United States v. Terry Dawkins

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0663n.06
Nos. 07-6493, 08-5315, 08-5422
FILED
Sep 28, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
CONNIE JERMAINE YOUNG, (07-6493) ) DISTRICT OF TENNESSEE
TERRY L. DAWKINS, (08-5315) )
ELISA GROOMS, (08-5422) ) OPINION
)
Defendants-Appellants. )
)
BEFORE: McKEAGUE and WHITE, Circuit Judges; MARBLEY, District Judge.*
McKeague, Circuit Judge. Fourteen defendants were indicted on a conspiracy to distribute
cocaine and cocaine base. Many of the defendants pleaded guilty, while three–Connie Jermaine
Young, Terry Dawkins, and Elisa Grooms–pleaded not guilty and went to trial. All three were found
guilty and, in this consolidated appeal, they now allege a number of errors including prosecutorial
misconduct, insufficiency of the evidence, and the inadmissibility of a variety of evidence and
testimony at trial. For the reasons given below, we affirm.
I.
*
The Honorable Algenon L. Marbley, United States District Judge for the Southern District
of Ohio, sitting by designation.
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The general shape of the conspiracy, as established through the proofs at trial, was as follows.
Rickey Story spearheaded a conspiracy to sell significant amounts of cocaine and cocaine base in
the Eastern District of Tennessee. The conspiracy ultimately involved fourteen people, eleven of
whom pleaded guilty. Story would receive the drugs from two sources: a source called “Carlos,”
who was never apprehended, and a source in South Carolina. Evidence at trial indicated that Young
was the source in South Carolina. Story would go to South Carolina several times a week,
accompanied by Dawkins. They would return with nine to eighteen ounces of cocaine at a time.
They would then cook some of the cocaine into crack cocaine. Story would then give powder
cocaine and crack cocaine to Dawkins, Grooms, Timothy Collins and multiple others to sell in and
around eastern Tennessee.
Story had relationships with several women involved in the conspiracy. He was married to
Amy Leonard, and he dated both Debra Demery and Grooms. Story also had a child with Grooms.
All three women were involved in the conspiracy.1 Leonard and Demery testified at trial regarding
the conspiracy.
A. The Investigation
Based on information from Troy Hunt, a confidential informant, a Drug Enforcement Agency
(“DEA”) task force began investigating Rickey Story in October 2005. Members of the task force
recorded a call between Hunt and Story on October 13, 2005. On the call, Story agreed to sell Hunt
a half an ounce of crack cocaine and told Hunt to pick up the crack at Story’s house.
1
Leonard and Demery pled guilty, while a jury found Grooms guilty.
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Agents sent Hunt to Story’s house with money for the purchase. Hunt wore a wire to record
his conversations with Story. Story was not there when Hunt arrived, so the agents had Hunt set up
an alternate meeting. At that meeting, Story sold Hunt crack cocaine. The agents observed Story
leaving the meeting in a car with one other person. Hunt identified the passenger as Terry Dawkins.
In November 2005, DEA agents asked Hunt to purchase a full ounce of cocaine from Story.
Story agreed to make the sale. Hunt again wore a wire. The agents heard Story tell Hunt to meet
him at a Sonic Drive-In. The agents parked about a hundred yards away from the Sonic to observe.
Shortly after the call, a brown Chevrolet pulled into the Sonic and a black man wearing a hat got out
of the car. The man told Hunt that he had been sent to make the sale. The man gave Hunt crack
cocaine, and Hunt left.
Based on the two purchases, the agents received a Title III wiretap order for Story’s cell
phone. The order began in February 2006, and it allowed the agents to tap Story’s phone for thirty
days. After thirty days, the agents sought an extension to the wiretap order. The district court
granted an extension, and it expanded the original order to allow agents to intercept text messages.
Using information from the wiretap, agents were able to identify others involved with Story
in selling cocaine, including Connie Young, Terry Dawkins, and Elisa Grooms. A grand jury issued
an indictment for Story and unnamed others for conspiracy to distribute five kilograms of cocaine.
A superseding indictment later included Dawkins, Young, Grooms, Collins, Demery, Leonard, and
others.
B. Evidence at Trial
1. Young
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The evidence against Young consisted primarily of Story’s testimony and information
gleaned from the wiretap. Story identified Young as Dawkins’s source for cocaine in South
Carolina. Though he was never introduced to Young, he spoke with him once or twice. Story also
indicated that Dawkins would go to Young’s house to get the cocaine.
