United States v. Richard English , 675 F. App'x 635 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-2199
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Richard Lee English
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: November 18, 2016
Filed: January 10, 2017
[Unpublished]
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Before BENTON and SHEPHERD, Circuit Judges, and EBINGER,1 District
Judge.
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PER CURIAM.
1
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa, sitting by designation.
Richard Lee English appeals his conviction following a jury trial of conspiracy
to distribute heroin, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and possession
of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The district
court2 sentenced English to 150 months imprisonment. On appeal, English asserts
that the evidence is insufficient to support his convictions and the district court erred
in denying his motion for acquittal. We affirm.
“We review de novo the sufficiency of the evidence to sustain a conviction,
viewing the evidence in a light most favorable to the verdict and accepting all
reasonable inferences supporting the verdict.” United States v. Colton, 742 F.3d 345,
348 (8th Cir. 2014) (per curiam) (citing United States v. Cuevas-Arrendondo, 469
F.3d 712, 715 (8th Cir. 2006)). “When reviewing the sufficiency of the evidence to
support a conspiracy conviction, we will affirm if the record, viewed most favorably
to the government, contains substantial evidence supporting the jury’s verdict, which
means evidence sufficient to prove the elements of the crime beyond a reasonable
doubt.” United States v. Lopez, 443 F.3d 1026, 1030 (8th Cir. 2006) (en banc) (citing
United States v. Crenshaw, 359 F.3d 977, 987 (8th Cir. 2004)).
In order to convict English of conspiracy to distribute heroin, the government
was required to prove: (1) English and at least one other person reached an
agreement to distribute heroin; (2) English voluntarily and intentionally joined the
agreement; and (3) at the time he joined the agreement, English knew its essential
purpose. See United States v. Bowie, 618 F.3d 802, 812 (8th Cir. 2010). In order to
convict English of possession of heroin with intent to deliver the government was
required to prove “either actual or constructive possession and intent to distribute.”
United States v. Lewis, 3 F.3d 252, 254 (8th Cir. 1993) (per curiam) (citing United
States v. Brett, 872 F.2d 1365, 1369 (8th Cir. 1989)).
2
The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
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At trial the United States presented evidence that from 2012 to 2014 English
was one of the heads of a heroin distribution organization known as “the Crew” that
operated in north Minneapolis, Minnesota. The investigation began when officers
arrested a regular customer of the Crew in possession of a small amount of heroin.
Officers used this individual to make controlled buys from members of the Crew, and
this informant provided information that enabled undercover officers to make buys
from Crew members. Officers learned that two telephone numbers were regularly
used by the Crew in receiving orders from prospective heroin purchasers. After
further investigation, which included interviews with Crew members, an indictment
was returned and filed on September 16, 2014, charging English and seven others
with conspiracy to distribute heroin. A warrant for English’s arrest was issued but
English was not immediately arrested.
It was determined that English traveled to Chicago every 10 to 14 days in order
to obtain a new supply of heroin and that English regularly used a home in Chicago.
Using a court order permitting law enforcement to track the cell phones associated
with the telephone numbers previously obtained by law enforcement, officers tracked
both cell phones to the Chicago home on the weekend of September 27, 2014. By
tracking these cell phones, officers determined that a vehicle in which English was
a passenger was returning to Minneapolis on September 30, 2014. On that date, law
enforcement officers stopped the vehicle as it entered Minneapolis. English was
arrested on the outstanding warrant and $5,440 in cash was found in his pockets.
Searches of the vehicle eventually uncovered marijuana hidden in the ceiling above
a visor and 196 grams of heroin wrapped in cellophane and stuffed in a sock
concealed in the back of the driver’s seat. Four cellular phones were found in the
vehicle, two of which were assigned the numbers used by the Crew in receiving
heroin orders.
All of English’s co-defendants entered guilty pleas pursuant to plea
agreements. A superceding indictment was returned adding the charge of possession
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of heroin with intent to distribute against English. At trial, government witnesses,
including three of English’s co-defendants, testified that they were participants in the
Crew’s criminal operations. They stated that English was a leader of the Crew who
co-ordinated the enterprise by giving instructions with respect to the Crew’s heroin
distribution network, making regular trips to Chicago to replenish the organization’s
supply of heroin, dividing the bulk quantities of heroin so obtained into smaller
amounts for distribution to the ultimate consumers, setting the price for the heroin
sales, and receiving money from the street sale of heroin.
On appeal English asserts that, although he was a passenger in a vehicle in
which drugs were hidden, neither his fingerprints nor his DNA was found on the
packaging of the heroin discovered in the vehicle; the vehicle was not licensed in his
name nor did he have exclusive control over the vehicle; he was never observed
selling heroin; the two cellular phones used to receive heroin orders which were
found in the vehicle were not listed in his name; he was not in possession of drug
paraphernalia; and he did not live a lifestyle typically associated with that of a drug
trafficker. Therefore, according to English, the government’s case rested solely on
the testimony of co-defendants who were the beneficiaries of plea agreements
providing them with sentencing concessions, and heroin addicts who testified against
English in exchange for favorable charging or sentencing decisions. He argues that
these witnesses lack credibility and thus their testimony can not support the jury’s
verdict.
In considering English’s contention we are cognizant of our obligation to
evaluate the evidence to ensure that there is sufficient evidence to prove all the
elements of the crime charged beyond a reasonable doubt. See Jackson v. Virginia,
443 U.S. 307, 313-20 (1979). And we have done so. After close examination of the
trial record, we conclude that the evidence was sufficient to support the jury’s verdict.
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In conducting an appellate review, “[t]his court does not weigh the evidence
or the credibility of the witnesses.” United States v. Wiest, 596 F.3d 906, 910 (8th
Cir. 2010) (citing United States v. Honarvar, 477 F.3d 999, 1000 (8th Cir. 2007)).
Further, “it is within the province of the jury to make credibility assessments and
resolve conflicting testimony.” United States v. Bower, 484 F.3d 1021, 1026 (8th
Cir. 2007) (citation omitted). And, although English points to a lack of evidence
corroborating the testimony of the government’s cooperating witnesses, a jury verdict
may be based solely on the testimony of cooperating witnesses. See United States v.
Smith, 632 F.3d 1043, 1046 (8th Cir. 2011) (“We have repeatedly upheld jury
verdicts based solely on the testimony of cooperating witnesses.”); United States v.
Thompson, 533 F.3d 964, 970 (8th Cir. 2008) (The “testimony of an accomplice is
sufficient to sustain a conspiracy conviction unless it is incredible or insubstantial on
its face.” (citation and alterations omitted)); United States v. Whirlwind Soldier, 499
F.3d 862, 870 (8th Cir. 2007) (“[A] conspiracy conviction may be based on indirect
or circumstantial evidence, including solely testimony from co-conspirators.”).
Accordingly, we find that the evidence was sufficient to support the jury’s verdict.
The judgment of the district court is affirmed.
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