United States v. Cedric Lee Taylor ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4373
CEDRIC LEE TAYLOR, SR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Lynchburg.
Samuel G. Wilson, Chief District Judge.
(CR-98-70039)
Submitted: November 16, 1999
Decided: January 6, 2000
Before WIDENER and MURNAGHAN, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed as modified by unpublished per curiam opinion.
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COUNSEL
Philip B. Baker, SANZONE & BAKER, P.C., Lynchburg, Virginia,
for Appellant. Robert P. Crouch, Jr., United States Attorney, Jennie
L. M. Waering, Assistant United States Attorney, Roanoke, Virginia;
Thomas E. Booth, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Cedric Lee Taylor, Sr., appeals his convictions for eight counts of
embezzlement of United States mail by a Postal Service employee in
violation of 18 U.S.C. § 1709 (1994). On appeal, Taylor contends
that: (1) the evidence was insufficient to sustain the convictions; (2)
there was a variance between the facts at trial and the indictment; and
(3) the investigator violated Taylor's Miranda * rights by asking his
consent to review his financial records after Taylor said that he
wanted to remain silent. We affirm.
We review challenges to the sufficiency of the evidence by viewing
the evidence at trial in the light most favorable to the prosecution,
including all reasonable inferences that can be drawn from the evi-
dence. See Glasser v. United States, 315 U.S. 60, 80 (1942); United
States v. Russell, 971 F.2d 1098, 1109 (4th Cir. 1992). The Govern-
ment is afforded all reasonable inferences which flow from the cir-
cumstantial and direct evidence brought before the district court. See
United States v. Burgos, 94 F.3d 849, 858, 863 (4th Cir. 1996) (en
banc). Moreover, "circumstantial evidence is treated no differently
than direct evidence, and may be sufficient to support a guilty verdict
even though it does not exclude every reasonable hypothesis consis-
tent with innocence." United States v. Jackson, 863 F.2d 1168, 1173
(4th Cir. 1989). If substantial evidence exists to support the convic-
tion, the verdict must be sustained. See Glasser , 315 U.S. at 80.
Considering the evidence as a whole, we find there was substantial
evidence to sustain the convictions. Taylor had the opportunity to
commit the offenses and made several unexplained bank deposits and
large cash purchases shortly after mail pouches containing money dis-
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*Miranda v. Arizona, 384 U.S. 436 (1966).
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appeared. Plus, he was observed by postal inspectors taking control
of a package containing money and opening it up without permission.
Even though the Government built its case almost entirely upon
circumstantial evidence, it did not have to eliminate every other infer-
ence that could be drawn from the evidence. See Holland v. United
States, 348 U.S. 121, 139-40 (1954). "Even if the evidence can sup-
port varying reasonable interpretations, the jury is entitled to choose
among them." United States v. Garcia, 868 F.2d 114, 116 (4th Cir.
1989) (internal quotation omitted). "The jury[i]s entitled to reject the
theory consistent with innocence and accept the one consistent with
guilt, so long as there [i]s substantial evidence for its choice." Id.We also find that there was no "fatal" variance between the facts
proven at trial and the crimes charged in the indictment. Taylor was
convicted of the crimes contained in the indictment. See United States
v. Randall, 171 F.3d 195, 203 (4th Cir. 1999). We also find that he
was not prejudiced by any variance between the trial facts and the
indictment. Taylor was not surprised by the evidence, nor does he
face a second prosecution based upon the same conduct. See id.Finally, we find that there was no Miranda violation when, after
Taylor informed investigators that he was not responding to any more
questions, investigators asked him to consent to a search of his finan-
cial records. Asking for and receiving consent was not part of the
interrogation because giving consent is not a self-incriminating state-
ment. See United States v. McClellan, 165 F.3d 535, 545 (7th Cir.
1999), cert. denied, ___ U.S. ___, 67 U.S.L.W. 3706 (U.S. May 17,
1999) (No. 98-8844); see also United States v. Hidalgo, 7 F.3d 1566,
1568 (11th Cir. 1993); United States v. Rodriguez-Garcia, 983 F.2d
1563, 1568 (10th Cir. 1993) (collecting cases).
Accordingly, we affirm Taylor's convictions and sentences.
Because the jury was instructed only on embezzlement of United
States mail by a postal employee and not on stealing by a postal
employee, we modify the district court's judgment to state that the
nature of each conviction was "Embezzlement of U.S. Mail by an
Employee." See 28 U.S.C. § 2106 (1994). We dispense with oral
argument because the facts and legal contentions are adequately pre-
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sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED AS MODIFIED
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