[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14826 ELEVENTH CIRCUIT
JUNE 4, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 06-00422-CR-JEC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REGGIE ANDREWS, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 4, 2009)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Reggie Andrews, Jr., appeals his conviction for one count of armed bank
robbery, in violation of 18 U.S.C. § 2113(a), (d), and one count of use of a firearm
during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). He argues
that his codefendants’ testimony against him was incredible and that there were
discrepancies in the other witnesses’ descriptions of the robbers, such that the
evidence was insufficient to support his conviction.
Where, as here, the defendant fails to make a motion for judgment of
acquittal at the close of all evidence, he forecloses any review of sufficiency of the
evidence, except where a miscarriage of justice would result. United States v.
Tapia, 761 F.2d 1488, 1491 (11th Cir. 1985) (internal quotation marks and citation
omitted) (per curiam). The miscarriage-of-justice standard “require[s] a finding
that the evidence on a key element of the offense is so tenuous that a conviction
would be shocking.” Id. at 1492 (internal quotation marks and citation omitted).
We will affirm a guilty verdict “unless no trier of fact could have found guilt
beyond a reasonable doubt.” United States v. Toler, 144 F.3d 1423, 1428 (11th
Cir. 1998) (citation omitted).
We draw all reasonable inferences and credibility determinations in favor of
the government. United States v. Ellisor, 522 F.3d 1255, 1271 (11th Cir. 2008).
“[T]he jury is free to choose between or among the reasonable conclusions to be
drawn from the evidence presented at trial. . . .” Id. (quoting United States v.
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Browne, 505 F.3d 1229, 1253 (11th Cir. 2007)). Because credibility
determinations are within the exclusive province of the jury, we will not overturn
them unless the testimony was incredible as a matter of law. United States v.
Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997) (citations omitted). A government
witness’s testimony is only incredible as a matter of law if it is “unbelievable on its
face,” meaning that it describes “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, alterations, and citation omitted). “[T]he fact that the
witness has consistently lied in the past, engaged in various criminal activities, and
thought that his testimony would benefit him does not make his testimony
incredible.” Id. (internal quotation marks, alterations, and citations omitted).
In order to convict a defendant for armed bank robbery, the government
must prove beyond a reasonable doubt that he (1) took money or property
(2) belonging to a bank (3) from the person or presence of another (4) by force and
violence or by intimidation. 18 U.S.C. § 2113(a). Section 2113(d) further requires
proof beyond a reasonable doubt that the defendant put a person’s life in jeopardy
by using a dangerous weapon or that he assaulted a person during commission of
the bank robbery. Id. at § 2113(d). “The use of a gun [during the robbery] is per
se sufficient cause to impose the enhanced sentence” in § 2113(d). United States v.
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Tutt, 704 F.2d 1567, 1569 (11th Cir. 1983) (internal quotation marks and citation
omitted) (per curiam). In order to convict Andrews under § 924(c), the
government was required to prove beyond a reasonable doubt that he (1)
committed a federal crime of violence and (2) brandished a firearm “during and in
relation to” that crime. 18 U.S.C. § 924(c)(1)(ii).
Upon review of the record and consideration of the parties’ briefs, we
affirm. The government presented ample evidence in support of Andrews’
conviction. Not only did the government offer the testimony of multiple witnesses
to the robbery, the testimony of Andrews’ codefendants implicating Andrews, and
the testimony of a sergeant in the United States Army who Andrews used as an
alibi, the government presented significant physical evidence linking Andrews to
the crime.
The government presented evidence that Andrews entered the Wachovia
carrying a shotgun and duffel bag, while wearing a ski mask and gloves; that he
pointed a shotgun at the tellers and a customer; and, that one of Andrews’
codefendants struck that customer with his own shotgun. The government also
presented evidence that Andrews instructed the tellers to put their money into the
duffel bag and that he was holding the bag when the dye packs exploded during the
escape. Physical evidence, including Andrews’ DNA on the dye-stained gloves,
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and cellular telephone records corroborated the various witnesses’ testimony.
None of the witnesses’ testimony was incredible as a matter of law, and the jury
was free to choose among the reasonable conclusions to be drawn from all the
evidence. Drawing all reasonable inferences in favor of the jury’s verdict, none of
the evidence on any element of the offenses is tenuous.
For the foregoing reasons, we affirm Andrews’ convictions.
AFFIRMED.
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