                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-4592


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

ANDREW JASON BARNES,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (2:06-cr-00003-jpj)


Argued:   January 30, 2009                 Decided:   March 26, 2009


Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Roland Michael Santos, Harrisonburg, Virginia, for
Appellant.   Anthony Paul Giorno, OFFICE OF THE UNITED STATES
ATTORNEY, Roanoke, Virginia, for Appellee.   ON BRIEF: John L.
Brownlee,  United   States  Attorney, Roanoke,  Virginia,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Defendant      was   convicted     by    a   jury     on    two   counts      of

conspiracy to commit assault by striking, beating or wounding,

in violation of 18 U.S.C. §§ 7(3), 113(a)(4), 371; two counts of

assault with a deadly weapon, in violation of 18 U.S.C. §§ 2,

7(3), 113(a)(3); and one count of assault resulting in serious

bodily injury, in violation of 18 U.S.C. §§ 2, 7(3), 113(a)(6).

He appeals his convictions on the grounds that the trial court

erred in denying his motions for substitution of counsel and

judgment of acquittal.        Finding no error, we affirm.



                                         I.

       On August 19, 2005, in an outdoor recreation area at the

United States Penitentiary in Lee County, Virginia, three white

inmates     (Rassie    Rector,   Dylan        Bowers,    and      defendant    Andrew

Barnes)   attacked      two   Hispanic    inmates       (Martin     Betancourt      and

then Jose Jaramillo).          Rector, Bowers and defendant surrounded

Betancourt on the handball court.              Bowers struck Betancourt from

behind, and then defendant joined in by kicking him with steel

toed   prison   boots.        Defendant       and   Bowers     continued      to   beat

Betancourt until he lost consciousness, causing such severe head

trauma that Betancourt had to be taken by helicopter to a nearby

hospital.     When one of the prison guards fired a warning shot



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during the assault, the inmates took off around the corner of

the gymnasium and began beating Jaramillo there.

      On   January     3,    2006,    defendant,        Rector,      and   Bowers       were

indicted for these assaults.             For each attack they were charged

with a separate count of conspiracy to commit assault with a

dangerous weapon, in violation of 18 U.S.C. §§ 7(3), 113(a)(3),

371, and a separate count of assault with a dangerous weapon, in

violation of 18 U.S.C. §§ 2, 7(3), 113(a)(3).                        In addition, for

the attack on Betancourt, they were charged with a count of

assault resulting in serious bodily injury, in violation of 18

U.S.C. §§ 2, 7(3), 113(a)(6).

      Several months later, on October 25, 2006, defendant filed

a pro se motion to dismiss counsel.                        On November 13, 2006,

defendant’s counsel filed a motion to withdraw as counsel for

defendant.         The magistrate judge held a hearing on these and

other motions on December 11, 2006.

      At the hearing, defendant claimed that his counsel had not

shown   him   all    of     the   relevant       security      videos,     that    he   was

worried counsel would not be motivated if he chose to go to

trial, and that counsel had not visited him for seven months.

In   response,      counsel       explained      that    he    had   tried    to    visit

defendant     on    three    occasions,         but    twice    he   had    experienced

difficulties       arising    from    the       fact    that   defendant     was    in     a

maximum security prison.             Then, shortly before the date of his

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fourth attempted visit, the court put the case on hold so that

co-defendant Bowers could undergo a mental evaluation of his

competence to stand trial.                  Counsel also affirmed that he was

fully willing to continue representing defendant and explained

that   his     motion    to   withdraw       was     simply    made    in    response      to

defendant’s pro se motion.

       After    considering         these    arguments,       the     magistrate        judge

denied defendant’s motion and explained why defendant’s fears

were    unfounded.            In    addition,        to   accommodate         defendant’s

concerns,      the    magistrate      told        defendant    that    if    he    had    any

future problems with counsel he should inform the court at that

time   and     it    would    “be    glad”    to     address    the      problems       then.

Defendant did not subsequently raise any concerns about counsel.

       The trial began on March 22, 2007.                       At the close of the

government’s         case-in-chief,         defendant     moved       for    judgment      of

acquittal      under    Federal      Rule    of     Criminal    Procedure         29.     The

district     court      denied      defendant’s       motion.       At      the   close    of

trial, the jury convicted defendant of two counts of conspiracy

to commit assault by striking, beating or wounding, in violation

of 18 U.S.C. §§ 7(3), 113(a)(4), 371 (a lesser-included-offense

of the original counts charged); two counts of assault with a

deadly weapon, in violation of 18 U.S.C. §§ 2, 7(3), 113(a)(3);

and one count of assault resulting in serious bodily injury, in

violation of 18 U.S.C. §§ 2, 7(3), 113(a)(6).                               Defendant was

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sentenced      to    162       months     of        imprisonment,         three       years   of

supervised release, and was held jointly and severally liable

with his co-defendant for restitution of $14,540.12.                                  Defendant

appeals his convictions.



                                               II.

     Defendant argues that the magistrate judge erred when it

denied   his    motion         for    substitution       of    counsel      and       therefore

violated his Sixth Amendment right to counsel.                              We review the

magistrate’s denial of the motion for abuse of discretion, see

United States v. Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir.

1994), and find none.                Because defendant’s motion was timely, we

consider whether the court’s inquiry into defendant’s claims was

adequate and whether defendant and his counsel had “experienced

a total lack of communication preventing an adequate defense.”

See United States v. Reevey, 364 F.3d 151, 156-57 (4th Cir.

2004) (internal quotation marks omitted).

     First, the court’s inquiry was adequate.                               The magistrate

considered defendant’s motion at a hearing and discussed the

matter with both defendant and his counsel.                         The magistrate also

addressed each of defendant’s specific concerns.

