                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4647



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


LANNY BENJAMIN BODKINS,

                                             Defendant - Appellant.



                             No. 06-4652



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


ANTHOINE PLUNKETT,

                                             Defendant - Appellant.



Appeals from the United States District Court for the Western
District of Virginia, at Danville. Glen E. Conrad, District Judge.
(4:04-cr-70083-1; 4:04-cr-70083-GEC)


Argued:   December 7, 2007                 Decided:   April 18, 2008
Before NIEMEYER and GREGORY, Circuit Judges, and Henry F. FLOYD,
United States District Judge for the District of South Carolina,
sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Rhonda Lee Overstreet, LUMSDEN & OVERSTREET, Roanoke,
Virginia; Clifford Lee Harrison, HARRISON & TURK, P.C., Radford,
Virginia, for Appellants.     Thomas Ernest Booth, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF:
William H. Cleaveland, Roanoke, Virginia; James C. Turk, Jr.,
HARRISON & TURK, P.C., Radford, Virginia, for Appellant Lanny
Benjamin Bodkins. John L. Brownlee, United States Attorney, Craig
J. Jacobsen, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Anthoine Plunkett was accused of hiring Lanny Bodkins and

Keith Taylor to murder Tyree Wimbush.        Following a six-day jury

trial,   Plunkett   and   Bodkins   (collectively,   Appellants)   were

convicted of conspiracy to travel in interstate commerce to commit

murder for pecuniary gain and interstate travel to commit murder

for pecuniary gain (Counts I and II); conspiracy to travel in

interstate commerce to commit interstate stalking (Count III);

travel in interstate commerce to commit interstate stalking (Count

IV); and using a firearm during and in relation to a crime of

violence that resulted in death (Count V).

     Prior to trial, the Attorney General authorized the death

penalty for Appellants, but withdrew the authorization before

sentencing.   Appellants were each sentenced to life.

     Plunkett made post-trial motions concerning the sufficiency of

the evidence and alleged Brady violations; and Bodkins filed a

motion asserting that the district court should find that he was

entitled to relief pursuant to 18 U.S.C. § 3553(e).          The trial

court denied each of these motions.      This appeal followed.   For the

reasons stated below, we affirm the judgment of the district court.



                                    I.

     Plunkett, a black drug dealer, hired Bodkins and Keith Taylor,

two white men, to murder Tyree Wimbush, because Plunkett mistakenly


                                    3
thought that Wimbush was a confidential informant for local drug

investigators.   Each of these individuals used and sold drugs.

     On July 22, 1999, Bodkins and Taylor drove from Johnson City,

Tennessee, to Danville, Virginia, to kill Wimbush.    Bodkins shot

Wimbush three times, killing him with a wound to the aortic artery.

Just before he fell to the ground, Witness James Lewis Fitts heard

Wimbush say that he had been hit or shot.

     The procedural history, as detailed by the district court, is

as follows:

          Lanny Benjamin Bodkins, Anthoine Plunkett, and Darel
     Keith Taylor were indicted by a grand jury on February
     17, 2005, and charged with: conspiracy to travel in
     interstate commerce with the intent to commit murder for
     pecuniary gain; travel in interstate commerce with the
     intent to commit murder for pecuniary gain, aiding and
     abetting; conspiracy to travel in interstate commerce
     with the intent to commit interstate stalking; travel in
     interstate commerce with the intent to commit interstate
     stalking, aiding and abetting; and use of a firearm
     during and in relation to a crime of violence resulting
     in death, aiding and abetting. The United States filed
     Notices of Intent to Seek the Death Penalty as to Bodkins
     and Plunkett on February 17, 2005.

