US v. Keegan Leahy, No. 13-4273 (4th Cir. 2015)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4273 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEEGAN LEAHY, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, Senior District Judge. (8:10-cr-00777-RWT-6) Submitted: February 25, 2015 Decided: March 20, 2015 Before KING, THACKER, and HARRIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael D. Montemarano, MICHAEL DANIEL MONTEMARANO, PA, Columbia, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Deborah A. Johnston, Mara Zusman Greenberg, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland; Leslie R. Caldwell, Assistant Attorney General, Sung-Hee-Suh, Deputy Assistant Attorney General, William A. Glaser, Appellate Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A federal jury found Keegan Leahy guilty of conspiracy to distribute and possess with intent to distribute marijuana in violation of 21 U.S.C. § 846 (2012) and interstate travel to facilitate illegal activity in violation of 18 U.S.C. § 1952 (2012) (“Travel Act”). The district court sentenced Leahy to thirty-six months of imprisonment and he now appeals. For the reasons that follow, we affirm. Leahy challenges the district court’s instruction to the jury regarding willful blindness. Leahy argues that the instruction was not warranted based on the evidence and that the instruction was an incorrect statement of the law. We review a district court’s decision whether to give a jury instruction for abuse of discretion. See United States v. Ali, 735 F.3d 176, 187 (4th Cir. 2013), cert. denied, 134 S. Ct. 1357 (2014). “It is well established that where a defendant asserts that he did not have the requisite mens rea to meet the elements of the crime but ignorance, evidence a appropriate.” willful supports an blindness inference instruction of to deliberate the Id. (internal quotation marks omitted). instruction is appropriate only in rare circumstances. jury is Such an See id. Moreover, “[i]n reviewing the adequacy of instructions, we accord the district court much discretion and will not reverse provided that the instructions, taken as a whole, adequately 2 state the controlling law.” United States v. Bolden, 325 F.3d 471, 486 (4th Cir. 2003) (internal quotation marks omitted). have thoroughly reviewed the record and the relevant We legal authorities and conclude that there was sufficient evidence of willful blindness to support the district court’s instruction to the jury. We further conclude that the court’s instruction adequately stated the controlling law. Leahy next challenges the sufficiency of the evidence to support the convictions. We review de novo a district court’s decision to deny a motion for a judgment of acquittal. See United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). defendant challenging faces a heavy burden.” the sufficiency of the evidence . “A . . United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks omitted). The verdict must be sustained “if, viewing the evidence in the light most favorable to the prosecution, the verdict is supported by substantial quotation evidence.” marks Smith, omitted). 451 F.3d Substantial at evidence 216 (internal 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.” Id. (internal quotation marks omitted). “Reversal for insufficient evidence is reserved for the rare case where the prosecution’s failure is clear.” F.3d at 1067 (internal quotation marks omitted). 3 Beidler, 110 To secure a conspiracy conviction under 21 U.S.C. § 846, the government must prove three elements: “(1) [the defendant] entered into an agreement with one or more persons to engage in conduct that violated 21 U.S.C. § [] 841(a)(1) . . . ; (2) that [the defendant] had knowledge of that conspiracy; and (3) that [the defendant] knowingly and voluntarily participated in the conspiracy.” United States v. Howard, 773 F.3d 519, 525 (4th Cir. 2014) (alterations in original) (internal quotation marks omitted). The government conspiracy wholly through can prove circumstantial the existence evidence. of See a id. Moreover, the knowledge element may be satisfied by showing that a defendant acted with willful blindness, or “purposely closed his eyes to avoid knowing what was taking place around him.” United States v. Schnabel, 939 F.2d 197, 293 (4th Cir. 1991). To demonstrate a Travel Act violation, the government must show (1) interstate travel, (2) an intent to promote an unlawful activity, and (3) performance or attempted performance of an unlawful act. Cir. 1986). enterprise United States v. Gallo, 782 F.2d 1191, 1194 (4th “Unlawful involving activity” narcotics violation of federal law. is or defined as controlled 18 U.S.C. § 1952(b). any business substances in Our review of the record leads us to conclude that the Government presented substantial evidence of Leahy’s conviction. 4 guilt of the offenses of Leahy also challenges the district court’s order denying his motion for a bill of particulars with respect to the Travel Act charge. A bill to of particulars provide is defendant to surprise. See United States v. Am. Waste Fibers Co., 809 F.2d charges and to to an fails the information when indictment understand adequate appropriate allow avoid a unfair 1044, 1047 (4th Cir. 1987); United States v. Jackson, 757 F.2d 1486, 1491 (4th Cir. 1985). Whether a bill of particulars was wrongly denied is reviewed for abuse of discretion. See United States v. MacDougall, 790 F.2d 1135, 1153 (4th Cir. 1986). “[A] defendant may show abuse of discretion in denying the motion by proving unfair surprise.” Jackson, 757 F.2d at 1491. Here, the district court did not err by denying Leahy’s motion for a bill of particulars. The subject indictment tracked the statutory language and cited the charging statutes. As a general rule, this is sufficient. See, e.g., Hamling v. United States, 418 U.S. 87, 117-18 (1974). Moreover, Leahy has failed to demonstrate that the denial resulted in any unfair surprise at trial. Leahy next challenges the Government’s use of a witness’s grand jury testimony to refresh his recollection on redirect examination after defense extensively about his counsel testimony had before questioned the grand the witness jury. “We review evidentiary rulings of the district court for abuse of 5 discretion.” 2010) United States v. Caro, 597 F.3d 608, 633 (4th Cir. (internal quotation discretion occurs arbitrarily or only marks when irrationally omitted). “the in An [district] admitting abuse court evidence.” of acted United States v. Williams, 445 F.3d 724, 732 (4th Cir. 2006) (internal quotation marks omitted). The district court properly allowed the Government to provide the witness with his grand jury testimony to refresh his recollection regarding that testimony. for which the transcript was As this was the purpose used, the court correctly determined that the grand jury testimony was not admitted as substantive evidence. See United States v. Morlang, 531 F.2d 183, 190-91 (4th Cir. 1975) (noting use of written memorandum to refresh a witness’s recollection is proper); see also Fed. R. Evid. 612 (regarding writings used challenges the to refresh a witness’s recollection). Finally, Leahy district court’s order denying his post-judgment motions to require the Government to disclose allegedly intercepted communications pursuant to 18 U.S.C. § 3504 (2012) and to dismiss the indictment and vacate the jury notice of verdict. appeal However, of the because district Leahy court’s motions, that order is not before this court. P. 4(b). failed order to file denying a his See Fed. R. App. Even if we were to consider this issue, however, we 6 conclude that the district court did not err by denying Leahy’s motions. Accordingly, we affirm the judgment of the district court. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid in the decisional process. AFFIRMED 7

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