UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4076
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LINDA MCLAURIN BURNEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (7:08-cr-00049-FL-1)
Submitted: July 20, 2011 Decided: August 5, 2011
Before KING and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Linda McLaurin Burney was indicted on six counts of
grand jury perjury, in violation of 18 U.S.C. § 1623 (2006).
Following a bench trial, the district court convicted Burney on
Counts One, Three, Five, and Six, acquitted her on Count Four,
and dismissed Count Two on the Government’s motion. The
district court departed downward from the advisory Guidelines
sentencing range and imposed concurrent sentences of three years
of imprisonment on each count.
Counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that he found no
meritorious issues for appeal, but arguing that the district
court should have granted Burney’s motion to suppress evidence
of her investigatory interview and should have acquitted Burney
due to insufficient evidence to sustain the perjury convictions.
Counsel further asserts that the district court improperly
calculated Burney’s Guidelines range and imposed a substantively
unreasonable sentence. We directed supplemental briefing from
the parties on the issues of whether sufficient evidence
supported the perjury convictions and whether the perjury
charges were multiplicitous in violation of the Double Jeopardy
Clause.
We review the factual findings underlying the district
court’s denial of a motion to suppress for clear error and the
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court’s legal conclusions de novo. United States v. Blake, 571
F.3d 331, 338 (4th Cir. 2009), cert. denied, 130 S. Ct. 1104
(2010). A factual finding is clearly erroneous if “the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.” United
States v. Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (internal
quotation marks and citations omitted). However, “if the
district court’s account of the evidence is plausible in light
of the record viewed in its entirety,” we will not reverse the
district court’s finding even if we would have “decided the
fact[s] differently.” United States v. Stevenson, 396 F.3d 538,
542 (4th Cir. 2005) (internal quotation marks, alteration, and
citation omitted).
We also defer to the district court’s credibility
determinations, “for it is the role of the district court to
observe witnesses and weigh their credibility during a pre-trial
motion to suppress.” United States v. Abu Ali, 528 F.3d 210,
232 (4th Cir. 2008) (internal quotation marks and citation
omitted). When a motion to suppress has been denied by the
district court, we construe the evidence in the light most
favorable to the Government. United States v. Farrior, 535 F.3d
210, 217 (4th Cir. 2008).
Statements obtained from a defendant during custodial
interrogation are presumptively compelled in violation of the
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Fifth Amendment, unless the Government shows that law
enforcement officers adequately informed the defendant of her
Miranda rights and obtained a waiver of those rights. United
States v. Cardwell, 433 F.3d 378, 388-89 (4th Cir. 2005). To
determine whether a defendant was in custody for purposes of
Miranda, courts are to determine “first, what were the
circumstances surrounding the interrogation; and second, given
those circumstances, would a reasonable person have felt he or
she was not at liberty to terminate the interrogation and
leave.” Thompson v. Keohane, 516 U.S. 99, 112 (1995) (footnote
omitted). In other words, “[a]n individual is in custody when,
under the totality of the circumstances, a suspect’s freedom
from action is curtailed to a degree associated with formal
arrest.” United States v. Colonna, 511 F.3d 431, 435 (4th Cir.
2007) (internal quotation marks and citation omitted).
In the present case, Burney voluntarily agreed to the
interview, which occurred at her place of employment over a
period of relatively short duration. The officers assured
Burney that she was a witness, not a suspect, was not under
arrest, and could leave at anytime. Burney was not physically
restrained, and despite her attestation of nervousness and fear,
the record reflects that the tone of the interview was cordial
and non-threatening. A reasonable person in Burney’s position
would have understood that she was free to terminate the
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interview and was not in custody. Therefore, we conclude that
the district court did not err in denying Burney’s motion to
suppress.
A challenge to a defect in the indictment must be
brought before trial. Fed. R. Crim. P. 12(b)(3)(B); United
States v. King, 628 F.3d 693, 699 (4th Cir. 2011). “Only upon a
showing of good cause can a defendant avoid waiving a forfeited
multiplicity claim.” Fed. R. Crim. P. 12(e); King, 628 F.3d at
699. Because Burney failed to raise a multiplicity challenge
prior to trial and has made no attempt to establish good cause
excusing her failure to raise the challenge, she has forfeited
appellate review of the issue.
