                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4699


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TARVIS LEVITICUS DUNHAM,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.    Irene M. Keeley,
District Judge. (1:12-cr-00011-IMK-JSK-1)


Submitted:   May 13, 2014                     Decided:   May 28, 2014


Before KING, DUNCAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Barry P. Beck, POWER, BECK & MATZUREFF, Martinsburg, West
Virginia, for Appellant.     William J. Ihlenfeld, II, United
States Attorney, Brandon S. Flower, Assistant United States
Attorney, Clarksburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Tarvis     Leviticus       Dunham          was    convicted,       following     a

jury   trial,      of    obstructing      justice          by    retaliating        against    a

witness,      in   violation       of    18    U.S.C.          § 1513(b)(1)      (2012);      two

counts of assaulting, resisting, and impeding certain officers

or employees, and causing physical injury, in violation of 18

U.S.C. § 111(a)(1), (b) (2012); and two counts of resisting and

impeding      certain     officers       and    employees,          in   violation       of   18

U.S.C. § 111(a)(1).           Dunham, who at all relevant times was an

inmate   in    the      United    States       Penitentiary         at   Hazelton        (“USP-

Hazelton”), was sentenced to 240 months’ imprisonment, to be

served   consecutive         to    the    federal         sentences      he      was    already

serving.      This appeal timely followed.

              Dunham raises two issue on appeal.                         He first asserts

that the district court abused its discretion in denying his

motion for a new trial based on the Government’s failure to

disclose that the Office of the Inspector General (“OIG”) was

investigating John Fitch, a corrections officer and Government

witness,   for     smuggling       contraband            into     USP-Hazelton.          Dunham

next   claims      the    court     abused         its    discretion        by   restricting

defense counsel’s cross-examination of Shawn Burchett, Special

Investigative        Agent    at    USP-Hazelton,               regarding     the      prison’s

investigation into the charged offenses.



                                               2
              Our review of the transcript confirms that, in ruling

on these issues, the district court applied the proper legal

standards      and   did    not    clearly       err    in    its   evaluation     of    the

evidence, see United States v. Delfino, 510 F.3d 468, 470 (4th

Cir. 2007), and thus did not abuse its discretion.                         Accordingly,

we affirm the judgment.

              As to the first appellate issue, this court reviews

the    district      court’s      denial   of     a     Federal     Rule   of    Criminal

Procedure 33 motion for a new trial for abuse of discretion.

United States v. Moore, 709 F.3d 287, 292 (4th Cir. 2013).                               To

receive a new trial based on a Brady 1 violation, a defendant must

“show that the undisclosed evidence was (1) favorable to him

either because it is exculpatory, or because it is impeaching;

(2) material to the defense, i.e., prejudice must have ensued;

and (3) that the prosecution had [the] materials and failed to

disclose them.”          United States v. Wilson, 624 F.3d 640, 661 (4th

Cir. 2010) (internal quotation marks omitted).                             To establish

that such favorable evidence is material, the defendant must

show       that,   had     the    evidence       been        disclosed,    there    is     a

reasonable probability that the outcome of the proceeding would

have been different.             United States v. Caro, 597 F.3d 608, 619

(4th Cir. 2010).

       1
           Brady v. Maryland, 373 U.S. 83 (1963).


                                             3
              The Government has conceded, both in this court and in

the district court, that the evidence of OIG’s investigation

into Fitch’s conduct satisfies the first prong of the inquiry,

and that it failed to disclose this evidence.                The real sticking

point for Dunham is the materiality prong, and it was on this

basis that the district court denied the motion as to all but

one count of conviction. 2

              Having    thoroughly    reviewed     the   trial   transcript,   we

agree with the district court that, “in light of the volume and

nature of the evidence presented by the Government at trial,

there is no appreciable possibility that the earlier disclosure

of the Brady material would have had an effect on the ultimate

outcome of the case.”          (J.A. 707-08). 3    Indeed, Fitch’s testimony

was   cumulative       and    corroborative   in   every    aspect.     We   thus

affirm the denial of Dunham’s motion for a new trial for the

reasons set forth in the district court’s order.

              Dunham next maintains that the district court abused

its       discretion     in     restricting      defense    counsel’s    cross-

      2
        The district court did conclude that impeachment of
Fitch’s testimony reasonably could have resulted in a different
outcome on the one count of conviction that was predicated on
Dunham’s physical contact with Fitch. The court opted to vacate
the jury’s verdict and dismiss this count of conviction instead
of conducting a new trial.
      3
       Citations to the “J.A.” refer to the joint appendix filed
by the parties.



                                        4
examination       of    Shawn        Burchett         regarding          the    scope        of    the

prison’s    internal         investigation           into        the    incident       underlying

Dunham’s prosecution.           We disagree.

            Pursuant to Federal Rule of Evidence 611(b), “[c]ross-

examination       should      not    go       beyond       the    subject       matter       of     the

direct     examination          and       matters           affecting           the     witness’s

credibility.           The    court       may       allow        inquiry       into    additional

matters as if on direct examination.”                                  We review a district

court’s limitation on the scope of the cross-examination of a

Government       witness      only      for    an    abuse        of    discretion.           United

States v. Zayyad, 741 F.3d 452, 458 (4th Cir. 2014).                                      In this

context, the district court “possesses wide latitude to impose

reasonable       limits       on      cross-examination,                 premised        on        such

concerns    as    prejudice,         confusion,            repetition,         and    relevance.”

United States v. Smith, 451 F.3d 209, 221 (4th Cir. 2006).

            Our review of the record convinces us that there is no

such    abuse     of   discretion         in        this    case.          First,      the        court

accurately characterized the line of questioning defense counsel

wished to pursue as being “very far afield” from the scope of

Burchett’s       testimony         on     direct       examination.                  (J.A.        512).

Furthermore, the proffered line of questioning was irrelevant to

the    issues    in    this    case.           We    thus     conclude         that    the        court

properly     restricted         defense          counsel’s             cross-examination             of

Burchett.       See Zayyad, 741 F.3d at 459-60 (noting propriety of

                                                5
trial court limiting cross-examination to areas of relevance to

the    case   and   explaining      this       court’s    deference   to    district

court’s rulings on relevancy).

              For these reasons, we affirm the criminal judgment.

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




                                           6
