United States v. Devin T. Green , 37 F. App'x 835 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-3099
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
Devin T. Green, also known as Twin, * [UNPUBLISHED]
*
Appellant. *
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Submitted: June 7, 2002
Filed: June 7, 2002
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Before LOKEN, BEAM, and RILEY, Circuit Judges.
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PER CURIAM.
A jury found Devin Green guilty of conspiring to distribute 5 kilograms or
more of cocaine, in violation of 21 U.S.C. § 846, and aiding and abetting the attempt
to possess with intent to distribute 500 grams or more of cocaine, in violation of 21
U.S.C. § 846 and 18 U.S.C. § 2. After denying Green’s motion for a new trial, the
district court1 sentenced him to 210 months in prison and 5 years of supervised
release. Green appeals. Upon careful review of the record, we reject his arguments
for reversal.
1
The HONORABLE FERNANDO J. GAITAN, JR., United States District
Judge for the Western District of Missouri.
We conclude, based on the evidence presented at trial, that the district court did
not clearly err in determining the relevant drug quantity, see United States v. Sarabia-
Martinez, 276 F.3d 477, 450 (8th Cir. 2002), or in giving Green a U.S.S.G. § 3B1.1
organizer/leader enhancement for supervising at least one other member of the
conspiracy, see United States v. Peters, 59 F.3d 732, 734-35 (8th Cir. 1995). Nor did
the district court abuse its discretion in denying Green’s motion for a new trial after
finding that the new evidence he produced was not credible and was not likely to
result in an acquittal. See United States v. Grey Bear, 116 F.3d 349, 350-51 (8th Cir.
1997).
We further conclude that the trial evidence, viewed in the light most favorable
to the verdict, was sufficient to support the convictions, see United States v. Johnson,
285 F.3d 744, 749-50 (8th Cir. 2002); and that admitting evidence of Green’s prior
drug conviction was not an abuse of discretion because he placed his state of mind
at issue, see United States v. Jackson, 278 F.3d 769, 771-72 (8th Cir. 2002). Green
does not identify, nor can we discern, any prosecutorial remarks that would have
deprived him of a fair trial, see United States v. Lemon, 239 F.3d 968, 972 (8th Cir.
2001); and no prosecutorial misconduct was shown regarding changes in a
government witness’s testimony where Green had the opportunity to cross-examine
the witness about whether the changes resulted from government pressure, see United
States v. LaFuente, 54 F.3d 457, 461 (8th Cir.), cert. denied, 516 U.S. 902 (1995).
We also conclude that Green waived his jury-selection argument, see United States
v. Parham, 16 F.3d 844, 847 (8th Cir. 1994); the indictment was sufficient, see United
States v. Carter, 270 F.3d 731, 736 (8th Cir. 2001); and any defects in the grand jury
process were cured by the petit jury’s verdict, see United States v. Tulk, 171 F.3d
596, 598 (8th Cir. 1999). Finally, we see no plain error in the unobjected-to jury
instructions, see United States v. Evans, 285 F.3d 664, 669 (8th Cir. 2002); and any
ineffective-assistance claim should be presented in 28 U.S.C. § 2255 proceedings, if
at all, see United States v. Martin, 59 F.3d 767, 771 (8th Cir. 1995).
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Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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