United States v. Harbin ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40324
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM DURAN HARBIN; WILLIAM DAVID HARBIN,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Texas
(C-01-CR-221-2)
December 3, 2002
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
William Duran Harbin and William David Harbin (the Harbins)
appeal their convictions for conspiracy to possess and possessing
marijuana with the intent to distribute, in violation of 21 U.S.C.
§§ 846 and 841(a)(1).
First, they assert the convictions violate Wharton’s Rule.
Because this contention is raised for the first time on appeal, it
*
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that this opinion should not be published and is not precedent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.
is reviewed only for plain error. E.g., United States v. Vonn, 122
S. Ct. 1043, 1046 (2002).
The Harbins have not demonstrated any error, plain or
otherwise. Wharton’s Rule bars conspiracy convictions when the
underlying substantive offense cannot be committed without
cooperative action. United States v. Payan, 992 F.2d 1387, 1390
(5th Cir. 1993). The Harbins’ assertion that their possession with
intent to distribute offense required a plurality of criminal
agents is incorrect. Needless to say, this offense does not
require the cooperation of two persons. See 21 U.S.C. § 841(a)(1);
United States v. Miller, 146 F.3d 274, 280 (5th Cir. 1998).
The Harbins next challenge the sufficiency of evidence to
support their convictions. Assuming this issue was preserved at
trial, evidence is sufficient if, “after viewing the evidence in
the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt”. Jackson v. Virginia, 443 U.S. 307, 319
(1979)(emphasis in original). The Harbins only contend they cannot
be convicted on co-conspirator Gilberto Olivarez’s testimony
because Olivarez is a felon, has a reputation for lying, and
testified in exchange for leniency at his sentencing.
Even assuming the Harbins’ convictions were based solely on
Olivarez’s testimony, the verdict may be sustained unless
Olivarez’s testimony is incredible as a matter of law — that the
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testimony asserted “facts that the witness physically could not
have observed or events that could not have occurred under the laws
of nature”. United States v. Gadison, 8 F.3d 186, 190 (5th Cir.
1993) (internal punctuation and citation omitted); United States v.
Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994), cert. denied 513 U.S.
1156 (1995) & 514 U.S. 1097 (1995).
The Harbins have not made that showing. Instead, they simply
challenge his general credibility. This court will not overturn a
jury’s credibility determination. See United States v. Restrepo,
994 F.2d 173, 182 (5th Cir. 1993).
AFFIRMED
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