United States of America v.  William A. Brennan, Iii

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4361 
WILLIAM A. BRENNAN, III,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LISA M. BRENNAN, d/b/a Pre-Owned No. 03-4376 
Auto Outlet, Incorporated, d/b/a
Alliance Auto Auction,
Incorporated,
Defendant-Appellant. 
Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CR-02-59)
Submitted: November 21, 2003
Decided: January 15, 2004
Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.

-- 1 of 4 --

COUNSEL
Randy V. Cargill, MAGEE, FOSTER, GOLDSTEIN & SAYERS,
P.C., Roanoke, Virginia; Bernard L. Spaulding, SPAULDING LAW
OFFICES, Logan, West Virginia, for Appellants. John L. Brownlee,
United States Attorney, Morgan E. Scott, Jr., First Assistant United
States Attorney, Roanoke, Virginia, Thomas E. Booth, DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Lisa M. Brennan and William A. Brennan, III, husband and wife,
appeal their convictions and sentences for conspiracy to commit
fraud, in violation of 18 U.S.C. § 371 (2000), transportation of stolen
goods in interstate commerce, in violation of 18 U.S.C. § 2314
(2000), mail fraud, in violation of 18 U.S.C. § 1341 (2000), and wire
fraud, in violation of 18 U.S.C. § 1343 (2000).
William Brennan asserts that the district court erred in refusing to
allow his trial counsel the opportunity to show cause for his untimely
notice of intent to present an insanity defense. However, a close
review of the record reveals that the district court heard and consid-
ered trial counsel’s reasoning for the untimely motion before it denied
the motion. We conclude that the district court properly denied the
motion. Fed. R. Civ. P. 12.2(a); United States v. Veatch, 674 F.2d
1217, 1224-25 (9th Cir. 1981); United States v. Cecil, 836 F.3d 1431,
1444 (4th Cir. 1988).
Lisa Brennan contends that the district court erred in failing to rule
on her outstanding motion for a severance. Because she did not object
in the district court, her claim is reviewed for plain error. United
2 UNITED STATES v. BRENNAN

-- 2 of 4 --

States v. Olano, 507 U.S. 725, 734 (1993). While it appears that the
district court neglected to issue a ruling on this motion, we conclude
that any error did not affect Lisa’s substantial rights, nor did it seri-
ously affect the fairness, integrity, or public reputation of the trial.
Olano, 507 U.S. at 734; United States v. Najjar, 300 F.3d 466, 473
(4th Cir.), cert. denied, 537 U.S. 1094 (2002).
The Brennans contend that the district court erred in denying their
motion for a judgment of acquittal because the evidence was not suf-
ficient to support their conviction for violating section 2314. This
Court reviews the district court’s decision to deny a motion for judg-
ment of acquittal de novo. United States v. Gallimore, 247 F.3d 134,
136 (4th Cir. 2001). Viewing the evidence in a light most favorable
to the Government, and assuming that the jury resolved all contradic-
tions in the testimony in favor of the Government, we conclude that
there is substantial evidence to sustain the convictions. Glasser v.
United States, 315 U.S. 60, 80 (1942); United States v. Romer, 148
F.3d 359, 364 (4th Cir. 1998); United States v. Grainger, 701 F.2d
308, 311 (4th Cir. 1983). Accordingly, we affirm the district court’s
denial of the motion for judgment of acquittal. Gallimore, 247 F.3d
at 136.
The Brennans assert that the district court erred in failing to issue
further instructions to the jury in response to their question during
deliberations. Because the Brennans did not object at trial, the claim
on appeal is reviewed for plain error. Olano, 507 U.S. at 734. We
conclude that the district court’s decision to refer the jury back to its
original instructions was a proper exercise of discretion, which fairly
responded to the jury’s question and created no prejudice. United
States v. Horton, 921 F.2d 540, 546 (4th Cir. 1990) (stating that the
court has broad discretion in responding to a question from the jury);
United States v. United Medical & Surgical Supply Corp., 989 F.2d
1390, 1406-07 (4th Cir. 1993). Accordingly, we find no reversible
error on appeal. Olano, 507 U.S. at 734.
Finally, Lisa Brennan contends that the district court erred by
denying her motion for a downward departure pursuant to U.S. Sen-
tencing Guidelines Manual § 5K2.12. Because the district court
clearly understood that it had the authority to depart, its choice not to
depart from the applicable sentencing guidelines range is not subject
3 UNITED STATES v. BRENNAN

-- 3 of 4 --

to appellate review. United States v. Bayerle, 898 F.2d 28, 30-31 (4th
Cir. 1990).
We affirm the sentences and convictions of both Lisa and William
Brennan. We deny Lisa Brennan’s motion for release on bond pend-
ing appeal. 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
4 UNITED STATES v. BRENNAN

-- 4 of 4 --