                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4426



UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.


MISSY SMITH,

                  Defendant - Appellant.



                              No. 07-4451



UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.


STACY C. SMITH,

                  Defendant - Appellant.



Appeals from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, District Judge.
(7:05-cr-00028-gec)


Submitted:   October 22, 2008               Decided:   December 2, 2008


Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Joseph Graham Painter, Jr., JOSEPH GRAHAM PAINTER, JR., P.C.,
Blacksburg, Virginia; Steven Paul Hanna, Richmond, Virginia, for
Appellants. John L. Brownlee, United States Attorney, R. Andrew
Bassford, Assistant United States Attorney, Roanoke, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




                              - 2 -
PER CURIAM:

           Missy Smith and Stacy Smith* were convicted of conspiracy

to distribute more than 500 grams of methamphetamine, in violation

of 21 U.S.C. § 846 (2000).     They appeal on separate grounds from

their convictions and sentences.       We affirm.

           Missy Smith argues that the district court erred in

denying her motion for judgment of acquittal, Fed. R. Crim. P. 29,

because the Government did not present sufficient evidence that she

was   personally    involved   in     the   distribution,   rather   than

consumption, of more than 500 grams of methamphetamine.         She also

contends that the Government did not present sufficient evidence to

prove that Smith’s knowledge of her coconspirators’ activities made

it foreseeable to her that the conspiracy would be responsible for

the distribution of more than 500 grams of methamphetamine.

           We review de novo the district court’s decision to deny

a Rule 29 motion.    United States v. Smith, 451 F.3d 209, 216 (4th

Cir. 2006).   A jury’s verdict must be upheld on appeal if there is

substantial evidence in the record to support it.            Glasser v.

United States, 315 U.S. 60, 80 (1942).          “[A]n appellate court’s

reversal of a conviction on grounds of insufficient evidence should

be confined to cases where the prosecution’s failure is clear.”

United States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984) (internal

quotation marks and citation omitted).        In determining whether the


      *
       The defendants are not related.

                                    - 3 -
evidence in the record is substantial, we view the evidence in the

light most favorable to the government and inquire whether there 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. Burgos, 94 F.3d 849,

862-63 (4th Cir. 1996) (en banc).                 “A defendant challenging the

sufficiency of the evidence . . . bears a heavy burden.”                      United

States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal

quotation     marks     and     citation    omitted).       In   evaluating     the

sufficiency      of    the    evidence,    this   court   does   not   review   the

credibility of the witnesses and assumes that the jury resolved all

contradictions in the testimony in favor of the government. United

States v. Kelly, 510 F.3d 433, 440 (4th Cir. 2007).

            At    trial,       the   government      presented    extensive     and

corroborating evidence that supported the jury’s verdict against

Missy Smith.          In summary, this included the following:                Martin

Garcia, a codefendant, testified that, for six months, he sold two

ounces of methamphetamine per week to Missy Smith. Smith was aware

that another codefendant, Rigo Martinez, supplied methamphetamine

to Garcia, and she also purchased distribution quantities of

methamphetamine        from    codefendants       Terry   Bartlett,    Gary   Todd,

Tabitha Isom, and Lisa Alley.             Smith knew that Bartlett, Todd, and

Alley were being supplied with methamphetamine by Garcia, and that

Isom was being supplied by Garcia and Martinez.                  Taken together,


                                          - 4 -
the testimony of Isom, Alley, Bartlett, and Todd provided evidence

that Smith was selling methamphetamine and paying for her own

purchases with the proceeds.          Dustin Harmon, a Special Agent with

the Drug Enforcement Administration, testified that in his opinion,

based upon his experience investigating methamphetamine dealers and

users, the quantities of methamphetamine that Smith purchased were

consistent    with    resale   distribution,     and    not    with    personal

consumption    alone.       The   testimonial    evidence      at     trial   was

sufficient to prove that Missy Smith was conspiring to distribute,

rather than solely consuming, methamphetamine, and that sales of at

least 500 grams of methamphetamine were reasonably foreseeable to

her.   See Pinkerton v. United States, 328 U.S. 640, 647-48 (1946).

           Stacy Smith raises five claims on appeal.            First, Smith

contends     that    the   district    court   should   have    dismissed       a

prospective juror who was ultimately seated on the jury because she

was married to a police officer who was involved in a case that

Smith’s counsel was working on.

