United States v. Lewis

• Decision Date: 30 September 2020
• Docket Number: No. 19-2549,19-2549
• Citation: 976 F.3d 787
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Robert LEWIS, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

976 F.3d 787

UNITED STATES of America, Plaintiff - Appellee

v.Robert LEWIS, Defendant - Appellant

No. 19-2549

United States Court of Appeals, Eighth Circuit.

Submitted: September 25, 2020

Filed: September 30, 2020

Counsel who represented the appellant was Alfred E. Willett of Cedar Rapids, IA.

Counsel who represented the appellee was Lisa C. Williams, AUSA, of Cedar Rapids, IA.

Before SMITH, Chief Judge, BENTON and KOBES, Circuit Judges.

BENTON, Circuit Judge.

Robert Lewis was convicted of conspiracy to distribute a controlled substance under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and sentenced to 360 months in prison. He appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

At trial, nine witnesses testified for the government. Many acknowledged cooperating for a reduced sentence. The out-of-state drug supplier, M.P., testified he provided meth by mail. He said that Blue Schmitt, then-leader of the enterprise, brought him into Schmitt's "circle of trust," introducing him to Lewis and other friends. Schmitt gathered Lewis and others to plan for Schmitt's leaving the enterprise. A coconspirator, C.W., testified that Schmitt "was going to go on the run and that I would ultimately take over. All the methamphetamine that Blue [Schmitt] was getting I would now get and distribute." According to C.W., Lewis "would help me out, that it would be me that was responsible but that he would be the one to help me out to deliver and pick up the money." The supplier, M.P., testified he asked Lewis "if he would take over" from Schmitt. Lewis told M.P. that C.W. "was going to take over the enterprise" and "was going to get help from. ... Lewis." Lewis promised M.P. that he would "look out for – making sure that [C.W.] was doing things okay." M.P. believed Lewis meant "he would make sure that [C.W.] wouldn't overspend the money that was not his."

C.W. testified that after he took over, "Ultimately, I was responsible for receiving all the methamphetamine, and I was responsible for paying for it." He said he received a six-to-ten-pound shipment each week. He gave Lewis half to "deliver to the certain people that he knew" and for personal use. Lewis did not have a driver's license. A coconspirator testified he was Lewis's "taxi driver. If he needed to go somewhere, I gave him a ride. If he needed to drop some meth off or drugs off, I would give him a ride. Whatever he needed to do." C.W. said he hired a second driver to take Lewis "around to deliver methamphetamine and pick up money."

Lewis participated in the enterprise with C.W. for a "couple months, three months," according to C.W. Their relationship ended because Lewis "wouldn't bring in the money, wouldn't keep track of who he took the ounces to," and did not repay C.W. for drugs Lewis kept for personal use.

In addition to testimony, the government offered records of phone calls and text messages to Lewis from coconspirators. The government also offered a video of a traffic stop, and a package of meth mailed by a coconspirator to Lewis.

The district court¹ instructed the jury that a guilty defendant was "responsible for ... any methamphetamine that fellow conspirators actually distributed or agreed to distribute during the conspiracy that was reasonably foreseeable as a necessary or natural consequence of the conspiracy." The jury found Lewis guilty of conspiracy to distribute meth.

After trial, Lewis moved for new trial based on newly discovered evidence. He offered an affidavit of an inmate, L.G., who overhead two government witnesses "comparing their stories of what they were going to testify to in court. ... rehearsing their stories and ... joking about how they were going to stick Robert Lewis with all of this." L.G. also heard one witness "talking to somebody on the phone and telling them what was going on in the courtroom that day," saying, "Lewis is really stupid and is going to get a lot more time in prison."

The district court held an evidentiary hearing on the motion. L.G. testified about his affidavit that "some of the details in here are inaccurate"—including that he heard government witnesses "talking and comparing their stories of what they were going to testify to in court." He testified that "the conspiring and rehearsing their stories, I don't remember them doing that." Instead, "What I heard was just they would come back from ... court ... and were just ... comparing what had happened in the courtroom." L.G. overheard them saying only "how stupid they thought Bob [Lewis] was. ... just generally speaking," and not "specifically to an issue." L.G. testified he did not "specifically" hear the witnesses say that "they were going to stick Robert Lewis with all of this." Also, L.G. said the only phone call he overheard was one witness saying that "when they were in the courtroom or something when nobody was around or when everybody had their backs to him ... [Lewis] mouthed the words ‘I'm going to kill you’ " to the witness. Jail call records also contradicted L.G.’s affidavit.

