                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4014



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


SHAWN DEION SWINSON, SR.,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.   James R. Spencer, Chief
District Judge. (3:06-cr-00001-JRS)


Submitted: May 30, 2007                        Decided: July 5, 2007


Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Brent A. Jackson, THE JACKSON LAW GROUP, P.C., Richmond, Virginia,
for Appellant. Chuck Rosenberg, United States Attorney, Olivia N.
Hawkins, Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Shawn Deion Swinson, Sr., was convicted after a bench

trial   of    conspiracy    to   distribute   a   controlled   substance,

marijuana, in violation of 21 U.S.C. § 846 (2000) (Count One);

conspiracy to launder money by allowing his business address to be

used for receipt of marijuana shipments via common carrier, in

violation of 18 U.S.C.A. § 1956(h) (West Supp. 2000) (Count Two);

and laundering money by allowing his business address to be used

for the receipt of marijuana shipments via common carrier, in

violation of 18 U.S.C.A. § 1956(a)(1)(A)(i) (West 2000 & Supp.

2007) (Count Three).       He appeals, raising three grounds.

             Swinson challenges the sufficiency of the evidence for

each count.    In evaluating a sufficiency challenge, we are obliged

to sustain a guilty verdict “‘if there is substantial evidence,

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

United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc)

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

United States v. Ismail, 97 F.3d 50, 55 (4th Cir. 1996) (applying

Glasser standard in bench trial).          We have defined “substantial

evidence” as “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.”         Burgos, 94 F.3d at

862. In conducting our review, we examine the cumulative weight of




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the evidence and leave undisturbed the fact finder’s credibility

determinations.       Id. at 862-63.

             “To    prove   a   conspiracy     under    21    U.S.C.   §   846,      the

government must prove (1) an agreement between two or more persons

to engage in conduct that violates a federal drug law, (2) the

defendant’s knowledge of the conspiracy, and (3) the defendant’s

knowing and voluntary participation in the conspiracy.”                        United

States v. Strickland, 245 F.3d 368, 384-85 (4th Cir. 2001).                          The

elements of distribution are “(1) distribution of [a] narcotic

controlled substance, (2) knowledge of the distribution, and (3)

intent to distribute the narcotic controlled substance.”                       United

States v. Randall, 171 F.3d 195, 209 (4th Cir. 1999).

             Viewing the evidence in this case in the light most

favorable to the Government, there is ample evidence to establish

Count One, the drug conspiracy charge.             Swinson’s argument largely

consists of an attack on the credibility of the coconspirator-

witnesses.     However, the fact finder at the trial level, in this

case the district court, resolves questions of credibility.                          See

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

find that the district court’s verdict is supported by substantial

evidence.

             Swinson    was     also   convicted       of    participating      in    a

conspiracy     to    commit     promotion      money    laundering,        8   U.S.C.

§ 1956(h), and of the substantive offense of promotion money


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laundering, § 1956(a)(1)(A)(i).        He challenges the sufficiency of

the evidence to sustain these convictions.             A money laundering

conspiracy charge requires proof that “(1) a conspiracy to commit

promotion money laundering was in existence, and (2) that during

the conspiracy, the defendant knew that the proceeds used to

further [the illegal marijuana trade] had been derived from an

illegal activity, and knowingly joined in the conspiracy.”              United

States v. Alerre, 430 F.3d 681, 693-94 (4th Cir. 2005), cert.

denied,    126   S.   Ct.   1925   (2006).     To   prove   promotion    money

laundering, the Government must “(1) trace the money at issue to an

underlying unlawful activity, and (2) prove that the money was

transferred in order to promote a specified unlawful activity.”

Alerre, 430 F.3d at 693-94 & n.14.

            Here, one coconspirator testified that Swinson entered

into an agreement to receive packages containing marijuana at this

shop, that he was paid with money from the drug profits, and that

Swinson knew that this money came from the drug operation. Several

witnesses established that payments were made to Swinson so that he

would accept the shipments of illegal marijuana at his shop,

thereby promoting the illegal activity.             Therefore, substantial

evidence    supports    the   conspiracy     conviction     as   well   as   the

substantive conviction.

            Swinson next argues that the Government must not have

disclosed all the information to which he was entitled, in view of


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the testimony of one witness that he was present when Swinson and

the leader of the drug operation came to their agreement that

Swinson     would   be   paid   each   time    he   took    delivery   of    a   box

containing marijuana.       However, the district court found that the

Government     satisfied    its   disclosure        obligations,   and      Swinson

offered no evidence of the existence of any specific documents that

were not properly disclosed. Therefore, this claim entitles him to

no relief.

             Finally, Swinson alleges that the district court erred in

denying his motions for new trial.             One motion was based on claims

of ineffective assistance of counsel by Swinson’s prior attorneys,

and   the   other   on   evidence      that    Swinson     contended   was   newly

discovered.     This Court reviews a district court’s order denying a

motion for new trial under Fed. R. Crim. P. 33 for abuse of

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

cert. denied, 127 S. Ct. 197 (2006).                A motion for a new trial

based on newly discovered evidence must be filed within three years

of the finding of guilt, and a           motion for new trial based on any

reason other than newly discovered evidence must be filed within

seven days of the finding of guilt.              Fed. R. Crim. P. 33(b)(1),

(b)(2).

      [I]nformation supporting an ineffective assistance claim
      is not ‘evidence’ within the meaning of Rule 33 and,
      therefore, . . . a motion for a new trial predicated on
      ineffective assistance of counsel must be brought . . .
      within seven days of judgment regardless of when the
      defendant becomes aware of the facts which suggest to

                                       - 5 -
      h[im] that h[is] attorney’s performance may have been
      constitutionally inadequate.

United States v. Smith, 62 F.3d 641, 648 (4th Cir. 1995).                          The

district   court   denied      as   untimely       Swinson’s      motion   based    on

ineffective assistance of counsel, as it was filed five months

after his convictions.         The time limits set forth in Rule 33 are

jurisdictional.      Smith, 62 F.3d at 648.              Therefore, the district

court did not abuse its discretion in denying the new trial motion

based on claims of ineffective counsel.

           Swinson    also     moved   for     a   new    trial    based   on    newly

discovered evidence.           To receive a new trial based on newly

discovered    evidence,    a    defendant      must      demonstrate:       (1)    the

evidence   is   newly   discovered;       (2)      he    has   been   diligent     in

uncovering it; (3) it is not cumulative or impeaching; (4) it is

material to the issues involved; and (5) it would probably produce

an acquittal.    U.S. v. Fulcher, 250 F.3d 244, 249 (4th Cir. 2001).

Defendants are generally required to satisfy all five elements.

Id.   A district court should award a new trial sparingly.                      Smith,

451 F.3d at 216-17.       Here, the district court found that Swinson

had not exercised due diligence in discovering allegedly new

evidence about a FedEx policy concerning package delivery and FedEx

shipping records showing that packages were not sent to Swinson’s

address.     We agree with the district court that this information

should have been available at trial, and therefore, Swinson did not



                                       - 6 -
act with due diligence in acquiring it.    The district court did not

abuse its discretion in denying this motion for new trial.

            Accordingly,   we   affirm   Swinson’s   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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