United States v. Anthony Duty

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4657

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

ANTHONY EUGENE DUTY, a/k/a Tony,

Defendant - Appellant.

No. 09-4803

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

ROBIN MARIE DAVIS,

Defendant - Appellant.

Appeals from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:08-cr-00024-jpj-pms-32; 1:08-cr-00024-jpj-pms-43)

Submitted: July 21, 2011 Decided: August 1, 2011

Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.

Joseph R. Conte, LAW OFFICES OF J.R. CONTE, Washington, D.C.;
Henry Keuling-Stout, KEULING-STOUT, P.C., Big Stone Gap,
Virginia, for Appellants. Timothy J. Heaphy, United States
Attorney, Jennifer R. Bockhorst, Assistant United States
Attorney, Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

A federal jury convicted Robin Marie Davis and Anthony

Eugene Duty of conspiracy to distribute and possess with intent

to distribute cocaine and cocaine base, in violation of 21

U.S.C. § 846 (2006). The district court sentenced Davis to 240

months of imprisonment and sentenced Duty to 120 months of

imprisonment, and they now appeal. Finding no error, we affirm.

On appeal, Davis argues that the district court erred

in denying her motions for a judgment of acquittal and for a new

trial in which she argued that the evidence was insufficient to

support the verdict. We review a district court’s decision to

deny a Rule 29 motion for a judgment of acquittal de novo and

the denial of a Fed. R. Crim. P. 33 motion for a new trial for

abuse of discretion. United States v. Smith, 451 F.3d 209, 216

(4th Cir. 2006).

A defendant challenging the sufficiency of the

evidence faces a heavy burden. United States v. Beidler, 110

F.3d 1064, 1067 (4th Cir. 1997). The verdict of a jury must be

sustained “if, viewing the evidence in the light most favorable

to the prosecution, the verdict is supported by ‘substantial

evidence.’” Smith, 451 F.3d at 216 (citations omitted).

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.”

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Id. (internal quotation marks and citation omitted).

Furthermore, “[t]he jury, not the reviewing court, weighs the

credibility of the evidence and resolves any conflicts in the

evidence presented.” Beidler, 110 F.3d at 1067 (internal

quotation marks and citation omitted). “Reversal for

insufficient evidence is reserved for the rare case where the

prosecution’s failure is clear.” Id. (internal quotation marks

and citation omitted).

In order to prove that Davis conspired to possess with

intent to distribute and distribute cocaine and crack, the

Government needed to show (1) an agreement between two or more

persons, (2) that Davis knew of the agreement, and (3) that

Davis knowingly and voluntarily joined the conspiracy. United

States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc)

(citations omitted). We have thoroughly reviewed the record and

conclude that there was sufficient evidence to support the

jury’s verdict of guilt.

Duty argues on appeal that the district court erred in

denying his motion for a new trial based on three of his

codefendants’ recantations of their trial testimony against him.

A motion for a new trial based on a witness’ recantation of his

trial testimony should be granted only when “(1) the court is

reasonably satisfied that the testimony given by a material

witness is false; (2) without the evidence a jury might have

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reached a different conclusion; and (3) the party seeking the

new trial was unable to meet it or did not know of its falsity

until after trial.” United States v. Lighty, 616 F.3d 321, 374

(4th Cir.), cert. denied, 131 S. Ct. 846 (2010), (citations

omitted). Our review of the record leads us to conclude that

the district court’s finding that the witnesses’ trial

testimonies were not false was not error and, therefore, the

court did not abuse its discretion in denying Duty’s motion for

a new trial.

Accordingly, we affirm the judgments 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