U.S. v. Gadison

• Decision Date: 15 November 1993
• Docket Number: No. 92-4218,92-4218
• Parties: 39 Fed. R. Evid. Serv. 1312 UNITED STATES of America, Plaintiff-Appellee, v. Terrence GADISON and Earnest Eugene Ferrell, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 186

8 F.3d 186

39 Fed. R. Evid. Serv. 1312

UNITED STATES of America, Plaintiff-Appellee, v. Terrence GADISON and Earnest Eugene Ferrell, Defendants-Appellants.

No. 92-4218.

United States Court of Appeals Fifth Circuit.

Nov. 15, 1993.

Gary M. Polland, and Stephen Morris, Houston, TX (court-appointed), for Gadison.

Charles M. Meadows, Jr., Dallas, TX (court-appointed), for Ferrell.

Earnest E. Ferrell, pro se.

Tom Kiehnhoff, Asst. U.S. Atty., Bob Wortham, U.S. Atty., Beaumont, TX, for U.S.

Appeals from the United States District Court for the Eastern District of Texas.

Before KING and BARKSDALE, Circuit Judges, and DUPLANTIER, ^* District Judge.

DUPLANTIER, District Judge:

Defendants Terrence Gadison and Earnest Eugene Ferrell were convicted of conspiracy to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) & 846. They both appeal their convictions and sentences. We affirm Gadison's conviction but vacate his sentence and remand for resentencing. We affirm Ferrell's conviction and sentence.

I. Sufficiency of the Evidence.

Both defendants contend that the district court erred in denying their motions for judgment of acquittal based upon the insufficiency of the evidence. The convictions of both Gadison and Ferrell are based, in large measure, upon the testimony of their alleged co-conspirators, Tarolynn Scott and William Simpson. Defendants contend that the testimony of these individuals was incredible as a matter of law and that therefore, the evidence was insufficient to support their convictions. Gadison also argues that the evidence did not establish the amount of cocaine base for which he was convicted. Ferrell contends that even considering the co-conspirators' testimony, the evidence at trial proved only that he associated with members of a drug conspiracy and was often present at a notorious drug haunt.

In assessing the sufficiency of evidence, "we determine whether, viewing the evidence and the inferences that may be drawn from it in the light most favorable to the verdict, a rational jury could have found the essential elements of the offenses beyond a reasonable doubt." United States v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2952, 119 L.Ed.2d 575 (1992). In order to support a conviction, the evidence need not eliminate all possible hypotheses of innocence or be wholly inconsistent with every conclusion except guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. Id. In assessing the sufficiency of evidence, a reviewing court is not to make determinations concerning the credibility of witnesses. United States v. Casel, 995 F.2d 1299, 1303 (5th Cir.1993).

A detailed discussion of the evidence is unnecessary. Suffice it to say that the testimony of both of the alleged co-conspirators, Scott and Simpson (some of which is discussed in detail hereafter), if believed by the jury, was amply sufficient to establish that each defendant voluntarily agreed together and with others to possess 50 grams or more of cocaine base with intent to distribute the drug. See United States v. Rodriguez, 993 F.2d 1170, 1175 (5th Cir.1993). Moreover, the circumstantial evidence to corroborate that testimony was strong, ¹ and the testimony of both defendants to the contrary was incredible in many respects.

A. Incredibility of the Government's Witnesses

Both Gadison and Ferrell contend that the testimony of Scott and Simpson, their alleged co-conspirators who testified pursuant to plea agreements, was incredible as a matter of law because it was uncorroborated, often contradictory, and given in connection with plea agreements with the government. Additionally, both defendants contend that the jury should have disregarded Scott's testimony on account of her various disabilities. ²

It is well established that a conspiracy conviction may be based upon the uncorroborated testimony of a co-conspirator, even when that testimony is from one who has made a plea bargain with the government, provided that the testimony is not incredible or otherwise insubstantial on its face. United States v. Osum, 943 F.2d 1394, 1405 (5th Cir.1991). Because the jury is the ultimate arbiter of witness credibility, "[t]he test for 'incredibility' of a witness is an extremely stringent one." Casel, 995 F.2d at 1304. To be considered incredible as a matter of law, a witness' testimony must "assert[ ] facts that the witness physically could not have observed or events that could not have occurred under the laws of nature." Osum, 943 F.2d at 1405.

