United States v. Frank Pearson , 676 F. App'x 202 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4392
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANK MICHAEL PEARSON,
Defendant - Appellant.
No. 16-4529
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANK MICHAEL PEARSON,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:15-cr-00193-TSE-1)
Submitted: January 31, 2017 Decided: February 15, 2017
Before SHEDD, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Daniel Tomas Lopez, BRIGLIAHUNDLEY, PC, Tysons Corner, Virginia,
for Appellant. Dana J. Boente, United States Attorney, Matthew
Burke, Mark D. Lytle, Assistant United States Attorneys,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Frank Michael Pearson appeals his conviction for four
counts of embezzlement from a program receiving federal
benefits, in violation of 18 U.S.C. § 666(a)(1)(A) (2012).
Pearson challenges the district court’s ruling that he was
competent to stand trial, the sufficiency of the evidence
supporting his conviction, and the district court’s denial of
his motion for a new trial. We reject each challenge and
affirm.
First, we conclude that Pearson waived his challenge to his
competency because, after moving in the district court for a
finding of incompetency, he declined to offer any arguments in
favor of his motion. See United States v. Robinson, 744 F.3d
293, 298 (4th Cir. 2014) (“A party who identifies an issue, and
then explicitly withdraws it, has waived the issue.”) (internal
quotation marks omitted)). “When a claim of . . . error has
been waived, it is not reviewable on appeal.” United States v.
Claridy, 601 F.3d 276, 284 n.2 (4th Cir. 2010). We therefore do
not review Pearson’s challenge to his competency.
Second, we reject Pearson’s challenge to the sufficiency of
the evidence against him. “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
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States v. Armel, 585 F.3d 182, 184 (4th Cir. 2009) (internal
quotation marks omitted). “Substantial evidence means 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 conclude that the record contains substantial evidence of
Pearson’s guilt, including documents, bank statements, and
testimony linking Pearson to the embezzlement scheme beyond a
reasonable doubt.
Third, Pearson contends that the district court erred when
it denied his motion for a new trial based on Brady v. Maryland,
373 U.S. 83 (1963). This court reviews a district court’s
denial of a motion for a new trial for abuse of discretion.
United States v. Wilson, 624 F.3d 640, 660 (4th Cir. 2010). In
doing so, the court may not substitute its judgment for the
judgment of the district court. Id.
To receive a new trial based on Brady, “a defendant must:
(1) identify the existence of evidence favorable to the accused;
(2) show that the government suppressed the evidence; and (3)
demonstrate that the suppression was material.” United States
v. King, 628 F.3d 693, 701 (4th Cir. 2011). Pearson argues that
the prosecution violated Brady when it withheld evidence
supporting allegations of a third party’s wrongdoing found in an
anonymous letter received after trial. The district court ruled
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that Pearson only speculated that favorable evidence existed to
support the allegations in the letter, and therefore, Pearson
has failed to identify favorable evidence sufficient to
establish a Brady violation. Because such speculation is
insufficient under Brady, see United States v. Caro, 597 F.3d
608, 619 (4th Cir. 2010), we conclude that the district court
did not abuse its discretion when it denied Pearson’s motion for
a new trial based on Brady.
Accordingly, we affirm the district court’s judgment and
its order denying a motion for a new trial. We dispense with
oral argument because the facts and legal contentions were
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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