David Chambers, a member of the DEA task force, testified that the task force linked the
voices on the wiretap to names by retrieving the subscriber information for the numbers calling
Story. Chambers testified that he was able to link names to voices by context. For instance, after
a call, Story would make another call and say, “I just got done talking to Terry.” Chambers also
indicated that the task force would subpoena phone companies to provide subscriber information for
numbers that called or were called from Story’s phone. The task force would then retrieve the
criminal history for each of those callers.
On the recorded calls, Story only spoke to Young one time. However, Chambers testified
that Dawkins and Young spoke on the phone four or five times. Story identified Dawkins and
Young talking about drugs on several of the recorded calls and making plans to meet in South
Carolina. Story also indicated that, in one of the recorded calls, Dawkins told him that Young was
going to front Dawkins seven ounces of cocaine. Story also noted that, in another call, Dawkins
referred to Jeremy and that Jeremy meant Young.
Chambers acknowledged that he himself did not have a basis to identify Young’s voice.
When pressed on how he identified Young, Chambers indicated that Story had identified Young.
Chambers also indicated that he relied on “other factors that corroborated that – what he told me, the
phone call I listened to, and Mr. Young’s criminal history.”
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After Chambers mentioned Young’s criminal history, Young’s lawyer requested a mistrial.
The district court denied Young’s motion but offered Young’s attorney a limiting instruction. After
conferring with his client, the attorney declined the instruction. Young’s attorney renewed his
motion for a mistrial at the end of the government’s case. The motion was again denied.
2. Dawkins
At trial, Chambers identified Dawkins as the man at the November 2005 buy. Chambers
admitted that he told the grand jury that the man at that buy was tall but that Dawkins was short. He
noted that Dawkins was on an embankment at the time Chambers observed him. Hunt testified that
Dawkins sold him crack cocaine in the November 2005 buy that Chambers witnessed. Similarly,
Story testified that Dawkins had accompanied him on the October buy and that he had sent Dawkins
to sell to Hunt in November.
Testimony established that Dawkins was intimately involved in Story’s drug sales. Two
witnesses described Dawkins as Story’s right-hand man. One witness testified that Dawkins would
help Story cook the cocaine and distribute it. Timothy Collins, who lived with Story for a time,
testified that Dawkins would make daily cocaine deliveries on Story’s behalf.
Testimony also linked Dawkins to Story’s supplier. Story testified that, in 2005 and 2006,
he would go to South Carolina several times a week with Dawkins to acquire cocaine. Another
witness testified that he heard Dawkins and Story talk about how they would go to South Carolina
to acquire cocaine. Collins indicated that Dawkins provided the contact in South Carolina through
which Story and Dawkins acquired cocaine. Collins also testified that Dawkins and Story would
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bring back four or five ounces of cocaine from South Carolina once or twice a week. Collins
accompanied Story and Dawkins on one of the trips.
Amy Leonard, another defendant and Story’s wife, testified that Story sometimes received
his supply of crack cocaine from Dawkins. She initially testified that Dawkins would get the cocaine
from North Carolina, but the government inquired if she meant North Carolina or South Carolina.
Dawkins’s attorney objected to the leading question, and the district court sustained the objection.
The government then inquired, “Do you know if it’s North Carolina or South Carolina?” Leonard
replied that she meant South Carolina.
Leonard also testified that Dawkins and Story would talk about trips to South Carolina, that
Story would tell her about the trips to South Carolina, and that they would bring two or three ounces
of cocaine back from each trip to South Carolina. Leonard testified that she often saw Dawkins use
Story’s phone to arrange sales. Collins also identified Dawkins voice on one of the recorded calls,
and, stated that, on that call, Dawkins and Story were talking about collecting money.
3. Grooms
The evidence against Grooms included testimony from several witnesses as well as
intercepted text messages and phone calls. Deborah Demery testified that Grooms was the mother
of Story’s child and his ex-girlfriend. Demery had several conversations with Grooms about cocaine
and other drugs after 2005. She also overheard telephone conversations between Story and Grooms
regarding drugs.
Collins, who lived with Story and Grooms for a period of time beginning in 2005, indicated
that Grooms would give drugs to customers who came by the house while Story was away. This
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occurred every day. Collins testified that Grooms continued to help Story even after Grooms moved
out of Story’s house. He indicated that he delivered marijuana to Grooms once after she moved.
