UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-4392

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FRANK MICHAEL PEARSON,

Defendant - Appellant.

No. 16-4529

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FRANK MICHAEL PEARSON,

Defendant - Appellant.

Appeals from the United States District Court for the Eastern 

District of Virginia, at Alexandria. T. S. Ellis, III, Senior

District Judge. (1:15-cr-00193-TSE-1)

Submitted: January 31, 2017 Decided: February 15, 2017

Before SHEDD, AGEE, and THACKER, Circuit Judges.
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Affirmed by unpublished per curiam opinion.

Daniel Tomas Lopez, BRIGLIAHUNDLEY, PC, Tysons Corner, Virginia, 

for Appellant. Dana J. Boente, United States Attorney, Matthew 

Burke, Mark D. Lytle, Assistant United States Attorneys, 

Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Frank Michael Pearson appeals his conviction for four 

counts of embezzlement from a program receiving federal 

benefits, in violation of 18 U.S.C. § 666(a)(1)(A) (2012). 

Pearson challenges the district court’s ruling that he was 

competent to stand trial, the sufficiency of the evidence 

supporting his conviction, and the district court’s denial of 

his motion for a new trial. We reject each challenge and 

affirm.

First, we conclude that Pearson waived his challenge to his 

competency because, after moving in the district court for a 

finding of incompetency, he declined to offer any arguments in 

favor of his motion. See United States v. Robinson, 744 F.3d 

293, 298 (4th Cir. 2014) (“A party who identifies an issue, and 

then explicitly withdraws it, has waived the issue.”) (internal 

quotation marks omitted)). “When a claim of . . . error has 

been waived, it is not reviewable on appeal.” United States v. 

Claridy, 601 F.3d 276, 284 n.2 (4th Cir. 2010). We therefore do 

not review Pearson’s challenge to his competency.

Second, we reject Pearson’s challenge to the sufficiency of 

the evidence against him. “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 
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States v. Armel, 585 F.3d 182, 184 (4th Cir. 2009) (internal 

quotation marks omitted). “Substantial evidence means 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.” Id. (internal quotation marks omitted). 

We conclude that the record contains substantial evidence of 

Pearson’s guilt, including documents, bank statements, and 

testimony linking Pearson to the embezzlement scheme beyond a 

reasonable doubt.

Third, Pearson contends that the district court erred when 

it denied his motion for a new trial based on Brady v. Maryland, 

373 U.S. 83 (1963). This court reviews a district court’s 

denial of a motion for a new trial for abuse of discretion. 

United States v. Wilson, 624 F.3d 640, 660 (4th Cir. 2010). In 

doing so, the court may not substitute its judgment for the 

judgment of the district court. Id.

To receive a new trial based on Brady, “a defendant must: 

(1) identify the existence of evidence favorable to the accused; 

(2) show that the government suppressed the evidence; and (3) 

demonstrate that the suppression was material.” United States 

v. King, 628 F.3d 693, 701 (4th Cir. 2011). Pearson argues that 

the prosecution violated Brady when it withheld evidence 

supporting allegations of a third party’s wrongdoing found in an 

anonymous letter received after trial. The district court ruled 
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that Pearson only speculated that favorable evidence existed to 

support the allegations in the letter, and therefore, Pearson 

has failed to identify favorable evidence sufficient to 

establish a Brady violation. Because such speculation is 

insufficient under Brady, see United States v. Caro, 597 F.3d 

608, 619 (4th Cir. 2010), we conclude that the district court 

did not abuse its discretion when it denied Pearson’s motion for 

a new trial based on Brady.

Accordingly, we affirm the district court’s judgment and 

its order denying a motion for a new trial. We dispense with 

oral argument because the facts and legal contentions were 

adequately presented in the materials before this court and 

argument would not aid the decisional process.

AFFIRMED