US v. Frank Wood Thomas

Filing 920090518

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4694 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FRANK WOOD THOMAS, Defendant Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 and cocaine base, in violation of 21 U.S.C. 846 (2006). 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 The Government elected brief, joining in counsel's argument. 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 successfully challenge the sufficiency of the evidence." United States v. Martin, 523 F.3d 281, 288 (4th Cir.) (citation omitted), cert. denied, 129 S. Ct. 238 (2008). To distribute prove and to conspiracy distribute to a possess controlled with intent to the substance, government must establish that: (1) two or more persons agreed to possess with "`(2) intent the to distribute knew and of to distribute conspiracy; the and substance; defendant the (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 and willfully joins in the plan on at least one occasion. 94 F.3d at 858. Burgos, 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 drug consumption market'" -- Mecklenburg County, North Carolina. 3 Burgos, 94 F.3d at 858 (quoting United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993)). the or "[W]hile fact many that a does conspiracies conspiracy not Id. to are is it executed with precision, haphazard, loosely-knit, any less a ill-conceived render conspiracy -- or any less unlawful." that there was To in the sufficient extent part We therefore conclude support the the jury's case the evidence verdict. rested Thomas the argues Government's testimony of large on unreliable 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 review. the Supreme Court of the United States for further If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move this court for leave to withdraw from representation. was served on the Counsel's motion must state that a copy thereof the client. We and dispense legal with oral argument are because facts contentions 4 adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5

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