Story testified that Grooms helped him sell crack and marijuana. He testified that she
continued selling crack and marijuana for him after she moved out in 2005. In one of the recorded
calls, Grooms told Story about money she had collected from selling marijuana. He also identified
several text messages the DEA had intercepted, and he indicated that, in them, Grooms had
referenced selling crack for Story. Story described Grooms as a distributor.
Brian Rogers testified that he frequently purchased crack cocaine from Story and that Grooms
was frequently with Story when Rogers made his purchases. He also testified that, on one occasion,
Grooms sold him crack cocaine.
Grooms took the stand to testify in her defense. She testified that she never sold drugs for
Story while she lived with him. She admitted selling marijuana for him once she moved out. She
testified that all of the text messages referred to marijuana.
Grooms made a motion for acquittal, challenging the government’s use of evidence that she
had been involved in drug distribution before she turned eighteen. She argued that, without that
evidence, the evidence of her involvement in the conspiracy was insufficient. The district court
denied the motion.
C. Closing Arguments, Verdict, and Sentencing
During closing arguments, the defense attorney attacked Story’s character and credibility.
During the prosecutor’s closing argument, the prosecutor responded to this line of attack by stating
that
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You may not like Rickey Story. I don’t like Rickey Story. He’s not a nice person.
He’s a drug dealer. He’s apparently fond of white females. He’s been dealing drugs
since he was in his teens, since 1994. . . . And you may not like Rickey Story. He’s
the one who’s got the best information about how this operation worked. You can
corroborate a lot of his testimony based on other codefendants’ testimony . . . .
(J.A. at 698-99.)
The jury found Dawkins guilty of four counts of conspiracy: conspiracy to distribute five
kilograms or more of cocaine, conspiracy to distribute fifty grams or more of cocaine base, and two
counts of conspiracy to distribute five grams or more of cocaine base. The jury found Young guilty
of conspiracy to distribute five kilograms or more of cocaine. The jury found Grooms guilty of a
conspiracy to distribute five grams or more, but less than fifty grams, of cocaine base.
Prior to trial, the government filed a notice that it intended to introduce Young’s prior felony
convictions at sentencing. With Young’s prior convictions, he would receive mandatory life in
prison. Young filed a sentencing memorandum contesting the use of the prior convictions. At
sentencing, Young’s attorney indicated that Young was confused about the effect of his prior
convictions. After conferring with Young, Young’s attorney indicated that Young wanted to be
sentenced and would not contest his prior convictions. Young received life in prison.
II.
A. Young
Young raises four issues on appeal: sufficiency of the evidence, the denial of his motion for
a mistrial, the notice he received regarding the potential for a mandatory life sentence, and the use
of a conviction he received while under the age of eighteen as a prior felony drug offense in
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establishing the basis for a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A). We address
each issue in turn.
1. Sufficiency of the Evidence
When reviewing a defendant’s challenge to the sufficiency of the evidence, a court must
determine “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime.” United States v. Jones,
102 F.3d 804, 807 (6th Cir. 1996). The credibility, or lack thereof, of the witnesses for the
prosecution is not a ground for challenging the sufficiency of the evidence. United States v. Paige,
470 F.3d 603, 608 (6th Cir. 2006). Young did not make a motion for an acquittal at any point during
the trial. Therefore, the court should “reverse his conviction only if the record is ‘devoid of evidence
pointing to guilt,’ such that a manifest miscarriage of justice occurred.” United States v. Vasquez,
560 F.3d 461, 469 (6th Cir. 2009).
Young was convicted of conspiracy to distribute five kilograms or more of cocaine. A
conspiracy to distribute drugs requires “(1) an agreement to violate the drug laws, and (2) each
conspirator's knowledge of, intent to join, and participation in the conspiracy.” United States v.
Crozier, 259 F.3d 503, 517 (6th Cir. 2001). A conspiracy can be inferred from evidence of repeat
purchases and from the amount of drugs involved. United States v. Martinez, 430 F.3d 317, 333 (6th
Cir. 2005).
The record is not devoid of evidence against Young. Story identified Young as his source
for cocaine in South Carolina. Story testified that they would get drugs from Young “three or four
times a week” and that they would get “9 ounces to 18 ounces.” Further, Young’s voice was
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identified on several phone calls discussing arrangements for drug purchases. To the extent that
Young argues there should be more evidence against him or that Story was not a credible witness,
he does not raise issues that are cognizable in this sufficiency challenge. So long as there was some
evidence supporting the conviction, we cannot find that it was a manifest miscarriage of justice.
