                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-4488


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

EMMITH MARREL SNELL,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
Chief District Judge. (3:14-cr-00073-FDW-5)


Argued:   October 27, 2016                 Decided:   January 19, 2017


Before WILKINSON and TRAXLER, Circuit Judges, and Bruce            H.
HENDRICKS, United States District Judge for the District           of
South Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Chiege Ojugo Kalu Okwara, Charlotte, North Carolina, for
Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.      ON BRIEF:
Jill Westmoreland Rose, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      A jury convicted Emmith Marrel Snell for possession with

intent      to     distribute        and    distribution           of    cocaine    base      in

violation        of    21   U.S.C.     §     841(a)(1)        &    (b)(1)(B).          He     was

sentenced to 63 months in prison.                     On appeal, Snell claims that

the government failed to produce evidence that he was entitled

to receive under Brady v. Maryland, 373 U.S. 83 (1963); the

Jencks Act, 18 U.S.C. § 3500; and Rule 16 of the Federal Rules

of Criminal Procedure.               Snell also challenges the sufficiency of

the evidence to sustain his conviction.                       We affirm.

                                                I.

      From       approximately        January        2009    through       April    8,    2014,

Reginald         Lindsey    operated        a    drug       distribution       business        in

Charlotte, North Carolina.                   Lindsey purchased large quantities

of powder cocaine, some of which he used to manufacture crack

cocaine at a drug stash house.                   The Charlotte-Mecklenburg Police

Department investigated Lindsey’s drug operation.                              Between May

and   July        of    2013,    undercover           officers          conducted      several

controlled         buys     of   crack          cocaine      from       Lindsey     and       his

associates.

      One    such      controlled      buy      occurred      on    June     11,   2013,      and

involved Lindsey and two of his associates, Stanley Horton and

Defendant        Emmith     Snell.         Officer    Amir        Holding,    acting     in    an

undercover capacity, contacted Horton to arrange the purchase of

                                                 2
4.5 ounces of crack cocaine from Lindsey for $5,175.                      Horton, in

turn, called Lindsey to get the drugs.                 Lindsey had already set

up five drug deals with other customers for that day and he

agreed to package the additional 4.5 ounces and meet Horton for

the sale to Officer Holding.                 Lindsey packaged the drugs in

clear plastic bags at the stash house.

     In    the    early     afternoon,       Officer    Holding     and     Sergeant

Terrance Gerald drove to the location where the controlled buy

was to take place.          Sergeant Gerald got into the back seat of

Officer    Holding’s        vehicle    and      Horton,    who      had         arrived

separately, got into the front passenger seat next to Officer

Holding.     From the back seat, Sergeant Gerald videotaped the

drug deal, although at times there was only an audio recording

because he would have to lower the camera to avoid detection.

     Officer      Holding    gave     Horton    the     money     for     the    crack

cocaine.    When Lindsey arrived, Horton got out of the undercover

vehicle and into Lindsey’s car, where Lindsey and Horton counted

the money.       Lindsey then realized that he had accidentally left

the 4.5 ounces of crack cocaine on the kitchen counter of the

stash house.      Lindsey called Snell and asked Snell to go to the

stash house, retrieve the drugs, and bring them to the location.

Snell was a trusted friend to Lindsey and the only member of

Lindsey’s organization who had a key to the stash house.



                                         3
       Within       minutes,     Snell       arrived     at        the     controlled-buy

location on a motorcycle.              Snell got off the motorcycle and into

the    back    seat      of   Lindsey’s      vehicle.         He    handed       the   crack

cocaine, which was packaged in a clear plastic bag, across the

front seat to Lindsey.               Snell then returned to his motorcycle

and left the location.                Horton returned to Officer Holding’s

vehicle    and      delivered    the     crack      cocaine,       which    a    laboratory

analysis confirmed to be cocaine base.

       On April 8, 2014, a grand jury returned a thirteen-count

indictment against eleven defendants, including Lindsey, Horton,

and Snell.           Snell was named in two of the thirteen counts.

Specifically, Count 2 charged Lindsey, Horton, and Snell with

conspiracy to distribute and possess with intent to distribute

cocaine base, in violation of 21 U.S.C. § 846, from January 2009

through April 8, 2014.                Count 9 charged Lindsey, Horton, and

Snell with possession with intent to distribute and distribution

of cocaine base on or about June 11, 2013, in violation of 21

U.S.C. §§          841(a)(1), (b)(1)(B), and aiding and abetting that

offense,      in    violation    of    18    U.S.C.    § 2.         Snell       pleaded   not

guilty to both counts.

