UNITED STATES of America, Plaintiff-Appellee, v. Teddy Ray MANNS, Defendant-Appellant.
No. 07-5434.
United States Court of Appeals, Sixth Circuit.
May 5, 2008.
551
KAREN NELSON MOORE, Circuit Judge.
Although Vuktilaj complains that the IJ did not address the potential for religious persecution if he returned to Albania, that was his fault, not the IJ‘s. Vuktilaj never mentioned this risk in his testimony or application. In his testimony, he simply mentioned that he was Catholic, and in his asylum application, he asserted persecution only on the basis of “Political opinion,” leaving the “Religion” box blank. JA 373. Dr. Fischer, we recognize, testified that religious intolerance is on the rise in Albania, but that did not obligate the IJ to address a claim Vuktilaj never raised.
To the extent Vuktilaj means to raise a due process objection based on the BIA‘s failure to address all of the record evidence in its opinion, that too is mistaken. By adopting the opinion of the IJ and by citing In re Burbano, 20 I. & N. Dec. 872 (BIA 1994), the Board demonstrated that it “independently reviewed the case” and its decision was simply “in agreement with the reasoning and result” of the IJ‘s opinion. Gishta v. Gonzales, 404 F.3d 972, 980 (6th Cir. 2005) (internal quotation marks omitted).
Second, Vuktilaj claims that the IJ mistakenly merged his asylum and Convention Against Torture claims. Although an adverse credibility finding on an asylum claim may “erroneously infect[]” a Convention Against Torture analysis, Mapouya v. Gonzales, 487 F.3d 396, 415 (6th Cir. 2007), that did not happen here. The IJ made a separate, though brief, finding that the evidence “in no way establishes that it is more likely than not that [Vuktilaj] would be tortured if returned to Albania,” JA 48, and the BIA adopted this finding. In some cases, we recognize, applicants may “succeed on a CAT claim even though a withholding of removal claim is denied” because the Convention standard operates “without regard to the enumerated grounds for asylum.” Karomi v. Gonzales, 168 Fed. Appx. 719, 729 (6th Cir. 2006). But where a denial of asylum is based on the applicant‘s failure to prove a reasonable fear of persecution (rather than on the absence of the requisite motivation behind the mistreatment), we have held that those applicants necessarily “cannot meet the more stringent requirements of the Convention Against Torture.” Sarr v. Gonzales, 485 F.3d 354, 362 (6th Cir. 2007). Under these circumstances, the IJ was not required to rehash all of the reasons why Vuktilaj failed to meet his burden with respect to that claim. See Karomi, 168 Fed. Appx. at 729 (finding substantial evidence to support denial of relief under the Convention Against Torture where the IJ‘s discussion of that claim was “brief“).
III.
For these reasons, we deny the petition for review.
John Kevin West, McCoy, West, Franklin & Beal, for Defendant-Appellant.
Before: MOORE and CLAY, Circuit Judges; and SCHWARZER,* District Judge.
OPINION
KAREN NELSON MOORE, Circuit Judge.
Teddy Ray Manns (“Manns“), Defendant-Appellant in this case, appeals his
I. FACTS AND PROCEDURE
On February 3, 2006, a grand jury indicted Manns on twenty-three counts of violation of
Prior to trial, Manns filed a motion in limine “to exclude any evidence that he allegedly made threats regarding witnesses who may testify against him.” Joint Appendix (“J.A.“) at 71 (Motion in Limine). The district court denied the motion on the ground that the alleged threat constituted spoliation evidence, “probative of consciousness of guilt.” J.A. at 76 (10/25/06 Order at 1).
On October 25, 2006, the district court dismissed Counts 3, 8, and 16, by government motion. The court later also dismissed Count 14 by government motion.
