United States Court of Appeals
For the Eighth Circuit
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No. 16-3739
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Leroy Shumaker
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: May 12, 2017
Filed: August 9, 2017
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Before RILEY, BEAM, and SHEPHERD, Circuit Judges.
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BEAM, Circuit Judge.
Leroy Shumaker appeals his conviction and sentence for possession with intent
to distribute methamphetamine, in violation of 21 U.S.C. § 841, claiming that the
district court1 improperly denied his motion for a judgment of acquittal and motion
for a new trial. For the reasons discussed below, we affirm.
I. BACKGROUND
On May 7, 2015, officers received information that a trailer located at
Shumaker's residence contained a stolen rain-gutter machine. The officers also had
information that Shumaker may have been involved in selling narcotics. Two officers
arrived at Shumaker's residence around 3:00 p.m. and noticed a woman outside. The
officers asked to speak with Shumaker inside his residence but he declined and
stepped outside. He told the officers that he was storing the trailer for a friend and
consented to a search of the trailer. The officers found the stolen rain-gutter machine
inside the trailer. Shumaker agreed to go to the police station and answer questions.
One officer remained at the house to tow the trailer. During the interview at the
police station, Shumaker stated that he was holding the trailer for Troy Rickard.
After the interview with Shumaker, an officer met with the owner of the stolen
rain-gutter machine who informed the officer that additional items were stolen.
Officers then obtained a search warrant for Shumaker's residence. During this time,
two officers watched the entire perimeter of the residence to ensure no one left or
entered the residence. Officers returned to Shumaker's residence later in the day and
executed the search warrant. The officers assigned to secure the residence testified
that no one had come or gone from the residence after Shumaker left. Because no one
was in the residence and the front door was locked, officers entered through the porch
window. The following items were found in the residence: three packages of
methamphetamine in varying quantities, money totaling $1,214, plastic baggies, two
drug scales, three drug ledgers, large baggies with methamphetamine residue, a pair
1
The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.
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of tweezers, a Twigs Glass and Gift business card, a lighter, and a pipe. Sixty $20
bills, 28.84 grams of methamphetamine, a scale, and drug records were found in a
kitchen cabinet. Officers located a bill addressed to Shumaker in the living room of
the residence. There was no evidence that anyone other than Shumaker lived in the
residence.
On March 22, 2016, a federal grand jury returned a one-count indictment
charging Shumaker with possession with intent to distribute methamphetamine, in
violation of 21 U.S.C. § 841. He pled not guilty, and trial commenced on June 14,
2016. At trial, an officer testified that the baggies found in Shumaker's residence
were "designer Ziplock baggies" that he had only seen used for transporting narcotics.
The officer also stated that the large quantity of drugs, along with packaging
materials, scales, ledgers, and currency, found in Shumaker's residence was clearly
indicative of drug sales. At the close of the government's case, Shumaker moved for
dismissal, claiming the government failed to meet its burden. The court denied the
motion.
Teresa Forbes, who knew Shumaker through her sign company and fruit stand,
testified on Shumaker's behalf that she knew he used illegal substances but never saw
him with large quantities. She also testified that she had seen "Bailey" at Shumaker's
residence with large quantities of drugs. Shumaker testified that he has been using
methamphetamine regularly for the past 35 years and that Briley Gonzalez, Troy
Rickard, and Sonja Smithberg were his drug dealers. He further testified that when
the police officers arrived at his house on May 7, 2015, Veronica Lopez was outside
and Gonzalez, his current methamphetamine supplier, was doing laundry inside his
residence. Shumaker speculated that the methamphetamine found in his kitchen was
left by Gonzalez because he claimed it was not there when he left to go to the police
station. On rebuttal Rickard testified that when his main methamphetamine supplier
was not available, his girlfriend, Smithberg, introduced him to Shumaker. Rickard
further testified that he went to Shumaker's house and purchased methamphetamine
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from Shumaker three times in late 2014 or in the winter of 2015. Rickard specifically
noted that Shumaker kept the methamphetamine and scale in a cabinet in the kitchen.
He described the residence and location of the methamphetamine before officers
showed him any pictures or told him they found methamphetamine in the residence.
Rickard pleaded guilty to possession with intent to distribute methamphetamine and
agreed to cooperate with the government in hopes of receiving a reduced sentence.
The case was submitted to the jury on the morning of June 16, 2016, and the
jury returned a guilty verdict 6.5 hours later. The jury was polled at Shumaker's
request, and each juror affirmed the verdict. With an offense level of 32 and a
criminal history category III, Shumaker's United States Sentencing Guidelines range
was 151 to 188 months' imprisonment. Shumaker objected to the quantity of
methamphetamine for which he was held accountable, as well as the enhancement
imposed for obstruction of justice. He also filed a motion to set aside the verdict and
a motion for a new trial. Shumaker argued that he had recently been able to find
utility bills showing that utilities were not placed in his name until February 2015.
He also attached an affidavit from his landlord stating that Shumaker did not occupy
the residence until late March or April of 2015, both facts Shumaker argued negated
any inference that he dealt drugs during the time frame presented by the prosecution.
