United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 22, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-50330
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRELL DEWAYNE DAVIS;
DERRICK TOMMY ROBINSON,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Texas
USDC No. W-00-CR-25-1
Before GARWOOD, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Darrell Dewayne Davis and Derrick Tommy Robinson
(collectively, “the defendants”) appeal their convictions and
sentences for conspiracy to possess with intent to distribute at
least fifty grams or more of crack cocaine in violation of 21
U.S.C. §§ 841 and 846. The defendants argue that: (1) the district
*
Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
court erred in admitting evidence of drug transactions that took
place prior to the dates of the conspiracy alleged in the
indictment; (2) the district court committed plain error by
allowing the case agent to testify concerning information that he
received from an informant; (3) the evidence is insufficient to
support the convictions; and (4) the district court erred in
sentencing them based upon drug quantities provided by cooperating
individuals.
The defendants argue that the district court erred in
admitting evidence of acts that occurred outside of the dates
specified in the indictment as the dates of the conspiracy. The
evidence introduced by the Government established the connection
between the witnesses and the defendants and provided the jury with
necessary background information about how they met and became
involved in drug activities. This evidence constituted admissible
intrinsic evidence. See United States v. Miranda, 248 F.3d 434,
440-41 (5th Cir.), cert. denied, 534 U.S. 980 (2001). Accordingly,
the district court did not abuse its discretion in admitting the
evidence.
The defendants argue that the district court erred in allowing
Officer Reginald Johnson to testify as to what an informant told
him in response to the prosecutor’s question as to why he began his
investigation of the defendants, alleging this testimony
constituted inadmissible hearsay. Because the defendants failed to
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object to this testimony or otherwise preserve the issue below,
this court’s review is for plain error. United States v. Morrow,
177 F.3d 272, 295-96 (5th Cir. 1999). Thus, reversal is
appropriate only if the alleged error was obvious, substantial,
and, if not corrected, would “seriously affect the fairness,
integrity, or public reputation of judicial proceedings.” Id. The
verdict must be left in “grave doubt” to require reversal due to an
improperly admitted statement. Koteakos v. United States, 66 S.Ct.
1239, 1248 (1946). Far from calling the verdict into serious
question, the testimony of Officer Johnson regarding the tip of the
informant that triggered the investigation was likely harmless
because there was a mountain of cumulative testimonial and physical
evidence establishing the defendants’ guilt. Further, the
informant’s tip concerned activity well before the date on which
the charged conspiracy between the defendants began and upon
defendants’ objection to other testimony related to defendants’
activity prior to the conspiracy, the trial court gave a limiting
instruction to the jury that such evidence is only for purposes of
background. For these reasons, any error in admitting Johnson’s
statement was negligible and certainly was not so manifestly unjust
as to cast serious doubt on the verdict.
The defendants argue that the evidence against them is
insufficient to support their convictions. The defendants contend
that the evidence was inconsistent and based upon conjecture by two
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of the Government’s main witnesses. Because the defendants did not
renew their motions for judgment of acquittal at the close of all
evidence, or in a post-trial motion, review “is limited to
determining whether there was a manifest miscarriage of justice.”
United States v. McIntosh, 280 F.3d 479, 483 (5th Cir. 2002)
(internal quotation and citation omitted).
This court will not disturb the jury’s credibility
determinations. See United States v. Wise, 221 F.3d 140, 147 (5th
Cir. 2000). The record in this case contains ample evidence from
which the jury could conclude that the defendants were involved in
a conspiracy to possess with the intent to distribute at least
fifty grams or more of crack cocaine. Accordingly, the defendants
have not demonstrated that the record is devoid of evidence of
their guilt and have thus failed to show a manifest miscarriage of
justice. See McIntosh, 280 F.3d at 483.
Finally, the defendants argue that the trial court erred in
sentencing them based on the drug quantities listed in the PSR
because those quantities were based on the unreliable testimony of
the Government’s two main witnesses. The defendants contend that
this testimony should have been discounted by the district court.
An appellate court defers to the district court’s credibility
calls made at a sentencing hearing. See United States v. Perez,
218 F.3d 323, 331-32 (5th Cir. 2000). The defendants did not
testify at the sentencing hearing, nor did they present any
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evidence to rebut the drug quantities set forth in the PSR.
Accordingly, they have not demonstrated that the district court’s
findings as to drug quantity were “materially untrue.” See United
States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996).
AFFIRMED.
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