UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4076

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LINDA MCLAURIN BURNEY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at New Bern. Louise W. Flanagan, 

Chief District Judge. (7:08-cr-00049-FL-1)

Submitted: July 20, 2011 Decided: August 5, 2011

Before KING and AGEE, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North 

Carolina, for Appellant. George E. B. Holding, United States 

Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant 

United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Linda McLaurin Burney was indicted on six counts of 

grand jury perjury, in violation of 18 U.S.C. § 1623 (2006). 

Following a bench trial, the district court convicted Burney on 

Counts One, Three, Five, and Six, acquitted her on Count Four, 

and dismissed Count Two on the Government’s motion. The 

district court departed downward from the advisory Guidelines 

sentencing range and imposed concurrent sentences of three years 

of imprisonment on each count. 

Counsel filed a brief pursuant to Anders v. 

California

We review the factual findings underlying the district 

court’s denial of a motion to suppress for clear error and the 

, 386 U.S. 738 (1967), stating that he found no 

meritorious issues for appeal, but arguing that the district 

court should have granted Burney’s motion to suppress evidence 

of her investigatory interview and should have acquitted Burney 

due to insufficient evidence to sustain the perjury convictions. 

Counsel further asserts that the district court improperly 

calculated Burney’s Guidelines range and imposed a substantively 

unreasonable sentence. We directed supplemental briefing from 

the parties on the issues of whether sufficient evidence 

supported the perjury convictions and whether the perjury 

charges were multiplicitous in violation of the Double Jeopardy 

Clause. 
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court’s legal conclusions de novo. United States v. Blake, 571 

F.3d 331, 338 (4th Cir. 2009), cert. denied, 130 S. Ct. 1104 

(2010). A factual finding is clearly erroneous if “the 

reviewing court on the entire evidence is left with the definite 

and firm conviction that a mistake has been committed.” United 

States v. Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (internal

quotation marks and citations omitted). However, “if the 

district court’s account of the evidence is plausible in light 

of the record viewed in its entirety,” we will not reverse the 

district court’s finding even if we would have “decided the 

fact[s] differently.” United States v. Stevenson, 396 F.3d 538, 

542 (4th Cir. 2005) (internal quotation marks, alteration, and 

citation omitted). 

We also defer to the district court’s credibility 

determinations, “for it is the role of the district court to 

observe witnesses and weigh their credibility during a pre-trial 

motion to suppress.” United States v. Abu Ali, 528 F.3d 210, 

232 (4th Cir. 2008) (internal quotation marks and citation 

omitted). When a motion to suppress has been denied by the 

district court, we construe the evidence in the light most 

favorable to the Government. United States v. Farrior, 535 F.3d 

210, 217 (4th Cir. 2008).

Statements obtained from a defendant during custodial 

interrogation are presumptively compelled in violation of the 
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Fifth Amendment, unless the Government shows that law 

enforcement officers adequately informed the defendant of her

Miranda rights and obtained a waiver of those rights. United 

States v. Cardwell, 433 F.3d 378, 388-89 (4th Cir. 2005). To 

determine whether a defendant was in custody for purposes of 

Miranda, courts are to determine “first, what were the 

circumstances surrounding the interrogation; and second, given 

those circumstances, would a reasonable person have felt he or 

she was not at liberty to terminate the interrogation and 

leave.” Thompson v. Keohane, 516 U.S. 99, 112 (1995) (footnote 

omitted). In other words, “[a]n individual is in custody when, 

under the totality of the circumstances, a suspect’s freedom 

from action is curtailed to a degree associated with formal 

arrest.” United States v. Colonna, 511 F.3d 431, 435 (4th Cir. 

2007) (internal quotation marks and citation omitted). 

In the present case, Burney voluntarily agreed to the 

interview, which occurred at her place of employment over a 

period of relatively short duration. The officers assured 

Burney that she was a witness, not a suspect, was not under 

arrest, and could leave at anytime. Burney was not physically 

restrained, and despite her attestation of nervousness and fear, 

the record reflects that the tone of the interview was cordial 

and non-threatening. A reasonable person in Burney’s position 

would have understood that she was free to terminate the 
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interview and was not in custody. Therefore, we conclude that 

the district court did not err in denying Burney’s motion to 

suppress. 

A challenge to a defect in the indictment must be 

brought before trial. Fed. R. Crim. P. 12(b)(3)(B); United 

States v. King, 628 F.3d 693, 699 (4th Cir. 2011). “Only upon a 

showing of good cause can a defendant avoid waiving a forfeited 

multiplicity claim.” Fed. R. Crim. P. 12(e); King, 628 F.3d at 

699. Because Burney failed to raise a multiplicity challenge 

prior to trial and has made no attempt to establish good cause 

excusing her failure to raise the challenge, she has forfeited 

appellate review of the issue. 

