United States v. Jeffrey Banks

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4562

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JEFFREY LAMONT BANKS, a/k/a P,

Defendant - Appellant.

No. 12-4566

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BRIAN LEE MORTON,

Defendant - Appellant.

Appeals from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:11-cr-00099-HCM-FBS-1; 4:11-cr-00099-
HCM-FBS-2)

Submitted: January 8, 2013 Decided: January 11, 2013

Before DUNCAN, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.

James J. Whitus, ALBO & OBLON, LLP, Virginia Beach, Virginia;
Robert Bruce Jones, Newport News, Virginia, for Appellants.
Neil H. MacBride, United States Attorney, Laura P. Tayman,
Assistant United States Attorney, Newport News, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

In these consolidated appeals, Jeffrey Lamont Banks

and Brian Lee Morton challenge their convictions by jury of

several heroin distribution offenses, arguing only that the

evidence was insufficient to convict them. We have reviewed the

record and affirm.

“A defendant challenging the sufficiency of the

evidence faces a heavy burden because the jury’s verdict must be

upheld on appeal if there is substantial evidence in the record

to support it.” United States v. Young, 609 F.3d 348, 355 (4th

Cir. 2010) (internal citation, quotation marks and emphasis

omitted). “[S]ubstantial 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.” United States v. Cameron, 573 F.3d 179, 183 (4th Cir.

2009). (internal quotation marks omitted). “Our review is thus

limited to determining whether, viewing the evidence and the

reasonable inferences to be drawn therefrom in the light most

favorable to the government, the evidence adduced at trial could

support any rational determination of guilty beyond a reasonable

doubt.” Young, 609 F.3d at 355 (internal quotation marks,

alteration and ellipsis omitted).

Banks and Morton claim that their convictions were

unsupported by sufficient evidence in two respects. First, they

3
contend that the Government failed to prove that their

conspiracy offense involved a kilogram or more of heroin. See

21 U.S.C. § 841(b)(1)(A)(i) (2006). To this end, Banks and

Morton rely on United States v. Hickman, 626 F.3d 756 (4th Cir.

2010), where we observed that the trier of fact “may not simply

guess at the magnitude or frequency of unknown criminal

activity” or base a conclusion as to the amount of drugs

involved in a conspiracy upon “[u]nbridled speculation.” Id. at

768-69. But the circumstances presented in Hickman are not

remotely similar to those presented here. In fact, one of the

Government’s witnesses testified that he supplied Banks and

Morton with heroin, knew that they were distributing it, and was

“confident” that he had sold them more than one kilogram of

heroin during the course of the conspiracy. The Appellants’

assertion that no rational jury could have concluded that they

conspired to distribute more than one kilogram of heroin is

therefore baseless.

The Appellants also argue that the Government failed

to prove that either of them intended to distribute the bags of

heroin with which they were caught when arrested, rather than

use them for their own use. See 21 U.S.C. § 841(a)(1) and

(b)(1)(C) (2006). But this round of insufficiency arguments is

as infirm as the first. Although the Appellants claim that the

jury should have concluded that the heroin with which each of

4
them was arrested was possessed only for personal use, the jury

simply found otherwise, on the basis of an ample record. See

Young, 609 F.3d at 355; United States v. Collins, 412 F.3d 515,

519 (4th Cir. 2005). These claims, too, are therefore entirely

without merit.

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 material

before this court and argument will not aid the decisional

process.

AFFIRMED

5