United States v. West , 303 F. App'x 156 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4957
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BARRY WEST,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:07-cr-00185)
Submitted: September 30, 2008 Decided: December 17, 2008
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David R. Lett, Richmond, Virginia, for Appellant. Chuck
Rosenburg, United States Attorney. Laura Colombell Marshall,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Barry West appeals his conviction for witness tampering
through use of force, 18 U.S.C. § 1512(a)(2)(A) (2000). West
claims that the evidence was insufficient to convict him. We
affirm.
I
At trial, Craig Coles testified that Letrista West, Barry
West’s sister, was charged with identity theft. Prior to
Letrista’s trial, Barry West told Coles that he should let
Letrista handle the charge against her. Coles took the comment
to mean that he should not discuss the identity theft matter
with the police.
On the day of Letrista’s trial, Coles and Barry West ran
into each other in a hallway of the federal courthouse. As West
approached Coles, the following exchange took place:
COLES: Hey, what’s up, Barry?
WEST: My motherfucking sister is what’s up.
COLES: I don’t have nothing to do with your sister.
. . .
WEST: You got something to do with her. She did this
shit herself?
COLES: I didn’t have nothing to do with your sister. If
she is a thief, she is a thief.
WEST: We’re going to see who gets the last laugh.
I’ll fuck you up.
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Coles testified that during this conversation, West was so close
to him that “I could have puckered my lips and kissed him.”
Coles felt that there was a real possibility that West would hit
him. Once the men separated, Coles testified that West shook his
head “and then he [gestured] as if he was going to cut my neck.”
Coles’ mother, who witnessed the confrontation, testified
that she feared that West would strike her son. She rushed to a
nearby courtroom for assistance. A court security officer
testified that the two men were toe-to-toe in the hallway.
Another witness testified that West was leaning towards Coles,
who appeared frightened.
II
We must determine whether the evidence, viewed in the light
most favorable to the Government, was sufficient for a rational
trier of fact to have found the essential elements of the crime
beyond a reasonable doubt. Glasser v. United States, 315 U.S.
60, 80 (1942); United States v. Stewart, 256 F.3d 231, 250 (4th
Cir. 2001). If substantial evidence exists to support a
verdict, we must sustain it. Glasser, 315 U.S. at 80. We do
not review the credibility of witnesses, and we assume that the
jury resolved all contradictions in the testimony in favor of
the Government. United States v. Sun, 278 F.3d 302, 313 (4th
Cir. 2002).
3
To establish a violation of witness tampering under
§ 1512(a)(2)(A), the United States had to prove that: (1) West
used physical force or the threat of physical force; (2) with
the intent of curtailing Coles’ involvement in Letrista West’s
prosecution. See United States v. England, 507 F.3d 581, 588
(7th Cir. 2007). “[T]he statute prohibits expressing an intent
to inflict injury on another through physical force.” Id. at
589. The threat must objectively have a “reasonable tendency to
intimidate,” and only “true threats” are punished under the
statute. Id.Viewing the testimony in the light most favorable to the
Government, a rational jury could have convicted West. Prior to
the incident in the courthouse, West suggested to Coles that he
should not cooperate with police in the investigation of
Letrista. Coles was subpoenaed as a Government witness at
Letrista’s trial, and his name was on the Government’s witness
list. It is logical to infer that West knew that Coles was
scheduled to testify against his sister. West was clearly the
aggressor during the confrontation with Coles at the courthouse.
Finally, his statements to West and his making a cutting motion
across his neck clearly were threatening and reasonably could be
viewed as intended to intimidate Coles so that he would not
testify.
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III
We accordingly affirm. 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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