           A trial judge’s decision regarding whether to remove a

juror for cause will not be overruled except for a “manifest abuse

of . . . discretion.”       Poynter v. Ratcliff, 874 F.2d 219, 222 (4th

Cir. 1989). A district court’s determination not to excuse a juror

for cause is entitled to “special deference.” Patton v. Yount, 467

U.S. 1025, 1038 (1984). The critical issue in deciding a challenge

for cause is whether the juror “could be fair and impartial and


                                      - 5 -
decide the case on the facts and law presented.”       United States v.

Capers, 61 F.3d 1100, 1105 (4th Cir. 1995).     A challenge to a juror

for cause is usually limited to demonstrations of actual bias, with

the doctrine of implied bias applying only to “extreme situations”

where the circumstances make it highly unlikely that the average

person could remain impartial.      United States v. Turner, 389 F.3d

111, 117 (4th Cir. 2004).

          The   district   court   questioned   the   prospective   juror

regarding her potential bias and she answered that she could be

fair and impartial.   The juror’s relationship does not rise to the

level of an “extreme situation” that would imply she was unlikely

to remain impartial. Accordingly, the district court did not abuse

its discretion in denying Smith’s motion to strike.

          Next, Smith argues that the district court erred in

refusing to allow his counsel to interview a juror who expressed

concern to the court that the jury did not deliberate objectively

and with adequate consideration.

          “[C]ourts have consistently rejected juror affidavits or

testimony about mental processes unless ‘extraneous prejudicial

information’ or ‘outside influence’ is clearly present.”            United

States v. Acker, 52 F.3d 509, 516 (4th Cir. 1995).       Smith has made

no showing of “extraneous prejudicial information” or “outside

influence” being brought to bear on any juror.           Therefore, the

district court did not err in denying Smith’s motion for permission


                                   - 6 -
to interview the juror who expressed concern to the court.          See

Tanner v. United States, 483 U.S. 107, 119-28 (1987) (finding

efforts to impeach jury verdicts by post-trial contact with such

jurors are disfavored); United States v. Gravely, 840 F.2d 1156,

1159 (4th Cir. 1988) (upholding the denial of a defendant’s request

to interview jurors to determine if the pressure or lack of

adequate time for deliberation was self imposed or the result of

outside influence because the defendant made no threshold showing

of improper outside influence).

           Next, Smith contends that the district court erred in

denying his motion for a new trial based upon newly discovered

evidence. The new evidence consisted of Isom’s statement regarding

her testimony at Smith’s trial, made to Alley and Kimberly Perry,

another witness and codefendant, in their shared cell after Isom

testified.   Isom exclaimed when she was returned to the cell that

she “could not believe” two of the questions that she was asked.

Alley and Perry did not respond to Isom.          Smith argues that he

could have used the evidence to impeach their credibility because

both Isom and Alley testified on the following day that they had

not   discussed   their   testimony   with   anyone.   When   questioned

regarding her statements in the cell, Isom did not deny making the

statements, but answered that she did not believe she had discussed

the case with anyone when she was questioned at trial because her

cellmates did not respond to her statements in any way.             Isom


                                 - 7 -
explained that her understanding of the word discussion is that it

involves “people talking back and forth.” Perry testified that she

did not recall Isom’s statements to her.

           A district court may grant a defendant’s motion for a new

trial “if the interest of justice so requires.”    Fed. R. Crim. P.

33(a).   A district court “‘should exercise its discretion to grant

a new trial sparingly,’ and . . . should do so ‘only when the

evidence weighs heavily against the verdict.’”     United States v.

Perry, 335 F.3d 316, 320 (4th Cir. 2003) (quoting United States v.

Wilson, 118 F.3d 228, 237 (4th Cir. 1997).   This court reviews the

denial of a Rule 33 motion for abuse of discretion.           United

States v. Adam, 70 F.3d 776, 779 (4th Cir. 1995).        In order to

warrant a new trial based on newly discovered evidence, a defendant

must show that:    (1) the evidence is newly discovered; (2) the

defendant used due diligence; (3) the evidence is not merely

cumulative or impeaching; (4) the evidence is material; and (5) the

evidence would probably result in an acquittal at a new trial.

