United States v. Jeromy David Swift , 222 F. App'x 863 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 15, 2007
No. 05-13729 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00190-CR-ORL-19-DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEROMY DAVID SWIFT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 15, 2007)
Before ANDERSON, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Jeromy David Swift appeals his conviction of possession with intent to
distribute methamphetamine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C). He argues that
the district court erroneously denied his motion for judgment of acquittal, because
weaknesses in the testimony of James Snowden, a confidential informant on whose
testimony the government relied, would have left a reasonable jury with reasonable
doubt that he was guilty. We affirm.
Snowden testified that Swift provided him with methamphetamine on two
occasions. On both occasions, Snowden then gave the methamphetamine to law
enforcement officers. Snowden also testified that, on another occasion, he
witnessed Swift receive a large quantity of methamphetamine, weigh it, and divide
it into six or eight smaller bags that Swift described as samples. The government
also presented as evidence a tape-recorded conversation in which Snowden asked
Swift to see what price Swift could get for three to four ounces of
methamphetamine. Swift placed a cellular phone call and arranged to meet
someone, after which he told Snowden, “I’ll find out a price, and I’ll find out
tomorrow.”
Swift argues that two weaknesses in Snowden’s testimony should have led
the jury to find the entirety of his testimony incredible and, without Snowden’s
testimony, the evidence was not sufficient to support his conviction. First,
Snowden testified that on the first occasion Swift provided him with
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methamphetamine, he “immediately” turned it over to Agent Errich Barrett of the
Drug Enforcement Administration, but later testimony established that Agent
Barrett was out of town when the sale was made and Snowden did not turn the
sample over to him until several days after he first received it. Second, Snowden
testified that on the other occasion Swift provided methamphetamine to Snowden,
Swift “took off” from the building they were in after the sale, but none of the six
law enforcement officers who were watching the building saw Swift exit the
building. Because the electronic surveillance equipment Snowden was wearing
malfunctioned, Snowden’s testimony was the only evidence supporting this drug
transaction.
We review the denial of a motion for judgment of acquittal de novo, drawing
all reasonable inferences in favor of the government. United States v. Perez-Tosta,
36 F.3d 1552, 1556 (11th Cir. 1994). We give juries wide latitude to determine the
credibility of witnesses, United States v. Cravero, 530 F.2d 666, 670 (5th Cir.
1976), and will disregard a witness’s testimony as inherently incredible only when
it is “unbelievable on its face” or “so contrary to the teachings of human
experience that no rational person could believe it,” United States v. Jones, 913
F.2d 1552, 1559 n.7 (11th Cir. 1990).
Snowden’s testimony was not inherently incredible. The jury was entitled to
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find that when Snowden said he immediately turned over the first quantity of
methamphetamine to Agent Barrett, Snowden meant that he turned it over at the
first available opportunity. It is also not unbelievable on its face, or contrary to
human experience, to believe that Swift left the building without being noticed by
law enforcement.
Viewing this and all of the evidence in the light most favorable to the
government, there was sufficient evidence to support Swift’s conviction. “In order
to convict [Swift] of possession with intent to distribute methamphetamine, the
Government had to establish three elements: (1) knowledge; (2) possession; and
(3) intent to distribute.” United States v. Gamboa, 166 F.3d 1327, 1331 (11th Cir.
1999) (internal quotation marks omitted). The evidence established that Swift
provided Snowden with methamphetamine on two occasions; arranged a meeting
in preparation for providing him with methamphetamine on a third occasion; and
received, weighed, and divided into several bags a large quantity of
methamphetamine on yet another occasion. A reasonable jury was entitled to find
that Swift knowingly possessed methamphetamine for the purpose of distributing
it.
AFFIRMED.
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