The trial took place on November 6 through November 8, 2006. The prosecution‘s theory of the case was that Manns operated an illegal drug business, aided and abetted by Kristy Tackett (“Tackett“) who lived with him and with whom he had a child. Clarence “Rooster” Roberts (“Roberts“) was one of Manns‘s major clients, who in turn resold the drugs he purchased from Manns. In addition to the testimony by co-defendants Tackett and Roberts, the government‘s case relied upon testimony by detective Virgil Ray (“Ray“) and by Will Chaney (“Chaney“), a confidential informant who made controlled drug purchases that the police recorded.
With respect to Count 1 regarding a conspiracy to distribute marijuana, Roberts testified about how he came to form a drug partnership with Manns: Manns fronted Roberts marijuana that he then sold, returning a portion of the profit to Manns. Roberts testified that he received “at least 50” pounds of marijuana each week from Manns between 2003 and 2005. J.A. at 164 (Trial Tr. Vol. 3: 22). Roberts further testified that the marijuana discovered at his house when the police executed a search warrant came from Manns.
With respect to Count 2 regarding the conspiracy to distribute Oxycontin, Roberts testified that he received from Manns about fifty to one-hundred Oxycontin pills every one to two weeks.
Roberts, Tackett, Ray, and Chaney testified regarding the counts of drug distribution and manufacture. With respect to Count 4, Tackett testified that she sold Chaney fifty-one Oxycontins, including one for herself, and took the money back to Manns. Chaney also testified that the transaction took place at a rooster fight and that Tackett had told him that Manns was the source of the supply for the pills. With respect to Counts 5 and 6, Chaney testified that a telephone conversation recorded by the police revealed him talking with Tackett about a transaction involving 50 Oxycontin 80-milligram tablets and four pounds of marijuana. Chaney testified that a video accurately depicted Tackett placing four pounds of marijuana in his car on March 21, 2005. Tackett also testified that she sold Chaney marijuana in chicken feed bags. With respect to Count 7, Tackett testified that Manns sent her to sell seventy-five pounds of marijuana to Roberts. Chaney explained that a video recording depicted a “rooster feed bag containing 12 one-pound bags of marijuana.” J.A. at 131 (Trial Tr. Vol. 2: 62). With respect to Counts 9 and 10, Roberts testified that when he was arrested he had in his truck fifty pounds of marijuana and twenty-two Oxycontin 80-milligram pills, which he had purchased from Manns at a McDonald‘s in Salyersville. Ray testified that he had conducted surveillance on March 29, 2005, and witnessed Roberts at a McDonald‘s parking lot in Salyersville taking a black garbage bag out of the back of Manns‘s vehicle and placing it in his own truck. With respect to Counts 11 and 12, Chaney testified regarding his purchase of half an ounce of cocaine directly from Manns and his regular purchases of pain pills containing hydrocodone from Manns. The evidence regarding Count 13 consists of statements at trial regarding a videotape recording of a drug transaction that took place on April 12, 2005. With respect to Count 15, Chaney testified regarding a scheme involving the purchase of Oxycontin from Manns and the use of the money to obtain bail for Tackett. With respect to Count 17 regarding the growing of marijuana plants, Ray identified Government Exhibit 26 as the fifty-three marijuana plants seized from Manns‘s residence.
Steven Ryan Tackett, a cousin of Tackett‘s ex-husband and Manns‘s cellmate in a maximum-security prison, also testified at trial that Manns offered him $10,000 to murder either Tackett or Roberts and $20,000 to kill them both. The district judge instructed the jury:
You‘ve also heard the testimony of Steven Tackett, that after the crime was supposed to have been committed the defendant attempted to have Kristy Coleman Tackett and Clarence Roberts murdered.
If you believe that the defendant attempted to have Kristy Coleman Tackett and Clarence Roberts murdered, then you may consider this conduct along
with all of the other evidence in deciding whether the government has proved beyond a reasonable doubt that Mr. Manns committed the crime charged. This conduct may indicate that he thought he was guilty and was trying to avoid punishment.
J.A. at 204 (Trial Tr. Vol. 3-203).