2. Motion for a Mistrial
Young asserts that the district court erred in denying his motion for a mistrial based on
Chambers’s reference to Young’s criminal history. A denial of a motion for a mistrial is reviewed
for an abuse of discretion. United States v. Wimbley, 553 F.3d 455, 460 (6th Cir. 2009).
The comment in question occurred during Young’s cross-examination of Chambers.
Chambers testified on direct examination that part of the wiretap process was to retrieve the criminal
history from phone numbers that called the tapped phone. Chambers testified that he was able to
identify Story’s voice on the calls. When the government asked if Chambers could identify any other
voices he stated that he could identify “Terry Dawkins, Elisa Grooms. A person I believe to be
Connie Young. . . .” On cross-examination, Young’s attorney asked what basis Chambers had to
identify Young’s voice. Chambers admitted that he had not spoken with Young but that Story had
identified Young’s voice. When Young’s attorney asked “You’re going on what Rickey Story has
told you?”, Chambers replied “Well, I mean there’s other factors that corroborated that–what he told
me, the phone call I listened to, and Mr. Young’s criminal history.” Young’s attorney asked, “I’m
sorry you said what?” Chambers replied “His criminal history.”
We use a five factor test for assessing whether a reference to an unrelated arrest requires a
mistrial: “(1) whether the remark was unsolicited, (2) whether the government's line of questioning
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was reasonable, (3) whether the limiting instruction was immediate, clear, and forceful, (4) whether
any bad faith was evidenced by the government, and (5) whether the remark was only a small part
of the evidence against the defendant.” Zuern v. Tate, 336 F.3d 478, 485 (6th Cir. 2003). The
comment in question came during cross-examination rather than on the government’s direct
examination. While the five-factor framework is therefore not directly on point, we find it provides
appropriate guidance in assessing Chambers’s comment. Further, based on these factors,
Chambers’s isolated comment did not warrant a mistrial. The government did not solicit
Chambers’s remark. Instead, Young’s attorney solicited it. The government was not engaged in an
unreasonable line of questioning. Indeed, the defense attorney should have been aware that
Chambers might reference Young’s criminal history as Chambers indicated earlier that “one of the
ways that they identify these people is through reference, among other things, to their criminal
history.” Though the district court offered a limiting instruction, Young declined the instruction.1
There was no evidence of bad faith by the government. Finally, the remark was only a small part
of the evidence against Young. Taking these factors together, the district court did not abuse its
discretion in denying Young’s motion for a mistrial. Compare United States v. Forrest, 17 F.3d 916,
920 (6th Cir. 1994) (per curiam).
3. Notice of a Mandatory Life Sentence
Young contends that he did not receive notice of the life sentence that, based on his two prior
drug felony convictions, was mandatory if he was found guilty. Young notified the court at oral
1
A defendant’s decision not to accept a curative instruction from the district court “undercuts
his argument that the comments compromised the integrity of the trial.” Wimbley, 553 F.3d at 460.
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argument that he waived this argument insofar as it related to ineffective assistance of counsel.
Young continues to allege that the court should have provided him notice of the possibility of the
sentencing enhancement.
By statute, the prosecutor has a duty to provide notice of an intent to rely on prior
convictions. Sentence enhancements based on prior convictions cannot apply “unless before trial,
or before entry of a plea of guilty, the United States attorney files an information with the court (and
serves a copy of such information on the person or counsel for the person) stating in writing the
previous convictions to be relied upon.” 21 U.S.C. § 851(a)(1). The prosecutor filed an information
on September 26, 2006 that complied with § 851(a)(1).2 The trial began on August 1, 2007.
Accordingly, the prosecutor complied with the requirements for providing notice of the applicable
sentencing enhancements and Young–or at least Young’s attorney–was on notice for nearly a year
that Young’s prior convictions would lead to sentencing enhancements if Young was found guilty.
Similarly, the district court did not violate any obligation it had toward Young. At his
arraignment, the district court informed Young of the possible sentence range. The district court did
not make clear at arraignment that Young faced a mandatory life sentence, but, as the prosecutor had
not yet filed its information informing the court of Young’s prior convictions, the district court did
not know that Young faced a mandatory life sentence. Therefore, the district court could not have
been remiss in not informing Young of the prospect of a mandatory life sentence.
4. The Basis for a Mandatory Life Sentence
2
The prosecutor then amended the information on November 21, 2007 to remove one
conviction from consideration.
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One of the two prior convictions that led to Young’s mandatory life sentence was a
conviction Young received just under a month before his eighteenth birthday. He was convicted as
an adult and sentenced by a South Carolina state court for possession with the intent to distribute
crack. Young challenges the inclusion of this conviction in the calculation of his sentence.
