US v. Jessee Cox, No. 09-4498 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4498 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JESSEE DANE COX, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Chief District Judge. (1:07-cr-00032-jpj-pms-8) Submitted: April 16, 2010 Decided: June 22, 2010 Before TRAXLER, Chief Judge, MOTZ, Circuit Judge, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Krysia Carmel Nelson, NELSON & TUCKER, PLC, Charlottesville, Virginia, for Appellant. Timothy J. Heaphy, United States Attorney, Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jessee Dane Cox appeals from the life sentence imposed following a jury trial on one count of conspiracy to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. ยงยง 841(b)(1)(A), 846 (2006). On appeal, Cox argues that the district court erred in denying his Federal Rule of Criminal Procedure 29 motions for acquittal. Finding no reversible error, we affirm. We review the district court s denial of a Rule 29 motion de novo. Cir. 2005). substantial United States v. Alerre, 430 F.3d 681, 693 (4th A jury s verdict must be sustained if there is evidence, taking Government, to support it. 60, 80 (1942). reasonable finder the most favorable to the Glasser v. United States, 315 U.S. Substantial of view fact evidence could is accept evidence as that adequate a and sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. Alerre, quotation marks omitted). review the credibility 430 F.3d at 693 (internal We may not weigh the evidence or of the witnesses functions are reserved for the jury. [because] [t]hose United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997) (internal citation omitted). To prove conspiracy to possess with intent to distribute, the government must prove that: (1) an agreement to possess [methamphetamine] with intent 2 to distribute existed between two conspiracy; or more and (3) persons; the (2) the defendant knowingly became a part of this conspiracy. F.3d 849, 857 (4th Cir. 1996). defendant knew and of the voluntarily United States v. Burgos, 94 Because of its nature, the existence of a conspiracy is generally proven by circumstantial evidence, which may consist of a defendant s relationship with other members of the conspiracy, the length of this association, [the defendant s] attitude [and] conduct, and the nature of the conspiracy. Id. at 857-58 (alteration in original) (internal quotation marks omitted). Cox specifically argues that the evidence presented by the Government at trial varied impermissibly from the indicted conspiracy in that the Government s evidence sought to establish the existence of multiple conspiracies outside the timeframe of the indicted conspiracy. Cox further alleges that he was prejudiced by the claimed variance. [A] variance occurs when the evidence at trial establishes facts materially different from those alleged in the indictment. In a conspiracy prosecution, a defendant may establish the existence of a material variance by showing that the indictment alleged a single conspiracy but that the government s proof at trial established the existence of multiple, separate conspiracies. United States (internal v. Kennedy, citations 32 F.3d omitted). 876, However, 883 a (4th Cir. material 1994) variance warrants reversal of a conviction only if the variance infringed 3 the defendant s substantial rights and thereby resulted in actual prejudice. Id. A defendant proves actual prejudice by showing that there are so many defendants and so many separate conspiracies before the jury that the jury was likely to transfer evidence from one conspiracy to a defendant involved in an unrelated omitted). conspiracy. (internal Id. quotation marks A defendant may also prove prejudice upon a showing that the variance surpris[ed] him at trial and hinder[ed] the preparation of his defense or expos[ed] him to the danger of a second prosecution for the same offense. United States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999). We Government s have reviewed evidence did the record not materially conspiracy charged in the indictment. Government s verdict when Government. evidence viewed The was in testimony find vary that the from the Further, we find that the sufficient the and to support the light most favorable elicited from Cox s jury s to the alleged co- conspirators established the existence of a single conspiracy in the summer of 2006. Cox admitted to distributing methamphetamine he bought from his alleged co-conspirators that summer in an interview with a police officer investigating the conspiracy. Moreover, testimony conspirators corroborated Cox s from Cox s admissions. alleged See co- United States v. Abu Ali, 528 F.3d 210, 234 (4th Cir. 2008) (stating 4 that it is a settled principle . . . that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused made after commission of a crime ) (internal quotation marks omitted). Therefore, we find that the district court did not err in denying Cox s Rule 29 motion. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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