                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4273


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KEEGAN LEAHY,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:10-cr-00777-RWT-6)


Submitted:   February 25, 2015            Decided:   March 20, 2015


Before KING, THACKER, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael   D.   Montemarano,   MICHAEL  DANIEL  MONTEMARANO,   PA,
Columbia, Maryland, for Appellant.     Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, Deborah A. Johnston, Mara
Zusman Greenberg, Assistant United States Attorneys, OFFICE OF
THE UNITED STATES ATTORNEY, Greenbelt, Maryland; Leslie R.
Caldwell, Assistant Attorney General, Sung-Hee-Suh, Deputy
Assistant   Attorney   General,  William  A.  Glaser,   Appellate
Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       A federal jury found Keegan Leahy guilty of conspiracy to

distribute and possess with intent to distribute marijuana in

violation of 21 U.S.C. § 846 (2012) and interstate travel to

facilitate illegal activity in violation of 18 U.S.C. § 1952

(2012) (“Travel Act”).           The district court sentenced Leahy to

thirty-six months of imprisonment and he now appeals.                       For the

reasons that follow, we affirm.

       Leahy challenges the district court’s instruction to the

jury    regarding      willful   blindness.        Leahy   argues         that    the

instruction was not warranted based on the evidence and that the

instruction was an incorrect statement of the law.                      We review a

district court’s decision whether to give a jury instruction for

abuse of discretion.          See United States v. Ali, 735 F.3d 176,

187 (4th Cir. 2013), cert. denied, 134 S. Ct. 1357 (2014).                        “It

is well established that where a defendant asserts that he did

not have the requisite mens rea to meet the elements of the

crime    but       evidence   supports       an   inference        of     deliberate

ignorance,     a    willful   blindness      instruction      to    the    jury     is

appropriate.”        Id. (internal quotation marks omitted).                Such an

instruction is appropriate only in rare circumstances.                    See id.

       Moreover, “[i]n reviewing the adequacy of instructions, we

accord the district court much discretion and will not reverse

provided that the instructions, taken as a whole, adequately

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state the controlling law.”            United States v. Bolden, 325 F.3d

471, 486 (4th Cir. 2003) (internal quotation marks omitted).                           We

have    thoroughly      reviewed    the   record     and    the    relevant       legal

authorities and conclude that there was sufficient evidence of

willful blindness to support the district court’s instruction to

the    jury.     We    further    conclude    that   the    court’s      instruction

adequately stated the controlling law.

       Leahy next challenges the sufficiency of the evidence to

support the convictions.            We review de novo a district court’s

decision to deny a motion for a judgment of acquittal.                              See

United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006).                             “A

defendant      challenging    the   sufficiency      of    the    evidence    .    .    .

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

1067 (4th Cir. 1997) (internal quotation marks omitted).                           The

verdict must be sustained “if, viewing the evidence in the light

most favorable to the prosecution, the verdict is supported by

substantial      evidence.”         Smith,    451    F.3d    at    216    (internal

quotation      marks   omitted).      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.”             Id. (internal quotation marks omitted).

“Reversal for insufficient evidence is reserved for the rare

case where the prosecution’s failure is clear.”                       Beidler, 110

F.3d at 1067 (internal quotation marks omitted).

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       To secure a conspiracy conviction under 21 U.S.C. § 846,

the government must prove three elements: “(1) [the defendant]

entered into an agreement with one or more persons to engage in

conduct that violated 21 U.S.C. § [] 841(a)(1) . . . ; (2) that

[the defendant] had knowledge of that conspiracy; and (3) that

[the defendant] knowingly and voluntarily participated in the

conspiracy.”      United States v. Howard, 773 F.3d 519, 525 (4th

Cir. 2014) (alterations in original) (internal quotation marks

omitted).        The     government    can     prove       the   existence      of    a

conspiracy      wholly    through    circumstantial         evidence.         See    id.

Moreover, the knowledge element may be satisfied by showing that

a defendant acted with willful blindness, or “purposely closed

his eyes to avoid knowing what was taking place around him.”