There is nothing in the testimony of Simpson and Scott which indicates that either of them testified as to facts that they could not have possibly observed or which challenge the laws of nature. Therefore their testimony can not be considered incredible as a matter of law. See Casel, 995 F.2d at 1304-05.

Defendants' arguments regarding Scott's disabilities speak only to her credibility, not the admissibility of her testimony. See, e.g., United States v. Garner, 581 F.2d 481, 485 (5th Cir.1978) (explaining fact that witness is drug user bears upon witness credibility). We reiterate that we are "concerned only with the sufficiency--not the weight--of evidence." United States v. Garcia, 995 F.2d 556, 561 (5th Cir.1993).

Because the jury was the final arbiter of the credibility of the government's two primary witnesses, the jury's decision to credit the testimony of Scott and Simpson cannot be disturbed on appeal. See id.

B. Fifty Grams of Cocaine Base--Gadison

Gadison contends that the government's evidence is insufficient to support a finding that the conspiracy for which he was convicted involved 50 grams or more of cocaine base, as charged in the indictment. Gadison emphasizes his view that the only evidence with respect to the amount of cocaine base involved in the conspiracy was with respect to the amount seized when Scott and Simpson were arrested, 36.30 grams.

Contrary to Gadison's assertions, the record contains ample evidence to support the jury's conclusion that more than 50 grams of cocaine base were involved in this conspiracy. Tarolynn Scott testified that the 36.30 grams seized from the car when she was arrested had an approximate value of $1,400.00. She also testified that on another of the seven to eight trips she made to Port Arthur to sell crack cocaine for Gadison, she had observed Gadison count out $3,200.00 in drug proceeds. The reasonable inference to be drawn from this testimony is that at least one of Scott's trips to Port Arthur involved over 80 grams of cocaine base. Viewed favorably to the verdict, Scott's testimony alone established that the conspiracy involved 50 grams of cocaine base. Simpson also testified that the amount of crack cocaine sold on each of the five trips he made to Port Arthur was approximately an ounce and one-half or approximately 42 grams per trip. After a careful review of the record, we conclude that, based upon the testimony of Scott and Simpson, a rational jury could find beyond a reasonable doubt that the conspiracy of which Gadison was a member involved at the very least 50 grams of cocaine base.

II. Denial of Appointment of Investigator--Ferrell.

Prior to trial, Ferrell's counsel filed a motion pursuant to 18 U.S.C. § 3006A(e)(1) for the appointment of a private investigator at the government's expense. In this motion, counsel asserted that Ferrell was unable financially to employ investigative services and that an investigation was required because "the charges include allegations of offenses which supposedly took place in December, 1990 and January, 1991, and some of which may have occurred in Harris County, Texas." The district court denied Ferrell's motion. Ferrell contends that the district court erred in denying his request for the appointment of an investigator and that he was prejudiced because witnesses who were to testify on his behalf could not make the trip from Houston to Beaumont.

We review the district court's refusal to appoint an investigator " 'in light of only the information available to the trial court at the time it acted on the motion.' " United States v. Davis, 582 F.2d 947, 951 (5th Cir.1978) (quoting United States v. Theriault, 440 F.2d 713, 715 (5th Cir.1971)), cert. denied, 441 U.S. 962, 99 S.Ct. 2408, 60 L.Ed.2d 1067 (1979). To justify the authorization of investigative services under § 3006A(e)(1), a defendant must demonstrate with specificity, the reasons why such services are required. Id.

In Davis, we held that a request for investigative services did not pass muster under § 3006A(e) where the defendant failed to provide an explanation of the relevance of witnesses he wished to contact, he failed to identify any leads he wished to follow, and he did not demonstrate that he had exhausted other investigative efforts. 582 F.2d at 951-52.

The motion filed by Ferrell's counsel did not show with any specificity that investigative services at the government's expense were merited. No indication was made that any prospective witnesses or other evidence existed in Harris County likely to be relevant to Ferrell's defense. Moreover, no showing was made that defense counsel had ferreted out information through his own efforts which was likely to lead to the discovery of relevant evidence. Without such specificity, the district court could not adequately appraise Ferrell's need for investigative services. The trial court did not abuse its discretion in denying Ferrell's motion.

III. Prior Conviction--Ferrell.

In September of 1990, Ferrell was convicted in Texas state court of unlawful possession of cocaine. In the present case, Ferrell filed a motion in limine at trial seeking to prevent any reference to this prior conviction at trial. Outside of the presence of the jury, the government offered Ferrell's prior conviction under Fed.R.Evid. 404(b) to establish his...