          Taylor had confessed to involvement in the murder of
     Tyree Wimbush in September of 2002, during investigation
     of the murder, and had entered into a plea agreement with
     the government.    Pursuant to that agreement, he pled
     guilty to two counts of the indictment; conspiracy to
     travel in interstate commerce with the intent to commit
     murder for pecuniary gain (Count One), and use of a
     firearm during and in relation to a crime of violence
     resulting in death, aiding and abetting (Count Five).
     Before the trial began, counsel for the government gave
     counsel for Plunkett a tape and transcript of a statement
     given by Taylor on September 19, 2002. This was the only
     statement from Taylor provided to counsel for Plunkett.



                                 4
     In the weeks prior to trial of the remaining
defendants, the parties engaged in limited plea
discussions. On August 12,2005, Bodkins made a proffer
to the government that yielded information that was
substantial to the government's case.       Prior to the
proffer, Assistant United States Attorney Craig J.
Jacobsen told Bodkins that Bodkins would have two options
in regards to going to trial.       Bodkins could either
choose to testify at trial on his own behalf or choose
not to testify at all. Jacobsen told Bodkins that he
thought if Bodkins told the jury the truth, it was his
opinion that the jury would have a much more difficult
time imposing the death penalty. At the proffer, Bodkins
gave the government attorneys information concerning a
Tennessee telephone number. The number, which Bodkins
had originally said was his girlfriend's, received a call
from Plunkett's mother's telephone card at 2:47 a.m. on
July 23, 1999, several hours after the Wimbush murder.
As a result of the information, the government renewed
attempts to obtain the records for that telephone number,
and questioned Taylor about the number. The information
provided by Bodkins was very useful to the government in
the prosecution of the case. The telephone records were
given to Plunkett's attorneys in advance of trial, but
Plunkett was not informed of the proffer given by Bodkins
prior to trial.

     Bodkins was offered a plea agreement on August 14,
2005. The terms of the agreement provided that United
States Attorney John Brownlee would recommend to the
Department of Justice that Bodkins would receive a life
sentence without the possibility of parole, if Bodkins
would plead guilty and testify for the government at
trial. Bodkins rejected the plea offer.

     The trial began on August 15, 2005. Pursuant to his
plea agreement, Taylor testified at trial. At the start
of trial, both Plunkett and Bodkins were unavailable to
be called as witnesses by the United States. During the
trial, Bodkins advised the court that he would be
available to be called as a witness. Plunkett was still
not informed that Bodkins had been offered a plea
agreement, however. Bodkins later took the stand on his
own behalf, and testified in conformity with the
government's theory of the case. On September 2, 2005,
Bodkins and Plunkett were convicted by a jury on all
counts of the indictment.       The evidence at trial


                           5
     established that Plunkett hired Bodkins and Taylor to
     murder Tyree Wimbush.

          During the penalty phase of the trial, the
     government moved to withdraw the death notices as to both
     defendants Bodkins and Plunkett. The court granted this
     motion. Bodkins and Plunkett now stand convicted of three
     capital offenses which are punishable only by life
     imprisonment without possibility of release and two
     offenses which are punishable by a term of years up to
     life imprisonment without possibility of release.

          Taylor was sentenced on December 12, 2005.     The
     court granted the government's motion for a downward
     departure for substantial assistance, sentencing Taylor
     to 180 months of incarceration on Count One and 120
     months of incarceration on Count Five, to run
     consecutively.

          After the trial, Bodkins filed a Motion for
     Presentencing Relief, alleging that the United States
     breached an implied pretrial agreement with Bodkins to
     give him the same bargain as Taylor if he made a proffer
     of substantial information. Bodkins sought enforcement
     of the alleged agreement. The motion was denied by this
     court on April 27, 2006.

          Defendant Plunkett filed a motion for new trial
     based on undisclosed Brady material ("First Brady
     Motion") on November 11,2005, alleging that certain
     statements made by defendant Taylor were not disclosed to
     the defendant prior to trial.     Plunkett filed another
     motion based on undisclosed Brady material on January
     6,2006 ("Third Brady Motion"), seeking a new trial
     because he had not been informed of Bodkins' negotiations
     with the government prior to his testimony. A hearing on
     the motions was held on April 28, 2006.

