USCA4 Appeal: 21-4245 Doc: 32 Filed: 12/13/2022 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4245

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHN MARSHALL HIGGINS,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Lynchburg. Norman K. Moon, Senior District Judge. (6:18-cr-00010-NKM-1)

Submitted: October 28, 2022 Decided: December 13, 2022

Before AGEE and RICHARDSON, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Grady W. Donaldson, Jr., SCHENKEL & DONALDSON, P.C., Lynchburg, Virginia, for Appellant. Christopher Kavanaugh, United States Attorney, Roanoke, Virginia, Jean B. Hudson, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4245 Doc: 32 Filed: 12/13/2022 Pg: 2 of 5

PER CURIAM:

A federal grand jury charged John Marshall Higgins, the former superintendent of

Rockbridge Regional Jail (“RRJ”) in Lexington, Virginia, with, inter alia, three counts of

willfully depriving an inmate, Robert Eugene Clark, of his civil rights, in violation of

; attempt and conspiracy to commit honest services fraud, in violation of

, 1346, 1349; and two counts of honest services fraud, in violation of

, 1341, 1346. After a bench trial, the district court found Higgins guilty on all

of these counts, and sentenced him to 51 months’ imprisonment.

On appeal, Higgins challenges the sufficiency of the evidence on all counts of

conviction. With respect to the first three counts, Higgins contends there is insufficient

evidence to demonstrate that he willfully deprived Clark of his civil rights. For the honest

services fraud counts, Higgins asserts that there is insufficient evidence that he acted in his

official capacity to treat an inmate at the jail preferentially in exchange for donations to a

scholarship fund Higgins helped establish in memory of his nephew. We now affirm.

We review de novo a challenge to the sufficiency of the evidence. United States v.

Bran,

(4th Cir. 2015). In assessing the sufficiency of the evidence, we

consider whether there is substantial evidence to support the convictions when viewed in

the light most favorable to the government. United States v. Haas,

(4th

Cir.), cert. denied,

(2021). “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.”

(cleaned up). In making this

determination, we may not resolve conflicts in the evidence or evaluate witness credibility.

2 USCA4 Appeal: 21-4245 Doc: 32 Filed: 12/13/2022 Pg: 3 of 5

United States v. Savage,

(4th Cir. 2018). “A defendant who brings a

sufficiency challenge bears a heavy burden, as appellate reversal on grounds of insufficient

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

(internal

quotation marks omitted).

For the counts related to inmate Clark, the Government was required to prove that

(1) Higgins deprived Clark of a right secured under the Constitution or the laws of the

United States, (2) Higgins acted willfully, and (3) Higgins acted under color of law, in

order for Higgins to have been found guilty of a misdemeanor. United States v. Perkins,

, 153 n.3 (4th Cir. 2006). If the Government could also prove that Higgins’

deprivation resulted in bodily injury, Higgins would be guilty of a felony.

;

Perkins,

. Here, the district court found Higgins guilty of a felony for

two of the counts, and of the lesser-included misdemeanor for the final count.

Higgins does not contest that Clark was deprived of a right secured under the

Constitution or the laws of the United States, that Higgins acted under color of law, or that

Clark suffered bodily injury for the felony convictions. Instead, Higgins contends that

there is insufficient evidence that he acted willfully, or that he was the responsible party on

each count. We have thoroughly reviewed the records and the briefs on appeal and

conclude, however, that the overwhelming weight of the evidence supports Higgins’

convictions on these counts.

Turning to the counts charging honest services fraud, “[t]o obtain a conviction for

mail fraud, the [g]overnment must prove (1) the existence of a scheme to defraud and (2)

the use of the mails (or another interstate carrier) for the purpose of executing the scheme.”

3 USCA4 Appeal: 21-4245 Doc: 32 Filed: 12/13/2022 Pg: 4 of 5

United States v. Delfino,

(4th Cir. 2007); see

. As

defined for purposes of the statute, “the term ‘scheme or artifice to defraud’ includes a

scheme or artifice to deprive another of the intangible right of honest services.”

. The Supreme Court has interpreted the honest services fraud provision in § 1346

to apply only to schemes involving bribery or kickbacks. Skilling v. United States,

(2010). The Court also explained that § 1346 draws content “from

federal statutes proscribing—and defining—similar crimes,” including

(proscribing bribery of public officials).

.

“Bribery requires intent to be influenced in an official act. In other words, for

bribery there must be a quid pro quo—a specific intent to give or receive something of

value in exchange for an official act.” United States v. Sun-Diamond Growers of Cali.,

(1999) (cleaned up). “The government does not have to prove an

explicit promise to perform a particular act made at the time of payment. [Instead, i]t is

sufficient if the defendant understood that he was expected as a result of the payment to

exercise particular kinds of influence as specific opportunities arose.” United States v.

Ganim,

(2d Cir. 2007) (cleaned up). In other words, “bribery can be

accomplished through an ongoing course of conduct, so long as the evidence shows that

the favors and gifts flowing to a public official are in exchange for a pattern of official

actions favorable to the donor.” Woodward v. United States,

(1st Cir.

2018) (internal quotation marks omitted). The Government may prove intent through

circumstantial evidence. United States v. Jennings,

(4th Cir. 1999).

4 USCA4 Appeal: 21-4245 Doc: 32 Filed: 12/13/2022 Pg: 5 of 5

Higgins contends that nothing in the record supports any inference that he acted in

his official capacity because of any contribution made to the scholarship fund. After

reviewing the record, we conclude that substantial evidence supports Higgins’ conviction

on all three counts. Higgins provided benefits to the inmate whose family donated to

Higgins’ fund in a clear course of conduct demonstrating a pattern of the provision of such

benefits in exchange for the donations. Higgins’ consistent actions favoring this inmate

reflect an intent to exercise his influence on the inmate’s behalf whenever an opportunity

arose. See Jennings,

(“[P]ayments may be made with the intent to retain

the official’s services on an ‘as needed’ basis, so that whenever the opportunity presents

itself the official will take specific action on the payor’s behalf.”); see also Ganim,

.

Accordingly, we affirm the criminal judgment. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

AFFIRMED

5