UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. United States v. Alerre, 430 F.3d 681, 693 (4th
Cir. 2005). A jury’s verdict “must be sustained if there is
substantial evidence, taking the view most favorable to the
Government, to support it.” Glasser v. United States, 315 U.S.
60, 80 (1942). Substantial evidence 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.” Alerre, 430 F.3d at 693 (internal
quotation marks omitted). We “may not weigh the evidence or
review the credibility of 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 intent to distribute existed
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between two or more persons; (2) the defendant knew of the
conspiracy; and (3) the defendant knowingly and voluntarily
became a part of this conspiracy.” United States v. Burgos, 94
F.3d 849, 857 (4th Cir. 1996). 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 (4th Cir. 1994)
(internal citations omitted). However, a material variance
warrants reversal of a conviction only if the variance infringed
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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 have reviewed the record and find that the
Government’s evidence did not materially vary from the
conspiracy charged in the indictment. Further, we find that the
Government’s evidence was sufficient to support the jury’s
verdict when viewed in the light most favorable to the
Government. The testimony elicited from Cox’s alleged co-
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. Moreover, testimony from Cox’s alleged co-
conspirators corroborated Cox’s admissions. See United
States v. Abu Ali, 528 F.3d 210, 234 (4th Cir. 2008) (stating
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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. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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