United States of America v. Anthony Eugene Duty, a/k/a Tony

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4657
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTHONY EUGENE DUTY, a/k/a Tony,
Defendant - Appellant.
No. 09-4803
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBIN MARIE DAVIS,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:08-cr-00024-jpj-pms-32; 1:08-cr-00024-jpj-pms-43)
Submitted: July 21, 2011 Decided: August 1, 2011
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.

-- 1 of 5 --

2
Affirmed by unpublished per curiam opinion.
Joseph R. Conte, LAW OFFICES OF J.R. CONTE, Washington, D.C.;
Henry Keuling-Stout, KEULING-STOUT, P.C., Big Stone Gap,
Virginia, for Appellants. Timothy J. Heaphy, United States
Attorney, Jennifer R. Bockhorst, Assistant United States
Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

-- 2 of 5 --

3
PER CURIAM:
A federal jury convicted Robin Marie Davis and Anthony
Eugene Duty of conspiracy to distribute and possess with intent
to distribute cocaine and cocaine base, in violation of 21
U.S.C. § 846 (2006). The district court sentenced Davis to 240
months of imprisonment and sentenced Duty to 120 months of
imprisonment, and they now appeal. Finding no error, we affirm.
On appeal, Davis argues that the district court erred
in denying her motions for a judgment of acquittal and for a new
trial in which she argued that the evidence was insufficient to
support the verdict. We review a district court’s decision to
deny a Rule 29 motion for a judgment of acquittal de novo and
the denial of a Fed. R. Crim. P. 33 motion for a new trial for
abuse of discretion. 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). The verdict of a jury 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 (citations 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.”

-- 3 of 5 --

4
Id. (internal quotation marks and citation omitted).
Furthermore, “[t]he jury, not the reviewing court, weighs the
credibility of the evidence and resolves any conflicts in the
evidence presented.” Beidler, 110 F.3d at 1067 (internal
quotation marks and citation omitted). “Reversal for
insufficient evidence is reserved for the rare case where the
prosecution’s failure is clear.” Id. (internal quotation marks
and citation omitted).
In order to prove that Davis conspired to possess with
intent to distribute and distribute cocaine and crack, the
Government needed to show (1) an agreement between two or more
persons, (2) that Davis knew of the agreement, and (3) that
Davis knowingly and voluntarily joined the conspiracy. United
States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc)
(citations omitted). We have thoroughly reviewed the record and
conclude that there was sufficient evidence to support the
jury’s verdict of guilt.
Duty argues on appeal that the district court erred in
denying his motion for a new trial based on three of his
codefendants’ recantations of their trial testimony against him.
A motion for a new trial based on a witness’ recantation of his
trial testimony should be granted only when “(1) the court is
reasonably satisfied that the testimony given by a material
witness is false; (2) without the evidence a jury might have

-- 4 of 5 --

5
reached a different conclusion; and (3) the party seeking the
new trial was unable to meet it or did not know of its falsity
until after trial.” United States v. Lighty, 616 F.3d 321, 374
(4th Cir.), cert. denied, 131 S. Ct. 846 (2010), (citations
omitted). Our review of the record leads us to conclude that
the district court’s finding that the witnesses’ trial
testimonies were not false was not error and, therefore, the
court did not abuse its discretion in denying Duty’s motion for
a new trial.
Accordingly, we affirm the judgments 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

-- 5 of 5 --