US v. Linda Burney, No. 10-4076 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4076 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LINDA MCLAURIN BURNEY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (7:08-cr-00049-FL-1) Submitted: July 20, 2011 Before KING and Circuit Judge. AGEE, Decided: Circuit Judges, and August 5, 2011 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Linda McLaurin Burney was indicted on six counts of grand jury perjury, in violation of 18 U.S.C. § 1623 (2006). Following a bench trial, the district court convicted Burney on Counts One, Three, Five, and Six, acquitted her on Count Four, and dismissed Count Two on the Government s motion. The district court departed downward from the advisory Guidelines sentencing range and imposed concurrent sentences of three years of imprisonment on each count. Counsel California, 386 filed U.S. a 738 brief (1967), pursuant stating Anders to that he found v. no meritorious issues for appeal, but arguing that the district court should have granted Burney s motion to suppress evidence of her investigatory interview and should have acquitted Burney due to insufficient evidence to sustain the perjury convictions. Counsel further asserts that the district court improperly calculated Burney s Guidelines range and imposed a substantively unreasonable sentence. the parties supported the on the perjury We directed supplemental briefing from issues of whether convictions and sufficient whether the evidence perjury charges were multiplicitous in violation of the Double Jeopardy Clause. We review the factual findings underlying the district court s denial of a motion to suppress for clear error and the 2 court s legal conclusions de novo. United States v. Blake, 571 F.3d 331, 338 (4th Cir. 2009), cert. denied, 130 S. Ct. 1104 (2010). A factual finding is clearly erroneous if the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. United States v. Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (internal quotation marks and citations omitted). However, if the district court s account of the evidence is plausible in light of the record viewed in its entirety, we will not reverse the district court s finding fact[s] differently. even if we would have decided the United States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (internal quotation marks, alteration, and citation omitted). We also defer to the district court s credibility determinations, for it is the role of the district court to observe witnesses and weigh their credibility during a pre-trial motion to suppress. United States v. Abu Ali, 528 F.3d 210, 232 (internal (4th omitted). district Cir. 2008) quotation marks and citation When a motion to suppress has been denied by the court, we construe favorable to the Government. the evidence in the light most United States v. Farrior, 535 F.3d 210, 217 (4th Cir. 2008). Statements obtained from a defendant during custodial interrogation are presumptively compelled in violation of the 3 Fifth Amendment, unless the Government shows that law enforcement officers adequately informed the defendant of her Miranda rights and obtained a waiver of those rights. United States v. Cardwell, 433 F.3d 378, 388-89 (4th Cir. 2005). To determine whether a defendant was in custody for purposes of Miranda, courts are to determine first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was leave. not at liberty to terminate the interrogation and Thompson v. Keohane, 516 U.S. 99, 112 (1995) (footnote omitted). In other words, [a]n individual is in custody when, under the totality of the circumstances, a suspect s freedom from action arrest. is curtailed to a degree associated with formal United States v. Colonna, 511 F.3d 431, 435 (4th Cir. 2007) (internal quotation marks and citation omitted). In the present case, Burney voluntarily agreed to the interview, which period relatively of occurred at short her place duration. of The employment officers over a assured Burney that she was a witness, not a suspect, was not under arrest, and could leave at anytime. Burney was not physically restrained, and despite her attestation of nervousness and fear, the record reflects that the tone of the interview was cordial and non-threatening. would have understood A reasonable person in Burney s position that she 4 was free to terminate the interview and was not in custody. Therefore, we conclude that the district court did not err in denying Burney s motion to suppress. A brought challenge before to defect Fed. trial. a R. in Crim. the P. indictment must 12(b)(3)(B); States v. King, 628 F.3d 693, 699 (4th Cir. 2011). be United Only upon a showing of good cause can a defendant avoid waiving a forfeited multiplicity claim. 