                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 08-5110


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

STANAUS MCCOY,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:06-cr-00208-GBL-1)


Argued:   September 23, 2009                 Decided:   October 27, 2009


Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Todd M. Richman, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Jenny C. Ellickson, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.    ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Alexandria, Virginia, for Appellant.  Dana J. Boente,
Acting United States Attorney, Jonathan L. Fahey, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     The Defendant, Stanaus McCoy, appeals the district court’s

denial of a motion to reopen a suppression hearing in light of

new evidence that he claims the Government withheld in violation

of Brady v. Maryland, 373 U.S. 83 (1963).              Because McCoy cannot

show that the evidence was material to the suppression hearing’s

outcome, we affirm the district court’s denial of the motion to

reopen the hearing and affirm McCoy’s conviction.



                                      I.

     McCoy    was   charged    with   three   counts   of    possession   with

intent   to   distribute      crack   cocaine,   pursuant     to   21   U.S.C.

§ 841(a)(1) (2006), and two counts of being a convicted felon in

possession of a firearm, pursuant to 18 U.S.C. §§ 922(g)(1) and

924(e) (2006).      The charges arose from an incident in a Loudon

County, Virginia parking lot in which a police officer observed

a drug deal between McCoy and another individual in a tow truck.

Prior to trial, McCoy moved to suppress guns and drugs that the

police found in his possession on the grounds that the officer

lacked reasonable suspicion to search and detain him under the

Supreme Court’s decision in Terry v. Ohio, 392 U.S. 1 (1968).

The district court initially granted McCoy’s motion, but was

reversed by a divided panel of this Court.                  United States v.

McCoy, 513 F.3d 405, 407 (4th Cir. 2008).

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       In that opinion, we held that several factors leading up to

the police stopping and then arresting McCoy gave rise to the

requisite, reasonable suspicion:                        (1) the observing-officer knew

that almost half of drug deals in Loudon County occur in public

parking lots, like the one in which McCoy was arrested; (2) the

specific parking lots in which the officer observed McCoy were

frequent         meeting       places      for      drug    deals;       (3)    drug     dealers

frequently change transaction locations at the last minute, just

as   McCoy        did;     (4)     the    officer         saw    McCoy    arrive       with   his

girlfriend at the parking lot and wait in his car for several

minutes;         (5)     the     officer      saw       McCoy    point    in     “a    southerly

direction” when the tow-truck driver asked him where he wanted

to meet; (6) both McCoy and the tow-truck driver went to another

supermarket parking lot and neither went inside; (7) the officer

saw McCoy enter the tow-truck for less than a minute; (8) the

tow-truck driver “performed no towing services” and then left

after McCoy exited the truck; and finally, the factor relevant

to this appeal, (9) that when the officer ordered the tow-truck

driver to pull over, he “responded by driving away at a high

rate   of    speed.”             Id.     at   412-13.            One   panel     member    wrote

separately to emphasize that he found “the tow-truck driver’s

flight      to     be     highly       suspicious”         and    a    key     factor    in   the

reasonable-suspicion               calculus.              Id.     at     416    (Wilson,      J.,

concurring).

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      Before trial, the Government disclosed to McCoy’s counsel

grand jury testimony by the tow-truck driver to whom McCoy sold

the   drugs.      The   tow-truck       driver     testified     that    rather    than

speed away from the parking lot, he merely “eased on out the

road.     [He] didn’t speed away or nothing like that, just—the

lights were green.          [He] just eased on out like nothing ever

happened.”       (J.A. 786.)       Defense counsel moved to reopen the

suppression      hearing    on    the    grounds      that      it   undermined        and

impeached the officer’s claim that when he told the tow-truck

driver to pull over, the tow-truck driver “responded by driving

away at a high rate of speed.”                  The district court denied the

motion, because it found that even if the tow-truck driver eased

away,    he    still    drove    away    to   elude    police.          The    officer,

therefore, would still have had reasonable suspicion to stop

McCoy.

