Filed: Mar. 26, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4592 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ANDREW JASON BARNES, Defendant – Appellant. Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, Chief District Judge. (2:06-cr-00003-jpj) Argued: January 30, 2009 Decided: March 26, 2009 Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Roland Michael
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4592 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ANDREW JASON BARNES, Defendant – Appellant. Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, Chief District Judge. (2:06-cr-00003-jpj) Argued: January 30, 2009 Decided: March 26, 2009 Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Roland Michael ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4592
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANDREW JASON BARNES,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (2:06-cr-00003-jpj)
Argued: January 30, 2009 Decided: March 26, 2009
Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Roland Michael Santos, Harrisonburg, Virginia, for
Appellant. Anthony Paul Giorno, OFFICE OF THE UNITED STATES
ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF: John L.
Brownlee, United States Attorney, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Defendant was convicted by a jury on two counts of
conspiracy to commit assault by striking, beating or wounding,
in violation of 18 U.S.C. §§ 7(3), 113(a)(4), 371; two counts of
assault with a deadly weapon, in violation of 18 U.S.C. §§ 2,
7(3), 113(a)(3); and one count of assault resulting in serious
bodily injury, in violation of 18 U.S.C. §§ 2, 7(3), 113(a)(6).
He appeals his convictions on the grounds that the trial court
erred in denying his motions for substitution of counsel and
judgment of acquittal. Finding no error, we affirm.
I.
On August 19, 2005, in an outdoor recreation area at the
United States Penitentiary in Lee County, Virginia, three white
inmates (Rassie Rector, Dylan Bowers, and defendant Andrew
Barnes) attacked two Hispanic inmates (Martin Betancourt and
then Jose Jaramillo). Rector, Bowers and defendant surrounded
Betancourt on the handball court. Bowers struck Betancourt from
behind, and then defendant joined in by kicking him with steel
toed prison boots. Defendant and Bowers continued to beat
Betancourt until he lost consciousness, causing such severe head
trauma that Betancourt had to be taken by helicopter to a nearby
hospital. When one of the prison guards fired a warning shot
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during the assault, the inmates took off around the corner of
the gymnasium and began beating Jaramillo there.
On January 3, 2006, defendant, Rector, and Bowers were
indicted for these assaults. For each attack they were charged
with a separate count of conspiracy to commit assault with a
dangerous weapon, in violation of 18 U.S.C. §§ 7(3), 113(a)(3),
371, and a separate count of assault with a dangerous weapon, in
violation of 18 U.S.C. §§ 2, 7(3), 113(a)(3). In addition, for
the attack on Betancourt, they were charged with a count of
assault resulting in serious bodily injury, in violation of 18
U.S.C. §§ 2, 7(3), 113(a)(6).
Several months later, on October 25, 2006, defendant filed
a pro se motion to dismiss counsel. On November 13, 2006,
defendant’s counsel filed a motion to withdraw as counsel for
defendant. The magistrate judge held a hearing on these and
other motions on December 11, 2006.
At the hearing, defendant claimed that his counsel had not
shown him all of the relevant security videos, that he was
worried counsel would not be motivated if he chose to go to
trial, and that counsel had not visited him for seven months.
In response, counsel explained that he had tried to visit
defendant on three occasions, but twice he had experienced
difficulties arising from the fact that defendant was in a
maximum security prison. Then, shortly before the date of his
3
fourth attempted visit, the court put the case on hold so that
co-defendant Bowers could undergo a mental evaluation of his
competence to stand trial. Counsel also affirmed that he was
fully willing to continue representing defendant and explained
that his motion to withdraw was simply made in response to
defendant’s pro se motion.
After considering these arguments, the magistrate judge
denied defendant’s motion and explained why defendant’s fears
were unfounded. In addition, to accommodate defendant’s
concerns, the magistrate told defendant that if he had any
future problems with counsel he should inform the court at that
time and it would “be glad” to address the problems then.
Defendant did not subsequently raise any concerns about counsel.
The trial began on March 22, 2007. At the close of the
government’s case-in-chief, defendant moved for judgment of
acquittal under Federal Rule of Criminal Procedure 29. The
district court denied defendant’s motion. At the close of
trial, the jury convicted defendant of two counts of conspiracy
to commit assault by striking, beating or wounding, in violation
of 18 U.S.C. §§ 7(3), 113(a)(4), 371 (a lesser-included-offense
of the original counts charged); two counts of assault with a
deadly weapon, in violation of 18 U.S.C. §§ 2, 7(3), 113(a)(3);
and one count of assault resulting in serious bodily injury, in
violation of 18 U.S.C. §§ 2, 7(3), 113(a)(6). Defendant was
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sentenced to 162 months of imprisonment, three years of
supervised release, and was held jointly and severally liable
with his co-defendant for restitution of $14,540.12. Defendant
appeals his convictions.
II.
Defendant argues that the magistrate judge erred when it
denied his motion for substitution of counsel and therefore
violated his Sixth Amendment right to counsel. We review the
magistrate’s denial of the motion for abuse of discretion, see
United States v. Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir.
1994), and find none. Because defendant’s motion was timely, we
consider whether the court’s inquiry into defendant’s claims was
adequate and whether defendant and his counsel had “experienced
a total lack of communication preventing an adequate defense.”
