United States v. Fuller , 298 F. App'x 289 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4560
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL W. FULLER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., District
Judge. (6:06-cr-00040-GRA-2)
Submitted: October 10, 2008 Decided: October 30, 2008
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John M. Barton, JOHN M. BARTON, LLC, Columbia, South Carolina, for
Appellant. W. Walter Wilkins, United States Attorney, William C.
Lucius, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael W. Fuller was convicted by a jury of one count of
conspiracy to impede the Internal Revenue Service (“IRS”), in
violation of 18 U.S.C. § 371 (2000). The district court sentenced
Fuller to twelve months and one day imprisonment. On appeal,
Fuller challenges the sufficiency of the evidence of his
conviction. For the following reasons, we affirm.
A defendant who challenges the sufficiency of the
evidence underlying his conviction bears a heavy burden. United
States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007), cert. denied,
128 S. Ct. 1690 (2008). This court reviews a sufficiency of the
evidence challenge by determining whether, viewing the evidence in
the light most favorable to the Government, any rational trier of
fact could find the essential elements of the crime beyond a
reasonable doubt. United States v. Collins, 412 F.3d 515, 519 (4th
Cir. 2005); see Glasser v. United States, 315 U.S. 60, 80 (1942).
We review both direct and circumstantial evidence, and
permit the government all reasonable inferences from the facts
shown to those sought to be established. United States v. Harvey,
532 F.3d 326, 333 (4th Cir. 2008). We do not examine evidence
piecemeal, but consider it cumulatively. United States v. Burgos,
94 F.3d 849, 863 (4th Cir. 1996) (en banc). “[I]f the evidence
supports different, reasonable interpretations, the jury decides
which interpretation to believe.” United States v. Murphy, 35 F.3d
2
143, 148 (4th Cir. 1994). This court will uphold the jury’s
verdict if substantial evidence supports it, and will reverse only
in those rare cases of clear failure by the prosecution. Foster,
507 F.3d at 244-45.
Because Fuller did not make a Fed. R. Crim. P. 29 motion
for judgment of acquittal in the district court, our review is for
plain error. United States v. Wallace, 515 F.3d 327, 331-32 (4th
Cir. 2008). To establish plain error, Fuller must show that an
error occurred, that it was plain, and that it affected his
substantial rights. United States v. Olano, 507 U.S. 725, 732
(1993). Even when these conditions are satisfied, we will exercise
our discretion to correct the error only if it “seriously affect[s]
the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 736.
The elements of conspiracy to defraud the United States
in violation of 18 U.S.C. § 371 are: (1) the existence of an
agreement, (2) an overt act by a conspirator in furtherance of the
agreement, and (3) an intent by the conspirators to agree to
defraud the United States. United States v. Gosselin Worldwide
Moving, N.V., 411 F.3d 502, 516 (4th Cir. 2005). “Fraudulent
intent may be inferred from the totality of the circumstances and
need not be proven by direct evidence.” United States v. Ham, 998
F.2d 1247, 1254 (4th Cir. 1993). This is a so-called “Klein
conspiracy.” See United States v. Klein, 124 F. Supp. 4763
(S.D.N.Y. 1954) (recognizing, under 18 U.S.C. § 371, conspiracy to
defraud United States by impeding functions of IRS), aff’d, 247
F.2d 908 (1957).
Fuller argues that the Government did not prove the
existence of an agreement between Fuller and Carl Perry, his
co-defendant, to impede the IRS, or that Fuller knowingly joined
the conspiracy. Viewing the evidence in the light most favorable
to the Government, our review of the record leads us to conclude
that the evidence presented to the jury was sufficient to prove the
existence of an agreement between Perry and Fuller to defraud the
government by impeding the IRS. Accordingly, we find no error in
the jury’s verdict and therefore affirm Fuller’s conviction 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
4