Nevertheless, we may exercise our discretionary
remedial power to correct the district court if it committed
plain error. United States v. Olano, 507 U.S. 725, 734 (1993);
United States v. Robinson, 627 F.3d 941, 954 (4th Cir. 2010).
Before we notice plain error, we must find (1) error was made,
(2) is plain, and (3) affected Burney’s substantial rights.
United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). Even
if Burney makes this showing, we may exercise our discretion to
correct the error only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
We conclude that Burney’s observations of Reese (Counts One and
Five), their conversations (Count Three), and Burney’s provision
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of a list of names to investigating officers (Count Six),
required proof of sufficiently distinct facts to support four
separate convictions.
We review the district court’s denial of a motion for
a judgment of acquittal de novo. United States v. Green, 599
F.3d 360, 367 (4th Cir. 2010). “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.” United
States v. Armel, 585 F.3d 182, 184 (4th Cir. 2009) (internal
quotation marks and citation 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.” Green, 599 F.3d at 367
(internal quotation marks and citation omitted).
In determining whether substantial evidence supports
the verdict, we “must consider circumstantial as well as direct
evidence, and allow the government the benefit of all reasonable
inferences from the facts proven to those sought to be
established.” United States v. Cameron, 573 F.3d 179, 183 (4th
Cir. 2009) (internal quotation marks and citations omitted).
“Credibility determinations are within the sole province of the
[fact finder] and are not susceptible to judicial review.”
United States v. Lowe, 65 F.3d 1137, 1142 (4th Cir. 1995).
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“Appellate reversal on grounds of insufficient evidence . . .
will be confined to cases where the prosecution’s failure is
clear.” Green, 599 F.3d at 367 (internal quotation marks,
alteration, and citation omitted). “A defendant challenging the
sufficiency of the evidence to support his conviction bears a
heavy burden.” United States v. Beidler, 110 F.3d 1064, 1067
(4th Cir. 1997) (internal quotation marks and citation omitted).
To convict Burney of grand jury perjury under 18
U.S.C. § 1623, the Government was required to prove beyond a
reasonable doubt:
(1) that the defendant gave false testimony to the
grand jury under oath; (2) that the testimony was
false; (3) that the false testimony was given
knowingly; and (4) that the subject matter of the
testimony was material to the grand jury’s
investigation.
United States v. Sarihifard, 155 F.3d 301, 306 (4th Cir. 1998).
A defendant is not guilty of perjury if the false testimony
resulted from confusion, mistake, or faulty memory. United
States v. Dunnigan, 507 U.S. 87, 94 (1993); Sarihifard, 155 F.3d
at 306. The parties stipulated to materiality. Our review of
the record leads us to conclude that the evidence was sufficient
to establish the remaining elements of perjury.
We review Burney’s sentence for an abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2008). The
first step in this review requires us to ensure that the
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district court committed no significant procedural error.
United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008).
“Procedural errors include failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a)
factors, or failing to adequately explain the chosen sentence–
including an explanation for any deviation from the Guidelines.”
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009)
(internal citation and quotation marks omitted). The district
court must make an individualized assessment based on the facts
presented by applying the relevant § 3553(a) factors to the
circumstances of the case. Gall, 552 U.S. at 51. The court
then considers the substantive reasonableness of the sentence,
taking into account the totality of the circumstances. Id.
We conclude that the district court did not
procedurally or substantively err in sentencing Burney. The
court properly calculated the Guidelines range, considered the
relevant § 3553(a) factors, made an individualized assessment
based on the facts presented, and adequately explained its
reasons for the chosen sentence well below the properly
calculated Guidelines range. Accordingly, we affirm Burney’s
convictions and sentences.
In accordance with Anders, we have reviewed the entire
record and found no other meritorious issues for appeal. This
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court requires counsel to inform Burney, in writing, of the
right to petition the Supreme Court of the United States for
further review. If she requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Burney. 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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