       Lindsey was charged in the indictment with two additional

conspiracy         counts,    plus    five   additional       counts       of    possession

with   intent       to   distribute     and       distribution       of    cocaine     base,

arising out of other drug deals that took place between May 8,

                                              4
2013, and July 18, 2013.               He subsequently agreed to plead guilty

to the Count 2 conspiracy and cooperate with the government.

This included meeting with the government on several occasions

and providing testimony adverse to Snell at trial.                          In addition

to his testimony regarding the June 11, 2013, sale of crack

cocaine to Officer Holding, Lindsey offered testimony about his

relationship with Snell and Snell’s ongoing involvement in his

drug business.        The jury ultimately convicted Snell of Count 9,

possession with intent to distribute and distribution of cocaine

base   on   June     11,    2013,      but    acquitted      him    of   Count   2,   the

conspiracy count.

                                             II.

       Snell   contends         that    the       evidence    was    insufficient      to

convict him of the Count 9 possession with intent to distribute

charge.     We review a defendant’s challenge to the sufficiency of

the evidence de novo, and we must affirm if there is substantial

evidence to support the conviction when viewed in the light most

favorable to the Government.                  See United States v. Engle, 676

F.3d    405,   419       (4th   Cir.     2012).        “Substantial       evidence     is

evidence    that     a     reasonable        finder   of     fact   could    accept    as

adequate and sufficient to support a conclusion of guilt beyond

a reasonable doubt.”            Id.     “[R]eversal for insufficiency must be

confined to cases where the prosecution’s failure is clear.”

Id. (internal quotation marks omitted).

                                              5
       We conclude that there was sufficient evidence to support

the jury’s verdict.            Lindsey testified that Snell was a member

of his drug organization and the only person to whom he had

entrusted a key to his drug stash house.                       When he realized that

he had forgotten to bring the 4.5 ounces of crack cocaine for

the sale to Officer Holding, Lindsey called Snell and asked him

to go to the stash house and bring the drugs to him.                                 Within

minutes,       Snell    arrived     at     the        location,       entered     Lindsey’s

vehicle, and handed a clear plastic bag containing 4.5 ounces of

crack cocaine to Lindsey.

       Lindsey’s       testimony     alone       is    sufficient       to    support    the

jury’s verdict.             See United States v. Wilson, 115 F.3d 1185,

1190 (4th Cir. 1997) (“[T]he uncorroborated testimony of one

witness    or    of    an    accomplice     may       be   sufficient        to   sustain    a

conviction.”).          But    in   this    case,       it    does    not    stand    alone.

Lindsey’s testimony was corroborated by the testimony of the

undercover officers, who collectively observed Snell arriving at

the    scene     and    handing      something         over     the     console      towards

Lindsey, as well as by the video-recording of the transaction.

       Snell’s        contention     that        Lindsey’s          testimony      was   not

credible is of no avail.                 In resolving issues of substantial

evidence, this court may not reweigh the evidence or reassess

the factfinder’s determination of witness credibility, and it

must    assume     that      the    jury    resolved          all     contradictions        in

                                             6
testimony in favor of the government.             See United States v. Roe,

606 F.3d 180, 186 (4th Cir. 2010).

     We    likewise   find    no    merit    in   Snell’s   claim    that   the

district court erred in allowing the officers to identify Snell

in still photographs because the photographs were blurry, and

Snell’s related claim that, but for this identification, the

jury’s    verdict   would    have   been    unsubstantiated   or    different.

The officers were present on the scene when the video-recording

took place and the district court did not abuse its discretion

in allowing them to identify Snell and the other individuals

based upon the still photographs and their memories.                It was for

the jury to view the photographs and decide what weight should

be given to the testimony.          Moreover, Snell does not deny that

he was present at the location of the controlled buy; he merely

contends that he could have been there for an innocent reason.

That was for the jury to determine as well, and the photographs

add nothing to that inquiry.

     Accordingly, we hold that the district court did not err in

admitting the officer’s identification testimony and we conclude

that the evidence presented to the jury was clearly sufficient

to support the verdict.

                                     III.

