United States v. Saunders , 277 F. App'x 264 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4550
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KAREEM A. SAUNDERS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:06-cr-00399-JCC)
Submitted: April 18, 2008 Decided: May 2, 2008
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David W. O’Brien, CROWELL & MORING, LLP, Washington, D.C., for
Appellant. Chuck Rosenberg, United States Attorney, Dennis M.
Fitzpatrick, Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kareem Abdule Saunders appeals his convictions after a
jury trial of one count of conspiracy to distribute fifty grams or
more of crack cocaine and five kilograms or more of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), 846 (2000), and two counts of
possession of a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(c) (2000). We affirm.
Saunders first asserts that the district court committed
reversible error in the instruction it gave in response to a
question from the jury regarding the definition of conspiracy.
This court has previously held that:
[I]n responding to a jury’s request for
clarification on a charge, the district court’s duty is
simply to respond to the jury’s apparent source of
confusion fairly and accurately without creating
prejudice. The particular words chosen, like the
decision whether to issue any clarification at all, are
left to the sound discretion of the district court.
United States v. Smith, 62 F.3d 641, 646 (4th Cir. 1995)(internal
citations omitted). This court has recognized that “the focus of
a conspiracy charge is the agreement to violate the law,” and
approved the admission of evidence of past drug sales as relevant
to a subsequent conspiracy. United States v. Mills, 995 F.2d 480,
484-85 (4th Cir. 1993); see also United States v. Sullivan, 455
F.3d 248, 261 (4th Cir. 2006). Our review of the record convinces
us that the district court did not abuse its discretion in its
response to the jury’s question.
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Saunders next argues that the district court erred in
denying his motion for a new trial based on the Government’s
alleged failure to disclose impeachment evidence related to Robert
Barbour. Our review of the district court’s ruling on a motion for
a new trial is for abuse of discretion. See United States v.
Rhynes, 206 F.3d 349, 360 (4th Cir. 1999) (en banc).
The Due Process Clause requires that the Government
disclose to the defense prior to trial any exculpatory or
impeaching evidence in its possession. See Giglio v. United
States, 405 U.S. 150, 153-55 (1972) (requiring disclosure of
evidence affecting the credibility of prosecution witnesses); Brady
v. Maryland, 373 U.S. 83, 86-88 (1963) (requiring disclosure of
exculpatory evidence). Due process is violated by a failure to
disclose, however, only if the evidence in question: (1) is
favorable to the defendant, because it is either exculpatory or
impeaching; (2) was suppressed by the Government; and (3) is
material in that its suppression prejudiced the defendant. See
Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Undisclosed
evidence is material when its cumulative effect is such that “there
is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different.” Kyles v. Whitley, 514 U.S. 419, 433-34 (1995)
(internal quotations omitted). A reasonable probability is one
sufficient to “undermine confidence” in the outcome. Id. at 434.
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We conclude that the district court did not abuse its discretion in
denying Saunders’ new trial motion.
Saunders next argues that the evidence of Barbour’s
shooting by another drug dealer, Jade, was improperly admitted by
the district court because it was unfairly prejudicial. Under Fed.
R. Evid. 403, relevant evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence. Review of a district court’s
determination of the admissibility of evidence is for abuse of
discretion. See United States v. Brooks, 111 F.3d 365, 371 (4th
Cir. 1997). In this case, however, Saunders did not object to
Barbour’s testimony about the shooting. We therefore review the
admission of Barbour’s testimony for plain error. United States v.
Perkins, 470 F.3d 150, 155 (4th Cir. 2006). Our review of the
record leads us to conclude that the district court did not err in
admitting the testimony in question.
Saunders’ final argument is that the evidence was
insufficient to support his conviction on the second firearms
count. A defendant challenging the sufficiency of the evidence
faces a heavy burden. United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997). “[A]n appellate court’s reversal of a
conviction on grounds of insufficient evidence should be confined
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to cases where the prosecution’s failure is clear.” United
States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984). A jury’s
verdict must be upheld on appeal if there is substantial evidence
in the record to support it. Glasser v. United States, 315 U.S.
60, 80 (1942). In determining whether the evidence in the record
is substantial, this court views the evidence in the light most
favorable to the government, and inquires whether there is evidence
that 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. Burgos, 94 F.3d 849, 862 (4th
Cir. 1996) (en banc). In evaluating the sufficiency of the
evidence, this court does not review the credibility of the
witnesses and assumes that the jury resolved all contradictions in
the testimony in favor of the government. United States v. Romer,
148 F.3d 359, 364 (4th Cir. 1998).
Saunders acknowledges that he may be held criminally
liable as a co-conspirator for a § 924(c) violation committed by
another member of the conspiracy under the Pinkerton* doctrine. He
asserts, however, that the evidence was insufficient to establish
that the firearm was possessed in furtherance of the drug
conspiracy. We conclude that this argument is without merit.
*
Pinkerton v. United States, 328 U.S. 640, 646-47 (1946); see
also United States v. Cummings, 937 F.2d 941, 943-45 (4th Cir.
1991) (applying Pinkerton to § 924(c) offense).
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Accordingly, we affirm Saunders’ convictions. 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
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