(J.A. 1939-42) (footnote omitted).



                               II.

     Plunkett argues that the district court erred in finding that

the evidence presented at trial supported his convictions.       To


                                6
determine if there was sufficient evidence to support a conviction,

we   consider    whether,       taking   the   evidence    in   the   light   most

favorable to the government, substantial evidence supports the

jury’s verdict.        Glasser v. United States, 315 U.S. 60, 80 (1942)

(“The verdict of a jury must be sustained if there is substantial

evidence, taking the view most favorable to the government, to

support it.”).

      Substantial evidence is defined as “that evidence which ‘a

reasonable finder of fact could accept as adequate and sufficient

to support a conclusion of a defendant’s guilt beyond a reasonable

doubt.’”    United States v. Newsome, 322 F.3d 328, 333 (4th Cir.

2003) (quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.

1996)).    We review both the direct and circumstantial evidence and

accord “the government the benefit of all reasonable inferences

from the facts proven to those sought to be established.”                 United

States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982) (citation

omitted).

      When reviewing claims of sufficiency of the evidence, “[t]he

relevant question is not whether the appellate court is convinced

of guilt beyond a reasonable doubt, but rather whether, viewing the

evidence    in   the    light    most    favorable   to   the   government,    any

rational trier of facts could have found the defendant guilty

beyond a reasonable doubt.”          Tresvant, 677 F.2d at 1021 (citations

omitted).


                                          7
      Concerning Counts One and Two, 18 U.S.C. § 1958(a) provides,

in relevant part, that

      [w]hoever travels in or causes another . . . to travel in
      interstate . . . commerce . . . with intent that a murder
      be committed in violation of the laws of any State or the
      United States as consideration for the receipt of, or as
      consideration for a promise or agreement to pay, anything
      of pecuniary value, or who conspires to do so, shall be
      fined . . . or imprisoned . . . or both.

18 U.S.C. § 1958(a).

      Plunkett maintains that certain of the government’s evidence

is inconsistent with other evidence that the government presented,

(Appellants’ Brief 27-29), but that “Defense witnesses offered

testimony free of bias and inconsistency.”           (Appellant Brief 29.)

      We first note that it is not the duty of this Court to weigh

the evidence and to resolve inconsistences.          That, instead, is the

province of the trier of fact.          In fact, from our review of the

record, it appears that is exactly what the jury was called upon to

do.

      Moreover,   and     as   observed      by     the   government,   the

inconsistencies cited by Plunkett are insignificant.           (Appellee’s

Brief 12.)     As such, we see no need to detail each one here.

Simply stated, “Taylor’s testimony that Plunkett hired him and

Bodkins   to   kill     Wimbush,   Bodkins    and     Plunkett’s   pretrial

admissions, Plunkett and Taylor’s incriminating phone records, and

the eyewitnesses to Wimbush’s murder amply established Plunkett’s




                                    8
guilt   on   [Counts     One   and    Two].”       (Appellee’s     Brief   11-12.)

Accordingly, we will affirm the district court on this issue.

       Counts   Three,    Four,      and   Five   pertain   to    the   interstate

stalking crimes for which Plunkett was charged.                  To establish the

crime of interstate stalking, the government must prove beyond a

reasonable doubt that (1) the defendant traveled in interstate

commerce; (2) such interstate travel was with intent to injure or

harass the victim; and (3) during or after such travel, the

defendant committed an act of placing the victim in reasonable fear

of death or serious bodily injury.                18 U.S.C.A. § 2261A; United

States v. Wills, 346 F.3d 476, 493-94 (4th Cir. 2003).

       Plunkett contends that the third element of the offense is not

met.    According to Plunkett,

       [t]here is no evidence of a pattern of intimidation or
       threats from Plunkett to Wimbush. Evidence established
       that Wimbush and Plunkett were friendly acquaintances for
       a significant period.     The evidence establishes that
       Wimbush voluntarily approached the vehicle on the night
       of July 22 to conduct a drug deal. If Wimbush had in
       fact been in fear for his life, he would not have
       approached the vehicle in such a manner.

