United States v. Andrade , 232 F. App'x 349 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4994
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANCISCO ANDRADE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:06-cr-00079)
Submitted: May 30, 2007 Decided: July 10, 2007
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Acting Federal Public Defender, Paul G.
Gill, Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Charles P. Rosenberg, United States Attorney, Sara E.
Flannery, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Francisco Andrade appeals the district court’s judgment
entered pursuant to a jury verdict convicting Andrade of assault
with intent to commit murder, assault with a dangerous weapon,
assault resulting in serious bodily injury, and assault by
striking, beating, and wounding. Andrade was tried with two co-
defendants, Eber Mejia-Argueta and Jesus Melchor, on charges of
conspiracy to commit the assault and for the assault itself. The
two co-defendants were acquitted of all counts, and Andrade was
acquitted of conspiracy.
On October 30, 2005, Andrade, Mejia, Melchor and the
victim, James Chappelle, were incarcerated in B Pod South at the
Petersburg Federal Correctional Center (hereinafter “FCC
Petersburg”). Chappelle was the unit orderly charged with doing
laundry on that day. At some time between 9:00 and 9:30 p.m.,
Andrade and Chappelle got into a verbal confrontation over
Andrade’s laundry. Andrade then left the laundry room but returned
approximately five minutes later. Chappelle and Andrade then
became involved in a brief physical altercation. The fight ended
just before all prisoners were required to return to their cells
for the evening count.
After the evening count, Chappelle eventually went to
Andrade’s cell after he was approached by an inmate who told him it
would be in his best interest to speak to Andrade. At Andrade’s
- 2 -
cell, Andrade waived Chappelle into the room. Upon entering the
room, Andrade told Chappelle that he was through. Chappelle then
turned to leave the cell but, according to his testimony, was hit
on the nose by Mejia who apparently had been behind him. After
being struck, Chappelle felt his head being pulled down and was
punched, kicked and stabbed. Chappelle described the cutting of
his throat as starting at his ear and just scratching him until it
hit his esophagus, where it bounced and split his throat wide open.
Chappelle described the stab wound to his chest as coming from
behind him, over his shoulder. Chappelle did not see who stabbed
him.
Chappelle managed to escape and ran for help. Chappelle
was eventually transported to the emergency room where he was
treated by an emergency room doctor. According to the doctor,
Chappelle received eighteen stitches in his neck and six stitches
in his chest.
In addition to Chappelle, four other FCC Petersburg
inmates testified for the Government. Andrade contends that all
five witnesses presented either wholly or partly false testimony.
Andrade claims that because the Government knowingly used perjured
testimony and because the testimony may have affected the outcome
of his case, his conviction must be reversed. Andrade also claims
there was insufficient evidence to convict him of assault with
intent to commit murder. We affirm Andrade’s conviction because
- 3 -
admission of the challenged testimony was not plain error and
because the evidence was sufficient to convict Andrade of assault
with intent to commit murder.
Andrade failed to raise in the court below his claim that
the Government knowingly used perjured testimony to secure his
conviction. Therefore, Andrade’s first claim is reviewed for plain
error. United States v. Olano, 507 U.S. 725, 732 (1993). To
establish plain error, Andrade must show that: (1) admission of
the allegedly false testimony was error; (2) the error was “plain”;
and (3) the error affected his substantial rights. Id. Further,
even if these requirements are met, we must also conclude that the
error seriously affected the fairness, integrity, or public
reputation of the judicial process. Id.Andrade alleges that the Government was aware that the
testimony of its five inmate witnesses was false for two reasons.
First, according to Andrade, a videotape of the assault, introduced
into evidence by the Government, contradicted the testimony of the
Government witnesses. Second, the Government offered Andrade a
plea agreement with a stipulation of facts that Andrade acted alone
in assaulting Chappelle and causing his injuries.
We conclude that Andrade has failed to establish that the
Government knowingly used perjured testimony in securing his
conviction. At most, Andrade has established that the Government’s
case contained inconsistencies for the fact-finder to resolve.
- 4 -
“Mere inconsistencies in testimony by government witnesses does not
establish the government’s knowing use of false testimony.” United
States v. Griley, 814 F.2d 967, 971 (4th Cir. 1987).
Andrade’s claim that the Government knowingly presented
false testimony because it offered him a plea deal in which it
stipulated that he acted alone is without merit. According to the
Government, the stipulation was made at Andrade’s insistence.
However, Andrade refused to accept the agreement and its
stipulation. Andrade’s refusal to accept the agreement and to
thereby conclusively admit to the assault freed the Government to
proceed to trial on its theory of conspiracy with its supporting
evidence. Andrade therefore fails to establish error, much less
plain error.
Additionally, Andrade cannot establish that the admission
of the challenged testimony affected his substantial rights because
he fails to show that the testimony affected the outcome of his
case. The record contains ample evidence independent of the
allegedly false testimony supporting his conviction for assault
with intent to commit murder. Andrade therefore fails to meet any
prong of the Olano test.
Andrade next contends the evidence was insufficient to
sustain his conviction for assault with intent to commit murder.
This Court reviews the district court’s decision to deny a Fed. R.
Crim. P. Rule 29 motion de novo. United States v. Smith, 451 F.3d
- 5 -
209, 216 (4th Cir.), cert. denied, 127 S. Ct. 197 (2006). Where,
as here, the motion is based on a claim of insufficient evidence,
the jury’s verdict must be sustained if supported by substantial
evidence, taking the view most favorable to the prosecution.
Glasser v. United States, 315 U.S. 60, 80 (1942). Substantial
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.” Smith, 451 F.3d at 216 (quoting
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc). We do not weigh the evidence or review the credibility of
witnesses. United States v. Wilson, 118 F.3d 228, 234 (4th Cir.
1997). And we will not reverse a conviction on sufficiency grounds
unless the prosecution’s failure is clear. United State v. Moye,
454 F.3d 390, 394 (4th Cir.), cert. denied, 127 S. Ct. 452 (2006).
We conclude that, viewing all the evidence in favor of
the prosecution, a rational trier of fact could have found beyond
a reasonable doubt that Andrade possessed the requisite intent to
commit murder during the assault. The emergency room doctor’s
unrefuted testimony was that Chappelle’s neck wound was serious
because the cut was over the muscle area where the jugular veins
are located and, had those veins been compromised, Chappelle likely
would have bled to death. The doctor also x-rayed Chappelle’s
chest to make certain his lung was not punctured by the stab wound
to his chest. Also, the jury could permissibly draw inferences
- 6 -
about Andrade’s intent from the mere fact that he chose to cut
Chappelle’s throat.
Accordingly, we affirm the district court’s judgment. 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
- 7 -