By: Caroline Daniel

The Fourth Circuit affirmed Defendant Rocci Wade’s convictions for conspiracy to possess with the intent to distribute oxycodone and distribution of oxycodone in United States v. Wade, an unpublished opinion released today.

Wade Alleged Prosecutorial Misconduct and a Violation of Due Process

In his appeal, Wade alleged two counts of prosecutorial misconduct based on statements made in the government’s closing statement: (1) that the case against Wade had “basically everything an investigation would have . . . except a confession,” and (2) that Wade’s co-defendants were asked to testify against Wade “fully and truthfully” and in exchange the government recommended a “one-level downward departure at sentencing.”  The Fourth Circuit reviewed the first claim of prosecutorial misconduct for abuse of discretion and the second claim for plain error.

Wade also appealed the admission of a witness’s testimony against him, claiming the suppression of evidence and a violation of Due Process.  Before the trial, the government stated that the witness would testify that he had been purchasing illegal drugs from Wade for about two years.  During the actual trial, however, the witness testified that he had been receiving drugs from Wade since 2007 or 2008.  The court reviewed Wade’s Due Process claim for reversible error.

Prosecutor Did Not Engage in Any Misconduct

To find that misconduct occurred, the Court must find: (1) that the prosecutor’s remarks and/or conduct were improper and (2) that the conduct prejudiced the defendant from receiving a fair trial.  Regarding the first statement (that the only thing the case lacked was a confession), the Fourth Circuit considered whether the government intended for the statement to be a comment on Wade’s decision to abstain from testifying.  The Court held that the prosecutor’s remark was not intended to reflect on Wade’s decision not to testify, and that it posed little risk that the jury would perceive it in that way.

In terms of the second statement concerning the co-defendants’ sentences, the Fourth Circuit held that no reversible error existed, as the prosecutor truthfully and accurately described the sentencing agreements made with Wade’s co-defendants.

No Due Process Violation as Prosecutor Did Not Suppress Evidence

Wade also argued that the prosecution suppressed evidence, a violation of Due Process under Brady v. Maryland.  Under Brady, the admission of evidence would have been a violation of Due Process if Wade had been able to prove that: (1) the prosecution suppressed evidence; (2) the evidence was favorable to the prosecution; and (3) the evidence was “material to the defense.”  Evidence is deemed to be material to the defense when “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”  Here, the Fourth Circuit determined that the prosecution did not withhold evidence that met this standard.

Wade’s Conviction Upheld

Finding that no prosecutorial misconduct had occurred and finding no Due Process violation, the Court affirmed the Wade’s convictions.