UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 00-4085

BRENDA KAY WARE,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-97-47)

Argued: April 4, 2000

Decided: August 4, 2000

Before WIDENER and WILKINS, Circuit Judges, and
Claude M. HILTON, Chief United States District Judge
for the Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Elgine Heceta McArdle, MUSSER & MCARDLE, L.C.,
Wheeling, West Virginia, for Appellant. Michael D. Stein, Assistant
United States Attorney, Wheeling, West Virginia, for Appellee. ON
BRIEF: Melvin W. Kahle, Jr., United States Attorney, Wheeling,
West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Brenda Kay Ware was convicted by a jury of one count of conspir-
acy to defraud the United States, see 18 U.S.C.A. § 371 (West 2000),
two counts of aiding and abetting wire fraud, see 18 U.S.C.A. § 1343
(West 2000), and one count of aiding and abetting in the making of
a false and fictitious statement, see 18 U.S.C.A. § 1001(a)(2) (West
2000). The convictions arose out of Ware's involvement in a federally
funded highway construction project in West Virginia ("the Elm
Grove project" or "the project"). Ware appeals her convictions and
sentence. We affirm.

I.

The facts relevant to this appeal have been described at length in
United States v. Brothers Construction Co., Nos. 98-4613, 98-4694,
slip op. at 2-8 (4th Cir. July 6, 2000), and we do not repeat them here.
Suffice it to state that Ware is the president of Brothers Construction
Company (Brothers), a certified "disadvantaged business enterprise"
(DBE). See 49 C.F.R. § 26.5 (1999). According to federal regulations
and the West Virginia bid solicitation for the Elm Grove project, the
project included a DBE goal of eight percent of the prime contract.
See 49 C.F.R. § 26.13 (1999). Tri-State Asphalt Corporation (Tri-
State) was the prime contractor on the project, and it had awarded
Bunn Construction Company (Bunn) the underdrain subcontract.
Ware, Bunn, and Tri-State fraudulently claimed that Brothers per-
formed part of the underdrain work on the project when in fact Bunn,
not a DBE, performed it all. See United States v. Johnson, 54 F.3d
1150, 1153 (4th Cir. 1995) (stating that in reviewing a conviction, the
facts are viewed in the light most favorable to the government).

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II.

A.

Ware contends that the prosecutor's failure to disclose notes taken
during an interview of a government witness constituted misconduct
warranting reversal of her convictions or a new trial.1 We disagree.

During the course of an audit of the Elm Grove project DBE situa-
tion, the investigator for the West Virginia Department of Transporta-
tion, Division of Highways ("WVDOH") interviewed Jesse Haynes,
the Director of the Equal Employment Opportunity Division of the
West Virginia Department of Transportation, at least twice. Haynes
subsequently testified at Ware's trial, but the WVDOH investigator's
notes of Haynes' interviews were not disclosed to Ware. Ware asserts
that the interview notes should have been disclosed, and that the pros-
ecutor's failure to do so violated Federal Rule of Criminal Procedure
16; the Jencks Act, 18 U.S.C.A. § 3500 (West 1985); and Brady v.
Maryland, 373 U.S. 83, 87 (1963) (holding that a defendant's due
process rights are violated when the prosecution withholds evidence
favorable to the defendant that is material to either guilt or punish-
ment), and its progeny. Ware specifically relies on two passages from
the investigator's interview notes:

          March 13, 1995 . . .

            Mr. Haynes asked why Brothers didn't perform the work
_________________________________________________________________
1 Two of Ware's four arguments on appeal are the same as those raised
in the related appeals of Brothers and Tri-State. Specifically, Ware con-
tends that the evidence was insufficient to support the verdict against her,
and that the grand jury testimony of unindicted co-conspirator Robert
Samol should not have been admitted. The same arguments were for-
warded by Ware's codefendants in their appeals, and were rejected, and
thus we reject them here as well. See Brothers Constr. Co., slip op. at 8-
17; Etheridge v. Norfolk & W. Ry. Co., 9 F.3d 1087, 1090 (4th Cir. 1993)
(stating that "[a] decision of a panel of this court becomes the law of the
circuit and is binding on other panels unless it is overruled by a subse-
quent en banc opinion of this court or a superseding contrary decision of
the Supreme Court" (internal quotation marks omitted)).

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          on the project. Mr. Haynes stated that Brenda Ware, owner
          of Brothers Construction, had a baby this past summer and
          wasn't able to oversee the work on the project. In addition,
          Ms. Ware had planned on providing project management.
          Mr. Haynes stated that he talked with Ms. Ware and
          explained that the DBE had to actually perform the work on
          the project, as opposed to just providing management.

           Mr. Haynes stated that he had no problem with how he
          handled the situation with regard to Brothers Construction.
          He felt that reinstatement [as a DBE] was appropriate given
          the circumstances.

          March 28, 1995 . . .

          Mr. Haynes stated he still felt decertification of Brothers
          Construction from the WVDOH DBE program was unnec-
          essary. He stated he had talked with Ms. Ware and he
          believed that she would not perform in the same manner
          again.

           Mr. Haynes also stated he did not feel referral of the mat-
          ter to a Federal authority was warranted. He felt since there
          was no injury to the State and this had been done by other
          prime contractors, he wouldn't recommend the referral of
          the matter.

J.A. 1424 n.1.

