

§ 4B1.1(a)    (2007).          The    Guidelines     define    a   “controlled

substance offense” as follows:

     [A]n offense under federal or state law, punishable by
     imprisonment for a term exceeding one year, that
     prohibits    the    manufacture,    import,    export,
     distribution, or dispensing of a controlled substance
     (or a counterfeit substance) or the possession of a
     controlled substance (or a counterfeit substance) with
     intent to manufacture, import, export, distribute, or
     dispense.

USSG § 4B1.2(b) (2007).              A crime of violence is an offense

punishable by a term of imprisonment greater than one year that

“has as an element the use, attempted use, or threatened use of

physical force against the person of another.”                 USSG § 4B1.2(a)

(2007).     We find that both Defendants were properly classified

as career offenders.

            The    prior   felony    convictions    that     rendered   Talib   a

career offender were as follows:               (i) a 1989 conviction for

burglary, for which he was not released from prison until March

1992, when his parole revocation sentence ended; (ii) a 1997

conviction for unlawful delivery of a non-controlled substance;

and (iii) a 2000 carjacking conviction. 5             It is undisputed that

Talib’s   carjacking       conviction    was    a   proper    career    offender

     5
        Although Talib’s 2000 escape conviction was also
considered to be a proper predicate offense, because Talib has
three   other   qualifying   convictions, whether  the  escape
conviction also qualifies is immaterial.



                                        14
predicate      offense.         Talib    nonetheless      asserts        that   his    1989

burglary conviction was not a proper predicate offense because

his last parole for that conviction was revoked in 1990, sixteen

years before the conspiracy for which he was found guilty.

            This argument is meritless.                 Under USSG        § 4A1.2(e)(1)

(2007), any sentence of imprisonment exceeding one year and one

month that results in the defendant being incarcerated for a

period of time within fifteen years of the commencement of the

instant   offense         may   be   properly       considered      in   designating      a

defendant      a    career      offender.        See   USSG     § 4A1.2(e)(1);         USSG

§ 4B1.2 cmt. n.3 (stating that § 4A1.2 applies to the counting

of convictions under § 4B1.1).                In calculating the fifteen-year

time period, the Guidelines direct the use of the date of a

defendant’s        last    release      following      parole    revocation.           USSG

§ 4A1.2(k)(2)(B)(i).             Because Talib was not released following

his   parole       revocation     until     March    1992,    the    time   period     for

which the 1989 conviction could qualify as a career offender

predicate offense did not expire until March 2007, well after

the   August       2006   conspiracy.         Accordingly,       we      find   that   the

district court properly classified Talib as a career offender. 6


      6
       Although Talib also argues that his 1997 conviction for
unlawful delivery of a non-controlled substance did not qualify
as a proper predicate offense because the substance he delivered
was counterfeit, this argument is explicitly foreclosed by the
Guidelines, as they specifically define a “controlled substance
(Continued)
                                            15
            Santiago’s            career           offender         predicate         offenses

consisted    of     the    following:          (i)     a     1991   conviction    for     third

degree criminal sale of a controlled substance, for which he was

released    from     prison       in       1994    after      his   sentence     for    parole

revocation      ended;      (ii)       a    1991       conviction      for    third     degree

criminal    sale     of     a   controlled             substance,      for    which     he   was

released    from     prison       in       1994    after      his   sentence     for    parole

revocation        ended;    and        (iii)       a    2002    narcotics       distribution

conviction. 7       It is undisputed that Santiago’s 2002 conviction

was a proper predicate offense.                        Moreover, because Santiago was

not released from his parole revocation sentences for the 1991

convictions        until    1994,          the     time       period    for     which     those

convictions qualified as predicate offenses did not expire until

2009,    well     after     the    August         2006       conspiracy.        Accordingly,

Santiago was properly classified as a career offender.

             We      have         reviewed             the      Defendants’        remaining

contentions,        including       Santiago’s             assertion     that     there      was

insufficient evidence to convict him of the crimes with which he



offense” to include the distribution or dispensing of “a
controlled substance (or a counterfeit substance).” USSG §
4B1.2(b).
     7
       Santiago argues that his 1993 assault conviction did not
constitute a proper career offender predicate offense.    Because
Santiago had other qualifying predicate offenses, whether the
assault conviction was a proper predicate offense is immaterial.



                                                  16
was charged, and find them to be without merit.              Accordingly, we

affirm Defendants’ convictions and sentences.               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




                                      17
