United States v. Swinson , 243 F. App'x 760 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4014
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHAWN DEION SWINSON, SR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:06-cr-00001-JRS)
Submitted: May 30, 2007 Decided: July 5, 2007
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brent A. Jackson, THE JACKSON LAW GROUP, P.C., Richmond, Virginia,
for Appellant. Chuck Rosenberg, United States Attorney, Olivia N.
Hawkins, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shawn Deion Swinson, Sr., was convicted after a bench
trial of conspiracy to distribute a controlled substance,
marijuana, in violation of 21 U.S.C. § 846 (2000) (Count One);
conspiracy to launder money by allowing his business address to be
used for receipt of marijuana shipments via common carrier, in
violation of 18 U.S.C.A. § 1956(h) (West Supp. 2000) (Count Two);
and laundering money by allowing his business address to be used
for the receipt of marijuana shipments via common carrier, in
violation of 18 U.S.C.A. § 1956(a)(1)(A)(i) (West 2000 & Supp.
2007) (Count Three). He appeals, raising three grounds.
Swinson challenges the sufficiency of the evidence for
each count. In evaluating a sufficiency challenge, we are obliged
to sustain a guilty verdict “‘if there is substantial evidence,
taking the view most favorable to the Government, to support it.’”
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc)
(quoting Glasser v. United States, 315 U.S. 60, 80, (1942)); see
United States v. Ismail, 97 F.3d 50, 55 (4th Cir. 1996) (applying
Glasser standard in bench trial). We have defined “substantial
evidence” as “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.” Burgos, 94 F.3d at
862. In conducting our review, we examine the cumulative weight of
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the evidence and leave undisturbed the fact finder’s credibility
determinations. Id. at 862-63.
“To prove a conspiracy under 21 U.S.C. § 846, the
government must prove (1) an agreement between two or more persons
to engage in conduct that violates a federal drug law, (2) the
defendant’s knowledge of the conspiracy, and (3) the defendant’s
knowing and voluntary participation in the conspiracy.” United
States v. Strickland, 245 F.3d 368, 384-85 (4th Cir. 2001). The
elements of distribution are “(1) distribution of [a] narcotic
controlled substance, (2) knowledge of the distribution, and (3)
intent to distribute the narcotic controlled substance.” United
States v. Randall, 171 F.3d 195, 209 (4th Cir. 1999).
Viewing the evidence in this case in the light most
favorable to the Government, there is ample evidence to establish
Count One, the drug conspiracy charge. Swinson’s argument largely
consists of an attack on the credibility of the coconspirator-
witnesses. However, the fact finder at the trial level, in this
case the district court, resolves questions of credibility. See
United States v. Perkins, 470 F.3d 150, 160 (4th Cir. 2006). We
find that the district court’s verdict is supported by substantial
evidence.
Swinson was also convicted of participating in a
conspiracy to commit promotion money laundering, 8 U.S.C.
§ 1956(h), and of the substantive offense of promotion money
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laundering, § 1956(a)(1)(A)(i). He challenges the sufficiency of
the evidence to sustain these convictions. A money laundering
conspiracy charge requires proof that “(1) a conspiracy to commit
promotion money laundering was in existence, and (2) that during
the conspiracy, the defendant knew that the proceeds used to
further [the illegal marijuana trade] had been derived from an
illegal activity, and knowingly joined in the conspiracy.” United
States v. Alerre, 430 F.3d 681, 693-94 (4th Cir. 2005), cert.
denied, 126 S. Ct. 1925 (2006). To prove promotion money
laundering, the Government must “(1) trace the money at issue to an
underlying unlawful activity, and (2) prove that the money was
transferred in order to promote a specified unlawful activity.”
Alerre, 430 F.3d at 693-94 & n.14.
Here, one coconspirator testified that Swinson entered
into an agreement to receive packages containing marijuana at this
shop, that he was paid with money from the drug profits, and that
Swinson knew that this money came from the drug operation. Several
witnesses established that payments were made to Swinson so that he
would accept the shipments of illegal marijuana at his shop,
thereby promoting the illegal activity. Therefore, substantial
evidence supports the conspiracy conviction as well as the
substantive conviction.
Swinson next argues that the Government must not have
disclosed all the information to which he was entitled, in view of
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the testimony of one witness that he was present when Swinson and
the leader of the drug operation came to their agreement that
Swinson would be paid each time he took delivery of a box
containing marijuana. However, the district court found that the
Government satisfied its disclosure obligations, and Swinson
offered no evidence of the existence of any specific documents that
were not properly disclosed. Therefore, this claim entitles him to
no relief.
Finally, Swinson alleges that the district court erred in
denying his motions for new trial. One motion was based on claims
of ineffective assistance of counsel by Swinson’s prior attorneys,
and the other on evidence that Swinson contended was newly
discovered. This Court reviews a district court’s order denying a
motion for new trial under Fed. R. Crim. P. 33 for abuse of
discretion. United States v. Smith, 451 F.3d 209, 216 (4th Cir.),
cert. denied, 127 S. Ct. 197 (2006). A motion for a new trial
based on newly discovered evidence must be filed within three years
of the finding of guilt, and a motion for new trial based on any
reason other than newly discovered evidence must be filed within
seven days of the finding of guilt. Fed. R. Crim. P. 33(b)(1),
(b)(2).
[I]nformation supporting an ineffective assistance claim
is not ‘evidence’ within the meaning of Rule 33 and,
therefore, . . . a motion for a new trial predicated on
ineffective assistance of counsel must be brought . . .
within seven days of judgment regardless of when the
defendant becomes aware of the facts which suggest to
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h[im] that h[is] attorney’s performance may have been
constitutionally inadequate.
United States v. Smith, 62 F.3d 641, 648 (4th Cir. 1995). The
district court denied as untimely Swinson’s motion based on
ineffective assistance of counsel, as it was filed five months
after his convictions. The time limits set forth in Rule 33 are
jurisdictional. Smith, 62 F.3d at 648. Therefore, the district
court did not abuse its discretion in denying the new trial motion
based on claims of ineffective counsel.
Swinson also moved for a new trial based on newly
discovered evidence. To receive a new trial based on newly
discovered evidence, a defendant must demonstrate: (1) the
evidence is newly discovered; (2) he has been diligent in
uncovering it; (3) it is not cumulative or impeaching; (4) it is
material to the issues involved; and (5) it would probably produce
an acquittal. U.S. v. Fulcher, 250 F.3d 244, 249 (4th Cir. 2001).
Defendants are generally required to satisfy all five elements.
Id. A district court should award a new trial sparingly. Smith,
451 F.3d at 216-17. Here, the district court found that Swinson
had not exercised due diligence in discovering allegedly new
evidence about a FedEx policy concerning package delivery and FedEx
shipping records showing that packages were not sent to Swinson’s
address. We agree with the district court that this information
should have been available at trial, and therefore, Swinson did not
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act with due diligence in acquiring it. The district court did not
abuse its discretion in denying this motion for new trial.
Accordingly, we affirm Swinson’s convictions and
sentence. 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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