(Appellants’ Brief 32.)        We find these arguments to be unavailing.

       The fear element of § 2261A requires only that, for some

period of time, the victim was placed in reasonable fear of death

or serious bodily injury.         Wills, 346 F.3d at 494.           Whether there

was a pattern of intimidation or a friendly relationship between

the defendant and the victim is of no moment.                      The fact that

Wimbush freely approached the vehicle is equally inconsequential.

                                           9
     At trial, Witness Fitts testified as follows:

     Q.   When you heard the shots, did you hear [Wimbush] say
           anything?
     A.    Yes, sir.
     Q.    What did he say?
     A.    “I been” -- “I been hit” or “I been shot” or
           something like that.
     Q.    And then after he was shot, what did he do?
     A.    He just, like, grabbed to where he was shot at and,
           like, stood there for a second and then fell over
           to the curb.

(J.A. 94.)   We are of the opinion that Wimbush’s statement that he

had been shot establishes that he was placed in reasonable fear of

death or serious bodily injury, See Wills, 346 F.3d at 494, albeit

for a very short period of time.       Therefore, we will affirm the

district court on this issue as well.




                                III.

     Plunkett next contends that the district court erred in

refusing to grant a new trial on the basis that the government

violated Plunkett’s due process rights by neglecting to divulge one

of its witness’ prior inconsistent statements until midway through

the trial.   We review the court’s refusal to grant a new trial for

an abuse of discretion.   United States v. Huggins, 191 F.3d 532,

536 (4th Cir. 1999).

     A Brady violation occurs when the government fails to disclose

prior to trial “evidence favorable to an accused . . . where the

evidence is material to guilt or punishment, irrespective of the


                                 10
good faith or bad faith of the prosecution.”        Brady v. Maryland,

373 U.S. 83, 87 (1963).    This Court has found that the evidence is

favorable if (1) it would exculpate the accused or (2) it could be

employed to impeach a government witness.       United States v. Ellis,

121 F.3d 908, 914 (4th Cir. 1997);        United States v. Bagley, 473

U.S. 667, 682 (1985).       Nevertheless, no due process violation

occurs as long as Brady material is disclosed to a defendant in

time for its effective use at trial.           United States v. Smith

Grading and Paving, Inc. 760 F.2d 527, 532 (4th Cir. 1985) (citing

United States v. Higgs,,713 F.2d        39 (3rd Cir. 1983).

     Materiality is the final limitation that circumscribes
     the prosecutor's duty under Brady to disclose information
     favorable to the defense. The touchstone of materiality
     is a concern that the suppressed evidence might have
     affected the outcome of the trial.       Accordingly, an
     individual alleging a Brady violation must demonstrate
     that there is a reasonable probability that, had the
     evidence been disclosed to the defense, the result of the
     proceeding would have been different.

 Spicer v. Roxbury Corr. Inst., 194 F.3d 547, 559 (4th Cir. 1999)

(internal quotation marks and citations omitted).

     In   the   instant   case,   Plunkett   maintains   that   Taylor’s

September 19, 2002, confession was an inconsistent statement that

the government should have made available to him prior to trial.

At trial, Taylor acknowledged that he was not completely candid

with investigators initially in that he attempted to minimize his

role in Wimbush’s murder.




                                   11
      At first blush, it may appear that Plunkett has established a

Brady violation.       There can be no credible argument against the

assertion that Taylor’s prior statements were favorable to Plunkett

and that they were not disclosed to him until just before the trial

commenced.       Moreover,      because     Taylor’s      initial   statement         was

inconsistent with his testimony at trial, Plunkett could use the

inconsistencies     to    impeach        Taylor’s    credibility.         It    is    our

materiality analysis, however, that exposes the fatal flaw in

Plunkett’s Brady claim.

      After our exhaustive review of the record, we are convinced

that Taylor’s September 19, 2002, statements were not material.