Congress provided that a life sentence is mandatory if the defendant is convicted “after two
or more prior convictions for a felony drug offense have become final.” 21 U.S.C. § 841(b)(1)(A).
Congress defined a felony drug offense as “an offense that is punishable by imprisonment for more
than one year under any law of the United States or of a State or foreign country that prohibits or
restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant
substances.” 21 U.S.C. § 802(44). This provision provides the exclusive definition of felony drug
offenses for the statute. Burgess v. United States, --- U.S. ----, 128 S. Ct. 1572, 1577 (2008).
We do not need to decide whether Congress intended this provision to include convictions
received by juveniles as a result of a juvenile adjudication. Young was convicted as an adult in an
adult court. He was convicted of possessing drugs with the intent to distribute, and he was eligible
for fifteen years in prison. Thus, he was convicted of a felony drug offense as defined by Congress.3
B. Dawkins
3
Young argues that § 4A1.2(c) of the Guidelines indicates that juvenile convictions are never
counted as prior offenses. This fails to acknowledge the phrase “juvenile status offenses.” Further,
putting to one side the difficulty of using a Guidelines definition to determine the meaning of a term
used in a statute, Young overlooks the next subsection of the Guidelines. Section 4A1.2(d) provides
that convictions for offenses committed prior to age 18 are considered in sentencing if the defendant
was convicted as an adult, and received a sentence of imprisonment exceeding one year and one
month.
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Dawkins asserts that the prosecutor engaged in misconduct during closing arguments.
Prosecutorial misconduct involves mixed questions of fact and law that are reviewed de novo.
United States v. Henry, 545 F.3d 367, 376 (6th Cir. 2008). As Dawkins did not object before the
district court, his claim of prosecutorial misconduct is reviewed for plain error. Id. Plain error
requires that “(1) an error occurred in the district court; (2) the error was obvious or clear; (3) the
error affected defendant's substantial rights; and (4) this adverse impact seriously affected the
fairness, integrity, or public reputation of the judicial proceedings.” United States v. Gardiner, 463
F.3d 445, 459 (6th Cir. 2006).
We apply a two-step process to determine if misconduct has occurred. First, we determine
whether the remarks were improper. United States v. Galloway, 316 F.3d 624, 632 (6th Cir. 2003).
If the remarks were improper, we then determine whether the remarks were sufficiently flagrant to
warrant reversal. Id. “There are four factors that we utilize to determine if an improper statement
was flagrant: 1) whether the statements tended to mislead the jury and prejudice the defendant; 2)
whether the statements were isolated or pervasive; 3) whether the statements were deliberately
placed before the jury; and 4) whether the evidence against the accused is otherwise strong.” Id.
Where the misconduct allegedly occurred during closing argument, we give “wide latitude”
to the prosecutor, looking at the comments in “the context of the trial as a whole and recognizing that
inappropriate comments alone do not justify reversal where the proceedings were ‘otherwise fair.’”
Henry, 545 F.3d at 377 (quoting United States v. Young, 470 U.S. 1, 11 (1985)). The court examines
not only the prosecutor’s comments but also the defense counsel’s conduct and whether the
prosecutor reasonably responded to defense attacks. Id.
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Dawkins contends that the prosecutor engaged in misconduct during closing argument when
the prosecutor stated, “You may not like Rickey Story. I don’t like Rickey Story. He’s not a nice
person. He’s a drug dealer. He’s apparently fond of white females. He’s been dealing drugs since
he was in his teens, since 1994.” (J.A. at 698-99) (emphasis added). The government argues that
the remark was not improper because it was in response to defense counsel’s closing argument,
which attacked Story’s character on many grounds, including his treatment of his wife and
girlfriends.
The defense counsel’s argument did not mention the race of any of the women with which
Story had relationships. Despite the government’s assertion that the race of the women was clear
since each of the women had testified, there is absolutely no indication in the record that defense
counsel argued Story was a bad person because he liked white women. The prosecutor simply was
not responding to an argument by the defense that referenced the race of the women involved.
Compare United States v. Roach, 502 F.3d 425, 435 (6th Cir. 2007). Thus, the comment was
improper.
Finding that the prosecutor made an improper comment, however, does not end the analysis.
A prosecutor’s misconduct must be flagrant to warrant reversal. Galloway, 316 F.3d at 633.
