UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4335

JEFF SMITH,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CR-94-70090)

Submitted: October 31, 1997

Decided: December 4, 1997

Before NIEMEYER and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Barbara Hudson, Danville, Virginia, for Appellant. Robert P. Crouch,
Jr., United States Attorney, Ray B. Fitzgerald, Jr., Assistant United
States Attorney, Charlottesville, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Jeff Smith appeals the jury's verdict finding him guilty of conspir-
acy to illegally acquire and transport firearms. 1 This appeal returns to
this court after we reversed the district court's order granting Jeff
Smith an acquittal notwithstanding the jury's verdict of guilty and
remanded the case for sentencing.2 Upon remand, the district court
sentenced Smith to twenty-one months incarceration. Now, Smith
contends the prosecution failed to present sufficient evidence to sus-
tain his conviction. Because Smith's appeal is meritless, we affirm
Smith's conviction.

Jeff Smith and a friend, Demetrius Dudley, attempted to purchase
a TEC-22 semi-automatic handgun and a .380 semi-automatic pistol
in the Town Gun Shop in Collinsville, Virginia. Because they did not
have adequate identification, the dealer would not sell them the weap-
ons. Not deterred by the refusal, Dudley contacted Flora Smith, his
uncle's fiancee, and requested that she purchase the weapons. Shortly
thereafter, Jeff Smith, Dudley, and Flora Smith went to the gun shop
and Flora Smith purchased the guns that Jeff Smith and Dudley had
selected on their previous visit. She completed an ATF Form 4473,
asserting that she was the purchaser of the guns. At Flora Smith's
apartment, Dudley and Jeff Smith reimbursed her for the purchase;
however, Jeff Smith denied making this payment. Dudley and Jeff
Smith then test fired the guns in a nearby woods. The TEC-22 was
later transported and resold in New York.

After being indicted for conspiracy to acquire and transfer firearms,3
and knowingly making a false statement to a licensed firearms dealer,4
Dudley and Flora Smith entered plea bargain agreements; however,
Jeff Smith pled not guilty and elected a jury trial. A trial was held,
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1 See 18 U.S.C. §§ 922, 371 (1994).
2 United States v. Smith, No. 95-5278 (4th Cir. July 30, 1996) (unpub-
lished).
3 See 18 U.S.C. §§ 922, 371 (1994).
4 See 18 U.S.C. § 922(a)(6) (1994).

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with Jeff Smith as the sole defendant. A jury found Jeff Smith guilty
of conspiracy to illegally acquire and transfer firearms; however, the
jury found him not guilty of aiding and abetting 5 Flora Smith in mak-
ing a false statement to a firearms dealer.

A jury's verdict must be left undisturbed "if there is substantial evi-
dence, taking the view most favorable to the Government, to support
it,"6 because the relevant question is not whether we are convinced of
his guilt beyond a reasonable doubt, but whether any rational trier of
fact could have found the essential elements of the charged offense
beyond a reasonable doubt.7 Additionally, we must consider all cir-
cumstantial as well as direct evidence, and allow the government the
benefit of all reasonable inferences from the facts proven to those
sought to be established.8 Where the evidence contains inconsisten-
cies, it is for the jury to weigh the evidence and to judge the credibil-
ity of witnesses.9

In order to prove a conspiracy under 18 U.S.C. § 371 (1994), the
government must prove an agreement among two or more persons to
act together to commit an offense and an overt act in furtherance of
the conspiracy.10 A "tacit or mutual understanding" among the alleged
conspirators is sufficient to show a conspiratorial agreement.11 In
addition, a conspiracy may be inferred from circumstantial evidence
that can reasonably be interpreted as participation in the common plan.12

The seeds for the understanding were sown when Jeff Smith and
Dudley unsuccessfully attempted to purchase guns. Section 922(a)(6)
makes it a crime for any person purchasing a gun from a licensed
_________________________________________________________________
5 See 18 U.S.C. § 2 (1994).
6 Glasser v. United States, 315 U.S. 60, 80 (1942).
7 See United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993).
8 See United States v. Tresvant , 677 F.2d 1018, 1021 (4th Cir. 1982).
9 Id.
10 See United States v. Chorman , 910 F.2d 102, 109 (4th Cir. 1990); 18
U.S.C. § 371 (1988).
11 Chorman, 910 F.2d at 109 (quoting United States v. Reifsteck, 841
F.2d 701, 704 (6th Cir. 1988)).
12 Id.

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dealer to make any false statement intended to deceive the dealer
about any fact material to the lawfulness of the sale;13 yet, Jeff Smith
was a party to enlisting Flora Smith to accomplish the purchase. Jeff
Smith and his co-defendants had at least a tacit understanding that
Flora Smith would violate § 922(a)(6) by falsely asserting on ATF
Form 4473 that the guns were for her use, and Jeff Smith was present
when Flora Smith purchased the guns and filled out the ATF form.
Additionally, Flora Smith's completion of the ATF form and purchase
of the guns satisfied the requirement of an overt act in furtherance of
the conspiracy.14

Once the conspiracy was established, only a slight connection was
required to include Jeff Smith in the plan,15 and the record discloses
enough of a connection. Flora Smith testified that the .380 was for
either Dudley or Jeff Smith, and Dudley testified that the TEC-22 was
for him. Additionally, Flora Smith testified that Jeff Smith gave her
money to reimburse her for the guns. While Jeff Smith claims he did
not give Flora Smith money, the jury chose to believe Flora and wit-
ness credibility lies within the sole province of the jury and is not sub-
ject to appellate review.16 Moreover, the fact that the jury acquitted
Jeff Smith on aiding and abetting does not preclude a guilty verdict
for conspiracy because consistency in the verdicts is not necessary;
each count in an indictment "is regarded as if it was a separate
indictment."17

Accordingly, we affirm Smith's conviction. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.

AFFIRMED
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13 See United States v. Hernandez , 913 F.2d 1506, 1513 (10th Cir.
1990).

14 Cf. United States v. United Medical & Surgical Supply Corp., 989
F.2d 1390, 1400 (4th Cir. 1993).
15 See United States v. Laughman , 618 F.2d 1067, 1076 (4th Cir. 1980).

16 See United States v. Saunders , 886 F.2d 56, 60 (4th Cir. 1989).

17 Dunn v. United States, 284 U.S. 390, 393 (1932).

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