                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 19-4353


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

ARNULFO FAGOT-MAXIMO, a/k/a El Tio,

                    Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, District Judge. (1:15-cr-00290-LO-6)


Submitted: January 28, 2020                                  Decided: February 26, 2020


Before AGEE, FLOYD, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Miriam Airington-Fisher, AIRINGTON STONE & ROCKECHARLIE, PLLC, Richmond,
Virginia, for Appellant. Brian A. Benczkowski, Assistant Attorney General, Anthony
Aminoff, Narcotics & Dangerous Drug Section, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; G. Zachary Terwilliger, United States Attorney, Thomas W.
Traxler, Assistant United States Attorney, James L. Trump, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Arnulfo Fagot-Maximo was convicted by a federal jury of conspiracy to distribute

five kilograms or more of cocaine knowing and intending that it will be unlawfully

imported into the United States, in violation of 21 U.S.C. §§ 959(a), 963 (2018). The

district court sentenced Fagot-Maximo to 396 months’ imprisonment and he now appeals.

On appeal, Fagot-Maximo contends that the district court erred by denying (1) his motion

to suppress, (2) his motion for judgment of acquittal, and (3) his motion to set aside the

verdict and grant a new trial. For the following reasons, we affirm.

       Fagot-Maximo first contends that the district court reversibly erred by denying his

motion to suppress the in-court identifications of three government witnesses.               In

considering a district court’s ruling on a motion to suppress, “we review factual findings

for clear error and legal determinations de novo[,] . . . constru[ing] the evidence in the light

most favorable to the prevailing party.” United States v. Lull, 824 F.3d 109, 114-15 (4th

Cir. 2016) (internal quotation marks omitted).        “Due process principles prohibit the

admission at trial of an out-of-court identification obtained through procedures ‘so

impermissibly suggestive as to give rise to a very substantial likelihood of irreparable

misidentification.’” United States v. Saunders, 501 F.3d 384, 389 (4th Cir. 2007) (quoting

Simmons v. United States, 390 U.S. 377, 384 (1968)). If a witness’ out-of-court photo

identification is unreliable and therefore inadmissible, then any in-court identification is

also inadmissible. Simmons, 390 U.S. at 384; see Saunders, 501 F.3d at 390. We have

reviewed the record on this point and find no reversible error.



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       Next, Fagot-Maximo argues that the district court erred by denying his motion for

judgment of acquittal because the Government failed to prove that he knew the cocaine he

received at his property was destined for the United States. We review the denial of a

motion for judgment of acquittal de novo. United States v. Young, 916 F.3d 368, 384

(4th Cir.), cert. denied, 140 S. Ct. 113 (2019). In this analysis, “a reviewing court views

the evidence in the light most favorable to the prosecution and decides whether substantial

evidence—that is, evidence that a reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt—

supports the verdict.” Id. (internal quotation marks omitted). In evaluating the sufficiency

of evidence, we do not “consider the credibility of witnesses and must assume the jury

resolved all contradictions in testimony in the government’s favor.” United States v.

Burfoot, 899 F.3d 326, 334 (4th Cir. 2018). We have reviewed the record and relevant

legal authorities and conclude that substantial evidence supported the jury’s finding

of guilt.

       Finally, Fagot-Maximo argues the district court abused its discretion by denying his

motion to set aside the verdict and grant a new trial due to the Government’s failure to

disclose prior to trial (1) the identities of 14 non-testifying confidential sources who he

claims possessed exculpatory information, and (2) a letter describing phone calls 2

government witnesses made from jail that he alleges contained exculpatory information

and impeachment material. We review the denial of a motion for a new trial for abuse of

discretion. Id. at 340. “A trial court should exercise its discretion to award a new trial

sparingly, and a jury verdict is not to be overturned except in the rare circumstance when

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the evidence weighs heavily against it.” Id. (internal quotation marks omitted). To receive

a new trial based on the Government’s failure to produce exculpatory evidence under Brady

v. Maryland, 373 U.S. 83 (1963), “a defendant must: (1) identify the existence of evidence

favorable to the accused; (2) show that the government suppressed the evidence; and (3)

demonstrate that the suppression was material.” United States v. King, 628 F.3d 693, 701

(4th Cir. 2011). For the purposes of Brady, a defendant must provide more than mere

speculation regarding the existence of any exculpatory evidence to demonstrate the

allegedly withheld information would be favorable to his defense. United States v. Caro,

597 F.3d 609, 619 (4th Cir. 2010). “There is no Brady violation if the evidence is available

to the defense from other sources or the defense already possesses the evidence.” United

States v. Higgs, 663 F.3d 726, 735 (4th Cir. 2011).

       Additionally, the “informer’s privilege” allows the Government “to withhold from

disclosure the identity of persons who furnish information about crimes to law

enforcement.” United States v. Bell, 901 F.3d 455, 466 (4th Cir. 2018) (alterations and

internal quotation marks omitted), cert. denied, 140 S. Ct. 123 (2019). There is not “a

bright-line rule for determining when a defendant may pierce the privilege.” Id. Rather,

“the issue instead calls for case-by-case balancing of the public interest in protecting the

flow of information to law enforcement against the individual’s right to prepare his

defense.” Id. (alterations and internal quotation marks omitted). “Whether disclosure

should be ordered therefore depends on the particular circumstances of each case, taking

into consideration the crime charged, the possible defenses, the possible significance of the

informer’s testimony, and other relevant factors,” such as the safety and security of the

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informant. Id. (internal quotation marks omitted); see United States v. Smith, 780 F.2d

1102, 1107 (4th Cir. 1985) (recognizing that “the safety and security of the person

supplying the information is best protected by nondisclosure of his identity to those who

may cause him harm”). Our review of the record leads us to conclude that the district court

did not abuse its discretion by denying this motion.

       Accordingly, we affirm the judgment of the district court. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

                                                                              AFFIRMED




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