United States v. Stephanie Newton , 452 F. App'x 288 ( 2011 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 11-4598
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    STEPHANIE NEWTON,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of Virginia, at Big Stone Gap.      James P. Jones,
    District Judge. (2:10-cr-00016-JPJ-PMS-1)
    Submitted:   October 25, 2011              Decided:   November 4, 2011
    Before SHEDD, DUNCAN, and WYNN, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    A. Benton Chafin, Jr., CHAFIN    LAW FIRM, P.C., Lebanon, Virginia,
    for Appellant.     Timothy J.     Heaphy, United States Attorney,
    Allessandra Stewart, Special     Assistant United States Attorney,
    Charlottesville, Virginia, for   Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Stephanie        Newton     (“Newton”)        appeals        the    district
    court’s judgment entered pursuant to a jury verdict convicting
    her of four offenses:          (1) conspiracy to possess with intent to
    distribute and to distribute Xanax, in violation of 21 U.S.C.
    §§ 841(b)(1)(c), 841(b)(1)(E)(i), and 846 (2006) (“Count One”);
    (2) obstruction of an official proceeding, in violation of 18
    U.S.C. § 1512(c) (2006); (3) conspiracy to obstruct an official
    proceeding,      in    violation      of    18    U.S.C.     §    371     (2006);       and
    (4) making a materially false statement to a government agency,
    in   violation    of    18   U.S.C.    §    1001(a)(2)      (2006).        Newton       now
    contends that the district court erred in denying her Rule 29
    motion    for    judgment     of    acquittal      because        the    evidence       was
    insufficient to sustain each of her convictions.                         We reject her
    arguments and affirm.
    We review de novo a district court’s decision to deny
    a motion for judgment of acquittal.                 United States v. Hickman,
    
    626 F.3d 756
    , 762-63 (4th Cir. 2010).                       Where such a motion
    alleges    insufficiency       of     the   evidence,      we     must    sustain       the
    jury’s    verdict      if,   viewing       the   evidence    in     the    light    most
    favorable to the government, “any rational trier of fact could
    have     found   the    essential      elements      of     the    crime       beyond    a
    reasonable doubt.”           United States v. Green, 
    599 F.3d 360
    , 367
    (4th Cir.), cert. denied, 
    131 S. Ct. 271
    (2010).                        In making this
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    determination, we review the record to determine whether the
    conviction         is      supported       by     “substantial            evidence,”        where
    “substantial evidence 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.”
    
