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United States v. Brewer

filed: June 26, 1991.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JAMES RAY BREWER, DEFENDANT-APPELLANT



Appeal from the United States District Court for the District of Arizona; Richard M. Bilby, District Judge, Presiding; D.C. No. CR-88-248-TUC-RMB.

Hug, Schroeder, and Wiggins, Circuit Judges.

MEMORANDUM

James Ray Brewer appeals his conviction, following a jury trial, for conspiracy to import marijuana, importation of 1200 pounds of marijuana, conspiracy to distribute marijuana and possession of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 963, 952(a), 960(a)(1) and (b)(2), 846, and 841(a)(1) and (b)(6), respectively. He claims that the district court erred in denying his motion for a judgment of acquittal under Fed. R. Crim. P. 29(a), and that there was insufficient evidence to convict him. Specifically, he contends that the testimony of two of his co-conspirators, which was not corroborated by other evidence, contained such inconsistencies as to render it incredible and therefore insufficient to support a guilty verdict.

Brewer's argument that there was insufficient evidence to sustain his conviction is based wholly on his assertion that, because the case against him was built on the uncorroborated testimony of his co-conspirators, it should not have gone to the jury at all. The sole issue before us, therefore, is whether the district court's decision to allow the jury to decide whether the co-conspirators' testimony proved Brewer guilty beyond reasonable doubt was error.

Uncorroborated testimony of a co-conspirator is a sufficient basis for a conviction provided that such testimony is not "patently incredible." United States v. Whitten, 706 F.2d 1000, 1007 (9th Cir. 1983), cert. denied, 465 U.S. 1100 (1984). Brewer claims that the co-conspirator testimony offered against him should have been rejected under this test. The basis for his assertion is that there were some inconsistencies between the statements of the two co-conspirators, as well as inconsistencies between the trial testimony and pretrial statements of one co-conspirator. These inconsistencies, however, do not render the testimony so incredible as to warrant its removal from the jury's consideration. As long as the uncorroborated testimony of an accomplice is not "inherently implausible," the decision to believe or disbelieve it is the proper province of the jury. United States v. Foster, 711 F.2d 871, 877 (9th Cir. 1983), cert. denied, 467 U.S. 1103 (1984). Such testimony is sufficient to support a conviction even where it is "heavily impeached by prior inconsistent statements." Id. External inconsistencies similarly do not render uncorroborated accomplice testimony incapable of supporting a conviction. Suhl v. United States, 390 F.2d 547, 552 (9th Cir.), cert. denied, 391 U.S. 964 (1968). Once defense counsel points out the internal contradictions and external inconsistencies, as defense counsel did here, the assessment of the credibility of the testimony is the province of the jury. Id.

Brewer's final suggestion is that when one adds to these internal and external inconsistencies the fact that both witnesses received favorable treatment from the government, the credibility of that testimony is entirely undermined. Again, however, the effect of such favors on the witnesses' credibility is to be determined by the jury. As long as the testimony is not facially incredible, the fact that the accomplice benefits by testifying does not warrant a decision by the court that the testimony should not be considered. Suhl, 380 F.2d at 550-52. See also United States v. Lopez, 803 F.2d 969, 973 (9th Cir. 1986) (untrustworthiness of accomplice and contradiction does not render accomplice's testimony "incredible on its face"), cert. denied, 481 U.S. 1030, reh'g denied, 483 U.S. 1012 (1987).

Since the determination concerning the credibility of uncorroborated testimony such as that at issue here must be made by the jury, which may reasonably decide to believe it, Brewer's argument that the evidence against him was insufficient to support his conviction must fail. The testimony at trial was not patently unbelievable; therefore, the jury's decision to believe it should not be disturbed. Whitten, 706 F.2d at 1007. Accord Lopez, 803 F.2d at 973; Foster, 711 F.2d at 877.

AFFIRMED.

19910626

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