US v. Frank Pearson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00193-TSE-1 Copies to all parties and the district court/agency. [1000023960].. [16-4392, 16-4529]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4392

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANK MICHAEL PEARSON,
Defendant - Appellant.

No. 16-4529

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANK MICHAEL PEARSON,
Defendant - Appellant.

Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.
T. S. Ellis, III, Senior
District Judge. (1:15-cr-00193-TSE-1)

Submitted:

January 31, 2017

Decided:

Before SHEDD, AGEE, and THACKER, Circuit Judges.

February 15, 2017

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Affirmed by unpublished per curiam opinion.

Daniel Tomas Lopez, BRIGLIAHUNDLEY, PC, Tysons Corner, Virginia,
for Appellant. Dana J. Boente, United States Attorney, Matthew
Burke, Mark D. Lytle, Assistant United States Attorneys,
Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Frank
counts

of

benefits,
Pearson

Michael

Pearson

embezzlement
in

violation

challenges

competent

to

stand

from
of

the

appeals
a

18

the

conviction

program

U.S.C.

district

trial,

his

for

four

receiving

federal

§ 666(a)(1)(A)

(2012).

court’s

ruling

sufficiency

of

that
the

he

was

evidence

supporting his conviction, and the district court’s denial of
his

motion

for

a

new

trial.

We

reject

each

challenge

and

affirm.
First, we conclude that Pearson waived his challenge to his
competency because, after moving in the district court for a
finding of incompetency, he declined to offer any arguments in
favor of his motion.

See United States v. Robinson, 744 F.3d

293, 298 (4th Cir. 2014) (“A party who identifies an issue, and
then explicitly withdraws it, has waived the issue.”) (internal
quotation marks omitted)).

“When a claim of . . . error has

been waived, it is not reviewable on appeal.”

United States v.

Claridy, 601 F.3d 276, 284 n.2 (4th Cir. 2010).

We therefore do

not review Pearson’s challenge to his competency.
Second, we reject Pearson’s challenge to the sufficiency of
the evidence against him.

“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.”
3

United

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States v. Armel, 585 F.3d 182, 184 (4th Cir. 2009) (internal
quotation marks omitted).

“Substantial evidence means 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).

We conclude that the record contains substantial evidence of
Pearson’s

guilt,

including

documents,

bank

statements,

and

testimony linking Pearson to the embezzlement scheme beyond a
reasonable doubt.
Third, Pearson contends that the district court erred when
it denied his motion for a new trial based on Brady v. Maryland,
373

U.S.

83

(1963).

This

court

reviews

a

district

court’s

denial of a motion for a new trial for abuse of discretion.
United States v. Wilson, 624 F.3d 640, 660 (4th Cir. 2010).

In

doing so, the court may not substitute its judgment for the
judgment of the district court.

Id.

To receive a new trial based on Brady, “a defendant must:
(1) identify the existence of evidence favorable to the accused;
(2) show that the government suppressed the evidence; and (3)
demonstrate that the suppression was material.”
v. King, 628 F.3d 693, 701 (4th Cir. 2011).
the

prosecution

violated

Brady

when

it

United States

Pearson argues that
withheld

evidence

supporting allegations of a third party’s wrongdoing found in an
anonymous letter received after trial.
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The district court ruled

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that Pearson only speculated that favorable evidence existed to
support the allegations in the letter, and therefore, Pearson
has

failed

establish

to

a

identify

Brady

favorable

violation.

evidence

Because

such

sufficient

to

speculation

is

insufficient under Brady, see United States v. Caro, 597 F.3d
608, 619 (4th Cir. 2010), we conclude that the district court
did not abuse its discretion when it denied Pearson’s motion for
a new trial based on Brady.
Accordingly, we affirm the district court’s judgment and
its order denying a motion for a new trial.

We dispense with

oral

contentions

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

this

court

were
and

argument would not aid the decisional process.
AFFIRMED

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