United States v. Susan McEvoy

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-1235
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Susan J. McEvoy, * [UNPUBLISHED]
*
Appellant. *
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Submitted: June 13, 2002
Filed: July 16, 2002
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Before WOLLMAN, RICHARD S. ARNOLD, and LOKEN, Circuit Judges.
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PER CURIAM.
Susan McEvoy appeals from her conviction of conspiracy to distribute
methamphetamine, a violation of 21 U.S.C. §§ 846, 841(a)(2), and 841(b)(1)(A). She
contends that the evidence was insufficient to support her conviction and that the
district court1 improperly admitted testimony from certain witnesses. We affirm.
1
The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
The evidence against McEvoy consisted primarily of the testimony of Robert
Smiley, a drug dealer who testified pursuant to a plea agreement reached with the
government in his case. Smiley testified that McEvoy was one of the persons who
distributed methamphetamine for him, that he delivered drugs to McEvoy at a car
wash in Gretna, Nebraska, that he set up drug deals with McEvoy over the phone, that
he never called her other than to set up drug deals, that he sold her approximately 112
ounces of methamphetamine over the course of two years, and that he sold her
amounts far in excess of what an individual user would need. In corroboration of
Smiley’s testimony, the government introduced a tape of a phone call, arranged and
recorded by the government, during which Smiley and McEvoy arranged to meet, as
well as a tape recording of that meeting, at which McEvoy agreed to purchase one
pound of methamphetamine. Thomas New, a co-conspirator, testified that on one
occasion he accompanied Smiley to the car wash to meet McEvoy, that Smiley told
him he had to “drop something off to her,” and that he saw Smiley give McEvoy
some paper towels. A Drug Enforcement Administration intelligence analyst testified
that McEvoy and Smiley had called each other thirty-five times in a six-month period.
A narcotics enforcement officer testified regarding the tape-recorded phone call and
meeting, stating that the information given to him by Smiley was consistent with the
information given to him by New.
In reviewing a challenge to the sufficiency of the evidence, we will uphold a
conviction when, viewing the evidence in the light most favorable to the verdict, a
reasonable jury could conclude that the defendant was guilty beyond a reasonable
doubt. United States v. Echols, 144 F.3d 584, 585 (8th Cir. 1998).
McEvoy contends that the evidence was insufficient because Smiley, the
government’s principal witness, had the incentive to lie and in fact had lied to law
enforcement officers in interviews and to the court in prior testimony. Smiley’s
credibility, however, was an issue for the jury to determine, id., and we cannot say
that his testimony was so inherently incredible as to be unworthy of belief.
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McEvoy points to the government’s failure to present evidence from persons
who had purchased drugs from her or had seen her selling drugs. This challenge also
fails, however, because the other evidence presented at trial was sufficient to support
an inference that McEvoy sold drugs. That evidence included testimony from other
witnesses and McEvoy’s recorded statements that she purchased quantities of
methamphetamine in excess of personal use amounts, that she paid more for the drugs
than she earned from her housecleaning job, that she would have more money shortly
after getting a pound of drugs from Smiley, and that she told Smiley she was selling
drugs.
McEvoy also contends that the district court erred in allowing New and the
various law enforcement officers to testify, because their testimony improperly
bolstered Smiley’s credibility and thus interfered with the jury’s duty to evaluate
Smiley’s credibility. We review decisions regarding the admissibility of evidence
under an abuse of discretion standard. United States v. Claxton, 276 F.3d 420, 422
(8th Cir. 2002). New’s testimony that Smiley told him he was dropping off
something for McEvoy was properly admitted as a co-conspirator statement. See
United States v. Jordan, 260 F.3d 930, 933 (8th Cir. 2001) (co-conspirators’
statements describing source of drugs and current developments in the conspiracy
admissible). The officers’ testimony described the course of the investigation and the
steps they took to verify what Smiley had told them. The fact that their testimony
served to enhance Smiley’s credibility does not render their statements inadmissible.
See United States v. Beck, 122 F.3d 676, 681 (8th Cir. 1997) (investigating officer
allowed to testify as to statements another witness made to him where those
statements bolstered the witness’s credibility). Thus, the district court did not abuse
its discretion in admitting the challenged testimony.
The conviction is affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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