U.S. v. Mack, 82-3215

• Decision Date: 04 January 1983
• Docket Number: No. 82-3215,82-3215
• Citation: 695 F.2d 820
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David L. MACK, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 820

695 F.2d 820

UNITED STATES of America, Plaintiff-Appellee, v. David L. MACK, Defendant-Appellant.

No. 82-3215

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Jan. 4, 1983.

James E. Bolin, Jr., Shreveport, La. (Court-appointed), for defendant-appellant.

D.H. Perkins, Jr., Asst. U.S. Atty., Shreveport, La., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before RUBIN, JOHNSON and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

In 1975, David Mack was convicted under 21 U.S.C. Secs. 841(a)(1), 846, upon trial by jury of conspiracy to distribute methamphetamine and of distributing eight ounces of methamphetamine to codefendant, James Dauman. He received concurrent terms of five and two years, which he has served. It is passing strange that this case comes to us in this proceeding and at this time as the appeal from his conviction.

In an earlier habeas corpus proceeding, 28 U.S.C. Sec. 2255, this Court remanded Mack's case to the district court after it had denied relief. We directed a hearing on whether there had been inadequate representation by counsel in perfecting an appeal back in 1975. Mack v. Smith, 659 F.2d 23 (5th Cir.1981). Pursuant to that remand the district court after a hearing found that Mack's then counsel was timely asked by Mack to file an appeal, promised to file an appeal, yet failed to do so before the appeal time ran. His later appeal was dismissed as not timely filed. In view of these findings, the district court granted Mack an out-of-time appeal from his 1975 conviction, and that appeal is now before us. The remaining portions of the Sec. 2255 motion were dismissed without prejudice and are not before us at this time.

Mack's appeal is based upon the claim that his conviction was grounded virtually entirely on perjured testimony by a coconspirator and defendant, James Dauman, and an unindicted coconspirator, his wife, Kay Dauman.

The evidence at the trial showed that Drug Enforcement Administration special agents purchased the controlled substance from James Dauman in two transactions and that Kay Dauman participated in the sales. David Mack is involved solely because the Daumans identified him as the distributor to them of the methamphetamine, and DEA agents saw him in and around the waterbed store operated by Dauman. In the instance of James Dauman, he testified as the result of a plea bargain. Kay Dauman testified upon a grant of immunity from prosecution in connection with anything to which she might testify at the trial with the exception that the immunity did not cover perjury committed at the trial. The jury was fully informed of the plea bargain and of the grant of immunity. The two witnesses testified that there had been no coercion beyond that inherently involved in a plea bargain and a grant of immunity. Dauman specifically denied that he had been threatened with thirty years in the penitentiary if he did not enter the plea bargain, and Kay Dauman denied that she had been told that if she did not testify Dauman would be given a long sentence and her unborn child would be taken away from her at birth. Testimony of government agents confirmed the testimony concerning the details of the plea bargain and the grant of immunity and the lack of coercion.

The evidence at the trial also revealed that the Daumans had committed perjury in earlier statements to the grand jury and to the government agents. The instructions to the jury specifically recognized this fact also as proper impeachment of the veracity of the government witnesses.

This appeal now relies upon the same claims of coercion of the government witnesses which were fully revealed during the trial and subjected to a jury verdict under proper specific instructions. Mack's claim is that the Daumans perjured themselves under oath at the trial in implicating Mack because of the coercion with which the DEA agents confronted them. Further, Mack shows that attorney Pat Phillips made an affidavit in 1979 to the effect that Kay Dauman had volunteered to him prior to the trial that her statement to the agents was given because of threats and coercion.

Appellant Mack first contends that this Court should order entry of a judgment of acquittal. Mack is not entitled to entry of a judgment of acquittal unless the evidence was insufficient. He contends the evidence was insufficient because the Daumans' testimony was so untrustworthy that it merited no consideration.

"The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 96 L.Ed. 680 (1942).

It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence....

United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc).

The jury is the ultimate judge of the credibility of witnesses; whether the Daumans' testimony was credible was an issue for the jury. See United States v. Lerma, 657 F.2d 786, 789 (5th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 1279, 71 L.Ed.2d 463 (1982). This Court will intervene and declare testimony incredible as a matter of law only when it "is so unbelievable on its face that it defies physical laws." Id., and cases cited. This case falls far short of that requirement. Whether their past records and present favorable treatment cast doubt upon the Daumans' credibility were questions for the jury. United States v. De Los Santos, 625 F.2d 62, 65 (5th Cir.1980); see also United States v. Garner, 581 F.2d 481, 484-486 (5th Cir.1978) (witnesses were addict-informers).

The Daumans' testimony concerning the facts constituting the offenses was consistent and uncontradicted. Moreover, it was corroborated by the agents' testimony of the transactions they had with the Daumans, and by the methamphetamine they bought, which was in evidence. None of the evidence admitted at the trial demonstrated that the Daumans lied in their testimony. We must conclude that Mack is not entitled to a judgment of...