699. Fed. R. Crim. P. 12(e); King, 628 F.3d at Because Burney failed to raise a multiplicity challenge prior to trial and has made no attempt to establish good cause excusing her failure to raise the challenge, she has forfeited appellate review of the issue. Nevertheless, we may exercise our discretionary remedial power to correct the district court if it committed plain error. United States v. Olano, 507 U.S. 725, 734 (1993); United States v. Robinson, 627 F.3d 941, 954 (4th Cir. 2010). Before we notice plain error, we must find (1) error was made, (2) is plain, and (3) affected Burney s substantial rights. United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). Even if Burney makes this showing, we may exercise our discretion to correct the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. We conclude that Burney s observations of Reese (Counts One and Five), their conversations (Count Three), and Burney s provision 5 of a list of names to investigating officers (Count Six), required proof of sufficiently distinct facts to support four separate convictions. We review the district court s denial of a motion for a judgment of acquittal de novo. F.3d 360, 367 (4th Cir. 2010). United States v. Green, 599 In assessing the sufficiency of the evidence presented in a bench trial, we must uphold a guilty verdict if, taking the view most favorable to the Government, there is substantial evidence to support the verdict. United States v. Armel, 585 F.3d 182, 184 (4th Cir. 2009) (internal quotation marks and citation omitted). evidence that a reasonable finder Substantial evidence is of fact could accept as adequate and sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. Green, 599 F.3d at 367 (internal quotation marks and citation omitted). In determining whether substantial evidence supports the verdict, we must consider circumstantial as well as direct evidence, and allow the government the benefit of all reasonable inferences from established. Cir. 2009) the facts proven to those sought to be United States v. Cameron, 573 F.3d 179, 183 (4th (internal quotation marks and citations omitted). Credibility determinations are within the sole province of the [fact finder] United States and v. are not Lowe, 65 susceptible F.3d 6 1137, to 1142 judicial (4th review. Cir. 1995). Appellate reversal on grounds of insufficient evidence . . . will be confined to cases where the prosecution s failure is clear. Green, 599 F.3d at 367 alteration, and citation omitted). (internal quotation marks, A defendant challenging the sufficiency of the evidence to support his conviction bears a United States v. Beidler, 110 F.3d 1064, 1067 heavy burden. (4th Cir. 1997) (internal quotation marks and citation omitted). To convict Burney of grand jury perjury under 18 U.S.C. § 1623, the Government was required to prove beyond a reasonable doubt: (1) that the defendant gave false testimony to the grand jury under oath; (2) that the testimony was false; (3) that the false testimony was given knowingly; and (4) that the subject matter of the testimony was material to the grand jury s investigation. United States v. Sarihifard, 155 F.3d 301, 306 (4th Cir. 1998). A defendant is not guilty of perjury if the false testimony resulted from confusion, mistake, or faulty memory. United States v. Dunnigan, 507 U.S. 87, 94 (1993); Sarihifard, 155 F.3d at 306. The parties stipulated to materiality. Our review of the record leads us to conclude that the evidence was sufficient to establish the remaining elements of perjury. We abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2008). The first in the step review this Burney s review sentence requires 7 us for to an ensure that district United court States committed v. Evans, no 526 significant F.3d 155, procedural 161 (4th error. Cir. 2008). Procedural errors include failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, or failing to adequately explain the chosen sentence including an explanation for any deviation from the Guidelines. United States v. Carter, 564 F.3d 325, 328 (4th (internal citation and quotation marks omitted). Cir. 2009) The district court must make an individualized assessment based on the facts presented by applying the relevant § 3553(a) factors Gall, 552 U.S. at 51. circumstances of the case. to the The court then considers the substantive reasonableness of the sentence, taking into account the totality of the circumstances. Id. We procedurally conclude or that the district err in substantively court sentencing did Burney. not The court properly calculated the Guidelines range, considered the relevant § 3553(a) factors, made an individualized assessment based on reasons the for facts the presented, chosen and sentence calculated Guidelines range. adequately well below explained the its properly Accordingly, we affirm Burney s convictions and sentences. In accordance with Anders, we have reviewed the entire record and found no other meritorious issues for appeal. 8 This court requires counsel to inform Burney, in writing, of the right to petition the Supreme Court of the United States for further review. If she requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move representation. in this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Burney. 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 9
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