      A jury subsequently convicted McCoy of all-but one count in

the   indictment:        three    counts      of    possession       with     intent    to

distribute     crack    cocaine    and    one      count   of   being    a    convicted

felon in possession of a firearm.                  The district court sentenced

him to 216 months in prison, and McCoy timely appealed.                         We have

jurisdiction pursuant to 28 U.S.C. § 1291 (2006).




                                          4
                                       II.

                                        A.

        We review a district court’s denial of a motion to reopen a

suppression hearing for abuse of discretion.                      United States v.

Dickerson, 166 F.3d 667, 678 (4th Cir. 1999), rev’d on other

grounds, 530 U.S. 428 (2000).

                                        B.

     To show that the district court abused its discretion when

it   refused    to    reopen    the    suppression       hearing,      McCoy    must

establish that the Government violated Brady by withholding the

tow-truck driver’s testimony.           See United States v. Stokes, 261

F.3d 496, 502 (4th Cir. 2001).              To establish a Brady violation,

a defendant must show that the new evidence was (1) favorable to

him for exculpatory or impeachment purposes; (2) that it was

intentionally or unintentionally withheld by the Government; and

(3) that the evidence was material.                  Strickler v. Greene, 527

U.S. 263, 282 (1999); Moseley v. Branker, 550 F.3d 312, 318 (4th

Cir. 2008).     McCoy cannot do so here.

     Assuming,       without    deciding,     that    the   tow-truck     driver’s

grand    jury   testimony      was   both    favorable      and    withheld    under

Brady, McCoy failed to prove that the new evidence was material.

For new evidence to be material, a defendant must show that

“there is a reasonable probability that had the evidence been

disclosed to the defense, the result of the proceeding would

                                        5
have been different.”                 United States v. Bagley, 473 U.S. 667,

682 (1985); Stokes, 261 F.3d at 502.                       It is quite clear that

evidence that merely contradicts a legally-insignificant witness

statement or fact offered by the Government is, by definition,

immaterial.         See Hoke v. Netherland, 92 F.3d 1350, 1356-57 (4th

Cir.       1996)     (evidence        of    victim’s     past    consensual,       sexual

activity, which contradicted prosecution’s portrayal of victim

as     a    virtuous       woman      not    material     to    determining       whether

defendant raped the victim); United States v. Williams, 10 F.3d

1070,      1078     (4th       Cir.   1993)    (evidence        that    contradicted    a

witness’s testimony that she had seen the defendant’s car twice

was not material because whether the witness personally saw the

car    twice       was   not    relevant      to   the   court’s       finding   probable

cause).

       The     tow-truck         driver’s      testimony       here     contradicts    an

irrelevant factor in the reasonable suspicion analysis:                           whether

the tow-truck driver sped or simply “eased away” when he refused

a police officer’s order for him to stop.                          Nothing in any of

this Court or the district court’s prior analyses of reasonable

suspicion in this case identify the speed at which the tow-truck

driver eluded police as a relevant factor.                            And in our view,

whether a subject speeds or eases away from a police officer’s

order to stop does little to mitigate the individual’s flight in

the first instance.

                                               6
        Contrary to McCoy’s contention, the testimony also does not

rebut the officer’s testimony that the tow-truck driver fled

after the officer told him to stop — a fact corroborated by

other    witnesses,      including     McCoy       when    he    testified     at    the

suppression       hearing.      Defense       counsel’s         argument    that    the

testimony - in light of McCoy’s own statement that the tow-truck

driver did not look at the officer as he left the parking lot -

shows that the tow-truck driver did not respond to the officer’s

command is overly-speculative and is not proof of materiality.

In any event, whether or not the tow-truck driver subjectively

responded to the officer’s command is unavailing, because Terry

requires the court to look only at what an objective officer

would    believe    an   individual     to    be    doing,      not   to    what    that

individual secretly intended.             392 U.S. 1, 27 (1968).                   McCoy

cannot show that the new evidence contradicts the district court

and this Court’s finding that he refused to stop.



                                       III.

      For the above reasons, the district court did not clearly

err   when   it    denied    McCoy’s   motion      to     reopen   the     suppression

hearing.     We therefore affirm McCoy’s conviction.

                                                                              AFFIRMED




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