See United States v. Reevey,
364 F.3d 151, 156-57 (4th Cir.
2004) (internal quotation marks omitted).
First, the court’s inquiry was adequate. The magistrate
considered defendant’s motion at a hearing and discussed the
matter with both defendant and his counsel. The magistrate also
addressed each of defendant’s specific concerns.
Second, the court’s inquiry did not reveal a complete
breakdown of the attorney-client relationship. Defendant
complained that he had not seen all of the relevant video
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evidence of the incident, but the court assured defendant that
counsel would make available all of the security videos.
Defendant also stated: “I believe he doesn’t want to go to trial
and if it does go to trial, he will give me an off handed
effort.” After discussing the matter, the court explained that
when counsel had previously suggested the option of a plea
bargain he was simply fulfilling his duty as a lawyer, but he
was still fully willing and able to represent defendant at trial
-- in fact, he was a “very competent attorney” with “quite a bit
of trial experience.” Contrary to defendant’s contention,
counsel’s motion to withdraw did not indicate that the attorney-
client relationship had completely deteriorated; instead, as
counsel explained at the hearing, he simply made the motion out
of deference and in response to defendant’s pro se motion for
substitution of counsel.
Defendant also complained that his counsel had not visited
him for seven months. As the court noted, the delay did not
prejudice defendant and it was out of counsel’s control: on
counsel’s third attempted visit, he was prevented from entering
the maximum security prison for security reasons because he was
wearing an orange shirt, and then, shortly before the date of
his fourth attempted visit, the entire case was postponed for
Bowers’ mental competency evaluation. We recognize that this
lack of communication left defendant legitimately worried and
6
that counsel could have handled the situation better by
notifying defendant more regularly about the progress of the
case. But this hardly rises to the level of a “total lack of
communication preventing an adequate defense.” Reevey, 364 F.3d
at 156-57 (internal quotation marks omitted).
We also note that in all events counsel did a fine job at
trial and defendant never subsequently complained about him,
even though the court stated its willingness to reevaluate the
situation if defendant experienced an “ongoing problem.”
III.
Defendant claims that the district court improperly denied
his motion for judgment of acquittal as to the two counts of
conspiracy. He argues that the government’s evidence did not
establish the necessary elements of conspiracy: chiefly, prior
agreements to commit the assaults. See United States v. Burgos,
94 F.3d 849, 857 (4th Cir. 1996) (en banc) (stating the elements
of conspiracy). Instead, he argues, the evidence showed only an
ordinary fight.
We reject defendant’s argument because, viewing the
evidence in the light most favorable to the government, we find
there 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.’” See United
7
States v. Osborne, 514 F.3d 377, 385 (4th Cir. 2008) (quoting
Burgos, 94 F.3d at 862). Specifically, there is evidence from
which a jury could legitimately infer that the two assaults by
defendant, Rector, and Bowers (the three white inmates) were
planned attacks on Hispanic inmates.
The security video of the assault on Betancourt
demonstrates that it was a prearranged, joint action. The video
shows the following: the three white inmates approached
Betancourt on the handball court, where a group of Hispanic
inmates had congregated; then, they surrounded him and, without
provocation, Bowers struck him in the back of the head, knocking
him to the ground; immediately afterwards, defendant began
punching and kicking Betancourt with steel toed boots. This
coordinated action suffices to show that the three white inmates
had previously agreed to and planned out the assault.
There is no surveillance footage of the beginning of the
assault on Jaramillo to similarly demonstrate that it was a
planned coordinated action. However, when the evidence of the
second assault is considered in light of the conspiracy to
commit the first assault, it is sufficient to support a finding
of conspiracy. The evidence of the second assault demonstrates
that the two assaults were extremely close in time and location,
they were committed by the same three white inmates, and they
were both committed against Hispanic victims. A prison guard
8
testified that the three white inmates ran immediately from the
assault on Betancourt around the corner of the gymnasium.
Moments later, this is where they were caught attacking
Jaramillo. Multiple prison officers testified to finding the
three white inmates assaulting Jaramillo in that area of the
recreation yard.
In addition, Rector made statements suggesting that both
assaults were racially motivated attacks on Hispanic inmates. A
prison intelligence officer testified that shortly after the
attack she asked Rector whether the incident was truly over, and
he responded that “as long as the Border Brothers [a Mexican
prison gang] did not return to the yard, yes, it was over.” JA
273-74. Prison security also intercepted a personal letter in
which Rector wrote: “I’m in with well respected group of dudes
(white) . . . Had to straighten a bunch of Mexicans out and a
couple of them got hurt pretty bad . . . .” JA 284-85 (reprinted
as read to the jury during trial). This evidence demonstrates a
common purpose behind the two assaults.
The evidence of the second assault, therefore, closely
links it to the conspiracy to commit the first assault and
suggests that it too was the result of a prior agreement by the
three white inmates to assault the two Hispanic inmates. This
evidence is sufficient to support the jury’s findings of
conspiracy. As we have often noted, conspiracy is “usually
9
proven” by circumstantial evidence such as this because
conspiracy is clandestine by its nature. See United States v.
Yearwood, 518 F.3d 220, 226 (4th Cir. 2008). The parties
dispute whether certain other testimony should inform our
sufficiency inquiry, but there is more than ample evidence to
sustain the jury’s verdict on the foregoing.
IV.
The judgment is accordingly
AFFIRMED.
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