United States v. Perry Cousins ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4843
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PERRY COUSINS, a/k/a Pzo,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
Chief District Judge. (4:10-cr-00047-RBS-TEM-1)
Submitted: July 17, 2012 Decided: July 31, 2012
Before MOTZ and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Andrew A. Protogyrou, PROTOGYROU & RIGNEY, P.L.C., Norfolk,
Virginia, for Appellant. Neil H. MacBride, United States
Attorney, Howard J. Zlotnick, Robert E. Bradenham, II, Assistant
United States Attorneys, Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Perry Cousins appeals his convictions following a jury
trial on charges of a racketeering conspiracy (Count 1), in
violation of 18 U.S.C. § 1962(d) (2006); conspiracy to
distribute and possess with intent to distribute drugs (Count
2), in violation of 21 U.S.C. § 846 (2006); conspiracy to commit
robbery (Count 3) and robbery (Counts 6, 9, and 12), in
violation of 18 U.S.C. § 1951(a) (2006); murder in aid of
racketeering activity (Count 4), in violation of 18 U.S.C.
§ 1959(a)(1) (2006); use of a firearm in relation to a crime of
violence and resulting in death (Counts 5 and 13), in violation
of 18 U.S.C. § 924(c)(1), (j) (2006); use of a firearm in
relation to a crime of violence (Counts 7, 10, and 19), in
violation of 18 U.S.C. § 924(c)(1); possession with intent to
distribute fifty grams or more of cocaine base (Counts 8 and
11), in violation of 21 U.S.C. § 841(a)(1) (2006); assault with
a dangerous weapon and assault resulting in serious bodily
injury (Count 18), in violation of 18 U.S.C. § 1959(a)(3)
(2006); possession of an unregistered firearm (Count 28), in
violation of 26 U.S.C. §§ 5841, 5845(a) & (d), 5861(d), & 5871
(2006); and possession of a firearm by a convicted felon (Count
29), in violation of 18 U.S.C. § 922(g)(1) (2006). On appeal,
Cousins challenges the sufficiency of the evidence supporting
the racketeering-related convictions and Counts 18 and 29.
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Cousins also contends that the district court erred in failing
to declare a mistrial following an allegedly improper remark by
counsel for the Government. Finding no error, we affirm.
A jury verdict must be upheld “if there is substantial
evidence, viewed in the light most favorable to the Government,
to support it.” United States v. Perkins, 470 F.3d 150, 160
(4th Cir. 2006). “[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.” Id. (internal quotation marks omitted).
We draw all reasonable inferences from both circumstantial and
direct evidence in the government’s favor. United States v.
Harvey, 532 F.3d 326, 333 (4th Cir. 2008). However, “[w]e 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).
Cousins first argues that the Government presented
insufficient evidence of an enterprise for purposes of the
racketeering-related offenses set out in Count 1. Because
Cousins failed to file a motion for judgment of acquittal in the
district court, we review only for plain error. See United
States v. Wallace, 515 F.3d 327, 331-32 (4th Cir. 2008)
(discussing standard of review). We conclude that, viewed in
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the light most favorable to the Government, there was no error—
plain or otherwise—because the testimony was sufficient for a
reasonable jury to find the existence of an enterprise. See 18
U.S.C. § 1961(4) (2006); Boyle v. United States, 556 U.S. 938,
946 (2009) (defining enterprise); United States v. Turkette, 452
U.S. 576, 583 (1981) (same).
Cousins next argues that the Government presented
insufficient evidence to prove that he committed the assault
charged in Counts 18 and 19 in order to maintain or increase his
position in the racketeering enterprise. “The phrase ‘for the
purpose of . . . maintaining or increasing position in . . .’
the enterprise should be accorded its ordinary meaning.” United
States v. Fiel, 35 F.3d 997, 1004 (4th Cir. 1994). A
defendant’s motive “of retaining or enhancing [his] position [is
met] . . . if . . . a jury could properly infer that the
defendant committed his violent crime because he knew it was
expected of him by reason of his membership in the enterprise or
that he committed it in furtherance[] of that membership.”
United States v. Tipton, 90 F.3d 861, 891 (4th Cir. 1996)
(internal quotation marks omitted). Moreover, “self-promotion
need not be the defendant’s only or primary concern.” Id.(internal quotation marks omitted). Evidence that an enterprise
has a “polic[y] of retaliatory violence against any who
sufficiently antagonized any of its members” may support a
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finding that violence was committed, in part, to maintain or
increase position in the enterprise. Id. With these standards
in mind and viewing the evidence in the light most favorable to
the Government, we conclude that the testimony was sufficient
for a reasonable jury to find that Cousins committed the charged
assault in order to maintain or increase his position in the
enterprise.
Cousins also argues that the Government failed to
present sufficient evidence to demonstrate that the firearm he
possessed in connection with the assault charged in Count 18 was
operable. Because the Government did not need to prove that the
firearm was operable, we conclude that the evidence was
sufficient to convict Cousins on Count 29. See United States v.
Williams, 445 F.3d 724, 732 n.3 (4th Cir. 2006) (citing cases
and noting that firearm is not required to be operable to meet
definition of 18 U.S.C. § 921(a)(3) (2006)).
Finally, Cousins argues that the district court erred
in failing to declare a mistrial following an allegedly improper
remark by a Government attorney during a witness’ cross-
examination. An improper remark by counsel “may so infect the
trial with unfairness as to make the resulting conviction a
denial of due process.” United States v. Lighty, 616 F.3d 321,
359 (4th Cir. 2010) (internal quotation marks and brackets
omitted). In this case, however, the district court established
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through voir dire that no juror actually heard the alleged
improper remark by the Government’s counsel. Thus, the district
court did not err in failing to declare a mistrial. See United
States v. Olano, 507 U.S. 725, 732 (1993) (detailing plain error
standard).
Accordingly, we affirm the district court’s judgment
and deny Cousins’ motion to reconsider the denial of his motion
to rescind counsel’s opening brief. 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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