US v. Jessee Cox

Filing 920100622

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4498 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JESSEE DANE COX, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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. 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 the view most favorable to the Government, to support it." 60, 80 (1942). finder Glasser v. United States, 315 U.S. evidence could is "evidence as that a Substantial of fact reasonable accept adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." Alerre, 430 F.3d at 693 (internal quotation marks omitted). review the credibility of We "may not weigh the evidence or the witnesses [because] [t]hose functions are reserved for the jury." 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 2 intent to distribute existed between two or and more (3) persons; the (2) the defendant and knew of the conspiracy; defendant knowingly voluntarily became a part of this conspiracy." F.3d 849, 857 (4th Cir. 1996). 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 v. Kennedy, 32 F.3d 876, 883 a (4th Cir. 1994) (internal citations omitted). However, material 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 conspiracy." Id. (internal quotation marks omitted). 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 did the not record and find vary that from the the evidence materially conspiracy charged in the indictment. Government's verdict when evidence viewed The was in sufficient the light Further, we find that the to most from support the jury's to the co- favorable Cox's Government. testimony elicited alleged 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. conspirators Moreover, corroborated testimony Cox's from Cox's alleged See co- admissions. 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 and adequately argument presented not in aid the the materials decisional would process. AFFIRMED 5

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