United States v. Gokgok Puok , 337 F. App'x 604 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-3633
___________
United States of America, *
*
Plaintiff–Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Gokgok Puok, *
also known as Go Go, * [UNPUBLISHED]
*
Defendant–Appellant. *
___________
Submitted: June 12, 2009
Filed: July 23, 2009
___________
Before MELLOY, BEAM, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
A jury convicted Gokgok Puok of one count of conspiracy to distribute and
possess with intent to distribute cocaine base (“crack cocaine”), in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846, after having already been convicted of
two or more prior felony drug offenses. See 21 U.S.C. § 851. The jury also convicted
Puok of two counts of possession with intent to distribute crack cocaine, in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). At the close of the government’s case,
Puok moved for judgment of acquittal based on the sufficiency of the evidence. The
district court1 denied the motion. Following the jury’s verdict, Puok filed a renewed
motion for judgment of acquittal or, in the alternative, a motion for a new trial. The
district court denied both of those motions and sentenced Puok to 240 months’
imprisonment and 10 years’ supervised release. Puok appeals, arguing that the district
court erred in denying his motions for judgment of acquittal and his motion for a new
trial. Puok claims that insufficient evidence supported the jury’s verdict and that the
verdict constitutes a miscarriage of justice. We affirm.
I.
Puok argues that the district court erred in denying his motions for judgment
of acquittal based on sufficiency of the evidence. We review the denial of a motion
for judgment of acquittal de novo. United States v. Coplen, 533 F.3d 929, 931 (8th
Cir. 2008). In doing so, this court “view[s] the evidence in the light most favorable
to the government, resolve[s] conflicting evidence in the government’s favor, and
accept[s] all reasonable inferences that may be drawn from the evidence where those
inferences support the verdict.” Id. “The court will reverse a jury’s verdict only
where no reasonable jury could have found the accused guilty beyond a reasonable
doubt.” United States v. Thomas, 565 F.3d 438, 441 (8th Cir. 2009) (quotation and
alteration omitted).
To convict Puok of conspiracy to distribute and possess with intent to distribute
crack cocaine, the government was required to submit evidence sufficient to prove
beyond a reasonable doubt that (1) there was an agreement to distribute the drug, (2)
Puok knew of the agreement, and (3) he knowingly joined in the agreement. See
United States v. Johnson, 439 F.3d 947, 954 (8th Cir. 2006). To convict Puok of each
of the two counts of possession of crack cocaine with intent to distribute, the
1
The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa.
-2-
government was required to show beyond a reasonable doubt that Puok: “(1) was in
possession of cocaine base, (2) knew he was in possession of cocaine base, and (3)
intended to distribute some or all of the cocaine base.” United States v. Thompson,
285 F.3d 731, 733 (8th Cir. 2002).
Ample evidence supports the jury’s verdict for each element of all three counts.
At trial, the government presented testimony from four cooperating witnesses. The
first witness testified that he had participated in a controlled buy of crack cocaine from
Puok and had previously purchased crack cocaine from Puok on more occasions than
he was able to remember. On both direct and cross examination, the witness admitted
that he had agreed to help law enforcement officials and testify against Puok in an
effort to avoid prison time. The second cooperating witness testified that while she
did not know Puok, she had purchased crack cocaine from Puok’s codefendant four
or five times. On both direct and cross examination, the second witness admitted that
she was cooperating as part of a plea agreement and that she had entered that
agreement with the hopes of receiving a lesser sentence for several drug crimes.
The third cooperating witness testified that she had purchased crack cocaine
from Puok and one of his co-conspirators roughly five times and had driven Puok
from Sioux City, Iowa, to Lincoln, Nebraska, so that Puok could purchase crack
cocaine for resale in Iowa. On both direct and cross examination, the third witness
conceded that she was testifying for the government in hopes of avoiding drug
charges. On cross examination, in an effort to expose potential infirmities in the
witness’s testimony, Puok and his codefendant questioned the third witness about a
previous conviction for felony forgery, inconsistencies in her story, and potential
flaws in her memory.
The fourth and final cooperating witness testified that Puok had purchased
approximately two ounces of crack cocaine from him on three different occasions. On
direct examination, the government established that the witness was a cooperating
-3-
witness, and, on cross examination, the witness admitted to testifying in the hopes of
receiving a lesser sentence for a drug crime. Cross examination also revealed some
inconsistencies between the fourth witness’s trial testimony and a police report. The
witness, in fact, asserted that, initially, he had lied to the police.