     Snell next contends that we should vacate his conviction

because the government ran afoul of its discovery obligations

                                       7
under Federal Rule of Criminal Procedure 16; 1 the Jencks Act, 18

U.S.C. § 3500; 2 and Brady v. Maryland, and its progeny. 3

                                      A.

     Snell      first   contends   that      we     should      vacate   the     jury’s

verdict because the government failed to disclose exculpatory

statements      that    Lindsey    allegedly         made       regarding      Snell’s

involvement in his drug business and failed to produce a written

statement      allegedly   obtained   by      the    government      from   Lindsey.

The district court found no Brady violation because Snell failed

to demonstrate that the government was in possession of such

statements.      We affirm.

     Lindsey met with law enforcement and the prosecution on

October 21, 2014, and again on October 31, 2014.                    On November 3,

2014,    the    government    produced       to   Snell     a   summary     of    these

     1 Rule 16(a)(1)(E) requires the                government to permit the
defendant to inspect documents and                  objects that are in the
government’s possession, custody, or                control, and material to
the defense, intended to be used in                 the government’s case-in-
chief, or obtained from the defendant.
     2 “The Jencks Act requires the [g]overnment to turn over any
statement of a witness in its possession once the witness has
testified on direct examination, provided the statement relates
to the testimony of the witness.”        United States v. Bros.
Constr. Co., 219 F.3d 300, 316 (4th Cir. 2000).
     3 See Brady v. Maryland, 373 U.S. 83, 87 (1963) (requiring
the government to disclose “evidence favorable to an accused
upon request . . . where the evidence is material either to
guilt or to punishment”); Giglio v. United States, 405 U.S. 150,
154-55 (1972) (requiring the government to disclose evidence
tending to impeach a government witness prior to trial).



                                         8
meetings      that     did       not        contain        the    purported           exculpatory

statements.          The    government         also       did     not   produce        a    written

statement from Lindsey.

      Unbeknownst          to    the        government,          Lindsey       also    spoke       by

telephone to Snell’s girlfriend, Martha Scott, on October 21,

2014, to discuss the two charges that had been brought against

Snell   and   to     enlist          Scott’s    help       in    getting       Snell       to   plead

guilty.    Scott secretly recorded this conversation.

      The day before trial, Snell’s attorney, who had obtained a

copy of the recording from Scott, produced it to the government.

In the recording, Lindsey tells Scott that the government had

them red-handed, and that Snell would probably receive a much

lighter sentence if he pled guilty.                         Lindsey told Scott that he

had minimized Snell’s involvement in his drug business and that

Snell   had    nothing          to    do    with     the    other       drug    deals       in   the

indictment.        Lindsey           also    told    Scott       that    he     had    written     a

statement to this effect for the government and that he believed

the government would also give Snell a deal if he pled guilty.

      Based solely upon this surreptitious recording, Snell filed

a   pre-trial      motion       to     compel       the    government         to   produce       any

exculpatory or written statements made by Lindsey to or for the

government.        The government informed the court that Lindsey had

consistently implicated Snell in his ongoing drug business and

in the single controlled buy for which Snell was indicted, and

                                                9
that Lindsey had made no such exculpatory or written statements

to    the    government.         Nor   did    the    government     have    any   prior

knowledge of the telephone call between Lindsey and Scott.

       The district court listened to the telephone recording in

its entirety and reviewed in camera the government’s interview

notes       from   the    meetings     with       Lindsey    for    the    purpose   of

determining whether there was any undisclosed Brady material.

It found none.           However, the court ruled that Snell was free to

use     Lindsey’s        prior    inconsistent        statements      to     Scott    as

impeachment evidence, in accordance with the applicable rules of

evidence, and to place the question of Lindsey’s credibility

regarding Snell’s actual involvement before the jury.

       That is precisely what occurred.                Lindsey was questioned by

the government and by defense counsel about the telephone call.

The government played the entire recording of the telephone call

for    the    jury’s     consideration.           Lindsey   testified,      consistent

with    the    government’s       representations       to    the    court    and    the

court’s in camera review of the government’s interview notes,

that Snell had been involved in Lindsey’s ongoing drug business

and that Snell brought the 4.5 ounces of crack cocaine to him at

his request for the June 11 deal.                   Lindsey also confirmed that

he never provided a written statement to the government.