Moreover, as Dawkins’s counsel did not object to the comment, the misconduct must also rise to the
level of plain error. Henry, 545 F.3d at 376. There is no evidence that the comment was intended
to mislead the jury or prejudice the defendant. The prosecutor’s comment was about Story–not
Dawkins or any of the other defendants. It was an isolated statement, and it does not appear to have
been deliberately placed before the jury. Nothing else in the prosecutor’s closing argument suggests
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that the prosecutor was deliberately injecting race into the jury’s deliberations. Further, the evidence
against Dawkins was overwhelming. Given the wide latitude prosecutors receive in closing
arguments, Henry, 545 F.3d at 377, we find that the comment was not flagrant and did not constitute
plain error.
Dawkins also argues that the government violated the Fourth Amendment in presenting
evidence of text messages obtained pursuant to a Title III wiretap. Dawkins did not file a motion
to suppress before trial. He also did not object to the admission of the text messages.
A motion to suppress evidence must be made before trial. FED . R. CRIM . P. 12(e). We are
“categorically without jurisdiction to hear appeals of suppression issues raised for the first time on
appeal.” United States v. Jordan, 544 F.3d 656, 666 (6th Cir. 2008) (quoting United States v.
Crimson, 905 F.2d 966, 969 (6th Cir. 1990)); see also United States v. Lopez-Medina, 461 F.3d 724,
739 (6th Cir. 2006). As Dawkins did not file a motion to suppress the text messages, we lack
jurisdiction to address the issue on appeal.
Dawkins raises a variety of other issues on appeal including evidentiary challenges. Several
of these issues, such as his counsel’s failure to challenge the racial make-up of the jury, are better
raised through 28 U.S.C. § 2255 as claims of ineffective assistance of counsel. See United States
v. Gonzalez, 501 F.3d 630, 644 (6th Cir. 2007) (“[B]ecause a full understanding of those issues is
not readily discernable from the present record, we find no reason to depart from our established
practice of deferring consideration of such claims to a proceeding properly filed under 28 U.S.C. §
2255.”). After careful review of the remainder of his arguments, the record on appeal, and the
applicable law, we find that none of his arguments present grounds for reversal.
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C. Grooms
Grooms challenges the sufficiency of the evidence supporting her conviction for conspiracy
to distribute five grams or more of cocaine base. Specifically, she alleges that the jury may have
relied on evidence of her criminal conduct as a juvenile. In determining whether there is sufficient
evidence, the court must decide “whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” United States v. Grubbs, 506 F.3d 434, 438 (6th Cir. 2007) (quoting United
States v. Blakeney, 942 F.2d 1001, 1010 (6th Cir. 1991)). In considering the sufficiency of the
evidence, the court does not “weigh the evidence, consider the credibility of witnesses or substitute
its judgment for that of the jury.” United States v. Chavis, 296 F.3d 450, 455 (6th Cir. 2002).
Because Grooms made a motion for a new trial, she preserved her objection to the sufficiency of the
evidence.4 United States v. Gardner, 488 F.3d 700, 709 (6th Cir. 2007).
Grooms turned eighteen on December 18, 2004. The evidence in the record after that date
is sufficient to support her conviction. Collins testified that, after he moved in with Story and
Grooms in 2005, he saw Grooms sell crack for Story every day. He testified that the crack was sold,
on average, “a gram or 2” at a time. Demery testified that, in 2006, she had conversations with
Grooms about Grooms selling crack for Story and that, also in 2006, Demery overheard Story and
4
To the extent that Grooms’s appeal is an appeal from the district court’s denial of a motion
for a new trial, it also fails. We review the denial of a motion for a new trial for an abuse of
discretion. United States v. Solorio, 337 F.3d 580, 589 n.6 (6th Cir. 2008). For the reasons set forth
in the discussion of the sufficiency of the evidence, the district court did not abuse its discretion in
denying Grooms’s motion for a new trial. See id.
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Grooms discussing Grooms selling crack. Story testified that Grooms distributed crack for him in
2005. In addition, the government presented transcripts of telephone conversations and text
messages between Grooms and Story from 2006. In one, Grooms asked Story for “half of an onion.”
Testimony at trial indicated that onion is slang for 28 grams of cocaine.
A jury could reasonably find that, after Grooms turned 18, she was part of a conspiracy that
involved more than five grams of cocaine. To the extent that Grooms challenges the nature of the
testimony against her, such a challenge is not a viable attack on the sufficiency of the evidence. See
Chavis, 296 F.3d at 455.
III.
We AFFIRM.
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