In submitting the case to the jury, the district court rejected the motion made by Manns‘s attorney, at the close of the government‘s proof, for a judgment of acquittal pursuant to
even based on the light most favorable to the United States . . . a reasonable jury could not return a verdict of guilty on this proof because there‘s not been proof beyond a reasonable doubt, in that the proof is those were transactions that were engaged in between Kristy Tackett and the informant, Will Chaney. There was no evidence presented that Mr. Manns was involved or present for any of these transactions.
J.A. at 201 (Trial Tr. Vol. 3–124). Manns‘s attorney further argued that the cocaine distribution charges depended on the testimony of Chaney, who did not have sufficient credibility to justify submitting the evidence to the jury. Manns‘s attorney argued that insufficient evidence existed to show that the marijuana plants seized belonged to Manns. Finally, Manns‘s attorney argued:
With regards to Counts 1 and 2, because to some extent the evidence on those rises and falls with regard to the other counts in the indictment because of the issues that were raised with regard to the witnesses on those counts, I think that the proof, even in the light most favorable to the government, would not allow the Court to submit those charges to the jury.
Id. at 202 (Trial Tr. Vol. 3–125).
Following trial, on November 8, 2006, a jury convicted Manns on Counts 1, 2, 4, 5, 6, 7, 9, 10, 11, 12, 13, 15, and 17. The district court sentenced Manns to 276 months of imprisonment, ten years of supervised release, a $1300 assessment, and a $250,000 fine.1 Manns filed a timely notice of appeal.
II. ANALYSIS
As an initial matter, before addressing Manns‘s arguments challenging his convictions and sentence, we must consider whether the district court had authority to amend the original judgment. The district judge filed an amended judgment to correct a clerical error regarding the duration of Manns‘s terms of imprisonment on Counts 1, 2, 4, 6, 10, 11, 13, 15, and 17. Because the district court filed the amended judgment on May 23, almost two months after delivering the oral sentence on March 26, the district court did
Instead, the district court asserted authority to amend the judgment pursuant to
A. Denial of Motion for Judgment of Acquittal Pursuant to Rule 29(a)
We review de novo the district court‘s decision to deny Manns‘s motion for judgment of acquittal. United States v. Gibson, 896 F.2d 206, 209 (6th Cir. 1990). In reviewing the sufficiency of the evidence, “the relevant question is 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “A defendant making such a challenge bears a very heavy burden.” United States v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999).
To prove participation in a drug conspiracy in violation of
Manns argues that the evidence is insufficient “to establish that [he] was involved in a conspiracy to distribute more than 1,000 kilograms of marijuana, Count 1, or that [he] was involved in any specific drug distribution, Counts 4, 6, 10, 13, and 15.” Defendant-Appellant Br. at 12. Specifically, Manns argues that the government could not produce any direct evidence showing Manns involved in drug transactions but rather produced evidence solely relating to transactions between Tackett and Chaney.3 We conclude, however, that Manns‘s arguments must fail because the prosecution can establish a conviction based solely on circumstantial evidence, and “uncorroborated testimony of an accomplice may support a conviction in federal court.” Spearman, 186 F.3d at 746. Tackett, Roberts, and Chaney all testified extensively regarding Manns‘s numerous sales of large quantities of marijuana, Oxycontin, cocaine, and hydrocodone.
Furthermore, Manns‘s claim of insufficient evidence regarding Count 1 is limited to a challenge to witness credibility. In making a Rule 29(a) motion at the close of the government‘s evidence, Manns‘s attorney argued that because “to some extent” the evidence regarding Count 1 “rises and falls with regard to the other counts in the indictment because of the issues that were raised with regard to the witnesses on those counts . . . the proof . . . would not allow the Court to submit those charges to the jury.” J.A. at 202 (Trial Tr. Vol. 3-125). “Although specificity of grounds is not required in a Rule 29 motion . . . where a Rule 29 motion is made on specific grounds, all grounds not specified are waived.” United States v. Dandy, 998 F.2d 1344, 1356-57 (6th Cir. 1993). Here, Manns‘s attorney specified that the incredibility of the witnesses formed the grounds for the Rule 29 motion regarding Count 1, and did not specify any other basis for the motion on this count.
