UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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 (“USPHazelton”), 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. 
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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 Brady1 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). 
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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. 
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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]rossexamination 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 
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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