Nevertheless, we may exercise our discretionary 

remedial power to correct the district court if it committed 

plain error. United States v. Olano, 507 U.S. 725, 734 (1993); 

United States v. Robinson, 627 F.3d 941, 954 (4th Cir. 2010). 

Before we notice plain error, we must find (1) error was made, 

(2) is plain, and (3) affected Burney’s substantial rights. 

United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). Even 

if Burney makes this showing, we may exercise our discretion to 

correct the error only if it seriously affects the fairness, 

integrity, or public reputation of judicial proceedings. Id. 

We conclude that Burney’s observations of Reese (Counts One and 

Five), their conversations (Count Three), and Burney’s provision 
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of a list of names to investigating officers (Count Six), 

required proof of sufficiently distinct facts to support four

separate convictions. 

We review the district court’s denial of a motion for 

a judgment of acquittal de novo. United States v. Green, 599 

F.3d 360, 367 (4th Cir. 2010). “In assessing the sufficiency of 

the evidence presented in a bench trial, we must uphold a guilty 

verdict if, taking the view most favorable to the Government, 

there is substantial evidence to support the verdict.” United 

States v. Armel, 585 F.3d 182, 184 (4th Cir. 2009) (internal 

quotation marks and citation 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.” Green, 599 F.3d at 367 

(internal quotation marks and citation omitted). 

In determining whether substantial evidence supports 

the verdict, we “must consider circumstantial as well as direct 

evidence, and allow the government the benefit of all reasonable 

inferences from the facts proven to those sought to be 

established.” United States v. Cameron, 573 F.3d 179, 183 (4th 

Cir. 2009) (internal quotation marks and citations omitted). 

“Credibility determinations are within the sole province of the 

[fact finder] and are not susceptible to judicial review.” 

United States v. Lowe, 65 F.3d 1137, 1142 (4th Cir. 1995). 
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“Appellate reversal on grounds of insufficient evidence . . . 

will be confined to cases where the prosecution’s failure is 

clear.” Green, 599 F.3d at 367 (internal quotation marks, 

alteration, and citation omitted). “A defendant challenging the 

sufficiency of the evidence to support his conviction bears a 

heavy burden.” United States v. Beidler, 110 F.3d 1064, 1067 

(4th Cir. 1997) (internal quotation marks and citation omitted). 

To convict Burney of grand jury perjury under 18 

U.S.C. § 1623, the Government was required to prove beyond a 

reasonable doubt: 

(1) that the defendant gave false testimony to the 

grand jury under oath; (2) that the testimony was 

false; (3) that the false testimony was given 

knowingly; and (4) that the subject matter of the 

testimony was material to the grand jury’s 

investigation. 

United States v. Sarihifard, 155 F.3d 301, 306 (4th Cir. 1998). 

A defendant is not guilty of perjury if the false testimony 

resulted from confusion, mistake, or faulty memory. United 

States v. Dunnigan, 507 U.S. 87, 94 (1993); Sarihifard, 155 F.3d 

at 306. The parties stipulated to materiality. Our review of 

the record leads us to conclude that the evidence was sufficient 

to establish the remaining elements of perjury. 

We review Burney’s sentence for an abuse of 

discretion. Gall v. United States, 552 U.S. 38, 51 (2008). The 

first step in this review requires us to ensure that the 
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district court committed no significant procedural error. 

United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008). 

“Procedural errors include failing to calculate (or improperly 

calculating) the Guidelines range, treating the Guidelines as 

mandatory, failing to consider the [18 U.S.C.] § 3553(a) 

factors, or failing to adequately explain the chosen sentence–

including an explanation for any deviation from the Guidelines.” 

United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) 

(internal citation and quotation marks omitted). The district 

court must make an individualized assessment based on the facts 

presented by applying the relevant § 3553(a) factors to the 

circumstances of the case. Gall, 552 U.S. at 51. The court 

then considers the substantive reasonableness of the sentence, 

taking into account the totality of the circumstances. 

We conclude that the district court did not 

procedurally or substantively err in sentencing Burney. The 

court properly calculated the Guidelines range, considered the 

relevant § 3553(a) factors, made an individualized assessment 

based on the facts presented, and adequately explained its 

reasons for the chosen sentence well below the properly 

calculated Guidelines range. Accordingly, we affirm Burney’s 

convictions and sentences.

Id.

In accordance with Anders, we have reviewed the entire 

record and found no other meritorious issues for appeal. This 
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court requires counsel to inform Burney, in writing, of the 

right to petition the Supreme Court of the United States for 

further review. If she requests that a petition be filed, but 

counsel believes that such a petition would be frivolous, then 

counsel may move in this court for leave to withdraw from 

representation. Counsel’s motion must state that a copy thereof 

was served on Burney. 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