       Lindsey also offered an explanation for his inconsistent

statements to Scott during their telephone conversation.                             He

                                             10
testified that the purpose of the telephone call was to convince

Scott to persuade Snell to accept a guilty plea, as everyone

else named in the indictment had done, so that Snell would also

receive a lesser sentence.             Lindsey testified that Snell was his

best friend and closest confidant.                     He felt guilty because he

had asked Snell to bring him the crack cocaine on June 11, and

he believed that Snell would never have been on the indictment

and   would    not    be   going       to   jail       if   he   had    not   done   so.

Accordingly, Lindsey testified that he “was saying anything [to

Scott] to try to [get] Emmith Snell to sign a plea.”                      J.A. 225.

      We find no error in the district court’s factual findings

or legal conclusions.           Because Snell failed to establish that

Lindsey made the alleged exculpatory or written statements to or

for the government, he failed to establish that the government

violated Brady or any of its other discovery obligations.

                                            B.

      Snell    next    contends        that      the    government      violated     its

discovery     obligations    by    failing        to    inform    him    that   Officer

Holding had seen Snell at a drug deal involving Lindsey that

occurred prior to the six drug deals at issue in the indictment.

The   government      learned     of    this      information      the    day   before

Officer Holding testified and made the decision not to use the

evidence against Snell in the government’s case-in-chief, even

though the evidence was potentially inculpatory as to Snell.

                                            11
The government did not inform Snell of this information prior to

the conclusion of Officer Holding’s direct examination.

        At   the    start    of    Snell’s         cross-examination           of    Officer

Holding, however, Snell’s counsel asked an open-ended question

that could have elicited this testimony from Officer Holding,

prompting the government to interrupt for a side bar conference

and inform the judge and defense counsel of this information.

Snell objected to the late disclosure of the information as a

violation of the government’s discovery obligations, which the

district      court     overruled,         and     the     information         was     never

presented to the jury.

      We find no reversible error in the district court’s ruling.

The   government      was    not    required        to    disclose     the     information

under    Brady     because    it    was      not    exculpatory.          Nor       did    the

statement relate directly to the controlled buys at issue in the

indictment.         Moreover,       even     if     the    government         should      have

produced     this     information       prior      to     the    cross-examination          of

Officer Holding, there was no prejudice to Snell.                             Snell argues

that he could have used Officer Holding’s inculpatory testimony

about    Snell’s     presence      at   an   unrelated          drug   deal    to    impeach

Lindsey’s favorable testimony that Snell was not involved in any

of the other drug deals set forth in the indictment.                                Clearly,

there is no reasonable probability that such testimony would

have resulted in a different verdict on Count 9.                              But, in any

                                             12
event,    the      information      was     disclosed         to     the     defense    in

sufficient time for Snell reasonably and effectively to make use

of it at trial.       Snell chose not to do so.

                                           C.

       Finally,    Snell   alleges        that   the       government      violated    its

discovery     obligations      by   failing       to       produce    the     conviction

history of Snell’s girlfriend, Martha Scott.                         Scott was called

by the defense to testify about Snell’s sources of legitimate

income and to provide support for his theory that he did not

need to participate in Lindsey’s drug business.                            Scott was not

present at the June 11 controlled buy, nor did she offer any

information about that transaction.                    During cross-examination,

the government impeached Scott with her prior conviction for

providing fictitious information to an officer.                            Snell did not

object.

       After trial, Snell filed a motion to compel, and argued

that   the    government    had     failed       to    comply       with    his    earlier

“Motion      for   Pre-Trial     Production           of    Brady    and     Impeachment

Evidence Concerning Government Witnesses,” J.A. 53, which had

requested, among other things, the “FBI rap sheet, NCIC printout

and any other records available to the government reflecting the

arrest and conviction history of any [such] witness.”                             J.A. 55.

Construing the post-trial motion to compel as a motion for a new



                                           13
trial or for a judgment of acquittal, the district court denied

the same.    We affirm.

     Scott was not a government witness.            The government had no

obligation    under   Brady   or   otherwise   to    anticipate   who   the

defense might call as a witness and disclose evidence that was

only relevant to the government’s potential impeachment of a

defense witness.      The evidence was easily and equally obtainable

by the defense.       Moreover, given Scott’s lack of knowledge or

testimony about the June 11 drug deal, there is no reasonable

probability that, had the information been disclosed to Snell,

the result of the verdict on Count 9 would have been different.

                                    IV.

     For the foregoing reasons, we affirm the district court’s

judgments.

                                                                  AFFIRMED




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