United States v. Keegan Leahy

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4273
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEEGAN LEAHY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:10-cr-00777-RWT-6)
Submitted: February 25, 2015 Decided: March 20, 2015
Before KING, THACKER, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael D. Montemarano, MICHAEL DANIEL MONTEMARANO, PA,
Columbia, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, Deborah A. Johnston, Mara
Zusman Greenberg, Assistant United States Attorneys, OFFICE OF
THE UNITED STATES ATTORNEY, Greenbelt, Maryland; Leslie R.
Caldwell, Assistant Attorney General, Sung-Hee-Suh, Deputy
Assistant Attorney General, William A. Glaser, Appellate
Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury found Keegan Leahy guilty of conspiracy to
distribute and possess with intent to distribute marijuana in
violation of 21 U.S.C. § 846 (2012) and interstate travel to
facilitate illegal activity in violation of 18 U.S.C. § 1952(2012) (“Travel Act”). The district court sentenced Leahy to
thirty-six months of imprisonment and he now appeals. For the
reasons that follow, we affirm.
Leahy challenges the district court’s instruction to the
jury regarding willful blindness. Leahy argues that the
instruction was not warranted based on the evidence and that the
instruction was an incorrect statement of the law. We review a
district court’s decision whether to give a jury instruction for
abuse of discretion. See United States v. Ali, 735 F.3d 176,
187 (4th Cir. 2013), cert. denied, 134 S. Ct. 1357 (2014). “It
is well established that where a defendant asserts that he did
not have the requisite mens rea to meet the elements of the
crime but evidence supports an inference of deliberate
ignorance, a willful blindness instruction to the jury is
appropriate.” Id. (internal quotation marks omitted). Such an
instruction is appropriate only in rare circumstances. See id.Moreover, “[i]n reviewing the adequacy of instructions, we
accord the district court much discretion and will not reverse
provided that the instructions, taken as a whole, adequately
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state the controlling law.” United States v. Bolden, 325 F.3d
471, 486 (4th Cir. 2003) (internal quotation marks omitted). We
have thoroughly reviewed the record and the relevant legal
authorities and conclude that there was sufficient evidence of
willful blindness to support the district court’s instruction to
the jury. We further conclude that the court’s instruction
adequately stated the controlling law.
Leahy next challenges the sufficiency of the evidence to
support the convictions. We review de novo a district court’s
decision to deny a motion for a judgment of acquittal. See
United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). “A
defendant challenging the sufficiency of the evidence . . .
faces a heavy burden.” United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997) (internal quotation marks omitted). The
verdict must be sustained “if, viewing the evidence in the light
most favorable to the prosecution, the verdict is supported by
substantial evidence.” Smith, 451 F.3d at 216 (internal
quotation marks omitted). 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.” Id. (internal quotation marks omitted).
“Reversal for insufficient evidence is reserved for the rare
case where the prosecution’s failure is clear.” Beidler, 110
F.3d at 1067 (internal quotation marks omitted).
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To secure a conspiracy conviction under 21 U.S.C. § 846,
the government must prove three elements: “(1) [the defendant]
entered into an agreement with one or more persons to engage in
conduct that violated 21 U.S.C. § [] 841(a)(1) . . . ; (2) that
[the defendant] had knowledge of that conspiracy; and (3) that
[the defendant] knowingly and voluntarily participated in the
conspiracy.” United States v. Howard, 773 F.3d 519, 525 (4th
Cir. 2014) (alterations in original) (internal quotation marks
omitted). The government can prove the existence of a
conspiracy wholly through circumstantial evidence. See id.Moreover, the knowledge element may be satisfied by showing that
a defendant acted with willful blindness, or “purposely closed
his eyes to avoid knowing what was taking place around him.”
United States v. Schnabel, 939 F.2d 197, 293 (4th Cir. 1991).
To demonstrate a Travel Act violation, the government must
show (1) interstate travel, (2) an intent to promote an unlawful
activity, and (3) performance or attempted performance of an
unlawful act. United States v. Gallo, 782 F.2d 1191, 1194 (4th
Cir. 1986). “Unlawful activity” is defined as any business
enterprise involving narcotics or controlled substances in
violation of federal law. 18 U.S.C. § 1952(b). Our review of
the record leads us to conclude that the Government presented
substantial evidence of Leahy’s guilt of the offenses of
conviction.
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Leahy also challenges the district court’s order denying
his motion for a bill of particulars with respect to the Travel
Act charge. A bill of particulars is appropriate when an
indictment fails to provide adequate information to allow a
defendant to understand the charges and to avoid unfair
surprise. See United States v. Am. Waste Fibers Co., 809 F.2d
1044, 1047 (4th Cir. 1987); United States v. Jackson, 757 F.2d
1486, 1491 (4th Cir. 1985). Whether a bill of particulars was
wrongly denied is reviewed for abuse of discretion. See United
States v. MacDougall, 790 F.2d 1135, 1153 (4th Cir. 1986). “[A]
defendant may show abuse of discretion in denying the motion by
proving unfair surprise.” Jackson, 757 F.2d at 1491.
Here, the district court did not err by denying Leahy’s
motion for a bill of particulars. The subject indictment
tracked the statutory language and cited the charging statutes.
As a general rule, this is sufficient. See, e.g., Hamling v.
United States, 418 U.S. 87, 117-18 (1974). Moreover, Leahy has
failed to demonstrate that the denial resulted in any unfair
surprise at trial.
Leahy next challenges the Government’s use of a witness’s
grand jury testimony to refresh his recollection on redirect
examination after defense counsel had questioned the witness
extensively about his testimony before the grand jury. “We
review evidentiary rulings of the district court for abuse of
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discretion.” United States v. Caro, 597 F.3d 608, 633 (4th Cir.
2010) (internal quotation marks omitted). An abuse of
discretion occurs only when “the [district] court acted
arbitrarily or irrationally in admitting evidence.” United
States v. Williams, 445 F.3d 724, 732 (4th Cir. 2006) (internal
quotation marks omitted).
The district court properly allowed the Government to
provide the witness with his grand jury testimony to refresh his
recollection regarding that testimony. As this was the purpose
for which the transcript was used, the court correctly
determined that the grand jury testimony was not admitted as
substantive evidence. See United States v. Morlang, 531 F.2d
183, 190-91 (4th Cir. 1975) (noting use of written memorandum to
refresh a witness’s recollection is proper); see also Fed. R.
Evid. 612 (regarding writings used to refresh a witness’s
recollection).
Finally, Leahy challenges the district court’s order
denying his post-judgment motions to require the Government to
disclose allegedly intercepted communications pursuant to 18
U.S.C. § 3504 (2012) and to dismiss the indictment and vacate
the jury verdict. However, because Leahy failed to file a
notice of appeal of the district court’s order denying his
motions, that order is not before this court. See Fed. R. App.
P. 4(b). Even if we were to consider this issue, however, we
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conclude that the district court did not err by denying Leahy’s
motions.
Accordingly, we affirm the judgment of the district court.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid in the decisional process.
AFFIRMED
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