                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-4131


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

GLENN YOUNG,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.      James P. Jones,
District Judge. (2:14-cr-00004-JPJ-PMS-1)


Submitted:   March 31, 2016                   Decided:    June 3, 2016


Before MOTZ and    GREGORY,    Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Barry L. Proctor, Abingdon, Virginia, for Appellant.   John P.
Fishwick, Jr., United States Attorney, Kevin L. Jayne, Special
Assistant United States Attorney, Abingdon, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      A    jury     convicted       Glenn    Young      of    bribery       of    a   public

official, in violation of 18 U.S.C. § 201(b)(1)(A), (C) (2012),

and conspiracy to bribe a public official, in violation of 18

U.S.C.      § 371     (2012).         On     appeal,        Young    argues       that    the

Government        failed    to     present    sufficient       evidence          to   support

these convictions and that the district court plainly erred in

instructing the jury.             Finding no error, we affirm.

                                             I.

      “We review [a] challenge to the sufficiency of the evidence

de novo” and will “sustain the verdict if there is substantial

evidence, viewed in the light most favorable to the government,

to support it.”           United States v. Engle, 676 F.3d 405, 419 (4th

Cir. 2012).         “Substantial evidence is evidence that a reasonable

finder     of     fact    could    accept     as      adequate      and    sufficient         to

support a conclusion of guilt beyond a reasonable doubt.”                                 Id.

Thus,      “[a]    defendant       bringing       a   sufficiency         challenge      must

overcome a heavy burden, and reversal for insufficiency must be

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

Id. (citation and internal quotation marks omitted).

      To     convict       Young     of    bribing      a     public       official,      the

Government had to prove that: (1) Kimberlee Crabtree, the nurse

at   the    prison       where    Young    was     incarcerated,          qualified      as   a

public official; (2) Young corruptly gave, offered, or promised

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something of value to Crabtree (directly or indirectly); and (3)

Young did so with the intent “to influence any official act,” 18

U.S.C. § 201(b)(1)(A), or “to induce [her]. . . to do or omit to

do   any      act    in    violation         of    [her]       lawful       duty,”   18   U.S.C.

§ 201(b)(1)(C).

       We     need   not    decide          whether       Crabtree’s        actions—smuggling

contraband into the prison and otherwise violating a variety of

prison regulations to effectuate the scheme—qualify as “official

acts”       under    § 201(b)(1)(A)             because        the     Government     presented

ample evidence that Young violated § 201(b)(1)(C).                                   See United

States v. Moye, 454 F.3d 390, 400 (4th Cir. 2006) (en banc)

(holding that “district court does not commit reversible error

when     it     submits         a        legally        adequate,       although      factually

unsupported,         theory         of    liability       to     the    jury    along     with   a

factually supported and legally adequate theory of liability”).

       The    evidence      viewed         in     the    light       most   favorable     to   the

Government establishes that Young approached Crabtree in July or

August of 2013 with an offer to pay her for any tobacco products

she could transport into the prison.                              Crabtree agreed to the

scheme      because       she   needed          money     to   help     pay    her   daughter’s

medical bills and, between August and October, she delivered

several loads of tobacco products to Young.                                   During the same

time period, Young arranged for third parties to wire payments

to Crabtree.          We conclude that this evidence is sufficient to

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support Young’s bribery conviction under § 201(b)(1)(C) and his

related conspiracy conviction.             See United States v. Alfisi, 308

F.3d 144, 151 n.3 (2d Cir. 2002) (explaining that conviction

under § 201(b)(1)(C) is “most appropriate in the case of bribes

to induce actions that directly violate a specific duty, such as

a prison guard’s duty to prevent the smuggling of contraband”).

                                          II.

      During deliberations, the jury asked the court whether it

matters who initiated the transaction—Young or Crabtree.                      Young

contends that the district court erred when it responded that

the   Government    did     not    have   to    establish    who    initiated    the

transactions so long as it proved the elements of the offenses.

Young suggests that the jury was concerned about the timing of

the payments: did Crabtree provide the contraband first or did

Young provide the payment first?

      Because Young did not object to the court’s instruction

until    after    the     jury    returned      its   verdict,     we   review   the

propriety of the instruction for plain error.                     United States v.

Tillery, 702 F.3d 170, 175 (4th Cir. 2012).                  To establish plain

error,    Young    must     demonstrate        that   (1)   the    district   court

committed an error; (2) the error was plain; and (3) the error

affected his substantial rights.                 Henderson v. United States,

133 S. Ct. 1121, 1126 (2013).              Moreover, the correction of such

an error lies within our discretion, which we exercise only if

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the error “seriously affects the fairness, integrity or public

reputation of judicial proceedings.”                  Id. at 1127 (brackets and

internal quotation marks omitted).

      We conclude that Young has not met this demanding burden.

As we have explained, “the timing of the payment in relation to

the   official    act        for   which       it    is   made    is    (in       theory)

irrelevant.”      United States v. Jennings, 160 F.3d 1006, 1014

(4th Cir. 1998); see United States v. Fernandez, 722 F.3d 1, 19

(1st Cir. 2013) (“[T]he timing of the payment may not provide a

conclusive answer as to whether that payment is a bribe or a

gratuity . . . .”).            What matters is whether Young offered or

promised   to    pay   Crabtree      with      the   intent      to   induce      her    to

disregard her lawful duties.              See 18 U.S.C. § 201(b)(1)(C).                 The

district court, therefore, appropriately turned the jury’s focus

from the timing of the payments to the elements of the crime.

      Finally, Young contends that the jury’s question indicates

that it had reason to believe that Crabtree offered to smuggle

contraband   into      the    prison   before        Young   agreed     to    pay    her.

There is no evidence to support this assertion.                       Moreover, Young

would be no less guilty under this scenario.                      Young would still

be promising to pay a public official with the corrupt intent of

inducing   her    to   violate      her    lawful      duties.        See    18    U.S.C.

§ 201(b)(1)(C).        Notably, Crabtree’s testimony established that

she only agreed to the scheme because Young promised or offered

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to   pay   her    the   money     she   needed   for   her   daughter’s   medical

bills.

                                         III.

       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   this   court   and

argument would not aid the decisional process.


                                                                          AFFIRMED




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