United States v. Lofton, 233 F.3d 313 (4th Cir. 2000).    Unless the

defendant demonstrates all five of these factors, the motion should

be denied.   United States v. Chavis, 880 F.2d 788, 793 (4th Cir.

1989).

           Because the evidence at issue would not have resulted in

an acquittal at a new trial, but was merely impeachment evidence of




                               - 8 -
relatively minor significance, the district court did not abuse its

discretion in denying Smith’s motion for a new trial.

           Smith next argues that the district court erred in

enhancing his offense level for obstruction of justice, based upon

its finding that Smith gave materially false testimony on the

stand, because the district court did not make adequate findings

concerning his alleged perjury.

           The sentencing court must impose a two-level adjustment

under U.S. Sentencing Guidelines Manual (“USSG”) § 3C1.1 (2007) if

the defendant willfully obstructed or impeded the administration of

justice during the investigation, prosecution, or sentencing of the

offense of conviction and any relevant conduct relating to the

offense of conviction.       The adjustment applies when the district

court determines that a defendant committed perjury. USSG § 3C1.1,

comment. (n.4(b)); see also United States v. Dunnigan, 507 U.S. 87,

94 (1993).      The adjustment for perjury is not applicable merely

because the defendant testified and was subsequently convicted.

Id. at 95.      The court must find that the defendant gave false

testimony under oath “concerning a material matter with the willful

intent to provide false testimony, rather than as a result of

confusion, mistake, or faulty memory.” Id. at 94; United States v.

Smith, 62 F.3d 641, 646-47 (4th Cir. 1995).          When the sentencing

court   finds    that   a   defendant   has   committed   perjury,   it   is

preferable if the court addresses all the elements of perjury


                                   - 9 -
separately and clearly, but a finding that “encompasses all of the

factual   predicates   for     a    finding    of     perjury”     is   sufficient.

Dunnigan, 507 U.S. at 95.

           The district court found, based upon the weight of other

testimonial evidence presented at trial and credited by the jury in

reaching its verdict, that Smith testified falsely that he did not

sell methamphetamine or assist the methamphetamine distribution

conspiracy. The issue of whether or not Smith sold methamphetamine

or was involved in the conspiracy was obviously material.                      The

district court found that Smith knowingly testified falsely, not as

a result of confusion, mistake, or faulty memory.                   The court did

not commit any error in enhancing Smith’s sentence for obstruction

of justice.

           Finally,    Smith       contends    that    he   was    entitled   to   a

downward adjustment in his offense level based upon his minor role

in the conspiracy.     “A defendant seeking a downward adjustment for

his minor role in a criminal offense bears the burden of proving by

a preponderance of the evidence that he is entitled to such

adjustment.”   United States v. Nelson, 6 F.3d 1049, 1058 (4th Cir.

1993)(citation omitted).            The standard of review for factual

determinations, such as whether the appellant’s conduct warrants a

minor role sentencing reduction, is clear error.                  United States v.

Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989).                A defendant who is

only a “minor participant” in a criminal activity may have his


                                      - 10 -
offense level reduced by two levels.           USSG § 3B1.2(b).      This

applies to a defendant “who is less culpable than most other

participants, but whose role could not be described as minimal.”

USSG § 3B1.2(b), comment. (n.5).        However, the court should not

only compare the defendant’s culpability to that of the other

participants, but also measure it against the elements of the

offense of conviction.     United States v. Reavis, 48 F.3d 763, 769

(4th Cir. 1995).    “The critical inquiry is thus not just whether

the defendant has done fewer ‘bad acts’ than his codefendants, but

whether   the   defendant’s   conduct   is   material   or   essential   to

committing the offense.”      United States v. Palinkas, 938 F.2d 456,

460 (4th Cir. 1991), vacated, 503 U.S. 931 (1992), reinstated,

United States v. Kochekian, 977 F.2d 905 (4th Cir. 1992).

           The Government presented evidence that Smith lived with

Isom,   sold methamphetamine, provided security and transportation

services for the conspirators, and knew several other members of

the conspiracy, including high-level distributors. The district

court did not err in finding that Smith did not meet his burden of

proving that his conduct was not material or essential to the

conspiracy, based upon his close relationship with Isom and his

interactions with other conspirators.

           For the reasons stated above, we affirm the Appellants’

convictions and sentences.        We deny Missy Smith’s motion for

preparation of a transcript at government expense.            We dispense


                                 - 11 -
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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