Credibility challenges, however, speak “to the quality of the government‘s evidence and not to the sufficiency of the evidence.” United States v. Farley, 2 F.3d 645, 652 (6th Cir. 1993). “[D]etermining the credibility of witnesses is a task for the jury, not this court.” United States v. Beverly, 369 F.3d 516, 532 (6th Cir. 2004). Although “exceptional circumstances” may warrant the trial judge assuming the function of credibility assessment normally reserved for the jury, Farley, 2 F.3d at 652, there is nothing to suggest that such circumstances exist in this case. “[I]n reviewing a defendant‘s claim of insufficiency, we draw all available inferences and resolve all issues of credibility in favor of the jury‘s verdict.” United States v. Maliszewski, 161 F.3d 992, 1006 (6th Cir. 1998). As a result, a defendant‘s “attack on the credibility of prosecution
B. Testimony of Steven Tackett
Manns argues that the district court erred when it admitted testimony by Steven Tackett regarding Manns‘s alleged threats against the lives of Tackett and Roberts. We apply a tripartite standard in reviewing the district court‘s decision to admit evidence of “other acts” under
We find unconvincing Manns‘s arguments that his alleged statement to Steven Tackett does not constitute admissible spoliation evidence and that its unfair prejudicial impact outweighed its probative value. “Spoliation is defined as the intentional destruction of evidence that is presumed to be unfavorable to the party responsible for its destruction.” United States v. Copeland, 321 F.3d 582, 597 (6th Cir. 2003) (quoting BLACK‘S L. DICT. 1401 (6th ed. 1990)). In United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986), we held that “[t]hough not listed in Rule 404(b), spoliation evidence, including evidence that defendant attempted to . . . threaten[] a witness, is admissible to show consciousness of guilt.”4 Id. Since Mendez-Ortiz, we have reiterated that spoliation evidence regarding the defendant‘s threats to witnesses is admissible. See United States v. Blackwell, 459 F.3d 739, 768 (6th Cir. 2006); Copeland, 321 F.3d at 597; United States v. Fortson, 194 F.3d 730, 737 (6th Cir. 1999); United States v. Maddox, 944 F.2d 1223, 1230 (6th Cir. 1991).
Manns argues that the cases affirming the admission of evidence respecting threats to witnesses are distinguishable because in those cases the defendants made threatening statements directly to witnesses whereas in the instant case Manns communicated the threat to his cellmate. This is a strained argument. In Copeland, the spoliation evidence at issue involved a statement by the defendants’ cellmate that he had overheard the defendants discussing plans to hire someone to harm the Assistant United States Attorney. 321 F.3d at 597. Our conclu-
Manns further argues that the prejudicial effect of the statement outweighed its probative value and thus that the district court should have excluded the evidence pursuant to
C. Calculation of Marijuana Quantity in Sentencing
Manns contends that his sentence should be vacated because the district court erred by finding that Manns conspired to distribute “at least” 1,000 kilograms of marijuana. J.A. at 209 (Sent. Hr‘g Tr. at 6). We review the district court‘s factual findings for clear error. United States v. Hazelwood, 398 F.3d 792, 795 (6th Cir. 2005).
Manns argues that the district court improperly relied on the testimony of Roberts for the calculation when other portions of Roberts‘s testimony were not credible. Manns‘s argument is foreclosed because the district court based its sentence respecting Count 1 on the same quantity of drugs that the jury concluded Manns was guilty of conspiring to distribute. “The district court cannot ignore the jury‘s findings as to drug quantity unless there is insufficient evidence to support those findings.” United States v. Ricketts, 317 F.3d 540, 545 (6th Cir. 2003). Because sufficient evidence
III. CONCLUSION
For the foregoing reasons, we AFFIRM Manns‘s convictions and sentence.
UNITED STATES of America, Plaintiff-Appellant, v. David L. HAMMON, Sr., Respondent-Appellee.
No. 06-4607.
United States Court of Appeals, Sixth Circuit.
May 6, 2008.