Additionally, as part of its case-in-chief, the government presented evidence
apart from the testimony of the cooperating witnesses. Sioux City police officers
testified about two controlled purchases of crack cocaine from Puok that they had set
up with the help of two different confidential informants. One of those officers
testified that marked currency used in one of the controlled purchases was recovered
from Puok upon his arrest. The government also introduced a transcript of a recorded
phone call between Puok and a confidential informant for the purpose of setting up
a crack-cocaine buy, as well as other audio and video surveillance tapes of drug
activity involving Puok and his codefendant.
Puok characterizes this case as hinging solely on the testimony of the
cooperating witnesses. He argues that the testimony of those witnesses was
insufficient to support his conviction because they had personal incentives to
cooperate with the government and, as a result, were not credible. We find this claim
unpersuasive.
“We have repeatedly upheld jury verdicts based solely on the testimony of
co-conspirators and cooperating witnesses” despite the fact that they testified with the
hope of receiving leniency in exchange for their cooperation. United States v.
Coleman, 525 F.3d 665, 666 (8th Cir.), cert. denied, 129 S. Ct. 430 (2008). The
cooperating witnesses’ motivations do not make their testimony “inherently
unreliable,” Coplen, 533 F.3d at 931, and this is particularly the case when the fact of
the cooperation was “made clear to the jury . . . during direct and cross examination.”
United States v. Cannon, 475 F.3d 1013, 1016 n.2 (8th Cir. 2007). Here, the record
reflects that Puok repeatedly and thoroughly called the witnesses’ motivations and
-4-
credibility into question. Ultimately, however, the jury appears to have credited the
witnesses’ testimony. It is not our charge on appeal to second-guess the jury’s
credibility determinations. See, e.g., United States v. Bower, 484 F.3d 1021, 1025–26
(8th Cir. 2007); United States v. Lopez, 443 F.3d 1026, 1031 (8th Cir. 2006) (en
banc).
Furthermore, as outlined above, contrary to Puok’s characterization of the case,
there was incriminating evidence apart from the testimony of cooperating witnesses,
including police-officer testimony and other direct evidence of Puok’s involvement
in the charged drug crimes that demonstrated Puok’s criminal conduct. Viewing the
evidence in the light most favorable to the verdict, then, we find it sufficient to
support the convictions. As a result, we hold that the district court did not err in
denying Puok’s motions for judgment of acquittal.
II.
Puok also argues that the district court erred in denying his motion for a new
trial under Federal Rule of Criminal Procedure 33. See Fed. R. Crim P. 33(a)
(permitting the court to “vacate any judgment and grant a new trial if the interest of
justice so requires”). When deciding whether to grant such a motion, the “district
court has discretion to weigh the evidence and evaluate the credibility of witnesses,
but the court must allow the verdict to stand unless a miscarriage of justice may have
occurred.” Coplen, 533 F.3d at 931 (quotation omitted). We review the denial of a
motion for a new trial for abuse of discretion. United States v. Cole, 537 F.3d 923,
926 (8th Cir.), cert. denied, 129 S. Ct. 751 (2008).
Puok argues that the jury’s verdict resulted in a miscarriage of justice and that
a new trial is required because the witnesses who testified against him were not
credible given their motivations to provide assistance to the government. This
argument is essentially a reiteration of Puok’s appeal of the motions to acquit and
-5-
amounts to a sufficiency-of-the-evidence challenge. “Motions for new trials based on
the weight of the evidence are generally disfavored,” United States v. Campos, 306
F.3d 577, 579 (8th Cir. 2002), and we believe that Puok’s argument centering on the
credibility of the cooperating witnesses “is no more compelling on the issue of a new
trial than it was on the issue of judgment of acquittal.” United States v. Samuels, 543
F.3d 1013, 1019–20 (8th Cir. 2008), cert. denied, 129 S. Ct. 1921 (2009). As outlined
above, the evidence at trial was sufficient to support the verdict. And this is not a case
where “despite the abstract sufficiency of the evidence to sustain the verdict, the
evidence preponderates sufficiently heavily against the verdict [such] that a serious
miscarriage of justice may have occurred.” United States v. Walker, 393 F.3d 842,
847–48 (8th Cir. 2005) (quotation omitted). As discussed, the government presented
ample evidence of Puok’s involvement in the crimes charged apart from the
cooperating-witness testimony that Puok appears to challenge.
The district court considered Puok’s motion for a new trial and found that it was
unwarranted. We find that the district court did not abuse its discretion in concluding
that the “interests of justice” did not merit such relief. See Fed. R. Crim P. 33(a); see,
e.g., Coplen, 533 F.3d at 931–32 (finding no error in the district court’s denial of a
motion for judgment of acquittal and a motion for a new trial where the government
presented trial testimony from nine people who had been involved in the drug
conspiracy, despite the fact that the defendant claimed that the witnesses were
“‘incarcerated, interested witnesses, hoping to get sentence reductions’ ”).
III.
We affirm the judgment of the district court.
______________________________
-6-