United States v. Davis

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 22, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-50330 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DARRELL DEWAYNE DAVIS; DERRICK TOMMY ROBINSON,

Defendants-Appellants.

Appeals from the United States District Court for the Western District of Texas USDC No. W-00-CR-25-1

Before GARWOOD, WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

Darrell Dewayne Davis and Derrick Tommy Robinson

(collectively, “the defendants”) appeal their convictions and

sentences for conspiracy to possess with intent to distribute at

least fifty grams or more of crack cocaine in violation of 21

U.S.C. §§ 841 and 846. The defendants argue that: (1) the district

* Pursuant to 5TH CIR. R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. court erred in admitting evidence of drug transactions that took

place prior to the dates of the conspiracy alleged in the

indictment; (2) the district court committed plain error by

allowing the case agent to testify concerning information that he

received from an informant; (3) the evidence is insufficient to

support the convictions; and (4) the district court erred in

sentencing them based upon drug quantities provided by cooperating

individuals.

The defendants argue that the district court erred in

admitting evidence of acts that occurred outside of the dates

specified in the indictment as the dates of the conspiracy. The

evidence introduced by the Government established the connection

between the witnesses and the defendants and provided the jury with

necessary background information about how they met and became

involved in drug activities. This evidence constituted admissible

intrinsic evidence. See United States v. Miranda, 248 F.3d 434,

440-41 (5th Cir.), cert. denied, 534 U.S. 980 (2001). Accordingly,

the district court did not abuse its discretion in admitting the

evidence.

The defendants argue that the district court erred in allowing

Officer Reginald Johnson to testify as to what an informant told

him in response to the prosecutor’s question as to why he began his

investigation of the defendants, alleging this testimony

constituted inadmissible hearsay. Because the defendants failed to

2 object to this testimony or otherwise preserve the issue below,

this court’s review is for plain error. United States v. Morrow,

177 F.3d 272, 295-96 (5th Cir. 1999). Thus, reversal is

appropriate only if the alleged error was obvious, substantial,

and, if not corrected, would “seriously affect the fairness,

integrity, or public reputation of judicial proceedings.” Id. The

verdict must be left in “grave doubt” to require reversal due to an

improperly admitted statement. Koteakos v. United States, 66 S.Ct.

1239, 1248 (1946). Far from calling the verdict into serious

question, the testimony of Officer Johnson regarding the tip of the

informant that triggered the investigation was likely harmless

because there was a mountain of cumulative testimonial and physical

evidence establishing the defendants’ guilt. Further, the

informant’s tip concerned activity well before the date on which

the charged conspiracy between the defendants began and upon

defendants’ objection to other testimony related to defendants’

activity prior to the conspiracy, the trial court gave a limiting

instruction to the jury that such evidence is only for purposes of

background. For these reasons, any error in admitting Johnson’s

statement was negligible and certainly was not so manifestly unjust

as to cast serious doubt on the verdict.

The defendants argue that the evidence against them is

insufficient to support their convictions. The defendants contend

that the evidence was inconsistent and based upon conjecture by two

3 of the Government’s main witnesses. Because the defendants did not

renew their motions for judgment of acquittal at the close of all

evidence, or in a post-trial motion, review “is limited to

determining whether there was a manifest miscarriage of justice.”

United States v. McIntosh, 280 F.3d 479, 483 (5th Cir. 2002)

(internal quotation and citation omitted).

This court will not disturb the jury’s credibility

determinations. See United States v. Wise, 221 F.3d 140, 147 (5th

Cir. 2000). The record in this case contains ample evidence from

which the jury could conclude that the defendants were involved in

a conspiracy to possess with the intent to distribute at least

fifty grams or more of crack cocaine. Accordingly, the defendants

have not demonstrated that the record is devoid of evidence of

their guilt and have thus failed to show a manifest miscarriage of

justice. See McIntosh, 280 F.3d at 483.

Finally, the defendants argue that the trial court erred in

sentencing them based on the drug quantities listed in the PSR

because those quantities were based on the unreliable testimony of

the Government’s two main witnesses. The defendants contend that

this testimony should have been discounted by the district court.

An appellate court defers to the district court’s credibility

calls made at a sentencing hearing. See United States v. Perez,

218 F.3d 323, 331-32 (5th Cir. 2000). The defendants did not

testify at the sentencing hearing, nor did they present any

4 evidence to rebut the drug quantities set forth in the PSR.

Accordingly, they have not demonstrated that the district court’s

findings as to drug quantity were “materially untrue.” See United

States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996).

AFFIRMED.