                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4494


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KENDALL R. JONES,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:04-cr-00392-RLW-1)


Submitted:   March 18, 2010                   Decided:   May 13, 2010


Before MICHAEL, 1 MOTZ, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.




     1
       Judge Michael was a member of the original panel but did
not participate in this decision.    This opinion is filed by a
quorum of the panel pursuant to 28 U.S.C. § 46(d).
Brian J. Grossman, CROWGEY & GROSSMAN, Richmond, Virginia, for
Appellant.   Neil H. MacBride, United States Attorney, Roderick
C. Young, Assistant United States Attorney, Richmond, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

             Kendall Jones was convicted of conspiracy to possess

with intent to distribute fifty grams or more of cocaine base,

two counts of possession with intent to distribute fifty grams

or    more    of     cocaine      base,        and       possession    with      intent     to

distribute      less      than    500    grams       of    cocaine    powder.       He     was

sentenced      to    300       months    in     prison. 2          Jones    now    appeals,

challenging his convictions on two grounds.                         We affirm.

             Prior       to    trial,    Jones’       attorney      filed    a    Motion    to

Produce Information and to Continue, seeking:                               (1) to obtain

information        about       Government      witness       Michelle       Campbell;      and

(2) a continuance so that he might have time to review such

material.       He       stated   that    he       had    already     received     from    the

Government and reviewed the criminal records of Campbell and

another      witness      in     order    to    prepare       for     cross-examination.

However,     counsel       expressed      concern          about    Campbell’s     criminal

record in New York, which included a 1987 robbery conviction and

several bench warrants, the latest of which was issued in 1992

and   vacated       in   1993.    Counsel       believed      that     files     related    to



      2
        Subsequent to Jones’ sentencing, the district court
granted his 18 U.S.C. § 3582(c)(2) (2006) motion and reduced his
sentence to 240 months.



                                               3
these    New       York    matters        might       have       some      relevance          to     her

credibility.

              The district court denied the motion after argument.

The court found that there was no factual or legal basis for the

relief requested.            Additionally, the court observed, “Everything

stated   by     the       defendant       [in    terms       of     what      the       files      might

reveal] is either speculative or conclusory.”

              On     appeal,        Jones       argues       that       the     district           court

improperly denied his motion.                     With respect to the request for

information, 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 v. United

States, 405 U.S. 150, 153-55 (1972); Brady v. Maryland, 373 U.S.

83, 86-88 (1963).            Evidence need only be disclosed, however, if

it: (1) is favorable to the defendant; (2) was suppressed by the

Government; and (3) is material.                      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).



                                                  4
             Mere        speculation        about    the    existence          of    potentially

exculpatory or impeaching evidence is insufficient to give the

defense     access        to   materials        under     Brady    and     Giglio.          United

States v. Michaels, 796 F.2d 1112, 1116 (9th Cir. 1986); United

States    v.    Navarro,         737      F.2d    625,      630-31       (7th        Cir.   1984).

Further,     Brady        does     not      require       the    Government          “to    gather

information         or    conduct      an    investigation          on     the       defendant’s

behalf.”       United States v. Tadros, 310 F.3d 999, 1005 (7th Cir.

2002).

             Here,         the   district         court         properly       denied       Jones’

request for information.                 Jones only speculated that information

in Campbell’s New York file would have produced exculpatory or

impeaching evidence.             Moreover, the evidence he sought by way of

his motion was not material.                      There was overwhelming evidence

against Jones, including the testimony of Campbell, which was to

a   great      extent          corroborated          by    Special         Agent        Baldwin’s

testimony.           In    light     of      this,      there     is     not     a    reasonable

possibility that the outcome of the proceeding would have been

different had counsel had access to the records he sought.

             We also conclude that the district court did not abuse

its discretion in denying the requested continuance.                                  See United

States v. Williams, 445 F.3d 724, 739 (4th Cir. 2006) (stating

standard       of    review).             The     sole      reason       for        seeking    the

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continuance   was   to   have    time      to   review   Campbell’s   New   York

files.   Because     Jones      had   no    right   to   disclosure   of    that

material, there was no need for the continuance.

          We therefore affirm.              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




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