                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4326


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

CARL KOTAY GRAHAM,

                  Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham.    James A. Beaty, Jr.,
Chief District Judge. (1:06-cr-00267-JAB)


Submitted:    October 10, 2008              Decided:    November 6, 2008


Before WILLIAMS,     Chief   Judge,   and   TRAXLER    and   KING,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


A. Wayne Harrison, Sr., Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Lisa B.
Boggs, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Carl    Kotay    Graham     appeals           his     conviction       for   possession

with   intent    to     deliver       12.2    grams         of    crack     cocaine,    see    21

U.S.C.A.      § 841     (West     1999       &       Supp.       2008),     challenging       the

sufficiency of the evidence presented against him.                                  Finding no

error, we affirm.



                                              I.

       Because Graham challenges the sufficiency of the evidence

to support his conviction, we summarize the evidence presented

at trial, as well as the inferences flowing therefrom, in the

light most favorable to the government.                               See Glasser v. United

States, 315 U.S. 60, 80 (1942).                        On June 22, 2006, Greensboro

(North Carolina) Police Department officers obtained information

from    a     confidential       informant            (“Truck”)           regarding    a     drug

transaction      that    was     to    take          place       in    downtown     Greensboro.

Officer Alston met with Truck, discussed what he needed to do to

help the police, and searched him and his car.                              Several officers

then    followed       Truck      to     a       Hardee’s             restaurant    where     the

transaction      was    to   occur     and       set       up    surveillance       across    the

street.

       Truck, driving a Cadillac, parked in the Hardee’s parking

lot near a phone booth and remained there until a silver Hyundai

arrived.       Truck then exited his vehicle and opened the trunk,

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thereby signaling the officers to move in.                          As they did, one

police vehicle pulled in behind the Hyundai, blocking it in,

while     another,       a     Ford   Expedition,        attempted       to     block    the

Hyundai’s passenger-side door.                    The passenger in the Hyundai,

later identified as Graham, opened the door before the Explorer

could    block     it,       exited   the     vehicle,        and   commenced      running

through the parking lot with his hands on his pants as if he

were trying to prevent something from falling out.                             Upon seeing

the   officers,      he      pulled   a    medium-sized        plastic   bag     from    his

pants, ripped it open, and started dumping its white, powdery

contents    onto     a       gravel   lot.        Officers      later    collected       the

contents,     which          the   State     Bureau     of    Investigation        (“SBI”)

laboratory determined to be 91.5 grams of cocaine hydrochloride.

      While officers were collecting the cocaine, Officer Hill

noticed a white substance in a plastic bag on the ground between

the     Hyundai’s     passenger       door        and   the    bumper     of     the    Ford

Expedition that had been used to try to block the door.                                  The

substance was collected, as were two cell phones found on the

ground near the Hyundai’s passenger door.                       The cell phones were

later linked to Graham when he gave the officers his cell phone

numbers.     One of the numbers corresponded to one of the phones,

and the other was one digit off from the number of the other

phone.     The SBI laboratory determined that the white substance

found in the plastic bag was 12.2 grams of cocaine base (crack

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cocaine).       Sergeant Tom Kroh opined that the value of the crack

cocaine was $60-$100 per gram.

       Graham was arrested and advised of his rights, after which

he admitted that he had bought approximately 15 ounces of powder

cocaine about two weeks before and had been gradually selling

it.        Graham further admitted that he had come to Hardee’s to

sell four ounces of powder cocaine to Truck for $3,000 and that

he had sold five more ounces of powder cocaine earlier in the

day.       Graham was not asked about the crack cocaine found near

where he had exited the Hyundai.

       The driver of the Hyundai was Brandi Hancock, a girlfriend

of    Graham’s.        Graham   called   Hancock   several   times    from   the

Forsyth County Jail, where he was incarcerated.                     These calls

were       recorded,   and   during   some   of    them,   Graham    instructed

Hancock regarding the substance of her testimony.               He told her,

“Listen and pay attention . . . .             This is how it is going to

work.” *       He then told her that if it appeared that charges

against her would not be dismissed, Graham would represent that

Hancock did not know anything about his illegal activities since

she could not be criminally liable for a conspiracy that she did

not know about.         He also told her that they would “have to help


       *
       The tapes of the conversations were not transcribed, but
the tapes were in evidence in the district court.



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each other,” and that if she were subpoenaed, she should say,

“Nah, that ain’t what I said and I didn’t see it.”             Graham

added, “You know what I am saying.”

     During a separate phone conversation, Graham inquired about

discussions Hancock had with the police.         Graham asked Hancock

what she had said about how the two of them had met, how long

they had known each other, and whether she had been asked if she

had ever seen him do anything illegal.    Graham told her,

     You did not know what was going on, you did not ask me
     what was going on, you know what I am saying. And the
     next thing you know they just came, you know what I am
     saying.   You did not see nothing, you did not hear
     nothing.   You know what I am saying. . . .      And I
     promise you will be alright.

Hancock then asked Graham if he had had crack cocaine, to which

he responded, “‘B,’ listen, don’t worry about that.”

     During another call, Graham asked Hancock which way Truck

ran when the police moved in, and Hancock told him he went left.

