[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13950 ELEVENTH CIRCUIT
JUNE 11, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00090-CR-T-23-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULES P. GACHETTE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 11, 2010)
Before PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Jules Gachette appeals his convictions for distribution of cocaine base
within 1,000 feet of a playground, and distribution of 5 grams or more of cocaine
base, both in violation of 21 U.S.C. § 841(a)(1). He asserts that there was
insufficient evidence to prove, beyond a reasonable doubt, that he was in fact the
individual involved in the charged crimes, since the undercover detectives did not
arrest him immediately upon purchasing the drugs, the detectives’ description of
the perpetrator did not match his physical description, and he was identified in part
with a mug shot and a driver’s license photo some time after the drug purchase.
Upon review of the record and consideration of the parties’ briefs, we affirm.
We review de novo whether there is sufficient evidence to support a jury’s
verdict, viewing the evidence “in the light most favorable to the government, with
all reasonable inferences and credibility choices made in the government’s favor.”
United States v. Calderon, 127 F.3d 1314, 1324 (11th Cir. 1997). As this Court
has observed:
“It is not necessary that the evidence exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt, provided that a reasonable trier of fact
could find that the evidence established guilt beyond a reasonable
doubt. A jury is free to choose among the constructions of the
evidence.”
Id. (quoting United States v. Hardy, 895 F.2d 1331, 1334 (11th Cir. 1990)).
“‘[C]redibility determinations are the exclusive province of the jury,’” and
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we must accept them unless the testimony is incredible as a matter of law. Id. at
1325 (quoting United States v. Parrado, 911 F.2d 1567, 1571 (11th Cir. 1990)). A
witness’s testimony is considered incredible as a matter of law only if it is
“unbelievable on its face,” in that it relates to “facts that the witness physically
could not have possibly observed or events that could not have occurred under the
laws of nature.” Id. (internal quotation marks and alteration omitted).
To convict a defendant of distribution of cocaine base, the government must
prove beyond a reasonable doubt that the defendant knowingly or intentionally
distributed or dispensed cocaine base. 21 U.S.C. § 841(a)(1).
Three undercover detectives testified that they witnessed Gachette involved
in one or both of the charged drug transactions. Each testified that he had no doubt
that Gachette was the individual who on each occasion sold the substance later
identified as crack cocaine. Because the detectives’ testimony was not incredible
as a matter of law, we must accept the jury’s determination that the testimony was
credible. See Calderon, 127 F.3d at 1325. Viewing the evidence in the light most
favorable to the government and drawing all credibility determinations in the
government’s favor, we conclude that there was sufficient evidence for a
reasonable trier of fact to find beyond a reasonable doubt that Gachette knowingly
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and intentionally distributed cocaine base within 1,000 feet of a playground, and
that he distributed 5 grams or more of cocaine base on a separate occasion.
AFFIRMED.
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