United States of America v. Harvey D. Thomas, Iii

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5116
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HARVEY D. THOMAS, III,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:10-cr-00069-JRS-1)
Submitted: May 16, 2011 Decided: May 23, 2011
Before WYNN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David R. Lett, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Jessica Aber Brumberg,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

-- 1 of 3 --

2
PER CURIAM:
Appellant Harvey D. Thomas, III challenges his
conviction for distribution of cocaine in violation of 21 U.S.C.
§ 841(a)(1) (2006).*
We review a district court’s rulings on leading
questions for a clear abuse of discretion and will not overturn
such decisions absent prejudice or clear injustice to the
litigant.
He raises two arguments on appeal. First,
he maintains the district court abused its discretion when it
allowed the Government to use leading questions on direct
examination. Second, he contends that, absent the testimony
wrongly elicited by its leading questions, the Government
adduced insufficient evidence at trial to support his
conviction. For the following reasons, we affirm the district
court’s judgment.
United States v. Durham,
* Although Thomas’ statement of the issues references the
sufficiency of the evidence to “sustain convictions for all six
alleged distribution offenses,” the argument in his brief only
discusses the September 9, 2009, controlled buy. Accordingly,
we conclude he abandoned any argument related to the sufficiency
of the evidence supporting his other five convictions. See
Federal Rule of Appellate Procedure 28(a)(9)(A).
319 F.2d 590, 592 (4th Cir.
1963). Federal Rule of Evidence 611(a) gives broad discretion
to the district court to control the “mode and order” of
interrogating witnesses and the presentation of evidence.
Subsection (c) of Rule 611 states that leading questions should

-- 2 of 3 --

3
not be used on direct examination except as necessary to develop
the witness’ testimony. See
Given the high degree of deference this court must
allow a district court under Fed. R. Evid. 611, we conclude
Thomas has failed to demonstrate reversible error in the
district court’s evidentiary rulings. Given this conclusion, it
follows that Thomas’ challenge to the sufficiency of the
evidence supporting his conviction fails.
Fed. R. Evid. 611(c). The Advisory
Committee Notes to subsection (c) give great deference to the
trial judge: “The matter clearly falls within the area of
control by the judge over the mode and order of interrogation
and presentation and accordingly is phrased in words of
suggestion rather than command.”
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 the court and argument would not aid the decisional
process.
AFFIRMED

-- 3 of 3 --