     Second,        the    court’s       inquiry       did    not   reveal        a    complete

breakdown      of    the       attorney-client           relationship.                Defendant

complained     that       he    had    not     seen    all    of    the    relevant       video

                                                5
evidence of the incident, but the court assured defendant that

counsel     would    make    available       all    of     the    security      videos.

Defendant also stated: “I believe he doesn’t want to go to trial

and if it does go to trial, he will give me an off handed

effort.”     After discussing the matter, the court explained that

when   counsel      had   previously    suggested         the    option    of   a   plea

bargain he was simply fulfilling his duty as a lawyer, but he

was still fully willing and able to represent defendant at trial

-- in fact, he was a “very competent attorney” with “quite a bit

of trial experience.”             Contrary     to        defendant’s      contention,

counsel’s motion to withdraw did not indicate that the attorney-

client    relationship      had    completely      deteriorated;          instead,    as

counsel explained at the hearing, he simply made the motion out

of deference and in response to defendant’s pro se motion for

substitution of counsel.

       Defendant also complained that his counsel had not visited

him for seven months.             As the court noted, the delay did not

prejudice    defendant      and   it   was   out    of     counsel’s      control:    on

counsel’s third attempted visit, he was prevented from entering

the maximum security prison for security reasons because he was

wearing an orange shirt, and then, shortly before the date of

his fourth attempted visit, the entire case was postponed for

Bowers’ mental competency evaluation.                    We recognize that this

lack of communication left defendant legitimately worried and

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that     counsel       could   have        handled    the    situation        better     by

notifying defendant more regularly about the progress of the

case.        But this hardly rises to the level of a “total lack of

communication preventing an adequate defense.”                       Reevey, 364 F.3d

at 156-57 (internal quotation marks omitted).

        We also note that in all events counsel did a fine job at

trial    and    defendant      never       subsequently     complained       about     him,

even though the court stated its willingness to reevaluate the

situation if defendant experienced an “ongoing problem.”



                                            III.

        Defendant claims that the district court improperly denied

his motion for judgment of acquittal as to the two counts of

conspiracy.        He argues that the government’s evidence did not

establish the necessary elements of conspiracy: chiefly, prior

agreements to commit the assaults.                   See United States v. Burgos,

94 F.3d 849, 857 (4th Cir. 1996) (en banc) (stating the elements

of conspiracy).         Instead, he argues, the evidence showed only an

ordinary fight.

        We    reject     defendant’s         argument       because,        viewing     the

evidence in the light most favorable to the government, we find

there    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.’”         See    United

                                              7
States v. Osborne, 514 F.3d 377, 385 (4th Cir. 2008) (quoting

Burgos, 94 F.3d at 862).                Specifically, there is evidence from

which a jury could legitimately infer that the two assaults by

defendant, Rector, and Bowers (the three white inmates) were

planned attacks on Hispanic inmates.

      The        security       video       of        the     assault         on     Betancourt

demonstrates that it was a prearranged, joint action.                                   The video

shows      the    following:          the    three          white       inmates      approached

Betancourt       on    the   handball       court,      where       a    group     of    Hispanic

inmates had congregated; then, they surrounded him and, without

provocation, Bowers struck him in the back of the head, knocking

him   to    the       ground;    immediately           afterwards,         defendant         began

punching and kicking Betancourt with steel toed boots.                                        This

coordinated action suffices to show that the three white inmates

had previously agreed to and planned out the assault.

      There is no surveillance footage of the beginning of the

assault     on    Jaramillo      to    similarly        demonstrate           that      it   was   a

planned coordinated action.                 However, when the evidence of the

second     assault      is   considered          in    light    of      the    conspiracy          to

commit the first assault, it is sufficient to support a finding

of conspiracy.          The evidence of the second assault demonstrates

that the two assaults were extremely close in time and location,

they were committed by the same three white inmates, and they

were both committed against Hispanic victims.                                 A prison guard

                                                 8
testified that the three white inmates ran immediately from the

assault       on    Betancourt       around          the    corner     of   the    gymnasium.

Moments       later,       this     is    where        they     were    caught         attacking

Jaramillo.          Multiple prison officers testified to finding the

three white inmates assaulting Jaramillo in that area of the

recreation yard.

     In addition, Rector made statements suggesting that both

assaults were racially motivated attacks on Hispanic inmates.                                  A

prison    intelligence          officer        testified       that    shortly     after     the

attack she asked Rector whether the incident was truly over, and

he responded that “as long as the Border Brothers [a Mexican

prison gang] did not return to the yard, yes, it was over.”                                  JA

273-74.       Prison security also intercepted a personal letter in

which Rector wrote: “I’m in with well respected group of dudes

(white) . . . Had to straighten a bunch of Mexicans out and a

couple of them got hurt pretty bad . . . .” JA 284-85 (reprinted

as read to the jury during trial).                         This evidence demonstrates a

common purpose behind the two assaults.

        The   evidence       of    the        second       assault,    therefore,       closely

links    it    to    the    conspiracy          to    commit    the    first      assault    and

suggests that it too was the result of a prior agreement by the

three white inmates to assault the two Hispanic inmates.                                    This

evidence       is    sufficient          to     support       the     jury’s   findings       of

conspiracy.          As    we     have   often        noted,    conspiracy        is    “usually

                                                 9
proven”     by     circumstantial       evidence    such     as    this    because

conspiracy is clandestine by its nature.                  See United States v.

Yearwood,    518    F.3d   220,   226    (4th    Cir.     2008).     The    parties

dispute     whether    certain    other       testimony     should   inform    our

sufficiency inquiry, but there is more than ample evidence to

sustain the jury’s verdict on the foregoing.



                                        IV.

     The judgment is accordingly

                                                                          AFFIRMED.




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