Stated   differently,      we      are   unable     to   find   “that    there       is   a

reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.”

Id.

      Pursuant    to     our    examination,        we   observe    that       Taylor’s

inconsistent statements were made known at trial.                       Accordingly,

counsel for Plunkett was afforded the opportunity to cross-examine

Taylor about his prior inconsistent statements. We are thus unable

to fathom how the outcome of the trial might have been different

had Plunkett possessed the prior inconsistent statements earlier.

As noted by the government, any suggestion by Plunkett “that he

would    have   conducted      a   better       cross-examination       had    Taylor’s

pretrial statement been disclosed before trial does not establish


                                           12
prejudice.”     (Appellee’s Brief 17.)        Accordingly, we will affirm

the trial court on this issue.



                                     IV.

      Plunkett also maintains that the district court erred in not

granting a new trial on the basis that the government allegedly

knew that it was educing false testimony in its cross-examination

of   Bodkins.      More     specifically,     Plunkett    alleges   that   the

government misled the jury in that Bodkins’ testimony inaccurately

led the jury to believe that Bodkins was testifying solely for the

purposes of doing the right thing and bringing comfort to the

Wimbush family.    As already noted, the district court’s refusal to

grant a motion for a new trial is reviewed for an abuse of

discretion. Huggins, 191 F.3d at 536.

      As stated above, for purposes of determining whether there is

a Brady violation, we have found that the evidence is favorable if

(1) it would exculpate the accused or (2) it could be employed to

impeach a government witness.       Ellis, 121 F.3d at 914; Bagley, 473

U.S. at 682.     Moreover, it is well settled that an agreement or

understanding     between    a   government     witness    regarding   future

prosecution should be made known to the jury because such agreement

or understanding goes to the credibility of that witness.              Giglio

v. United States, 405 U.S. 150, 154-55 (1972).




                                     13
     It is indisputable that the agreement between the government

and Bodkins was “favorable” to Plunkett whereas it could be used to

impeach   Bodkins   and   bring    into    question    his     credibility.

Nevertheless, Bodkins was not a government witness.            Instead, he

testified on his own behalf.      Accordingly, Giglio does not require

that the government disclose its plea negotiations with him.

     Plunkett, however, argues that it is inconsequential whether

Bodkins was a government witness or a witness testifying on his own

behalf.   Nevertheless, he has not set forth and we have not found

any controlling authority to sustain his contention.               We must

therefore reject this argument.

     Moreover, contrary to Plunkett’s suggestion to the contrary,

we are unable to find that “there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the

proceeding would have been different.”          Spicer, 194 F.3d at 559.

Stated differently we do not think that the evidence concerning

Bodkins’ negotiations with the government was material. Therefore,

because a Brady violation occurs only when the government fails to

disclose favorable material evidence, Brady, 373 U.S. at 87, we can

find no Brady violation here.

     Plunkett   also   contends   that    the   government’s    failure   to

disclose its plea negotiations with Bodkins is violative of the

principles set forth in Napue v. Illinois, 360 U.S. 264 (1959).           To

establish a constitutional violation under Napue, Plunkett must


                                    14
prove that (1) Bodkins testified falsely, (2) the government was

aware that Bodkins’ testimony was false, and (3) Bodkins’ testimony

was material.   See United States v. Mason, 293 F.3d 826, 828 (5th

Cir. 2002).

     From our examination of Bodkins’ testimony, we are unable to

find that he testified falsely.        Although the government offered

Bodkins a plea agreement for a term of life, he rejected the

agreement.    He hoped to obtain an offer for a term of years.

Further, the jury was informed of the government and Bodkins’

negotiations as well as Bodkins’ desire that the government would

file a motion for substantial assistance on his behalf. Hence, the

jury was afforded this information on which they could judge

Bodkins’ credibility.

     Finally, and as we have already observed, this evidence was

not material for the reason that there is no reasonable likelihood

that the jury verdict would have been different had it been made

known to Plunkett earlier.   Therefore, we find no reversible error

here.



