UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4332

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

QUINCY DEMERY,

Defendant - Appellant.

No. 05-4510

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JEFFREY DARRYL WAFER,

Defendant - Appellant.

Appeals from the United States District Court for the Western

District of North Carolina, at Statesville. Richard L. Voorhees,

District Judge. (CR-03-15)

Submitted: November 30, 2005 Decided: January 5, 2006

Before LUTTIG and WILLIAMS, Circuit Judges, and HAMILTON, Senior

Circuit Judge.
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Affirmed by unpublished per curiam opinion.

Reita P. Pendry, Charlotte, North Carolina; Andrew B. Banzhoff,

Asheville, North Carolina, for Appellants. Gretchen C. F.

Shappert, United States Attorney, Matthew T. Martens, Assistant

United States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Jeffrey Darryl Wafer and Quincy Demery appeal their

convictions for bank robbery in violation of 18 U.S.C. § 2113(a),

(d) (2000) and using and carrying a firearm during a crime of

violence in violation of 18 U.S.C. § 924(c) (2000). Finding no

reversible error, we affirm.

Demery and Wafer claim that the district court erred in

denying their motion for a judgment of acquittal. We review the

district court’s decision to deny a motion for judgment of

acquittal de novo. United States v. Gallimore, 247 F.3d 134, 136

(4th Cir. 2001). If the motion was based on insufficiency of the

evidence, the verdict must be sustained if there is substantial

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

support it. Glasser v. United States, 315 U.S. 60, 80 (1942).

Demery and Wafer argue that no direct evidence of their

guilt exists and that the Government presented only circumstantial

evidence. A defendant may be convicted using circumstantial

evidence, and the government is given the benefit of all reasonable

inferences from the facts proven to the facts sought to be

established. United States v. Tresvant, 677 F.2d 1018, 1021 (4th

Cir. 1982). The jury, not the reviewing court, weighs the

credibility of the evidence and resolves any conflicts in the

evidence. United States v. Murphy, 35 F.3d 143, 148 (4th Cir.

1994). 
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While no direct evidence existed and no one piece of

circumstantial evidence is conclusive, taking all the

circumstantial evidence together the jury weighed the credibility

of the witnesses and evidence and made reasonable inferences that

Demery and Wafer committed the bank robbery. Taking the view most

favorable to the Government, there is sufficient evidence to

support the guilty verdict. The district court did not err when it

denied Demery and Wafer’s motion for a judgment of acquittal.

Demery and Wafer claim that their indictment is

duplicitous because a single count charged them with using and

carrying a firearm during a crime of violence and with possessing

a firearm in furtherance of a crime of violence, both in violation

of 18 U.S.C. § 924(c). However, a duplicity challenge must be made

prior to trial under Fed. R. Crim. P. 12(b)(2) and (f), absent

cause for waiver. See United States v. Price, 763 F.2d 640, 643

(4th Cir. 1985). Demery and Wafer failed to establish that they

raised this issue prior to trial and also failed to establish any

cause. Therefore, the claim is waived.

Demery and Wafer claim that the Government knowingly

presented perjured testimony at trial. The knowing use of perjured

testimony constitutes a due process violation when there is “any

reasonable likelihood that the false testimony could have affected

the judgment of the jury.” United States v. Agurs, 427 U.S. 97,

103 (1976). Demery and Wafer did not cite any specific perjurious
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statements. Without any evidence of actual perjury, Demery and

Wafer cannot prove a perjury claim. 

Demery and Wafer finally claim that the Government

violated their due process rights by concealing from them the

Government’s suspicions of Labrina White’s involvement in the

robbery. Because Demery and Wafer did not object on this ground at

their trial, we review their claim for plain error. United

States v. Olano, 507 U.S. 725, 732-34 (1993). To meet the plain

error standard: (1) there must be an error; (2) the error must be

plain; and (3) the error must affect substantial rights. Id. If

the three elements of the plain error standard are met, the court

may exercise its discretion to notice error only if the error

seriously affects “the fairness, integrity, or public reputation of

judicial proceedings.” Id. at 736 (citation omitted). 

Demery and Wafer contend that the Government’s failure to

reveal its suspicions about White violated Brady v. Maryland, 373

U.S. 83, 87 (1963). To prove a Brady violation, a defendant must

show he requested undisclosed evidence and that it was

(1) favorable; (2) material; and (3) the prosecution had it and

failed to disclose it. See Moore v. Illinois, 408 U.S. 786, 794-95

(1972); United States v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001).

Evidence tending to impeach a government witness must be disclosed

to a defendant if known to the government. Giglio v. United

States, 405 U.S. 150, 153 (1972). 
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The record does not reveal the extent of the Government’s

suspicions about White’s involvement in the robbery, but Demery and

Wafer do not cite any evidence of those suspicions withheld from

them except for the original notes of law enforcement officers. As

Demery and Wafer concede, they had access to report summaries of

the officers that included the material information contained in

the notes. Demery and Wafer simply theorize that the Government

must have had more evidence proving White’s participation in the

robbery. Demery and Wafer have failed to identify any actual

evidence the Government suppressed and thus cannot establish a

Brady claim. Moreover, Demery and Wafer had sufficient information

of the possible participation of White from the facts in the record

and could have impeached White with that suspicion or investigated

it further before the trial. Demery and Wafer cannot prove error,

that the error was plain, or that it affected their substantial

rights. 

Accordingly, we affirm Demery and Wafer’s convictions and

sentence. 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