The district court addressed these motions at the sentencing hearing,
specifically noting that Rickard testified that he purchased methamphetamine from
Shumaker in late 2014 and in the winter of 2015. The district court stated that late
March in Nebraska could be considered winter. Moreover, the district court found
it particularly instructive that Rickard "pinpointed the location of the
methamphetamine, where the defendant was storing it at the time of a sale to Rickard,
as the exact same place in the vertical column cabinetry outside the kitchen. And that
corresponded with where law enforcement later found the drugs." The district court
denied his motion for a new trial and advised Shumaker of the three-year statute of
limitations for motions for new trials, suggesting that he may be able to file a motion
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later with more evidence. The district court denied the motion objecting to the drug
quantity but sustained his objection to the obstruction of justice enhancement. Based
on the new Guidelines range of 121 to 151 months' imprisonment, Shumaker was
sentenced to 121 months' imprisonment to be followed by a three-year term of
supervised release. Shumaker now appeals arguing that the district court erred in (1)
denying his motion for a judgment of acquittal, and (2) denying his motion for a new
trial based on newly discovered evidence.
II. DISCUSSION
A. Motion for Judgment of Acquittal
Shumaker argues that the trial court erred in denying his motion for a judgment
of acquittal because the evidence presented at trial was insufficient to support his
conviction. We disagree. "In reviewing the sufficiency of the evidence to support
a guilty verdict, we look at the evidence in the light most favorable to the verdict and
accept as established all reasonable inferences supporting the verdict." United States
v. Augustine, 663 F.3d 367, 373 (8th Cir. 2011) (quoting United States v. Campa-
Fabela, 210 F.3d 837, 839 (8th Cir. 2000)). We review a district court's denial of a
motion for judgment of acquittal de novo. Id. However, "[w]e review a challenge to
the sufficiency of the evidence deferentially . . . and affirm if any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt." Id.
(alterations in original) (quoting United States v. Goodyke, 639 F.3d 869, 872 (8th
Cir. 2011)).
"Jury verdicts are not lightly overturned," United States v. Hilliard, 490 F.3d
635, 640 (8th Cir. 2007) (quoting United States v. Anwar, 428 F.3d 1102, 1108 (8th
Cir. 2005)), and here, the evidence was more than sufficient to support the jury's
conviction. Shumaker was the sole occupant of the residence where officers found
more than 40 grams of methamphetamine and drug distribution materials. While
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Shumaker accompanied officers to the police station for further questioning regarding
the stolen rain-gutter machine, officers were called to Shumaker's residence to ensure
no one entered or left the residence. When officers arrived later to execute the search
warrant, they were forced to enter through a window because both the basement and
front doors were locked. Shumaker argues that the methamphetamine found in the
residence belonged to his supplier, Gonzalez, who was doing laundry at the residence.
However, there was no evidence that anyone else lived at the residence, and officers
testified that no one came or went from the residence while it was under police
surveillance. Moreover, Rickard testified that he purchased large quantities of
methamphetamine from Shumaker at the residence on three separate occasions and
described in detail the location in the kitchen where Shumaker stored the
methamphetamine. Shumaker argues Rickard's testimony should have been given
minimal, if any, weight because "he is a drug dealer" and "[h]is testimony was being
offered to procure a benefit, for himself." Although that may be true, "[t]he jury's
credibility determinations are virtually unreviewable on appeal." United States v.
Aldridge, 664 F.3d 705, 715 (8th Cir. 2011). And here, as discussed above,
Shumaker's conviction was not based solely on Rickard's testimony. Viewing the
evidence in the light most favorable to the jury verdict, there was sufficient evidence
to support the jury's guilty verdict.
B. Motion for New Trial Based on Newly Discovered Evidence
Shumaker also argues that the district court erred in denying his motion for a
new trial based on new evidence that he was not in possession of the residence at the
time of the alleged transactions with Rickard. We disagree. This court reviews a
district court's denial of a motion for a new trial based on newly discovered evidence
for clear abuse of discretion. United States v. Baker, 479 F.3d 574, 577 (8th Cir.
2007). "The standard for a new trial on this basis is 'rigorous' because these motions
are 'disfavored.'" Id. (quoting United States v. Dogskin, 265 F.3d 682, 685 (8th Cir.
2001)).
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To obtain a new trial on the basis of newly discovered evidence, we
require the moving party to demonstrate that "(1) the evidence is in fact
newly discovered since trial; (2) diligence on his part; (3) the evidence
is not merely cumulative or impeaching; (4) the evidence is material to
the issues involved; and (5) it is probable that the new evidence would
produce an acquittal at the new trial."
United States v. Bell, 761 F.3d 900, 911 (8th Cir. 2014) (quoting United States v.
Myers, 503 F.3d 676, 682-83 (8th Cir. 2007)).
At sentencing, Shumaker stated that since trial, he had been able to collect
utility bills showing that he was not in possession of the residence until February
2015. He also submitted an affidavit from his landlord, which stated that the landlord
did not believe that Shumaker occupied the residence until March or April of 2015.
At trial, Rickard testified that he purchased methamphetamine from Shumaker three
times in late 2014 or winter of 2015. In addressing Shumaker's motion, the district
court pointed out that late March could very well be considered winter in Nebraska
and that it failed to see that how the alleged inconsistency was "pivotal." Rather, the
key aspect of Rickard's testimony was that he "pinpointed the location of the
methamphetamine, where the defendant was storing it at the time of a sale to Rickard,
as the exact same place in the vertical column cabinetry outside the kitchen" where
officers later found methamphetamine during their search. Although Shumaker's new
information potentially calls into question when Shumaker moved into the residence,
or set up utilities, it does not contradict Rickard's testimony about where Shumaker
kept his methamphetamine. The newly discovered evidence was not material to the
issues involved and would not have produced an acquittal at a new trial. At best, the
newly discovered evidence was impeaching. Thus, the district court did not abuse its
discretion in denying Shumaker's motion for a new trial.
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III. CONCLUSION
The judgment of the district court is affirmed.2
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2
We deny Shumaker's pro se motion for substitution of counsel.
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