    Hickman, 626 F.3d at 763
    .                  Because the credibility of witnesses
    is properly assessed by the jury rather than by this court on
    appeal, we cannot make our own credibility determinations but
    must        assume      that         the     jury        resolved         all        testimonial
    contradictions          in    the    government’s           favor.        United      States    v.
    Penniegraft,         
    641 F.3d 566
    ,      572    (4th       Cir.    2011).        Thus,   a
    defendant        bringing       a     sufficiency           challenge      bears      “a    heavy
    burden,” and reversal for insufficient evidence “is reserved for
    the rare case where the prosecution’s failure is clear.”                                   United
    States      v.    Ashley,      
    606 F.3d 135
    ,       138    (4th    Cir.)      (internal
    quotation marks omitted), cert. denied, 
    131 S. Ct. 428
    (2010).
    I.     Count One
    Newton         first    asserts         that     there      was    insufficient
    evidence to convict her on Count One.                         Newton’s counsel contends
    that the evidence was insufficient only because the testimony of
    Newton’s         adoptive      brother,       Kenneth         Newton      (“Kenneth”),         was
    uncorroborated and inconsistent with his grand jury testimony.
    This argument is without merit.                       The uncorroborated testimony of
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    a single witness or accomplice may be sufficient to support a
    guilty verdict.        United States v. Wilson, 
    115 F.3d 1185
    , 1190
    (4th    Cir.      1997).         Although       Newton     points    to      Kenneth’s
    inconsistent       statements     and   significant         criminal      history    as
    reasons to doubt his testimony, the credibility of his testimony
    is a matter to be determined solely by the jury, not by this
    court on appellate review.           United States v. Lowe, 
    65 F.3d 1137
    ,
    1142 (4th Cir. 1995).             Because we must assume that the jury
    credited Kenneth’s testimony, we decline Newton’s request that
    we independently reevaluate its weight.                    
    Penniegraft, 641 F.3d at 572
    .
    II.   Conspiracy     to    Obstruct      and    Obstructing      an   Official
    Proceeding
    Newton next argues that the evidence adduced at trial
    was    insufficient    to   convict     her      for     obstructing    an    official
    proceeding for her role in informing her adoptive sister, Thelma
    Newton (“Thelma”), that law enforcement officials were planning
    to execute numerous arrest and search warrants on February 4,
    2010.     Newton claims that the record is devoid of evidence that
    she knew about the raid prior to its occurrence.                       The pertinent
    statute,     18    U.S.C.   § 1512(c)(2),          criminalizes        conduct      that
    “corruptly . . . obstructs, influences, or impedes any official
    proceeding.”       A defendant acts corruptly where she acts with the
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    purpose       of     wrongfully       impeding      the    due     administration            of
    justice.      United States v. Matthews, 
    505 F.3d 698
    , 706 (7th Cir.
    2007).     See also United States v. Brooks, 
    111 F.3d 365
    , 373 (4th
    Cir. 1997).
    As     the    Government     correctly       points       out,    it    had    no
    obligation to prove exactly how Newton learned that the warrants
    were going to be executed on February 4.                       One of the targets of
    the    warrants,      Creed     Logsdon,      testified     at     trial       that    Thelma
    warned him about the pending raids on the basis of information
    received from Newton.               The homes and individuals targeted by the
    warrants were also implicated in the larger drug conspiracies in
    which Newton’s friends and family——including both Kenneth and
    Thelma——were         involved.         Moreover,      as   a     consequence          of    the
    information relayed by Newton, the arrests of several of the
    suspects, including Logsdon, were delayed, and Logsdon was able
    to    sweep    his    residence       clean   of    evidence     inculpating          him    in
    criminal activity.            In these circumstances, we conclude that the
    evidence      was    sufficient       to   support     Newton’s     conviction             under
    § 1512(c)(2) for obstructing an official proceeding.
    With        respect    to    her     conviction      of     conspiracy         to
    obstruct an official proceeding, Newton argues that there is
    simply no evidence that she agreed with Thelma or any other
    person to warn the targets of the impending raids.                              Of course,
    “[s]ustaining         a    conspiracy      conviction      under    18     U.S.C.      §    371
    5
    requires that the government prove:                           (1) an agreement between
    two or more people to commit a crime, and (2) an overt act in
    furtherance of the conspiracy.”                         United States v. Ellis, 
    121 F.3d 908
    , 922 (4th Cir. 1997).                      The existence of a “tacit or
    mutual     understanding”             between           conspirators        is     sufficient
    evidence     of    a   conspiratorial           agreement.             United      States    v.
    Chorman, 
    910 F.2d 102
    , 109 (4th Cir. 1990).                            “A conspiracy may
    be inferred from circumstantial evidence that can reasonably be
    interpreted       as   participation               in     the     common     plan.”         
    Id. “Circumstantial evidence
           sufficient          to     support    a     conspiracy
    conviction      need      not    exclude       every       reasonable       hypothesis       of
    innocence,      provided        the   summation          of     the   evidence     permits    a
    conclusion of guilt beyond a reasonable doubt.”                            
    Burgos, 94 F.3d at 858
    .
    Our review of the evidence in this case persuades us
    that Newton’s claim must fail.                      Again, Logsdon testified that
    Thelma had received her information from Newton.                                 The evidence
    at trial showed that Thelma and Newton were close relatives who
    had both been illegally providing prescription drugs to their
    brother    or     other     persons      who       were       targeted     in     the   search
    warrants.       An unusually high percentage of the targets of the
    February 4 warrants managed temporarily to evade the efforts of
    law enforcement.           Moreover, Newton never objected at trial to
    the admission of Martha Jessup’s grand jury testimony, which
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    indicated        that    Newton        frequently    tipped      Thelma      with     advance
    notice of planned law enforcement actions.                            In our view, this
    array      of     circumstantial            evidence        suffices    to       demonstrate
    Newton’s participation with Thelma in a common plan intended to
    blunt the efficacy of law enforcement investigations into the
    criminal activities of their compatriots.                        
    Chorman, 910 F.2d at 109
    .
    III. Making      a   Materially        False       Statement       to   a   Federal
    Agency
    Finally,      Newton        claims     that    insufficient          evidence
    supports her conviction for making a materially false statement
    to   a    federal       agency.         A   person     is    guilty    of    making    false
    statements to a government agency when the government proves:
    (1) that the defendant made a false statement to a governmental
    agency or concealed a fact from it or used a false document
    knowing it to be false; (2) the defendant acted knowingly or
    willfully;       and    (3)   the       false   statement       or    concealed      fact   or
    false document was material to a matter within the jurisdiction
    of the agency.           United States v. Sarihifard, 
    155 F.3d 301
    , 306
    (4th      Cir.    1998).          In    determining         whether     a    statement      is
    material, it is irrelevant whether the false statement actually
    influenced or affected the decision-making process of the agency
    or fact finding body.              
    Sarihifard, 155 F.3d at 307
    .                  Instead, a
    7
    statement      is    material    “if     it     has    a    natural      tendency    to
    influence,     or    is   capable   of    influencing,        the      decision-making
    body to which it was addressed.”                United States v. Littleton, 
    76 F.3d 614
    , 618 (4th Cir. 1996).                 A false statement’s capacity to
    influence the fact finder must be measured at the point in time
    that the statement was uttered.               
    Sarihifard, 155 F.3d at 307
    .
    Contrary to Newton’s assertions, we are convinced that
    either of Newton’s statements to Special Agent Levesque suffices
    to support her conviction under 18 U.S.C. § 1001(a)(2).                             The
    evidence adduced at trial demonstrated that the statements were
    false, and both of the false representations made by Newton had
    the   capacity       to   influence      Levesque’s        ongoing     investigation.
    
    Sarihifard, 155 F.3d at 307
    .              As a result, sufficient evidence
    supports her conviction under § 1001.
    We      therefore   affirm        the    judgment     of    the    district
    court.     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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