                                  V.

     Bodkins claims that the district court erred in not holding

that the government’s failure to file a motion pursuant to 18

U.S.C. § 3553(e) violated the terms of its proffer letter to

Bodkins. Bodkins also asserts that the district court was in error


                                  15
in not finding that the government’s failure to make the                    § 3553(e)

motion was based on Bodkins’ race.

      “We review a district court’s findings regarding what the

parties said or did for clear error, while principles of contract

interpretation applied to the facts are reviewed de novo.”                    United

States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000) (citations and

internal quotation marks omitted).               As to whether the government

intentionally discriminated against a defendant on the basis of

race, we review this issue for clear error.                 United States v. Lane,

866 F.2d 103, 106 (4th Cir. 1989).

      Section     3553(e)    of   Title    18     of   the    United   States   Code

provides, in relevant part, that “[u]pon motion of the Government,

the court shall have the authority to impose a sentence below a

level established by statute as a minimum sentence so as to reflect

a   defendant's      substantial   assistance          in   the   investigation   or

prosecution of another person who has committed an offense.”                      18

U.S.C.A. § 3553(e).

      The government is allowed to refuse to make a substantial

assistance motion except (1) for an unconstitutional motive such a

race or religion or (2) where refusal is not rationally related to

a legitimate government objective. Wade v. United States, 504 U.S.

181, 185 (1992).

      The district court found that the government’s reference to

the   races     of   the    defendants         amounted      to   “purely   tactical


                                          16
considerations for trial.” (J.A. 1775.) The court also noted that

Bodkins and Plunkett had “differing situations” and that the

government ultimately offered Bodkins a plea agreement for a life

term that he rejected.          (J.A. 1775.)   According to the trial court,

there was no “meeting of the minds.”            (J.A. 1776.)

     Bodkins claims that the trial court erred in deciding that the

government’s refusal to file or to consider filing a § 3553(e)

motion was not violative of the terms of his proffer letter.                  This

assertion is simply incorrect.

     The letter provided that the government, “acting in [its] sole

discretion will determine whether to enter into a plea agreement

with you,” and that the “proffer in no way binds the United States

Attorney, nor does it constitute substantial assistance under the

provisions of Sentencing Guideline 5K1.1 and Title 18, United

States    Code,    Section       3553(e).”     (J.A.       1292.)   Therefore,

considering      that    this    letter   grants    sole    discretion   to   the

government to make a substantial assistance determination, we

cannot find that the government violated the terms of the proffer

letter by not filing a § 3553(e) motion.            Bodkins’ claims of fraud

and bad faith are also unpersuasive.

     Bodkins’ argument that the trial court erred in not finding

that the government racially discriminated against him in filing a

§ 3553 motion is equally unavailing.               To prevail on this claim,

Bodkins   must    show    that     similarly   situated      individuals   of   a


                                          17
different    race   were   treated   differently.       United    States   v.

Armstrong, 517 U.S. 456, 465 (1996).           This he cannot do.

       Bodkins and Plunkett were not similarly situated. Bodkins was

the one who (1) had actually shot and killed Wimbush, (2) had been

convicted for robbery shortly after he killed Wimbush, (3) had

shown no remorse for killing Wimbush, and (4) had attempted to get

people to provide for him a false alibi in the case.             (J.A. 1392-

93.)    Moreover, his criminal history was much more extensive than

that of Plunkett.    Thus, it was not error for the district court to

determine that the government’s decision to offer Plunkett a more

favorable plea agreement than Bodkins was based on strategic

reasons alone, and not race.               Therefore, we will affirm the

district court on this issue.



                                     VI.

       We have considered the remaining contentions set forth by

Appellants, including those contained in Plunkett’s supplemental

brief, but find them to be without merit.



                                     VII.

       Therefore, in light of the foregoing discussion and rationale,

the judgment of the district court is hereby

                                                                    AFFIRMED.




                                      18