United States v. Schnabel, 939 F.2d 197, 293 (4th Cir. 1991).

       To demonstrate a Travel Act violation, the government must

show (1) interstate travel, (2) an intent to promote an unlawful

activity, and (3) performance or attempted performance of an

unlawful act.      United States v. Gallo, 782 F.2d 1191, 1194 (4th

Cir.   1986).      “Unlawful      activity”    is     defined    as     any   business

enterprise      involving    narcotics        or     controlled        substances    in

violation of federal law.           18 U.S.C. § 1952(b).               Our review of

the record leads us to conclude that the Government presented

substantial      evidence    of     Leahy’s        guilt   of    the     offenses    of

conviction.

                                        4
      Leahy also challenges the district court’s order denying

his motion for a bill of particulars with respect to the Travel

Act   charge.       A   bill      of   particulars        is     appropriate      when    an

indictment     fails    to     provide       adequate      information      to    allow    a

defendant      to   understand         the    charges       and     to   avoid      unfair

surprise.      See United States v. Am. Waste Fibers Co., 809 F.2d

1044, 1047 (4th Cir. 1987); United States v. Jackson, 757 F.2d

1486, 1491 (4th Cir. 1985).               Whether a bill of particulars was

wrongly denied is reviewed for abuse of discretion.                          See United

States v. MacDougall, 790 F.2d 1135, 1153 (4th Cir. 1986).                           “[A]

defendant may show abuse of discretion in denying the motion by

proving unfair surprise.”              Jackson, 757 F.2d at 1491.

      Here, the district court did not err by denying Leahy’s

motion   for    a   bill     of    particulars.            The    subject    indictment

tracked the statutory language and cited the charging statutes.

As a general rule, this is sufficient.                         See, e.g., Hamling v.

United States, 418 U.S. 87, 117-18 (1974).                        Moreover, Leahy has

failed to demonstrate that the denial resulted in any unfair

surprise at trial.

      Leahy next challenges the Government’s use of a witness’s

grand jury testimony to refresh his recollection on redirect

examination     after    defense        counsel     had    questioned       the   witness

extensively     about    his      testimony       before    the    grand    jury.        “We

review evidentiary rulings of the district court for abuse of

                                              5
discretion.”       United States v. Caro, 597 F.3d 608, 633 (4th Cir.

2010)     (internal        quotation       marks      omitted).          An       abuse      of

discretion        occurs       only    when       “the   [district]         court      acted

arbitrarily       or    irrationally       in     admitting      evidence.”           United

States v. Williams, 445 F.3d 724, 732 (4th Cir. 2006) (internal

quotation marks omitted).

      The      district     court      properly      allowed     the    Government           to

provide the witness with his grand jury testimony to refresh his

recollection regarding that testimony.                      As this was the purpose

for     which     the     transcript       was      used,     the     court       correctly

determined that the grand jury testimony was not admitted as

substantive evidence.             See United States v. Morlang, 531 F.2d

183, 190-91 (4th Cir. 1975) (noting use of written memorandum to

refresh a witness’s recollection is proper); see also Fed. R.

Evid.    612     (regarding       writings        used   to    refresh       a    witness’s

recollection).

      Finally,         Leahy     challenges        the   district       court’s        order

denying his post-judgment motions to require the Government to

disclose       allegedly       intercepted        communications       pursuant       to     18

U.S.C. § 3504 (2012) and to dismiss the indictment and vacate

the   jury      verdict.        However,      because    Leahy      failed       to   file    a

notice    of     appeal    of    the   district       court’s       order    denying       his

motions, that order is not before this court.                         See Fed. R. App.

P. 4(b).        Even if we were to consider this issue, however, we

                                              6
conclude that the district court did not err by denying Leahy’s

motions.

      Accordingly, we affirm the judgment of the district court.

We   dispense   with   oral   argument   because    the   facts   and   legal

contentions     are   adequately   presented   in   the   materials     before

this court and argument would not aid in the decisional process.



                                                                   AFFIRMED




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