                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 08-5165


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

DAVID ELLERBY, a/k/a Chicken,

                 Defendant – Appellant.



                             No. 08-5177


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

JERMALL LILLY,

                 Defendant – Appellant.



Appeals from the United States District Court for the District
of Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:07-cr-00064-CCB-1; 1:07-cr-00064-CCB-2)


Submitted:   December 9, 2010              Decided:   January 26, 2011


Before WILKINSON, GREGORY, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Francis A. Pommett, III, NATHANSON & POMMETT, P.C., Baltimore,
Maryland; Jonathan P. Van Hoven, LAW OFFICES OF JONATHAN VAN
HOVEN, Baltimore, Maryland, for Appellants. Rod J. Rosenstein,
United States Attorney, Sandra Wilkinson, Tonya Kelly Kowitz,
Assistant United States Attorneys, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              David       Ellerby        and       Jermall    Lilly         appeal    their

convictions following a jury trial.                        Ellerby was sentenced to

life      imprisonment         after     being      convicted      of       conspiring    to

distribute and possess with intent to distribute cocaine and 50

grams or more of cocaine base (“crack”), in violation of 21

U.S.C. § 846 (2006) (“Count One”); distribution of 50 grams or

more    of   crack,       in   violation       of   21    U.S.C.A.      §    841(a)(1)    and

(b)(1)(A) (West 1999 & Supp. 2010) (“Count Two”); distribution

of   50    grams     or    more     of   crack,      in   violation         of   21 U.S.C.A.

§ 841(a)(1)        and     (b)(1)(A)       (“Count        Three”);      distribution       of

cocaine, in violation of 21 U.S.C.A. § 841(a)(1) and (b)(1)(C)

(West Supp. 2010) (“Count Four”); and possession with intent to

distribute cocaine and 100 grams or more of heroin, in violation

of 21 U.S.C.A. § 841(a)(1), (b)(1)(B) and (b)(1)(C) (West 1999

& Supp.      2010)    (“Count       Five”).         Lilly    was     sentenced       to   144

months’ imprisonment upon his conviction of Counts One and Four.

We affirm.

              Defendants contend that the district court erred in

denying their motion for mistrial and motion for continuance,

which     were     based       on    the   Government’s         late        disclosure    of

impeachment evidence.               We review the district court’s ruling on

a motion for mistrial and motion for continuance for abuse of

discretion.          See United States v. Wallace, 515 F.3d 327, 330

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(4th Cir. 2008); United States v. Williams, 445 F.3d 724, 738-39

(4th    Cir.       2006).              Defendants         also      contend     that       the     district

court erred in denying their post-trial motion for a new trial,

which    was       based          on    the       expert      testimony       of    a     former     police

officer           regarding            the        integrity         of   the       investigation         of

Defendants.             We likewise review the district court’s ruling on a

motion for a new trial for abuse of discretion.                                               See United

States v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001).

                  The Due Process clause requires that the Government

disclose          to        the   defense          prior       to    trial      any     impeaching       or

exculpatory evidence in its possession. See Giglio v. United

States, 405 U.S. 150, 153-55 (1972) (requiring disclosure of

evidence          affecting            the    credibility           of   prosecution          witnesses);

Brady        v.     Maryland,               373    U.S.       83,     86-88     (1963)            (requiring

disclosure             of    exculpatory           evidence).            A    failure        to     disclose

violates due process, however, only if the evidence in question:

(1)     is    favorable                to    the     defendant,          because        it    is      either

exculpatory or impeaching; (2) was suppressed by the Government;

and    (3)        is    material            in    that     its      suppression         prejudiced       the

defendant.                  See   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,

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515 U.S. 419, 433-34 (1995) (internal quotation marks omitted).

A     reasonable    probability      is       one    sufficient       to    “undermine

confidence” in the outcome.          Id. at 435.

            After       reviewing     the       record,        we     conclude         that

Defendants fail to demonstrate “a reasonable probability” that

the outcome of the proceeding would have been different had the

impeachment evidence been disclosed to the defense earlier, or

had Defendants been permitted to introduce the testimony of a

former police officer in a new trial.                  Id. at 433-34.         The late

disclosure of impeachment evidence and the denial of Defendants’

motion for a new trial do not undermine confidence in the result

of their trial.          See id. at 434.              Accordingly, the district

court did not abuse its discretion in denying Defendants’ motion

for    mistrial,    motion     for   continuance,        and     motion     for    a   new

trial.

            We therefore affirm Defendants’ convictions.                          We deny

Ellerby’s motion seeking leave to file a pro se supplemental

brief.     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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