UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4971

CHARLES TYRONE PEELER,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-96-379-PJM)

Submitted: August 31, 1998

Decided: September 23, 1998

Before MURNAGHAN and NIEMEYER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Clarke F. Ahlers, Columbia, Maryland, for Appellant. Lynne A. Bat-
taglia, United States Attorney, Ranganath Manthripragada, Assistant
United States Attorney, John V. Geise, Assistant United States Attor-
ney, Greenbelt, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Charles Tyrone Peeler was convicted after a jury trial of armed
bank robbery in violation of 18 U.S.C. § 2113(d), (f) (1994) and bank
robbery in violation of 18 U.S.C. § 2113(a), (f) (1994). The district
court sentenced Peeler to 262 months' imprisonment and five years
of supervised release. On appeal Davis contends that the Government
failed to preserve and disclose Brady* material before trial and that
he was denied due process because his conviction was obtained
through the use of false evidence. Finding no error, we affirm the con-
viction.

The testimony at trial revealed that on August 7, 1996, Peeler
robbed the Chevy Chase Federal Savings Bank, a federally insured
bank located in Maryland. Peeler entered the bank posing as a cus-
tomer and asked the assistant manager, Janette Jones (Jones), what
type of bank accounts were available. Jones spent approximately
twenty-five minutes explaining account options. When Jones
requested two forms of identification to open a bank account, Peeler
indicated that he had no identification with him. He then pulled back
his suit jacket to reveal a handgun. Peeler then told Jones to place
both hands on the desk and not to pull the alarm.

At about the same time, Corrine Wiggins (Wiggins), a bank teller,
approached Jones' desk to get something signed. She saw Peeler with
a credit card application in front of him and holding a pen with a tis-
sue. Sometime thereafter, Wiggins observed Jones open the employee
teller area and mouth the words robbery three times while Peeler fol-
lowed her into the teller area. At this point Wiggins set off the inaudi-
ble alarm.
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*Brady v. Maryland, 373 U.S. 83 (1963).

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After Peeler escorted Jones behind the teller stations, he showed
each of the tellers his handgun and instructed Jones to place them in
the bathroom. Thereafter Peeler ordered Jones to unlock all of the tell-
ers' drawers and return to the bathroom. Peeler then proceeded to take
a total of $22,197.00 and exited the bank. Moments later, police offi-
cers arrived at the bank.

As part of its investigation, the Federal Bureau of Investigation
(FBI) compiled a photographic line-up. Both Jones and Wiggins posi-
tively identified Peeler as the bank robber. Jones and Wiggins then
identified Peeler in court. In addition, Jones identified Peeler in still
pictures developed from the bank surveillance video tape. Jones also
identified a tie, ring, watch, and briefcase seized from Peeler and from
his residence. Peeler's fingerprints were found on the credit card
application handled by the robber. Based on these events, Peeler was
convicted of armed bank robbery in violation of§ 2113(d), (f) and
bank robbery in violation of § 2113(a), (f).

Peeler alleges that the district court erred when it found that the
Government had not committed a Brady violation. Peeler's claim
stems from testimony elicited from Wiggins during cross-
examination. Wiggins testified that during a trial preparation inter-
view she identified two items that were seized from Peeler's home,
a tie and a briefcase, but that she was unable to identify a watch and
a ring. Believing that this testimony was exculpatory, Peeler now sug-
gests that a Brady violation occurred. We disagree.

Suppression of evidence favorable to an accused violates due pro-
cess only where the evidence is material either to guilt or to punish-
ment, irrespective of the good faith or bad faith of the prosecution.
See Brady, 373 U.S. at 87. Evidence is material"if there is a reason-
able probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different." United States
v. Bagley, 473 U.S. 667, 682 (1985). There is no due process violation
as long as the Brady material is disclosed in time for effective use at
trial. See United States v. Smith Grading & Paving, Inc., 760 F.2d
527, 532 (4th Cir. 1985).

In this case, defense counsel discovered this allegedly exculpatory
evidence during its cross-examination of Wiggins. Counsel used this

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information directly to confront Wiggins and the jury was apprised of
the information. Peeler fails to show any more effective use he could
have made of this testimony. Accordingly, we find that there is no
reasonable probability that the outcome of the trial would have been
affected by disclosure prior to trial of the fact that Wiggins could not
identify Peeler's watch and ring.

Interwoven with Peeler's Brady argument is the claim that the
Government knowingly permitted Wiggins to perjure herself. Because
Peeler failed to object to this alleged violation, we review for plain
error. See United States v. Olano, 507 U.S. 725, 732-36 (1993).

This allegation again stems from the fact that Wiggins testified that
she was shown Peeler's tie, briefcase, ring, and watch. However, the
Government maintained that she had neither been shown this evi-
dence nor asked whether she could identify this evidence. The record
demonstrates that Wiggins was present when Jones was shown these
items and that Wiggins may have mistakenly believed that she was
being asked to identify these items. Nevertheless, the evidence is at
most merely contradictory and inconsistent testimony from govern-
ment witnesses; it does not amount to the knowing use of false testi-
mony. See United States v. Griley, 814 F.2d 967, 971 (4th Cir. 1987).

For these reasons, we affirm Peeler's conviction. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the material before the court and argument would not aid
the decisional process.

AFFIRMED

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