US v. Harvey Thomas, III

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:10-cr-00069-JRS-1 Copies to all parties and the district court/agency. [998595333].. [10-5116]

Appeal: 10-5116

Document: 32

Date Filed: 05/23/2011

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5116

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HARVEY D. THOMAS, III,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
James R. Spencer, Chief
District Judge. (3:10-cr-00069-JRS-1)

Submitted:

May 16, 2011

Before WYNN and
Circuit Judge.

DIAZ,

Decided:

Circuit

Judges,

and

May 23, 2011

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

David R. Lett, Richmond,
MacBride,
United
States
Assistant United States
Appellee.

Virginia, for Appellant.
Neil H.
Attorney,
Jessica
Aber
Brumberg,
Attorney, Richmond, Virginia, for

Unpublished opinions are not binding precedent in this circuit.

Appeal: 10-5116

Document: 32

Date Filed: 05/23/2011

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PER CURIAM:
Appellant

Harvey

D.

Thomas,

III

challenges

his

conviction for distribution of cocaine in violation of 21 U.S.C.
§ 841(a)(1) (2006). *

He raises two arguments on appeal.

First,

he maintains the district court abused its discretion when it
allowed

the

Government

examination.
wrongly

by

its

insufficient

conviction.

use

leading

questions

on

direct

Second, he contends that, absent the testimony

elicited

adduced

to

leading

evidence

questions,

at

trial

the

to

Government

support

his

For the following reasons, we affirm the district

court’s judgment.
We

review

a

district

court’s

rulings

on

leading

questions for a clear abuse of discretion and will not overturn
such

decisions

litigant.

absent

prejudice

or

clear

injustice

to

the

United States v. Durham, 319 F.2d 590, 592 (4th Cir.

1963).

Federal Rule of Evidence 611(a) gives broad discretion

to

district

the

interrogating

court

witnesses

to

control

and

the

the

“mode

presentation

and
of

order”

of

evidence.

Subsection (c) of Rule 611 states that leading questions should
*

Although Thomas’ statement of the issues references the
sufficiency of the evidence to “sustain convictions for all six
alleged distribution offenses,” the argument in his brief only
discusses the September 9, 2009, controlled buy.
Accordingly,
we conclude he abandoned any argument related to the sufficiency
of the evidence supporting his other five convictions.
See
Federal Rule of Appellate Procedure 28(a)(9)(A).

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Date Filed: 05/23/2011

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not be used on direct examination except as necessary to develop
the witness’ testimony.

See Fed. R. Evid. 611(c).

The Advisory

Committee Notes to subsection (c) give great deference to the
trial

judge:

“The

matter

clearly

falls

within

the

area

of

control by the judge over the mode and order of interrogation
and

presentation

and

accordingly

is

phrased

in

words

of

suggestion rather than command.”
Given the high degree of deference this court must
allow a district court under Fed. R. Evid. 611, we conclude
Thomas

has

failed

to

demonstrate

reversible

error

in

the

district court’s evidentiary rulings.

Given this conclusion, it

follows

the

that

Thomas’

challenge

to

sufficiency

of

the

evidence supporting his conviction fails.
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

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