United States v. Samuel Manning

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4588
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAMUEL MANNING,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Jerome B. Friedman,
Senior District Judge. (4:07-cr-00081-JBF-DEM-2)
Submitted: January 9, 2012 Decided: January 20, 2012
Before WILKINSON, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jon M. Babineau, RIDDICK BABINEAU, PC, Norfolk, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Eric M.
Hurt, Brian J. Samuels, Assistant United States Attorneys,
Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Samuel Manning of conspiracy to
distribute and to possess with intent to distribute cocaine
base, in violation of 21 U.S.C. § 846 (2006) (Count 1), use of a
firearm in relation to a drug trafficking crime causing the
death of another, in violation of 18 U.S.C. § 924(c), (j) (2006)
(Count 2), and use of a firearm in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
(Count 3). Manning appeals, challenging the district court’s
denial of his motion to dismiss the superseding indictment and
his Fed. R. Crim. P. 29 motion for a judgment of acquittal. We
affirm.
First, Manning contends that the district court erred
in declining to dismiss the superseding indictment as violative
of the immunity provision contained in Manning’s plea agreement
with the Government in a prior criminal proceeding. Normally,
we “review the district court’s factual findings for clear error
and its application of principles of contract interpretation de
novo.” United States v. Dawson, 587 F.3d 640, 645 (4th Cir.
2009) (internal quotation marks omitted). A review of Manning’s
brief, however, reveals that the only arguments he raises in
support of this claim reiterate those we considered and found
meritless in Manning’s previous interlocutory appeal to this
2
court. United States v. Manning, No. 08-16, 2010 WL 236722 (4th
Cir. Jan. 21, 2010) (per curiam).
The mandate rule “forecloses relitigation of issues
expressly or impliedly decided by the appellate court.” United
States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993); see also Doe v.
Chao, 511 F.3d 461, 464-66 (4th Cir. 2007). Pursuant to this
rule,
once the decision of an appellate court establishes
the law of the case, it must be followed in all
subsequent proceedings in the same case in the trial
court . . . unless: (1) a subsequent trial produces
substantially different evidence, (2) controlling
authority has since made a contrary decision of law
applicable to the issue, or (3) the prior decision was
clearly erroneous and would work manifest injustice.
United States v. Lentz, 524 F.3d 501, 528 (4th Cir. 2008)
(internal quotation marks and emphasis omitted).
Here, we have already endorsed the district court’s
determination that, based on the factors described in United
States v. Ragins, 840 F.2d 1184, 1188-89 (4th Cir. 1988),
Manning was involved in two independent conspiracies to
distribute narcotics. Nonetheless, Manning, without offering
any specific reason to question our previous determination,
bases his arguments on appeal on his continuing contention that,
under Ragins, the subject conspiracies were one and the same.
We find that Manning’s claims, based as they are on assignments
3
of error and arguments that this court has previously rejected,
are without merit.
Next, Manning submits that the district court erred in
denying his Rule 29 motion. Although we generally review de
novo the district court’s denial of a Rule 29 motion, United
States v. Green, 599 F.3d 360, 367 (4th Cir. 2010), cert.
denied, 131 S. Ct. 271, 340 (2010), Manning’s motion before the
district court failed to raise any of the issues or arguments he
now offers on appeal. Accordingly, we review for plain error.
United States v. Wallace, 515 F.3d 327, 332 (4th Cir. 2008).
“[T]o satisfy the plain error standard, [an appellant]
must show: (1) an error was made; (2) the error is plain; and
(3) the error affects substantial rights.” United States v.
Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009). Even if
Manning satisfies these requirements, correction of the error
lies within our discretion, if we conclude that the error
“seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. at 343 (internal quotation marks
omitted).
When reviewing the sufficiency of the evidence, this
Court must sustain the jury’s verdict if, viewing the evidence
in the light most favorable to the government, “any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Green, 599 F.3d at 367
4
(internal quotation marks omitted). In making this
determination, we review the record to determine whether the
conviction is supported by “substantial evidence,” where
“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.”
United States v. Hickman, 626 F.3d 756, 763 (4th Cir), cert.
denied, 132 S. Ct. 469 (2011).
Additionally, in evaluating the sufficiency of the
evidence, we “do not review the credibility of the witnesses and
assume that the jury resolved all contradictions in the
testimony in favor of the government.” United States v. Foster,
507 F.3d 233, 245 (4th Cir. 2007). Consequently, Manning’s
arguments, to the extent that they rely on the alleged bias or
ulterior motives of certain witnesses, have no bearing on our
analysis.
First, we find that Manning’s claimed withdrawal from
the conspiracy supporting Counts 1, 2, and 3 lacks evidentiary
support. Once it has been established that a defendant has
participated in a conspiracy, the defendant’s membership in that
conspiracy is presumed to continue until he withdraws from it by
affirmative action. Green, 599 F.3d at 369-70. Withdrawal from
a conspiracy “requires the defendant to take affirmative actions
inconsistent with the object of the conspiracy and communicate
5
his intent to withdraw in a manner likely to reach his
accomplices.” United States v. Cardwell, 433 F.3d 378, 391 (4th
Cir. 2005). Although the evidence indicated that Manning had a
violent dispute with his co-conspirator and that they ceased
associating with each other following this disagreement, such
conduct does not, as a matter of law, rise to the level of
affirmative withdrawal from a conspiracy. Cf. Green, 599 F.3d
at 370. Accordingly, the district court did not err in failing
sua sponte to enter a judgment of acquittal based on Manning’s
withdrawal from the subject conspiracy.
Turning to Manning’s claims regarding the sufficiency
of the evidence supporting his conviction for Counts 2 and 3, we
find that the evidence was more than sufficient to establish
that Manning perpetrated the shooting that formed the basis for
these counts, and that Manning committed the shooting “in
relation to” the predicate drug trafficking crime. 18 U.S.C.
§ 924(c)(1), (j).
Numerous eyewitnesses offered substantially similar
accounts of the shooting in question; the majority of them
unequivocally implicated Manning as the shooter. Another
witness testified that Manning admitted his involvement in the
shooting several days after it occurred. Furthermore, forensic
evidence tied the bullets and cartridge casings recovered from
6
the crime scene to a firearm that several witnesses testified to
having seen Manning possess immediately after the shooting.
In addition, the evidence indicated that Manning’s
motivation for the shooting was to retaliate against one of the
victims, an individual with whom Manning’s arrangement to
distribute crack cocaine formed the basis of Count 1. Multiple
witnesses testified that Manning had expressed a desire to harm
this man after he shot at Manning during a prior altercation
over a disputed drug debt. Because we have previously found
that this precise type of drug-related, retaliatory violence may
satisfy the elements of 18 U.S.C. § 924(c), we find that
Manning’s convictions on Counts 2 and 3 were not plainly
erroneous. United States v. Camps, 32 F.3d 102, 105-06 (4th
Cir. 1994).
Accordingly, we affirm the judgment below. 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