                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4560



UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.


MICHAEL W. FULLER,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., District
Judge. (6:06-cr-00040-GRA-2)


Submitted:    October 10, 2008              Decided:   October 30, 2008


Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John M. Barton, JOHN M. BARTON, LLC, Columbia, South Carolina, for
Appellant. W. Walter Wilkins, United States Attorney, William C.
Lucius, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Michael W. Fuller was convicted by a jury of one count of

conspiracy to impede the Internal Revenue Service (“IRS”), in

violation of 18 U.S.C. § 371 (2000).       The district court sentenced

Fuller to twelve months and one day imprisonment.              On appeal,

Fuller   challenges   the    sufficiency    of    the    evidence   of   his

conviction.   For the following reasons, we affirm.

          A   defendant     who   challenges   the   sufficiency    of   the

evidence underlying his conviction bears a heavy burden.             United

States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007), cert. denied,

128 S. Ct. 1690 (2008).      This court reviews a sufficiency of the

evidence challenge by determining whether, viewing the evidence in

the light most favorable to the Government, any rational trier of

fact could find the essential elements of the crime beyond a

reasonable doubt. United States v. Collins, 412 F.3d 515, 519 (4th

Cir. 2005); see Glasser v. United States, 315 U.S. 60, 80 (1942).

          We review both direct and circumstantial evidence, and

permit the government all reasonable inferences from the facts

shown to those sought to be established.         United States v. Harvey,

532 F.3d 326, 333 (4th Cir. 2008).         We do not examine evidence

piecemeal, but consider it cumulatively.         United States v. Burgos,

94 F.3d 849, 863 (4th Cir. 1996) (en banc).             “[I]f the evidence

supports different, reasonable interpretations, the jury decides

which interpretation to believe.” United States v. Murphy, 35 F.3d


                                     2
143, 148 (4th Cir. 1994).         This court will uphold the jury’s

verdict if substantial evidence supports it, and will reverse only

in those rare cases of clear failure by the prosecution.              Foster,

507 F.3d at 244-45.

          Because Fuller did not make a Fed. R. Crim. P. 29 motion

for judgment of acquittal in the district court, our review is for

plain error.    United States v. Wallace, 515 F.3d 327, 331-32 (4th

Cir. 2008).     To establish plain error, Fuller must show that an

error occurred, that it was plain, and that it affected his

substantial rights.      United States v. Olano, 507 U.S. 725, 732

(1993). Even when these conditions are satisfied, we will exercise

our discretion to correct the error only if it “seriously affect[s]

the   fairness,    integrity,    or   public    reputation     of    judicial

proceedings.”     Id. at 736.

          The elements of conspiracy to defraud the United States

in violation of 18 U.S.C. § 371 are: (1) the existence of an

agreement, (2) an overt act by a conspirator in furtherance of the

agreement, and (3) an intent by the conspirators to agree to

defraud the United States.        United States v. Gosselin Worldwide

Moving, N.V., 411 F.3d 502, 516 (4th Cir. 2005).                   “Fraudulent

intent may be inferred from the totality of the circumstances and

need not be proven by direct evidence.”         United States v. Ham, 998

F.2d 1247, 1254 (4th Cir. 1993).           This is a so-called “Klein

conspiracy.”      See   United   States   v.   Klein,   124   F.    Supp.   476


                                      3
(S.D.N.Y. 1954) (recognizing, under 18 U.S.C. § 371, conspiracy to

defraud United States by impeding functions of IRS), aff’d, 247

F.2d 908 (1957).

            Fuller argues that the Government did not prove the

existence of an agreement between Fuller and Carl Perry, his

co-defendant, to impede the IRS, or that Fuller knowingly joined

the conspiracy.    Viewing the evidence in the light most favorable

to the Government, our review of the record leads us to conclude

that the evidence presented to the jury was sufficient to prove the

existence of an agreement between Perry and Fuller to defraud the

government by impeding the IRS.   Accordingly, we find no error in

the jury’s verdict and therefore affirm Fuller’s conviction 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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