The district court rejected Ware's arguments related to the Haynes
interview notes when it denied her "third motion for arrest of judg-
ment and/or a new trial." Id. at 1422 (internal quotation marks omit-
ted). The court concluded that the prosecutor's failure to disclose the
notes did not violate Rule 16, the Jencks Act, or Brady. Prosecutorial
misconduct entitles the defendant to a new trial when the improper
conduct has prejudicially affected the defendant's substantial rights
such that she has been deprived of a fair trial. See United States v.
Mitchell, 1 F.3d 235, 240 (4th Cir. 1993). We review the denial of a
motion for a new trial for abuse of discretion. See United States v.

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Huggins, 191 F.3d 532, 536 (4th Cir. 1999), cert. denied, 120 S. Ct.
1968 (2000).

Rule 16 directs prosecutors to disclose statements of the defendant,
but specifically excepts "statements made by government witnesses,"
except as such statements are required to be disclosed by the Jencks
Act. Fed. R. Crim. P. 16(a)(2). Thus, even if the interview notes con-
stituted Haynes' statements, the prosecutor did not violate Rule 16 by
failing to disclose them unless the Jencks Act required that they be
disclosed.

The Jencks Act requires the prosecutor to produce only the state-
ment of a witness. See 18 U.S.C.A. § 3500(b). As relevant here, the
Act defines "statement" as the witness' own written statement,
"signed or otherwise adopted or approved by him," or an oral state-
ment of the witness that has been transcribed "substantially verbatim."
Id. § 3500(e). Although notes taken by an interviewer can be attri-
buted to the interviewee as his statement, such notes will be deemed
the witness' own statement only if the witness reviews and adopts the
notes. Cf. United States v. Roseboro, 87 F.3d 642, 645 (4th Cir. 1996)
(explaining when notes of an interview are to be considered the inter-
viewee's own statement). Ware does not contend that Haynes adopted
the interview notes as his own statements.2 Because there has been
neither a claim nor any evidence that Haynes ever reviewed and
adopted the notes taken during his interview with the WVDOH inves-
tigator, we conclude that the notes were not Jencks material.

We also conclude that the interview notes do not constitute Brady
material. In order for their withholding to constitute a Brady violation,
the notes must (1) be either directly exculpatory or have impeachment
value, (2) have been suppressed by the government, and (3) be mate-
rial. See Spicer v. Roxbury Correctional Inst. , 194 F.3d 547, 555 (4th
Cir. 1999).
_________________________________________________________________

2 Ware argues that the notes should be deemed Haynes' statements
because notes made during a similar interview of Ware were deemed her
own statement. However, whether Ware reviewed and adopted the notes
of her interview has no bearing on whether Haynes reviewed and
adopted the notes of his interview.

                    5
Although Ware claims that the two passages from the Haynes inter-
view notes were exculpatory because they "corroborated her defense
at trial, and conflicted with Mr. Haynes' testimony at trial," Brief of
Appellant at 41, the passages simply do not possess the value Ware
asserts. Ware maintains that the Haynes passages confirm her testi-
mony that she never intended to defraud the Government because she
had planned to manage and supervise the work but was unable to do
so due to personal circumstances. However, the notes from Haynes'
interview merely repeat Ware's claim that she intended to provide
management services; the passages in no way corroborate Ware's tes-
timony that she lacked an intent to defraud.

Ware also contends that the interview notes had impeachment
value because Haynes contradicted the notes when he testified at trial.
However, the trial testimony to which Ware points is not contradictory.3
Finally, Ware argues that had the interview notes been available, she
would have attempted to demonstrate that Haynes believed that
Ware's conduct complied with DBE regulations. However, although
the passages indicate that Haynes would not have referred the matter
to federal authorities, they also clearly indicate that Haynes under-
stood that Ware's conduct was not in compliance with applicable law:
Haynes explained to Ware that simply providing management ser-
vices was insufficient.

Because the prosecutor's failure to disclose the interview notes of
Jesse Haynes did not violate Rule 16, the Jencks Act, or Brady, we
conclude that the district court did not abuse its discretion in denying
Ware a new trial, nor does the nondisclosure warrant a vacation of
Ware's conviction.
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3 For example, Haynes was asked at trial whether he recertified Ware
as a DBE because he believed her version of what happened; he
answered, "No, . . . we recertified her pending the outcome of the investi-
gation." J.A. 264L4. Ware argues that this testimony conflicts with the
interview notes because the notes indicate that Haynes felt that reinstate-
ment was appropriate and that he felt decertification was unnecessary.
However, the notes simply do not indicate that Haynes believed Ware's
story; at best they indicate that Haynes thought decertification was not
necessary because he did not believe Ware would repeat the transgres-
sion.

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B.

The district court enhanced Ware's sentence upon finding that she
had obstructed justice. See U.S. Sentencing Guidelines Manual
§ 3C1.1 (1998). The court found two bases for the enhancement: first,
the court found that Ware perjured herself at trial, and second, the
court found that Ware obstructed justice during the WVDOH investi-
gation of the Elm Grove project by providing falsified documents
attempting to show that Brothers actually worked on the project.
Ware argues that the district court erred in basing the enhancement on
a finding of perjury. She does not challenge the second basis for the
enhancement, however. Accordingly, even assuming that the first
basis was improper, the decision to apply the enhancement must be
affirmed. See United States v. Ashers, 968 F.2d 411, 414 (4th Cir.
1992) (stating that even if one basis for an enhancement is erroneous,
the defendant's sentence must nonetheless be affirmed if the enhance-
ment was properly applied on an alternative basis).

III.

For the foregoing reasons, we affirm both Ware's convictions and
her sentence.

AFFIRMED

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