US v. Frank Wood Thomas, No. 07-4694 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4694 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FRANK WOOD THOMAS, Defendant Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:05-cr-00104-FDW-CH-19) Submitted: March 12, 2009 Decided: May 18, 2009 Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas A. Will, Jr., THE LAW OFFICE OF THOMAS A. WILL, JR., Gastonia, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Following a lengthy trial, Frank Wood Thomas was convicted by a jury of conspiracy to possess with intent to distribute and to distribute cocaine violation of 21 U.S.C. § 846 (2006). and cocaine base, in Thomas was sentenced by the district court to the statutory mandatory minimum of 240 months imprisonment, see 21 U.S.C. § 841(b)(1)(A) (2006). Finding no error, we affirm. Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he asserts there are no meritorious issues for appeal but questions whether the district court erred in denying his Fed. R. Crim. P. 29 motion for judgment of acquittal. Thomas filed a pro se supplemental brief, joining in counsel s argument. The Government elected not to file a responding brief. We review de novo the district court s denial of a Rule 29 motion for judgment of acquittal. Perkins, 470 F.3d 150, 160 (4th Cir. 2006). United States v. In conducting such review, we must uphold a jury verdict if there is substantial evidence, viewed in the light most favorable to the Government, to support it. Id. Both direct and circumstantial evidence are considered, and the government is permitted all reasonable inferences that could be drawn in its favor. Harvey, 532 F.3d 326, 333 (4th Cir. 2008). 2 United States v. The defendant must carry an imposing burden to sufficiency of the evidence. successfully challenge the United States v. Martin, 523 F.3d 281, 288 (4th Cir.) (citation omitted), cert. denied, 129 S. Ct. 238 (2008). To distribute prove and conspiracy distribute to to a possess with controlled intent substance, to the government must establish that: (1) two or more persons agreed to possess substance; with intent (2) the to distribute defendant knew and of to the distribute the conspiracy; and (3) the defendant knowingly and voluntarily became a part of this conspiracy. United States v. Yearwood, 518 F.3d 220, 225-26 (4th Cir.) (quoting United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc)), cert. denied, 129 S. Ct. 137 (2008). The defendant may be convicted of conspiracy without knowing all the conspiracy s details, so long as the defendant enters the conspiracy understanding its unlawful nature willfully joins in the plan on at least one occasion. and Burgos, 94 F.3d at 858. With these standards in mind, our thorough review of the trial transcript convinces us that Thomas was involved in a loosely-knit association of members linked . . . by their mutual interest in sustaining the overall enterprise of catering to the ultimate demands of a particular market Mecklenburg County, North Carolina. 3 drug consumption Burgos, 94 F.3d at 858 (quoting United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993)). precision, [W]hile the haphazard, or fact many that ill-conceived conspiracies are conspiracy is a does not conspiracy or any less unlawful. that there verdict. rested was To in sufficient the large extent part on Id. evidence Thomas render the with loosely-knit, it any less a We therefore conclude to argues executed support the unreliable the jury s Government s testimony of case the cooperating witnesses, it is not the province of this court to second-guess the credibility determinations of the factfinder. See United States v. Wilson, 484 F.3d 267, 283 (4th Cir. 2007). In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. court. Accordingly, we affirm the judgment of the district We deny Thomas s motion for remand. This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move representation. was served because on the this court for leave to withdraw from Counsel s motion must state that a copy thereof the client. facts We and dispense legal 4 with oral argument contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5
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