UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4550

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KAREEM A. SAUNDERS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. James C. Cacheris, Senior

District Judge. (1:06-cr-00399-JCC)

Submitted: April 18, 2008 Decided: May 2, 2008

Before NIEMEYER, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

David W. O’Brien, CROWELL & MORING, LLP, Washington, D.C., for

Appellant. Chuck Rosenberg, United States Attorney, Dennis M.

Fitzpatrick, Assistant United States Attorney, Alexandria,

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Kareem Abdule Saunders appeals his convictions after a

jury trial of one count of conspiracy to distribute fifty grams or

more of crack cocaine and five kilograms or more of cocaine, in

violation of 21 U.S.C. §§ 841(a)(1), 846 (2000), and two counts of

possession of a firearm in furtherance of a drug trafficking crime,

in violation of 18 U.S.C. § 924(c) (2000). We affirm.

Saunders first asserts that the district court committed

reversible error in the instruction it gave in response to a

question from the jury regarding the definition of conspiracy.

This court has previously held that:

[I]n responding to a jury’s request for

clarification on a charge, the district court’s duty is

simply to respond to the jury’s apparent source of

confusion fairly and accurately without creating

prejudice. The particular words chosen, like the

decision whether to issue any clarification at all, are

left to the sound discretion of the district court.

United States v. Smith, 62 F.3d 641, 646 (4th Cir. 1995)(internal

citations omitted). This court has recognized that “the focus of

a conspiracy charge is the agreement to violate the law,” and

approved the admission of evidence of past drug sales as relevant

to a subsequent conspiracy. United States v. Mills, 995 F.2d 480,

484-85 (4th Cir. 1993); see also United States v. Sullivan, 455

F.3d 248, 261 (4th Cir. 2006). Our review of the record convinces

us that the district court did not abuse its discretion in its

response to the jury’s question.
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Saunders next argues that the district court erred in

denying his motion for a new trial based on the Government’s

alleged failure to disclose impeachment evidence related to Robert

Barbour. Our review of the district court’s ruling on a motion for

a new trial is for abuse of discretion. See United States v.

Rhynes, 206 F.3d 349, 360 (4th Cir. 1999) (en banc).

The Due Process Clause requires that the Government

disclose to the defense prior to trial any exculpatory or

impeaching evidence in its possession. See Giglio v. United

States, 405 U.S. 150, 153-55 (1972) (requiring disclosure of

evidence affecting the credibility of prosecution witnesses); Brady

v. Maryland, 373 U.S. 83, 86-88 (1963) (requiring disclosure of

exculpatory evidence). Due process is violated by a failure to

disclose, however, only if the evidence in question: (1) is

favorable to the defendant, because it is either exculpatory or

impeaching; (2) was suppressed by the Government; and (3) is

material in that its suppression prejudiced the defendant. See

Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Undisclosed

evidence is material when its cumulative effect is such that “there

is a reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been

different.” Kyles v. Whitley, 514 U.S. 419, 433-34 (1995)

(internal quotations omitted). A reasonable probability is one

sufficient to “undermine confidence” in the outcome. Id. at 434.
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We conclude that the district court did not abuse its discretion in

denying Saunders’ new trial motion.

Saunders next argues that the evidence of Barbour’s

shooting by another drug dealer, Jade, was improperly admitted by

the district court because it was unfairly prejudicial. Under Fed.

R. Evid. 403, relevant evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence. Review of a district court’s

determination of the admissibility of evidence is for abuse of

discretion. See United States v. Brooks, 111 F.3d 365, 371 (4th

Cir. 1997). In this case, however, Saunders did not object to

Barbour’s testimony about the shooting. We therefore review the

admission of Barbour’s testimony for plain error. United States v.

Perkins, 470 F.3d 150, 155 (4th Cir. 2006). Our review of the

record leads us to conclude that the district court did not err in

admitting the testimony in question.

Saunders’ final argument is that the evidence was

insufficient to support his conviction on the second firearms

count. A defendant challenging the sufficiency of the evidence

faces a heavy burden. United States v. Beidler, 110 F.3d 1064,

1067 (4th Cir. 1997). “[A]n appellate court’s reversal of a

conviction on grounds of insufficient evidence should be confined
*Pinkerton v. United States, 328 U.S. 640, 646-47 (1946); see

also United States v. Cummings, 937 F.2d 941, 943-45 (4th Cir.

1991) (applying Pinkerton to § 924(c) offense).

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to cases where the prosecution’s failure is clear.” United

States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984). A jury’s

verdict must be upheld on appeal if there is substantial evidence

in the record to support it. Glasser v. United States, 315 U.S.

60, 80 (1942). In determining whether the evidence in the record

is substantial, this court views the evidence in the light most

favorable to the government, and inquires whether 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. United States v. Burgos, 94 F.3d 849, 862 (4th

Cir. 1996) (en banc). In evaluating the sufficiency of the

evidence, this court does not review the credibility of the

witnesses and assumes that the jury resolved all contradictions in

the testimony in favor of the government. United States v. Romer,

148 F.3d 359, 364 (4th Cir. 1998).

Saunders acknowledges that he may be held criminally

liable as a co-conspirator for a § 924(c) violation committed by

another member of the conspiracy under the Pinkerton* doctrine. He

asserts, however, that the evidence was insufficient to establish

that the firearm was possessed in furtherance of the drug

conspiracy. We conclude that this argument is without merit.
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Accordingly, we affirm Saunders’ convictions. 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