United States v. Spykes ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40840
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY RICHARD SPYKES, also known as Boss Larry,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:01-CR-44-2
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December 10, 2002
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
A jury convicted Larry Richard Spykes (Spykes) of conspiracy
to manufacture, distribute, or possess with intent to
manufacture, distribute or dispense methamphetamine under
21 U.S.C. §§ 841(a)(1), 846. He contends that there was
insufficient evidence to sustain the jury’s verdict. Spykes’
appeal is based upon his contention that the testimony of three
of his co-conspirators was not credible because they were offered
*
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that this opinion should not be published and is not precedent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.
No. 02-40840
-2-
leniency in their sentencing in exchange for their testimony.
Spykes also specifically challenges the testimony of the co-
conspirator Randell Thompson (Thompson), asserting that newly
discovered evidence has revealed that Thompson was lying during
his trial testimony.
Spykes did not move for judgment of acquittal after the
Government rested its case or at the end of the trial;
consequently, our review of the sufficiency of the evidence is
limited to determining “whether there was a manifest miscarriage
of justice.” United States v. Galvan, 949 F.2d 777, 783 (5th
Cir. 1991) (internal quotation marks and citation omitted).
None of the witnesses whose testimony is attacked testified
as to facts that they “physically could not have observed or
events that could not have occurred under the laws of nature.”
United States v. Gadison, 8 F.3d 186, 190 (5th Cir. 1993)
(internal quotation marks and citation omitted). In addition,
the jury was made aware that each of the co-conspirators had
entered into a plea agreement with the Government, was apprised
of the terms of those agreements, and was instructed by the
district court to carefully weigh the credibility of the
government witnesses who had plea agreements. We will not
second-guess the jury’s determination of credibility. See United
States v. Green, 293 F.3d 886, 895 (5th Cir. 2002).
Spykes’ attack on Thompson’s testimony simply is another
method of attacking a witness’ credibility. At most, Spykes’
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newly discovered evidence is cumulative and impeaching and,
therefore, as a matter of law, is not sufficient basis for
granting the relief sought by Spykes. See United States v. Mack,
695 F.2d 820, 822 (5th Cir. 1983).
Accordingly, the judgment of the district court is hereby
AFFIRMED.