At the end of the hearing, the district court made a "factual finding" on L.G.’s lack of credibility: "I don't believe a word [L.G.] said. I think he will say whatever is necessary depending on who is talking to him and how he thinks he might benefit at the time." L.G. "was a horrible witness. He had to think about everything. It appeared to me that he had perjury concerns running through his brain. ... I've never seen a witness so unsure about how to answer even basic questions. My credibility finding at this point is basically [L.G.] has none." The district court denied Lewis's motion for new trial.

At sentencing, C.W. testified that Lewis threatened him with physical harm for cooperating with the government. According to C.W., after he testified at trial, Lewis repeated "for an hour continuously" that C.W. "was going to find out what happened to rats when you get to prison." Lewis also "mouthed the words ‘you're a dead man’ " to him. Another government witness, M.P., testified that Lewis told other inmates that M.P. was a cooperating witness, causing them to threaten him. M.P. heard "Lewis had put a $50,000 hit on my head. ... to kill me."

The district court found a base offense level of 38. It found Lewis responsible for 21.77 kilograms of meth, crediting C.W.’s trial testimony on drug quantity. The district court granted enhancements, including for drug quantity, manager-or-supervisor role, and obstructing justice. With all enhancements, Lewis's offense level would be 45, but the guidelines limited it to 43. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table). For an offense level of 43, the guidelines recommended a life sentence. Id. The district court granted Lewis a downward variance to 360 months. The court said that even if it erred in the obstructing-justice enhancement, "I would still say that I would come up with 360 months as an appropriate sentence."

Lewis appeals the sufficiency of evidence for his conviction, the denial of his motion for new trial based on newly discovered evidence, and his sentence.

II.

Lewis argues insufficient evidence supports his conviction. This court reviews "the sufficiency of the evidence de novo, considering the evidence in the light most favorable to the government and drawing all reasonable inferences in favor of the verdict." United States v. White , 962 F.3d 1052, 1055 (8th Cir. 2020). "A jury verdict will not lightly be overturned," and this court "will affirm if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Bradshaw , 955 F.3d 699, 704-05 (8th Cir. 2020) (cleaned up).

"To convict an individual of conspiracy to distribute a controlled substance under 21 U.S.C. § 846, the Government must prove (1) a conspiracy to distribute methamphetamine existed; (2) the defendant knew about the conspiracy; and (3) the defendant knowingly became a part of the conspiracy." Id. at 705 (internal quotations omitted). Lewis disputes the second and third elements.

Lewis argues that witnesses testifying about his involvement in the conspiracy lacked credibility because they cooperated with the government for reduced sentences and gave inconsistent testimony. Cooperating witnesses acknowledged they hoped for sentence reductions. Some testimony on drug quantities differed. "However, it is not this court's role to weigh the evidence or the credibility of the witnesses." Id. (internal quotations omitted) (holding there was sufficient evidence for a rational jury to find, beyond a reasonable doubt, that a defendant knew about and actively participated in a conspiracy to distribute meth). Instead, this court "must resolve credibility issues in favor of the verdict." Id. This court has "repeatedly upheld jury verdicts based solely on the testimony of conspirators and cooperating witnesses, noting it is within the province of the jury to make credibility assessments." United States v. Hamilton , 929 F.3d 943, 946 (8th Cir. 2019) (rejecting defendant's attack on witnesses’ credibility even though they testified in exchange for plea deals or sentence reductions and had previously lied to government officials).

The government corroborated the testimony with physical evidence. Law enforcement intercepted a package of meth sent by a coconspirator to Lewis. The government introduced records of phone calls and text messages to Lewis from coconspirators. See United States v. Mayfield , 909 F.3d 956, 963 (8th Cir. 2018) (holding evidence of conspiracy to distribute meth was "more than sufficient" because circumstantial evidence, including phone records and other physical evidence, corroborated cooperating witnesses’ testimony); United States v. Tillman , 765 F.3d 831, 834 (8th Cir. 2014) (holding evidence of conspiracy to distribute meth was sufficient because phone records corroborated cooperating witnesses’ testimony). Contrary to Lewis's assertion, the government proved more than mere...