Graham informed her he was going to trial and stated, “I pled

guilty to that powder, man, but they [are] trying to say that I

had some crack on me, man.    My only defense is you . . . .        I

need them to know, listen now, I need them to know that [Truck]

ran by the passenger door.”    Graham also told her, “I need you

to let them know that you were not supervised for at least 2-3

minutes, do you understand.”     He later stated, “You my only

defense, don’t you understand that?      . . .    If I lose, man I’m


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gone, man, it’s over, bye, see you next lifetime . . . .                                       It’s

the crack that’s giving me, making me face this time.”

       A     federal      grand     jury     returned          a    two-count           bill    of

indictment against Graham.                 Count One charged possession with

intent      to    deliver   12.2     grams    of       crack       cocaine.         Count      Two

charged possession with intent to deliver 91.5 grams of cocaine

hydrochloride.

       Graham pleaded guilty to Count Two and proceeded to a bench

trial on Count One.           At the close of the evidence, Graham moved

unsuccessfully for a judgment of acquittal.                             See Fed. R. Crim.

P. 29.       The district court subsequently found Graham guilty on

Count One:

       Based upon all the evidence that’s been presented,
       although it is circumstantial, the Court finds beyond
       a reasonable doubt that the 12.2 grams of cocaine
       base, crack, found in the area where [Graham] exited
       the vehicle and where his cell phones were located,
       was in [Graham’s] possession and was knowingly and
       intentionally   possessed  by   him   with  intent  to
       distribute cocaine base, crack.      The Court further
       finds the evidence establishes beyond a reasonable
       doubt, although circumstantially, that [Graham] knew
       that what he possessed was a controlled substance.

J.A.       192.     The     court    imposed       a    sentence             of   360    months’

imprisonment.



                                            II.

       Graham      challenges       the     sufficiency            of    the      evidence      to

support      the   district       court’s    finding      that          he    possessed        with

                                             6
intent to deliver the 12.2 grams of crack cocaine.                                  We must

sustain the verdict “if there is substantial evidence, taking

the   view    most   favorable          to    the     Government,     to     support     it.”

Glasser, 315 U.S. at 80.                We are prohibited from “overturn[ing]

a   substantially       supported        verdict       merely     because    [we]    .   .    .

determine[]        that         another,       reasonable          verdict     would         be

preferable.        Rather, we shall reverse a verdict if the record

demonstrates a lack of evidence from which a [factfinder] could

find guilt beyond a reasonable doubt.”                       United States v. Burgos,

94 F.3d 849, 862 (4th Cir. 1996); see United States v. Murphy,

35 F.3d 143, 148 (4th Cir. 1994) (explaining that it is within

the   province     of     the    factfinder,        not     the   appellate     court,       to

“resolve[] any conflicts in the evidence presented, and if the

evidence      supports      different,         reasonable         interpretations,        the

[factfinder] decides which interpretation to believe” (citation

omitted)).         Accordingly, in the context of a challenge to the

sufficiency of the evidence, our task as an appellate court is

simply to determine whether, in light of the evidence presented

at trial, the district court “could rationally have reached a

verdict of guilt beyond a reasonable doubt.”                          United States v.

Powell,      469   U.S.    57,     67    (1984).            Because   we     consider     the

evidence in the light most favorable to the government, granting

“the government the benefit of all reasonable inferences from

the   facts    proven      to    those       sought    to    be   established,”      United

                                               7
States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982), Graham

must    carry    an   imposing     burden       to    successfully      challenge     the

sufficiency of the evidence, see United States v. Beidler, 110

F.3d 1064, 1067 (4th Cir. 1997).

       He has not carried that burden in this case.                       At the time

of the offense, three people were present in the immediate area

of the drug transaction, Truck, Hancock, and Graham.                            Officers

had searched Truck prior to the transaction to ensure that he

did not have any drugs.            As for Hancock, she testified that she

did not have any drugs when she drove Graham to the Hardee’s.

That left only Graham.                 While officers did not actually see

Graham drop the crack cocaine, his cell phones were found in

close proximity to the drugs, and he was seen running from the

car, holding his pants as if he were trying to keep something

from falling out.            And, it was highly unlikely that someone else

would    have    left   drugs     valued    at       hundreds    of   dollars    on   the

ground, especially in the very area where Graham had been.

       The evidence of Graham’s phone conversations with Hancock

further supported the conclusion that the crack cocaine belonged

to Graham.        Attempting to influence a witness’s testimony is

evidence    of    a   defendant’s       consciousness       of    his    guilt.       See

United States v. Van Metre, 150 F.3d 339, 352 (4th Cir. 1998).

Here, the district court could reasonably have found that Graham

was     attempting      to     shape    Hancock’s       testimony       regarding     his

                                            8
possession of the crack cocaine.                And, we conclude that that

evidence,   taken   together   with       the    other   evidence   discussed

herein, justified the district court’s determination that Graham

had possessed the crack cocaine.



                                 III.

     In sum, we conclude that the evidence was sufficient to

support the district court’s finding of guilt on Count One.                We

therefore affirm Graham’s conviction.               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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