                            UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                            No. 09-4504


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

TERRENCE PETERS, a/k/a The Dred, a/k/a Dred,

               Defendant - Appellant.



                            No. 09-4531


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

SPENCER PETERS, a/k/a Smoke,

               Defendant - Appellant.



                            No. 09-4917


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.
CLIFFORD NOEL, a/k/a Spliff,

                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond.      Robert E. Payne, Senior
District   Judge.    (3:08-cr-00186-REP-1;   3:08-cr-00186-REP-2;
3:08-cr-00186-REP-3)


Submitted:   August 4, 2010              Decided:   August 20, 2010


Before DUNCAN, AGEE, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Scott C. Brown, SCOTT C. BROWN LAW OFFICE, Wheeling, West
Virginia; Peter D. Eliades, ELIADES & ELIADES, P.C., Hopewell,
Virginia; Angela D. Whitley, THE WHITLEY LAW FIRM, Richmond,
Virginia, for Appellants.     Neil H. MacBride, United States
Attorney, Peter S. Duffey, Richard D. Cooke, Assistant United
States Attorneys, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

               Terrence      Peters      appeals         his        conviction        and     life

sentence for one count of conspiracy to distribute 50 grams or

more    of     cocaine      base    in     violation           of     21   U.S.C.       §§ 846,

841(a)(1), 841(b)(1)(A)(iii) (2006) and one count of conspiracy

to possess firearms in furtherance of a drug trafficking offense

in    violation      of    18   U.S.C.     § 924(o)           (2006).      Spencer          Peters

appeals his conviction and 480 month sentence for one count of

conspiracy to distribute 50 grams or more of cocaine base in

violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A)(iii) and

one count of conspiracy to possess firearms in furtherance of a

drug trafficking offense in violation of 18 U.S.C. § 924(o).

Clifford Noel appeals his conviction and 360 month sentence for

one    count    of    conspiracy      to    distribute           50    grams     or    more    of

cocaine      base     in   violation       of       21   U.S.C.       §§ 846,     841(a)(1),

841(b)(1)(A)(iii)          and     one     count         of    conspiracy        to     possess

firearms       in    furtherance      of    a       drug       trafficking       offense       in

violation of 18 U.S.C. § 924(o).                    We affirm.

               The Appellants jointly raise several issues and Noel

individually         asserts     several     additional             grounds    for      relief.

Appellants first claim that they were denied due process when a

potential juror made a statement regarding murder in response to

whether she had read anything about any of the Appellants.                                   Noel

had previously been convicted of murder in state court (though

                                                3
the conviction was later set aside) and the parties had agreed

that no evidence or mention of the murder conviction would be

admissible.     Appellants claim that they were further prejudiced

by   the   prosecutor’s    use   of    the    phrase   “autopsy    of   a    drug

conspiracy” in opening statements and by a Government witness’s

statement on cross-examination that he had previously testified

against Noel.

            We reject the Appellants’ joint claims.                This court

reviews a trial court’s decisions at voir dire for abuse of

discretion.     Rosales-Lopez v. United States, 451 U.S. 182, 188-

89   (1981).     When     prospective       jurors   have   been   exposed    to

pretrial publicity, “the relevant question is not whether the

community remembered the case, but whether the jurors . . . had

such fixed opinions that they could not judge impartially the

guilt of the defendant.”         Mu’Min v. Virginia, 500 U.S. 415, 430

(1991).     Here, the district court examined the venire and was

satisfied that they could continue to be impartial.                We decline

to disturb that finding.         Moreover, when viewed in context, we

conclude that the prosecutor did not engage in misconduct by

referencing     an   “autopsy”    in    opening      remarks.      Finally    we

conclude that the witness’s statement that he had previously

testified against Noel was not reversible error.

            Noel’s first individual complaint is that the district

court erred in denying his motion for a new trial based on

                                        4
alleged violations of Brady v. Maryland, 373 U.S. 83 (1963), and

Giglio v. United States, 405 U.S. 150 (1972).

            This court reviews the district court’s ruling on a

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

States v. Fulks, 454 F.3d 410, 431 (4th Cir. 2006) (motion for

new   trial      due   to     Brady     violation       reviewed       for    abuse     of

discretion).           The    Due     Process       Clause    requires        that     the

government       disclose      to     the     defense      prior       to    trial     any

exculpatory      or    impeaching      evidence      in    its     possession.         See

Giglio, 405 U.S. at 153-55 (requiring disclosure of evidence

affecting the credibility of prosecution witnesses); Brady, 373

U.S. at 86-88 (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. Strickler v. Greene, 527

U.S. 263, 281-82 (1999); see Vinson v. True, 436 F.3d 412, 420

(4th Cir. 2006).

            Assuming         that    the    district       court      was    correct    in

concluding that the statements in question were favorable in the

Brady context, we agree with the court’s conclusion that they

were not material.           When two Government witnesses testified in a

manner    inconsistent        with    their      debriefing      reports,     Noel     used

                                            5
those    reports     to     impeach        the       witnesses.             The    addition        of

undisclosed trial preparation reports that demonstrated the same

inconsistencies would not have materially contributed to Noel’s

defense.      See United States v. Hoyte, 51 F.3d 1239 (4th Cir.

1995).

             Noel    next     argues       that          he   was    denied       his    right     to

testify on his own behalf because he chose not to testify for

fear that his state conviction, which was later invalidated,

would be used to impeach him.                        As Noel essentially raises an

improper     impeachment       claim,       we       find     that     because      he    did     not

testify, the claim is not cognizable on appeal.                                     See Luce v.

United States, 469 U.S. 38, 43 (1984) (holding that defendant

who claimed to be deterred from testifying by a court ruling

regarding impeachment evidence could not challenge ruling unless

he testified and was prejudiced by it).

             Finally,        Noel        challenges           the     sufficiency         of      the

evidence against him.           “A defendant challenging the sufficiency

of the evidence faces a heavy burden.”                         United States v. Foster,

507   F.3d    233,     245    (4th Cir. 2007).                      This    court       reviews     a

sufficiency of the evidence challenge by determining whether,

viewing      the    evidence        in    the        light     most        favorable      to      the

government, any rational trier of fact could find the essential

elements     of     the   crime      beyond          a    reasonable         doubt.         United

States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005).                                          After

                                                 6
reviewing       the    record,    we     find     that    the   Government       adduced

sufficient evidence to sustain Noel’s convictions.

            We therefore affirm the judgment of the district court

as   to   each   Appellant.         We   construe        Terrence     Peters’s   letter

attacking    the       accuracy    of    a   laboratory     report     introduced     at

trial as a motion to file a pro se supplemental brief and deny

the motion.           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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