                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 10-4279


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HUGO SANTAMARIA,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  John T. Copenhaver,
Jr., District Judge. (2:08-cr-00270-JTC-1)


Submitted:   February 17, 2011            Decided:    March 18, 2011


Before NIEMEYER, DAVIS, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Gary Collias, Charleston, West Virginia, for Appellant.       R.
Booth Goodwin II, United States Attorney, Joshua C. Hanks,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            After    a     trial,    Hugo        Santamaria        was        convicted    of

conspiracy to distribute 100 kilograms or more of marijuana, in

violation of 21 U.S.C. § 846 (2006) (Count One), and two counts

of intimidation or force against a witness, in violation of 18

U.S.C.A. § 1512(b)         (West    2000     &    Supp.      2010)    (Counts       Two    and

Three).    On appeal, he argues the following:                        (1) the district

court    erred   instructing       the     jury    to     return      to      deliberations

twice and giving an Allen charge despite the jury’s claim that

it was “hung”; (2) the evidence was not sufficient to support

either    Counts    Two    or     Three;     (3)       the    district         court     erred

instructing the jury on “attempt”; and (4) the district court

abused its discretion admitting evidence of an assault.                                Finding

no reversible error, we affirm.

            This court reviews a district court’s decision to give

an Allen charge and its content for abuse of discretion. *                             United

States v. Hylton, 349 F.3d 781, 788 (4th Cir. 2003).                                   “[T]he

principal concern that we have had with Allen charges is to

ensure    that   they     apply    pressure       to    the    jury      in    a   way    that

preserves all jurors’ independent judgments and that they do so

in a balanced manner.”              Id.     Giving the jury a second Allen

charge is not per se error.               United States v. Robinson, 560 F.2d

     *
         Allen v. United States, 164 U.S. 492 (1896).



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507, 517 (2d Cir. 1977); see also United States v. Taliaferro,

558 F.2d 724, 725 (4th Cir. 1977).            The district court “is in

the best position to determine whether there exists a reasonable

possibility that an impartial verdict can be reached.”             United

States v. Gordy, 526 F.2d 631, 636 (5th Cir. 1976).                 After

reviewing the transcript, we conclude the district court did not

abuse its discretion.

           This court reviews a district court’s denial of a Fed.

R. Crim. P. 29 motion de novo.          United States v. Alerre, 430

F.3d 681, 693 (4th Cir. 2005).           “A defendant challenging the

sufficiency of the evidence to support his conviction bears a

heavy burden.”     United States v. Beidler, 110 F.3d 1064, 1067

(4th Cir. 1997) (internal quotation marks omitted).              A jury’s

verdict “must be sustained if there is substantial evidence,

taking the view most favorable to the Government, to support

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

United States v. Perkins, 470 F.3d 150, 160 (4th Cir. 2006).

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.”

Alerre, 430 F.3d at 693 (internal quotation marks omitted).           The

court considers both circumstantial and direct evidence, drawing

all reasonable inferences from such evidence in the government’s

favor.    United States v. Harvey, 532 F.3d 326, 333 (4th Cir.

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2008).        In resolving issues of substantial evidence, this court

does    not     reweigh    the    evidence       or    reassess       the    factfinder’s

determination        of   witness        credibility,      see     United        States     v.

Brooks, 524 F.3d 549, 563 (4th Cir. 2008), and “can reverse a

conviction on insufficiency grounds only when the prosecution’s

failure is clear.”              United States v. Moye, 454 F.3d 390, 394

(4th Cir. 2006) (en banc) (internal quotation marks omitted).

               Santamaria was convicted of two counts of intimidating

a witness.          Count Two charged Santamaria with intimidating a

person using threats with the intent to prevent a person from

giving    information       to    law     enforcement.         Count        Three   charged

Santamaria         with   using       threats     to     prevent       a     person       from

testifying in an official proceeding.                         In this instance, the

evidence       clearly     established          that    Santamaria,          through       his

threatening and intimidating conduct, intended that a person not

talk    to     authorities       or   testify.           We    conclude          substantial

evidence supports the jury’s verdict, including the question of

whether the Government properly proved the location of the crime

charged in Count Three.

               Santamaria       claims    the     district     court        erred    by    not

giving    the      jury   his    proposed       instruction      on    “attempt.”           He

further contends that the court’s instruction on “attempt” was

an incorrect statement of the law.                    “The decision to give or not

to     give    a   jury    instruction       is       reviewed    for       an    abuse     of

                                             4
discretion.”         United States v. Moye, 454 F.3d 390, 398 (4th Cir.

2006) (en banc).            “‘[This court] review[s] a jury instruction to

determine      whether,       taken      as    a       whole,    the    instruction          fairly

states the controlling law.’”                  Id.        A court’s refusal to give a

requested      instruction         is    reversible           error    if    the     instruction

“(1)    was    correct;      (2)    was       not      substantially         covered     by    the

court’s charge to the jury; and (3) dealt with some point in the

trial     so    important,         that       failure           to    give     the     requested

instruction         seriously       impaired            the     defendant’s          ability    to

conduct his defense.”               United States v. Lewis, 53 F.3d 29, 32

(4th Cir. 1995) (internal quotation marks omitted).

               In    instances      when       the       Appellant          claims     the     jury

instruction was erroneous, this court reviews de novo.                                       United

States v. Cherry, 330 F.3d 658, 665 (4th Cir. 2003).                                    If error

is found, reversal only warranted when “the error is prejudicial

based on a review of the record as a whole.”                                 United States v.

Ellis, 121 F.3d 908, 923 (4th Cir. 1997).

               Insofar as Santamaria urged the district court to give

the jury his instruction on attempt, we find no reversible error

because    Santamaria’s           ability      to       conduct       his    defense    was    not

seriously impaired.               We also conclude that even if the jury

instruction         given    by    the    district            court    was    erroneous,        the

supposed error was not prejudicial.



                                                   5
            This court reviews a district court’s rulings on the

admissibility of evidence for abuse of discretion, and will only

overturn an evidentiary ruling that is arbitrary and irrational.

United States v. Cole,           __ F.3d __, 2011 WL 184550, *6 (4th Cir.

Jan. 21, 2011).        We will “look at the evidence in a light most

favorable to its proponent, maximizing its probative value and

minimizing    its     prejudicial       effect.”         Id.       (internal      quotation

marks   omitted).          Relevant     evidence        is    “evidence      having      any

tendency     to     make   the     existence       of    any        fact    that    is   of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.”                              Fed. R.

Evid. 401.        Such evidence is admissible.               See Fed. R. Evid. 402.

“[R]elevance typically presents a low barrier to admissibility.”

United States v. Leftenant, 341 F.3d 338, 346 (4th Cir. 2003).

Thus, evidence is relevant if it is “worth consideration by the

jury” or has a “plus value.”              United States v. Queen, 132 F.3d

991, 998 (4th Cir. 1997) (internal quotation marks omitted).

Relevant evidence may be excluded “if its probative value is

substantially       outweighed     by    the      danger      of    unfair       prejudice,

confusion     of     the    issues,     or       misleading         the    jury,    or   by

considerations       of    undue    delay,       waste       of    time,    or     needless

presentation of cumulative evidence.”                Fed. R. Evid. 403.

            We conclude that evidence that Santamaria assaulted a

co-conspirator as the conspiracy was winding down was clearly

                                             6
relevant toward the charged conspiracy and the charge that he

intimidated a witness.        We further conclude that the probative

value of the evidence was significant and it was not outweighed

by the danger of unfair prejudice.

           Accordingly, we affirm the convictions 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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