United States v. Thomas

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5116

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

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 Decided: May 23, 2011

Before WYNN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

David R. Lett, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Jessica Aber Brumberg,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
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 to use leading questions on direct

examination. Second, he contends that, absent the testimony

wrongly elicited by its leading questions, the Government

adduced insufficient evidence at trial to support his

conviction. 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 absent prejudice or clear injustice to the

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

1963). Federal Rule of Evidence 611(a) gives broad discretion

to the district court to control the “mode and order” of

interrogating witnesses and the presentation 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).

2
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 that Thomas’ challenge to the sufficiency of the

evidence supporting his conviction fails.

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