United States of America, Appellee, v. Calvin C. Gillings, Appellant.
No. 97-3117
United States Court of Appeals FOR THE EIGHTH CIRCUIT
September 23, 1998
Appeal from the United States District Court for the Southern District of Iowa. Submitted: December 9, 1997. Filed: September 23, 1998.
McMILLIAN, Circuit Judge.
Calvin C. Gillings appeals from a final order entered in the United States District Court1 for the Southern District of Iowa, upon a jury verdict, finding him guilty of possession with intent to distribute cocaine base and possession with intent to distribute cocaine in violation of
The district court had original jurisdiction over this criminal case under
On April 4, 1996, defendant was visiting his friends, Odis and Paula Carter, in Clinton, Iowa. The police suspected the Carters were involved in drug trafficking. At about 9:00 р.m. the police arrived at the Carter house and saw a blue Pontiac Grand Prix parked in the driveway. The police knocked on the door and were admitted by Paula Carter. Defendant and three children were sitting on the living room sofa. The police wanted to speak to Odis Carter. Paula Carter called Odis Carter, who came upstairs from the basement and went into a bedroom to talk to the police.
Accоrding to one police officer, defendant was wearing jeans, a denim jacket and a stocking cap. Another officer, however, testified
The police subsequently questioned defendant. Defendant admitted leaving the house and going to the car. The police searched defendant and found 1 gram of cocaine base in his pants pocket and the keys to the car on a key ring attached to defendant‘s belt. Defendant told the police that the pants and the cocaine base were not his. The police also found $892 in cash in defendant‘s possession. Defendant explained that the mоney represented his pay and a tax refund. The police then asked defendant for consent to search the Pontiac Grand Prix parked in the driveway. Defendant told the police that the car belonged to his sister. The police obtained a search warrant for the car and found in the trunk a blue and white flannel jacket. Inside the jacket the police found cocaine in two plastic bags and a film canister.
Meanwhile, in the basement of the house, the police found Mr. Liebert and Ms. Culberson, inositol (a cutting agent), cocaine base, and cocaine base residue. The police arrested defendant, Odis Cartеr and Ms. Culberson for possession of a controlled substance.
At the trial Odis and Paula Carter testified for the government. Another neighbor, Carol Dietrick, testified that she saw someone go outside while the police wеre inside the Carter house. The person was not wearing a jacket. Ms. Dietrick also testified that there was a lot of traffic at the Carter house. Another neighbor, Robert Shaw, testified that he had begun keeping notеs about the license plates of the cars that stopped by the Carter house.
Defendant was indicted and charged with possession with intent to distribute cocaine base and possession with intent to distribute coсaine. The case was tried to a jury. After the jury had been sworn, the government presented defense counsel with a laboratory report that stated that no latent fingerprints had been found on the plastic bags or the film canister found in the jacket taken from the trunk of the Pontiac Grand Prix. The government had apparently known about the laboratory report for about two weeks. Defense counsel requested a cоntinuance. The district court granted a half-day continuance. The government then gave defense counsel 5 photographs of fingerprints taken from plastic bags found during a search of Ms. Heather Walton‘s aрartment some 2 months after the search of the Carter house and the Pontiac Grand Prix. The government suspected that Ms. Walton was connected to defendant‘s drug trafficking. The fingerprints were not identified as defendаnt‘s. Defense counsel filed motions to dismiss or for mistrial or sanctions. The district court denied the motions. The jury found defendant guilty on both counts. The district court denied defendant‘s post-trial motions and sentenced defendant tо a total of 360 months imprisonment, 8 years supervised release and a special assessment of $100.00. This appeal followed.
FAILURE TO DISCLOSE EVIDENCE
Defendant first argues the district court erred in denying his motions to dismiss or for mistrial or sanctions because the government failed to disclose material exculpatory evidence in a timely manner. Defendant argues the government improperly delayed producing the laboratory report abоut the fingerprints and the 5 fingerprint photographs. Defendant argues he was prejudiced by the government‘s failure to disclose the laboratory report and fingerprint photographs in a timely manner because he was unable to match the fingerprints to Liebert, Ms. Culberson, Odis Carter, or Ms. Walton. He argues that the half-day continuance was too short to contact an expert or to subpoena Ms. Walton.
The government has an affirmative duty to disclose evidence that is favorable to
SUFFICIENCY OF THE EVIDENCE
Defendant next argues the evidence was insufficient to support the jury verdict. He argues he was not in the basement of the Carter house where the evidence of cocaine distribution was found and that the only evidence connecting him to drug trafficking was the 1 gram of cocaine base found in his pants pocket. Defendant also argues that no fingerprint evidence connected him to the plastic bags or the film canister found in the jacket in the trunk of the Pontiac Grand Prix. He also argues that he is much shorter than the person whom Chermay saw leaving the Carter house.
“The standard of review of an appeal concerning the sufficiency of the evidence is very strict, and the verdict of the jury should not be overturned lightly.” United States v. Burks, 934 F.2d 148, 151 (8th Cir. 1991). “The jury‘s verdict must be upheld if there is an interpretation of the evidence that would allow a reasonable-minded jury to conclude guilt beyond a reasonable doubt.” United States v. Erdman, 953 F.2d 387, 389 (8th Cir.), cert. denied, 505 U.S. 1211 (1992). “In reviewing the sufficiency of the evidence on appеal, the court views the evidence in the light most favorable to the government, resolving evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidenсe that support the jury‘s verdict.” Id. “A conviction may be based on circumstantial as well as direct evidence. The evidence need not exclude every reasonable hypothesis except guilt.” Id. “If the evidеnce rationally supports two conflicting hypotheses, the reviewing court will not disturb the conviction.” United States v. Burks, 934 F.2d at 151.
We hold that the evidence was sufficient to support the jury verdict finding defendant guilty of possession with intent to distribute cocaine base and cocaine. “To convict [defendant] on a violation of
Accordingly, the judgment of the district court is affirmed.
A true copy.
Attest:
U.S. COURT OF APPEALS, EIGHTH CIRCUIT.